In Politics, Aristotle issued a timeless warning: ‘Man, when perfected, is the best of animals but, when separated from law and justice, he is the worst of all.’ (Source: The Politics of Aristotle as translated by B. Jowett (Clarendon Press, Oxford, 1885), page 5.)
Since antiquity, Aristotle’s point has been illustrated on countless occasions, none more brutally than during the Second World War from 1939 to 1945.Under the iron leadership of Adolf Hitler, the armed forces of Germany marched into, invaded, occupied, purportedly partitioned or purportedly annexed a multitude of territories.
In the German-occupied parts of Poland, the Soviet Union and elsewhere, Germany also engaged in crude acts of demographic engineering forming part of a broader programme of ‘Germanisation’. It was against this background of cold-bloodedness that the Holocaust and other horrors unfolded.
In the immediate aftermath of the Second World War, some of the gruesome details were laid bare before the International Military Tribunal in Nuremberg and in its judgment handed down on 30 September and 1 October 1946. All these years later, that judgment remains of central importance, not least to anybody seeking to gain a better understanding of the point which Aristotle was making in Politics.
To quote one particularly pertinent passage of the judgment of the Nuremberg Tribunal, which relates to the demographic engineering procured in the German-occupied parts of Poland and the Soviet Union, the Germans inflicted ‘mass murders and cruelties’ as ‘part of a plan to get rid of whole native populations by expulsion and annihilation, in order that their territory could be used for colonization by Germans. …’. (Source: Trial of the Major War Criminals Before the International Military Tribunal, Nuremberg, 14 November 1945 – 1 October 1946, Volume I: Official Documents (International Military Tribunal, Nuremberg, 1947), page 237.)
Article 49 of the Fourth Geneva Convention of 1949
In view of the injustice which was meted out to so many states and to so many people during the Second World War – and during the preceding First World War – the victorious Allies of 1945 oversaw a dynamic legal backlash during the mid-to-late 1940s. In addition to the adoption of the Nuremberg Charter in 1945, which gave rise to the Nuremberg Tribunal, the backlash resulted in the adoption of other landmark legal instruments. These included the Charter of the United Nations of 1945 and the Genocide Convention of 1948, as well as the Universal Declaration of Human Rights of 1948.
It is no accident that the Preamble of the United Nations Charter of 1945 includes noble commitments ‘to save succeeding generations from the scourge of war’, ‘to reaffirm faith in fundamental human rights’ and ‘to establish conditions under which justice and respect for the obligations arising from treaties and other sources of international law can be maintained …’. The reader will note how the United Nations Charter connects law with justice and with the humanity inherent in fundamental human rights.
It was in this broader historical context that on 12 August 1949 four Conventions were adopted in Geneva, the home city of the International Committee of the Red Cross. As pointed out in 1957 by Viscount Kilmuir – the then Lord Chancellor and Head of the Judiciary, who was also a former prosecutor at the Nuremberg Tribunal – the four Geneva Conventions were designed to be ‘a comprehensive and up-to-date code of rules for the protection’ of ‘four classes’ of ‘victims of war’ or armed conflict.
Thus, the first Geneva Convention of 1949 is dedicated to ‘the Wounded and Sick in Armed Forces in the Field’, the second to ‘Wounded, Sick and Shipwrecked Members of Armed Forces at Sea’, the third to ‘the Treatment of Prisoners of War’ and the fourth to ‘the Protection of Civilian Persons in Time of War’. All in all, to quote Viscount Kilmuir once again, the four Geneva Conventions embody many ‘rules of conduct’ which are ‘in accordance with the highest demands of humanity.’ (Source: Hansard, House of Lords Debates, 25 June 1957, Column 349.)
Partly as a means of prohibiting inhumane demographic engineering of the type graphically described by the Nuremberg Tribunal in its judgment handed down in 1946, Article 49 of the Fourth Geneva Convention of 1949 contains two specific prohibitions.
The first prohibition is in Article 49(1): ‘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. …’. Notwithstanding the prohibition in Article 49(1) of the Fourth Geneva Convention, Article 49(2) authorises an Occupying Power to ‘undertake total or partial evacuation of a given area if the security of the population or imperative military reasons so demand.’ However, Article 49(2) is subject to a number of strict conditions. These include the following: ‘Persons thus evacuated shall be transferred back to their homes as soon as hostilities in the area in question have ceased.’
The second prohibition in Article 49 of the Fourth Geneva Convention of 1949 is in Article 49(6): ‘The Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies.’
The above two prohibitions form part of a broader effort in the Fourth Geneva Convention to minimize the adverse effect of any war or armed conflict upon ‘protected persons’. In this regard, mention must be made of Article 4; this defines ‘protected persons’ as being ‘those who, at a given moment and in any manner whatsoever, find themselves, in case of a conflict or occupation, in the hands of a Party to the conflict or Occupying Power of which they are not nationals. …’. It follows that ‘protected persons’ may include unarmed civilians who are the citizens of a sovereign state which is the subject of an invasion by another sovereign state.
Let us now take a closer look at Article 49(1) of the Fourth Geneva Convention and its prohibition against ‘Individual or mass forcible transfers, as well as deportations … regardless of their motive.’ To this end, reference may be made to a judgment handed down on 24 March 2016 by the United Nations International Criminal Tribunal for the Former Yugoslavia (‘ICTY’) in the historic case involving the prosecution of Radovan Karadzic, the Bosnian Serb leader during the erstwhile conflict in the Former Yugoslavia.
In its judgment (which is now the subject of an appeal), the ICTY found that Mr Karadzic ‘bears individual criminal responsibility’ for inter alia ‘deportation, a crime against humanity (Count 7)’ and for ‘inhumane acts (forcible transfer), a crime against humanity (Count 8)’. These findings were reached in the light of inter alia Article 2 of the Statute for the ICTY which, with reference to the four Geneva Conventions of 1949, incorporates a prohibition against ‘unlawful deportation or transfer or unlawful confinement of a civilian’. Article 5 of the Statute for the ICTY also incorporates a prohibition against ‘inhumane acts’ which are ‘directed against any civilian population’.
In its judgment in the case of Karadzic, not only did the ICTY underline that a crime against humanity is committed whenever a deportation or an inhumane act such as a forcible transfer is committed contrary to international humanitarian law. In addition, the ICTY cited judgments in earlier cases in order to reiterate the following established principles which help to determine whether an unlawful deportation or forcible transfer has arisen, as a matter of fact, during a conflict:
‘Deportation [‘across a de jure border’] and forcible transfer [‘within national boundaries’] are defined as: (i) the forced displacement of one or more persons by expulsion or other forms of coercion, (ii) from an area in which they are lawfully present, (iii) without grounds permitted under international law. …’.
As regards the intent necessary for the crime of deportation or forcible transfer to be committed, the ICTY noted the following in its judgment in the case of Karadzic: ‘Deportation and forcible transfer do not require intent that the victims be displaced permanently, only that they be intentionally displaced.’ (Source: Judgment of the ICTY in Prosecutor v Radovan Karadzic, 24 March 2016, paragraphs 488-493 and 3524. The judgment has been published by the ICTY at www.icty.org/x/cases/karadzic/tjug/en/160324_judgement.pdf last accessed on 2 January 2017.)
The relevance of Article 49 (1) to the Turkish invasion launched on 20 July 1974 and the subsequent occupation
By 1974, the State Parties to the Fourth Geneva Convention of 1949 included the Republic of Cyprus and all three of its guarantor powers under the Treaty of Guarantee of 1960, i.e. Greece, Turkey and the United Kingdom. Accordingly, on the basis that an armed conflict began upon the launch of the Turkish invasion of the Republic of Cyprus on 20 July 1974 – if not upon the unlawful coup instigated in Nicosia on 15 July 1974 by Greece which was governed at the time by a military junta – all parties to the conflict were under a legal duty to comply with the Fourth Geneva Convention of 1949. Indeed, Article 1 of the Fourth Geneva Convention imposes a strict duty ‘to respect and to ensure respect for the present Convention in all circumstances.’
To limit its length, the analysis which follows in this article concerns itself with one specific question. On or after 20 July 1974, were any forcible transfers procured within the frontiers of the Republic of Cyprus, contrary to Article 49(1) of the Fourth Geneva Convention of 1949?
Bearing in mind the clarification provided by the ICTY, it would appear that, on or after 20 July 1974, forcible transfers – and, thus, crimes – might have arisen in the Republic of Cyprus in at least two circumstances: firstly, whenever any invading armed forces unlawfully frog-marched civilians away from their homes at the barrel of a gun; and, secondly, whenever any civilians fled from their homes in fear amid a climate of coercion caused, for instance, by the approach of invading armed forces.
Credible evidence exists to support the proposition that forcible transfers were indeed procured on or after 20 July 1974. A prime example, among several which could be adduced, is a declassified telegram sent on 5 August 1974 by the then British High Commissioner in Nicosia, Stephen Olver, to the British Foreign Office in London. To quote High Commissioner Olver:
‘A transfer of the Greek Cypriot population out of the Kyrenia area is going on steadily. This is undoubtedly considered Turkish policy and people are being told that they will never come back. This is tragic, and we must obviously do what we can to contest these forced evictions.’ (Source: FCO 9/1920, National Archives of the UK. The author thanks Ms Fanoulla Argyrou for helping him to trace this document during his latest visit to the National Archives.)
The above evidence suggests that in the aftermath of the first phase of the Turkish invasion of the Republic of Cyprus, many civilians were arbitrarily uprooted from their homes and driven away from their neighborhoods because of their ethnicity or religion or both. More specifically, bearing in mind the principles reiterated by the ICTY in the case of Karadzic, such civilians appear to have been the victims of ‘(i) … forced displacement … [by means of] expulsion or other forms of coercion, (ii) from an area in which they are lawfully present, (iii) without grounds permitted under international law. …’. No less importantly, such civilians also appear to have been the victims of military action with the ostensible aim of intentionally displacing them from ‘an area’.
This injustice was – and remains – an affront to the dignity of these victims of criminal misconduct. They became victims for one immediate reason. International humanitarian law, as laid down in Article 49(1) of the Fourth Geneva Convention, was not adhered to when it mattered most i.e. when Article 49(1) was most relevant and, accordingly, when it should have been obeyed.
In consequence, the people of the Kyrenia area mentioned by High Commissioner Olver – in common with so many other citizens of the Republic of Cyprus from both of its constitutionally sanctioned communities – were unjustly denied the protection to which they were entitled under the law. In addition, they suffered a cruel fate which was not unlike the cruel fate of the people who were unjustly uprooted from their homes by invading German forces in Poland, the Soviet Union and other parts of Europe during the Second World War.
On 13 August 1974, Turkey rejected the allegation that any people had been ‘driven out of their homes’ in the areas occupied by Turkey on or after 20 July 1974. In its view, as expressed by the foreign minister of Turkey at the time, such persons had not been forcibly transferred or deported from the Turkish-occupied area. Instead, they had ‘emigrated’.
This Turkish denialism is to be found in the declassified British ‘Record’ of a ‘meeting’ held in, of all places, Geneva, at 6.40pm on 13 August 1974, i.e. on the very eve of the second phase of the Turkish invasion. The ‘meeting’ was attended by British Foreign Secretary James Callaghan, his Greek and Turkish counterparts, Messrs Mavros and Gunes, Mr Glafcos Clerides (representing the Greek Community of the Republic of Cyprus) and Mr Rauf Denktash (representing the Turkish Community). To quote from the salient passage of the British ‘Record’ of the ‘meeting’:
‘Mr Clerides interposed that thousands of Greek Cypriots had been driven out of the areas occupied by Turkish armed forces. Women and children had been sent over to the Greek side [sic.], separated from their husbands who were still detained by the Turks. He [i.e. Mr Clerides] sympathized with Mr Gunes’ concern about [the] evacuation of Turkish Cypriot villages by the National Guard [of the Republic of Cyprus]; he hoped that Mr Gunes would show similar sympathy for the 28,000 Greek Cypriots expelled from the occupied area, and requested that those who were still detained should be released.
‘Mr Gunes [the foreign minister of Turkey] said that these people had not been driven out of their homes’; they had ‘emigrated’. …’.
(Source: Keith Hamilton and Patrick Salmon (Historians of the Foreign & Commonwealth Office) (eds.), British Documents on British Policy Overseas Series III, Volume V: The Southern Flank in Crisis 1973-1976 (Routledge on behalf of The Stationery Office, Abingdon, 2014), Document 76, pages 224 to 242.)
During the early hours of 14 August 1974, a few minutes after the above exchange of views, the ‘meeting’ in Geneva came to an abrupt end and the second phase of the Turkish invasion of the Republic of Cyprus began.
‘ … too close to Hitler …’
As the second phase of the Turkish invasion unfolded from 14 until 16 August 1974, tens of thousands of other people involuntarily vacated their homes – primarily because they were directed to do so by invading Turkish forces or because they fled in fear before the arrival of these forces at their doorsteps. By the time of the cease-fire announced on 16 August 1974, Turkey had managed to occupy and, to a considerable though not complete extent, ‘ethnically cleanse’ approximately 37 per cent of the territory and 57 per cent of the coastline of the Republic of Cyprus.
According to the Foreign Ministry of the Republic of Cyprus, ‘about 180,000 Greek Cypriots’ – that is to say ‘a third’ of the total population of the Republic of Cyprus – ‘were displaced’ ‘while the Turkish Cypriots were compelled to move to the occupied part of the island in compliance with Turkey’s policy of ethnic segregation.’
(Source: ‘Brief Introduction to the Cyprus Question’ published by the Foreign Ministry of the Republic of Cyprus at www.mfa.gov.cy/mfa/embassies/embassy_beijing.nsf/DMLcyquest_en/DMLcyquest_en?Opendocument last accessed on 2 January 2017.)
The above broadly tallies with what may be found in other sources. An example is the ‘Factual Background’ in the judgment of the English Court of Appeal case handed down in 1998. In the carefully chosen words of Lord Justice Mummery (with whom Lord Justice Potter and Lord Justice Nourse agreed):
‘In the summer of 1974 Turkey invaded the island. By 16 August 1974 it had occupied a large area in the north amounting to just over one third of the whole island (the occupied area). Many members of the Greek Cypriot community in the occupied area fled, in fear of armed force, from their homes and businesses to other parts of the island.’ [Source: Polly Peck International Plc v Marangos Hotel Company Ltd  EWCA Civ 789.]
As occurred when Germany occupied Czechoslovakia in March 1939 in breach of the Munich Agreement of September 1938 (to which the United Kingdom was a party), the executive branch of government in the United Kingdom did not cover itself in any glory when, in 1974, Turkey occupied substantial parts of the Republic of Cyprus in breach of the Treaty of Guarantee of 1960 (to which the United Kingdom was a party). After all, as occurred in March 1938, the United Kingdom responded to the start of both phases of the Turkish invasion by failing to take any meaningful military action to prevent an aggressor from achieving its military objectives. This despite Article II of the Treaty of Guarantee of 1960 under which ‘Greece, Turkey and the United Kingdom … recognise and guarantee the independence, territorial integrity and security of the Republic of Cyprus …’.
In the light of the above, was the United Kingdom in any way responsible for any violations of Article 49(1) of the Fourth Geneva Convention or for Turkey de facto reaping the ill-gotten rewards of any such violations? In addition, was the United Kingdom in any way responsible for lending a veneer of international legitimacy to one of the core objectives of the Turkish invasion, namely the formation of a segregated post-settlement ‘federal’ Cyprus built on the demographic realities generated by de facto demographic engineering?
The reader may draw his or her own conclusions, particularly after perusing the extract below from a declassified British ‘Record’ of an extraordinary telephone conversation conducted at 1.45pm on 14 August 1974 by the then British Foreign Secretary, James Callaghan MP, and the then American Secretary of State, Dr Henry Kissinger. The telephone conversation was conducted as the second phase of the Turkish invasion was in full swing and as atrocities, forcible transfers and other crimes were apparently being committed in flagrant breach of international law. To quote from the British ‘Record’ of the conversation:
‘Foreign Secretary [Callaghan]: Henry, if I can put the position in a nutshell, I think it comes to this: that the Turks have got a good case. In my view this can now only be resolved by the creation of a zone. A zone in which they will have autonomy within a federal republic. This could be got by negotiation but in the temper of today, no one can begin to get anything like this. And so you have a military solution for the time being, in which they will police their own boundary. You’ll have a great exchange of population with the Greeks moving out and we’ll then just let diplomacy take over when we see the opportunity once more, to see if we can get a peaceful solution in the island. Now as regards Greece and Turkey, it is Greece who will need massaging because the Turks are too jingoistic, indeed too close to Hitler for my liking. All right?
‘Dr Kissinger: I completely agree with you, Jim. And the tragedy is that it could have worked out that way through diplomacy …
‘Foreign Secretary [Callaghan]: I believe you. Well, goodbye old man and all the best to you with your pre-occupations. …’.
(Source: PREM 16/20, National Archives of the UK. The author of this article traced the original of this document after spotting a reference to it in William Mallinson, Britain in Cyprus (I.B. Tauris, London, 2011), pages 67-70. The author hereby records his gratitude to Dr Williamson.)
To repeat, even though Foreign Secretary Callaghan had disclosed that, in his view, ‘the Turks’ were ‘too close to Hitler’ for his ‘liking’, Mr Callaghan and the government in which he served did not take any military action to honour the solemn British guarantee embodied in Article II of the Treaty of Guarantee of 1960 i.e. to ‘guarantee the independence, territorial integrity and security of the Republic of Cyprus’. In the view of this author, not only was the British failure to honour this guarantee unethical and arguably unlawful. It was ungallant and, indeed, un-British. More to the point, this failure formed part of the backdrop to what appear to have been the commission of grave violations of the Fourth Geneva Convention and other instruments of international law.
On and after 20 July 1974, did Turkey pursue a ‘determined policy of exterminating and deracinating’, as alleged by the Republic of Cyprus on 6 December 1974?
After the cease-fire proclaimed on 16 August 1974, Ambassador Zenon Rossides, the Representative of the Republic of Cyprus to the United Nations from 1960 until 1979, submitted letter after letter to the United Nations in which he described the alleged crimes and other indignities inflicted upon the Republic of Cyprus and its citizens. A prime example is a lengthy letter, dated 6 December 1974. Therein, Ambassador Rossides incorporated many allegations into a single document which expressly invoked the Geneva Conventions of 1949 as part of an effort to demonstrate that Turkey had pursued a ‘determined policy of exterminating and deracinating’. To quote some salient extracts from the said letter of Ambassador Rossides:
‘ … The invaders are not content with occupation and control; they are actively and systematically engaged in a determined policy of exterminating and deracinating from their ancestral homes the Greek Cypriot people, namely 80 per cent of the indigenous population of the area, and usurping their lands, their properties, the produce of their labours and literally all their belongings with the sinister and wholly obvious aim of changing the demographic character of the island. …
‘In the execution of this plan, the invader has committed a whole series of international crimes, namely:
‘1. Cold-blooded killings through mass executions and individual murders of hundreds of innocent civilians – men, women and children – in undefended towns and villages …
‘2. Mass forcible transfer and deportation to Turkey of citizens of the Republic from the occupied area in violation of international law, and more specifically of the Geneva Conventions of 1949 to which both Turkey and Cyprus are parties. …
- Expulsion and uprooting by the use of armed force of hundreds of thousands of civilians from their homes and properties in violation of international law, the [Fourth] Geneva Convention of 1949, the Hague Regulations of 1907 and the Protocol to the European Convention of Human Rights of 1950. …’.
To his letter of 6 December 1974, Ambassador Rossides provided an Annex embodying a catalogue of alleged ‘atrocities, mass executions and murders in cold blood, rapes and other indignities’. (Source: United Nations Security Council Document S/11569, United Nations Archive.)
More than forty years later, does the Republic of Cyprus still stand by the allegations set out in the letter of Ambassador Rossides, dated 6 December 1974? Perhaps the President of the Republic can clarify.
In the meantime, it would be remiss of the author not to observe that in the aftermath of the Turkish invasion, other allegations were submitted in writing to the Secretary-General of the United Nations by Turkey and by the leadership of the Turkish Community in the Republic of Cyprus. These allegations, no less than those submitted by the Republic of Cyprus, should have been the subject of proper investigations in the interests of international humanitarian law, criminal justice and the truth. In this context, it should never be forgotten that, since the outbreak of inter-communal upheaval in 1963, the victims of criminal misconduct in the Republic of Cyprus have included many members of the Turkish Community, as well as many members of the Greek Community. Justice is supposed to be blind. Consequently, all victims of injustice, irrespective of ethnicity or religion, are entitled to justice and this article has been composed in that spirit.
Back in 1974 and in subsequent years, official allegations of criminal misconduct in the Republic of Cyprus tended to be filed with the then Secretary-General of the United Nations, Dr Kurt Waldheim. Notwithstanding the efforts of the United Nations peacekeeping and police forces in the Republic of Cyprus – and no criticism is directed at those forces in this article – these allegations seemed to cut little ice with Dr Waldheim. To put it mildly, Dr Waldheim did not respond as robustly to these allegations as he might have done. Nor, it seems, did he call for let alone oversee the formation of an ad hoc international criminal tribunal of the type established, for example, in Nuremberg in relation to Germany in 1945 or in The Hague in relation to the Former Yugoslavia pursuant to United Nations Security Council Resolution 827 of 25 May 1993.
In this context, it may be noted that Resolution 827 called for ‘the establishment as an ad hoc measure … of an international tribunal’ relating to the Former Yugoslavia and for ‘the prosecution of persons responsible for serious violations of international humanitarian law’. Resolution 827 assessed that such steps ‘would contribute to the restoration and maintenance of peace’.
The fact remains that Dr Waldheim did not oversee – and, it seems, did not call for – the adoption of any similar Resolution in the context of the Republic of Cyprus. Why?
Part of the answer may lie in the background of Dr Waldheim. As is now known, Dr Waldheim wormed his way to the top of the United Nations after misleading the world as to his wartime whereabouts and activities. In fact, Dr Waldheim was a former Austrian intelligence officer who had served in Hitler’s Wehrmacht at a time when German armed forces were committing grave crimes in German-occupied Greece, Yugoslavia and other parts of Europe where he was deployed. Indeed, in ‘the considered opinion’ of the Office of Special Investigations of the US Department of Justice, in a declassified report completed in 1987 – the year in which Dr Waldheim was put on a ‘watch-list’ of persons prohibited from entering the United States – Lieutenant Kurt Waldheim had inter alia ‘… “assisted, or otherwise participated in the persecution of … persons because of race, religion, national origin or personal opinion.” …’. (Source: In The Matter of Kurt Waldheim, Office of Special Investigations, Criminal Division, US Department of Justice, 9 April 1987, at page 3.)
In the light of the above, it is arguable, to say the least, that when Dr Waldheim received allegations of criminal misconduct in the Republic of Cyprus in the months and years after the launch of the Turkish invasion on 20 July 1974, he was in the professionally embarrassing position of receiving allegations which were not unlike the acts of criminal misconduct perpetrated by the German armed forces in which he had served during the Second World War. For this and other reasons, Dr Waldheim appeared to have a conflict of interests.
Mr Rauf Denktash’s call for the ‘removal’ of people to the Turkish-occupied area
Since 1964, as explained in further detail below, Turkey and the leadership of the Turkish Community had sought to transform of the Republic of Cyprus into a ‘federation’ based on two separate ‘communities’ and two segregated ‘zones’. Partly as a result of the strategy agreed over the telephone by Messrs Callaghan and Kissinger on 14 August 1974, as described above, and partly as a result of the diplomacy of Dr Waldheim, the wheels of post-invasion international diplomacy began to turn in a direction which was favourable to this Turkish strategy. In consequence, law and justice effectively became subordinate to diplomacy, politics and the search for a negotiated ‘settlement’.
It was against this post-invasion diplomatic background that the leadership of the Turkish Community encouraged if not coerced many members of the Turkish Community to vacate their homes or places of refuge south of the cease-fire line and to make their way to the Turkish-occupied area north of that line. To illustrate this point, one may refer to a letter dated 2 September 1974 and signed by Rauf Denktash on the letter-headed paper of the Vice-President’s Office of the Republic of Cyprus. Therein, Mr Denktash alleged that ‘hideous crimes’ had been ‘committed by Greek and Greek Cypriot gunmen against unarmed Turkish civilians of all ages’. Mr Denktash made these allegations, in part, as a prelude to calling, in effect, for the ‘removal’ of members of the Turkish Community from south of the cease-fire line to ‘the Turkish region’ as Mr Denktash described the Turkish-occupied area north of the cease-fire line.
To quote the salient passage of the letter of Mr Denktash:
‘I appeal to you [i.e. the Secretary-General of the United Nations] for immediate instructions to be given to UNFICYP patrols to visit all Turkish villages in Greek areas and to let us have news about the Turkish inhabitants living there as a matter of routine pending their removal to the Turkish region [sic.]. These people live in daily-terror of their lives and news of the discovery of such mass murders only increases their agony. …’. (Source: Expanded Number S-0903-0006-03-00001, Container 0903-0006: Peacekeeping – Cyprus 1971-1981, United Nations Archive. This file has been published by the UN Archives at https://search.archives.un.org/uploads/r/united-nations-archives/c/8/3/c83a6786b8bf9374d9df34c8a3609fb9bb38e9f12e05003fba20f71850127a25/S-0903-0006-03-00001.pdf last accessed on 2 January 2017.)
Over subsequent months, the ostensible ‘removal’ of people from south to north – and vice versa – ensured that a near complete de facto segregation of citizens accompanied the de facto ‘bi-zonal’ partition of the territory of the Republic of Cyprus. Further evidence to this effect may be found in a declassified United Nations telegram dated 26 April 1976. It was co-written in capital letters by Mr Peres de Cuellar, the then Special Representative of the Secretary-General in Cyprus (and a future Secretary-General of the United Nations), together with Brigadier-General Clayton E. Beattie, the officer serving at the time as Commander of the Canadian contingent in UNFICYP:
‘1. FLOW OF GKCYPS [i.e. members of the Greek Community of the Republic of Cyprus] TO SOUTH CONTINUES UNABATED AS NOTED IN DAILY SITREPS.
‘2. TURN OF BELLAPAIS, LAST GKCYP VILLAGE OF CONSEQUENCE IN KYRENIA AREA, APPEARS TO HAVE COME. SINCE 20 APRIL  FIFTY-SEVEN HAVE MOVED SOUTH, INCLUDING ELEVEN ON 26 APRIL , LEAVING 334.
‘3. ACCORDING TO GKCYP MUKHTAR AND TKCYP POLICE ELEMENT IN KYRENIA, AND CONFIRMED BY DIPLOMATIC SOURCES, BELLAPAIS IS TO BE EMPTIED WITHIN ONE MONTH WITH REMAINING 20 GKCYPS IN MYRTOU. THESE EVACUATIONS WOULD VIRTUALLY END GKCYP PRESENCE IN KYRENIA REGION.’
(Source: Series 0898, Box 6, File 5, Acc. DAG 1/126.96.36.199., United Nations Archives. This file has been published by the UN Archives at https://search.archives.un.org/uploads/r/united-nations-archives/e/e/1/ee1e60840f57159c6f90def08238c6ea3ef1ef4f4cefcca96a0821d0b90b526a/S-0898-0006-05-00001.pdf last accessed on 2 January 2017.)
In due course, as predicted in the above telegram, Bellapais was ‘emptied’. Indeed, as The Economist noted on 4 September 1976 with reference to the celebrated book by Lawrence Durrell, Bitter Lemons, the departure of the last Greek inhabitants from Bellapais had converted the village into ‘a bitter lemon squeezed dry’.
In common with the ethnic cleansing of Kyrenia District and other parts of the Republic of Cyprus, the cruel fate of Bellapais encapsulates what can go wrong when the rule of law is poisoned by a lethal cocktail of illegality, impropriety, inhumanity and injustice. The upshot is a stain on the conscience of humanity.
To make matters altogether worse – and as already hinted at above – the apparent prevalence of forcible transfers in the aftermath of 20 July 1974 was compounded by what seems to have been a failure to launch effective investigations under domestic or international criminal law into all of the grave allegations made in that aftermath. That said, on a number of occasions, United Nations military or police personnel did launch their own investigations, but these efforts were often frustrated by the restrictions placed in their path. To illustrate this point, it suffices to quote from a passage of a report dated 5 June 1976 and completed by Dr Kurt Waldheim, the then Secretary-General of the United Nations:
‘UNCIVPOL [i.e. the United Nations Civilian Police] has continued to receive complaints that Greek Cypriots in the north are being subjected to pressure to move to the south and that their property is subject to confiscation. The Greek Cypriots complain that they are coerced into signing applications to leave the region with warnings that those who do not do so will be moved anyway, but without their personal possessions. Because of the existing restrictions, UNCIVPOL has been able to do little to investigate such complaints. The Turkish Cypriot side maintains that all Greek Cypriots moving to the south do so of their own free will without any pressure and that complaints are often made both to discredit the Turkish Cypriot side and to secure displaced person benefits in the south. The agreed procedure for screening applications for transfers (S/12031, para. 5) does not appear to function effectively. UNFICYP has no possibility of verifying whether people wish to leave.’ (Source: United Nations Security Council Document S/12093 of 5 June 1976, paragraph 27.)
At this point, mention must be made of Article 6 of the Fourth Geneva Convention:
‘The present Convention shall apply from the outset of any conflict or occupation mentioned in Article 2.
‘In the territory of Parties to the conflict, the application of the present Convention shall cease on the general close of military operations.
‘In the case of occupied territory, the application of the present Convention shall cease one year after the general close of military operations; however, the Occupying Power shall be bound, for the duration of the occupation, to the extent that such Power exercises the functions of government in such territory, by the provisions of the following Articles of the present Convention: 1 to 12, 27, 29 to 34, 47, 49, 51, 52, 53, 59, 61 to 77, 143. …’.
In other words, notwithstanding the cease-fire proclaimed on 16 August 1974, Article 49 and other relevant provisions of the Fourth Geneva Convention continued to be applicable in the Turkish-occupied area of the Republic of Cyprus. Indeed, on the basis that the so-called ‘Turkish Republic of Northern Cyprus’ (purportedly established in 1983) is a subordinate administration of Turkey, the Occupying Power, Article 49 and the other provisions specified in Article 2 will continue to be applicable in the Turkish-occupied area for so long as that area remains occupied by Turkey.
The relevance of Article 49 (6) to the Turkish invasion launched on 20 July 1974 and the subsequent occupation
All of which brings us to the second prohibition embedded in Article 49 of the Fourth Geneva Convention of 1949. To recap, this is the unqualified prohibition found in Article 49(6) of the Fourth Geneva Convention, which provides as follows: ‘The Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies.’ As pointed out by the International Court of Justice in an Advisory Opinion handed down in 2004: ‘That provision prohibits not only deportations or forced transfers of population such as those carried out during the Second World War, but also any measures taken by an occupying Power in order to organize or encourage transfers of parts of its own population into the occupied territory.’ (Source: Advisory Opinion on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, International Court of Justice, 9 July 2004, at page 51.)
It hardly needs stating that Turkey stands accused of pursuing a sustained post-1974 policy of colonizing the Turkish-occupied part of the Republic of Cyprus, contrary to Article 49(6). (See, for instance, Illegal Demographic Changes (Ministry of Foreign Affairs of the Republic of Cyprus, Nicosia, 2006) published online at www.mfa.gov.cy/mfa/mfa2016.nsf/mfa15_en/mfa15_en?OpenDocument&print last accessed on 31 December 2016.)
Interestingly enough, there is contemporaneous documentary evidence to support the proposition that Turkey began violating Article 49(6) of the Fourth Geneva Convention of 1949 within days of the cease-fire proclaimed on 16 August 1974. This evidence is to be found a declassified US State Department record of a meeting held in Washington DC on 27 August 1974. Therein, Sir John Killick, the then Deputy Under-Secretary in the British Foreign and Commonwealth Office, is recorded as disclosing the following: ‘There are a number of difficult points such as the movement of Greeks from Turkish zones and the settlement of certain Turkish mainlanders in former Greek zones.’
(Source: Laurie Van Hook (ed.), Foreign Relations of the United States, 1969-1976, Volume XXX Greece Cyprus; Turkey, 1973-1976 (US State Department, Washington DC, 2007), Document 146 at pages 470 to 481.)
‘The Turkish and Greek regions of Cyprus shall be homogeneous …’
Against an undignified background characterised by what appear to have been wholesale violations of Article 49(1) and Article 49(6) of the Fourth Geneva Convention, Turkey and the leadership of the Turkish Community responded to the Turkish invasion by calling for the legalisation of the de facto demographic realities generated by the two phases of the Turkish invasion.
On the one hand, Turkey and the leadership of the Turkish Community reiterated their long-standing post-1964 call for the Republic of Cyprus to be transformed into ‘a Federation composed of two Federated States’. (See, for example, ‘the Proposals made by the Turkish Cypriot Members of the Expert Committee set up by the first Vienna Conference on 28 April 1975’ at Annex B on page 6 of UN Security Council Document S/12093 of 5 June 1976.)
On the other hand, Turkey and the leadership of the Turkish Community effectively called for what may be described as legalised apartheid, legalised segregation and legalised discrimination. This call formed part of a broader Turkish diplomatic attempt to secure the legalisation of the illegal consequences of what appear to have been multiple violations of Article 49 of the Fourth Geneva Convention of 1949 and other provisions and principles of international law. After all, the stated objectives of this Turkish policy were to ensure inter alia (i) that members of the Turkish Community (and, it would seem, colonists from Turkey) would legally inhabit one ‘homogenous’ geographical ‘zone’ in the north of a post-settlement Cyprus and (ii) that the members of the Greek Community would inhabit a separate ‘homogeneous’ geographical ‘zone’ in the south.
Evidence to support the above propositions may be found in various sources. A prime example is a letter dated 25 May 1976 and submitted to the representative of the United Nations Secretary-General by Umit, S. Onan, an official representative of the Turkish Community. The letter envisaged that in the event of any settlement:
‘(a) The Turkish and Greek regions of Cyprus shall be homogeneous both demographically and geographically. (b) In view of past experiences, the boundary line of the Turkish region shall be of such nature as to enable the two communities to coexist peacefully side by side and to meet the security requirements of the Turkish community. …’.
(Source: ‘Letter dated 25 May 1976 from the representative of the Turkish Cypriot community [Umit S. Onan] addressed to the Special Representative of the [United Nations] Secretary-General’, paragraph 6. See Annex F of the Report of the Secretary-General pursuant to Security Council Resolution 391 (1976), UN Security Council Document S/12093 of 5 June 1976.)
It is somewhat ironic, yet in keeping with the broader picture of injustice painted in this article, that the above words were composed in a letter dated 25 May 1976, that is to say less than three months before 18 July 1976 on which latter date the International Convention on the Suppression and Punishment of the Crime of Apartheid Convention of 1973 (‘the Crime of Apartheid Convention of 1973’) came into force.
All of which begs at least two questions.
Firstly, why, in contrast to 109 other states, have Turkey, Greece, the United Kingdom and the Republic of Cyprus never become State Parties to the Crime of Apartheid Convention of 1973? (Source: Official website of the United Nations Treaty Collection at: https://treaties.un.org/PAGES/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-7&chapter=4&clang=_en (last accessed on 2 January 2017.)
Secondly, why did Turkey and the leadership of the Turkish Community pursue a strategy which appears to have been contrary to the spirit and the letter of Article 49(1) of the Fourth Geneva Convention of 1949 and contrary to the spirit and the letter of the Crime of Apartheid Convention of 1973?
In relation to the second question posed above, what is not in any reasonable doubt is that the consequences of the Turkish invasion were consistent with the segregationist tenets of pre-invasion Turkish strategy.
Pre-1974 Turkish strategy: the key to understanding the nature and effect of the Turkish invasion of 1974
To understand properly the segregationist tenets of pre-invasion Turkish strategy, it is necessary to go back to 1956 and to Turkey’s embrace of partition on the back of a British initiative at a time when Cyprus was still a British Crown Colony. (For details, see inter alia Klearchos A. Kyriakides, ‘The Lennox-Boyd statement of 19 December 1956 and the origins of the proposed ‘bi-communal, bi-zonal federation in Cyprus’, Agora Dialogue, 27 December 2016 available at: http://agora-dialogue.com/2016/12/27/the-lennox-boyd-statement-of-19-december-1956-and-the-origins-of-the-proposed-bi-communal-bi-zonal-federation-in-cyprus/ last accessed on 2 January 2017.)
The crux of post-1956 Turkish strategy was neatly summarised on 26 June 1958 by Harold Macmillan MP, the then Prime Minister of the United Kingdom. This evidence enables one to understand the roots of a Turkish strategy which appears to have been adjusted in 1964 and implemented by means of forcible transfers on and after 20 July 1974. To quote Prime Minister Macmillan:
‘The Turks — I am putting their view — regard Cyprus as an extension of the Anatolian Plain, a kind of offshore island with vital significance for their defence and their security. They say — this has been their argument up to now — that the Turkish-Cypriot community must not be ruled by a Greek-Cypriot community and they have advocated the physical separation of the two communities by means of a territorial partition.’ (Source: Statement of Prime Minister Harold Macmillan MP, Hansard, House of Commons Debates, 26 June 1958, Columns 724-725.)
By 1964, in the aftermath of the constitutional crisis of 1963 and the seismic inter-communal upheaval which followed, Turkish strategy was modified in favour of a segregationist form of ‘federation’, as distinct from a pure ‘territorial partition’. More specifically, this Turkish strategy called for the transformation of the Republic of Cyprus into a ‘federal’ republic consisting of two separate ‘communities’ and two segregated ‘zones’ pursuant to a ‘compulsory exchange of population’ under which one ‘zone’, in the north, would be populated by Turks while the other ‘zone’, in the south, would be populated by Greeks.
Post-1964 Turkish strategy was graphically identified and described in the Report, dated 26 March 1965, by Dr Galo Plaza, the then UN Mediator on Cyprus. To quote some salient passages from the Report.
‘… In short, they [i.e. the leadership of the Turkish community of the Republic of Cyprus] wished [the Turkish community] to be physically separated from the Greek community. … Their proposal envisaged a compulsory exchange of population in order to bring about a state of affairs in which each community would occupy a separate part of the island. The dividing line was in fact suggested: to run from the village of Yalia on the north-western coast through the towns of Nicosia in the centre, and Famagusta in the east. The zone lying north of this line was claimed by the Turkish-Cypriot community; it is said to have an area of about 1,084 square miles or 38 per cent of the total area of the Republic. An exchange of about 10,000 Greek families for about the same number of Turkish families was contemplated. … [sic: this was evidently a very conservative estimate.]
‘The Government of Turkey, for its part, indicated that it considered a solution to the Cyprus problem to lie along the lines of a federal State …
‘The proposal of the Turkish Government for the geographical separation of the two communities under a federal system of government remains essentially the same as the plan previously submitted by itself and the Turkish-Cypriot leadership …’. (Source: United Nations Security Council Document S/6253, paragraphs 72, 73, 78 & 109.)
In the light of the above, it would appear as if the two phases of the Turkish invasion of 1974 were carried out broadly in line with post-1956 Turkish strategy, as identified by Mr Macmillan, and specifically in line with post-1964 Turkish strategy, as identified by Dr Plaza.
The United Nations Security Council and its policy of appeasement
In view of the above, what was the response of the United Nations Security Council to in the injustice meted out in 1974? Put another way, what did the Security Council do to fulfil the requirement embedded in Article 24(2) of the United Nations Charter i.e. that ‘in discharging’ its ‘duties’ to maintain international peace and security the Security Council ‘shall act in accordance with the Purposes and Principles of the United Nations?
To all intents and purposes, the United Nations chose to adhere to the policy of appeasement formulated over the telephone by Messrs Callaghan and Kissinger on 14 August 1974. In the short term, this resulted in the then Secretary-General of the United Nations, Dr Kurt Waldheim, helping to arrange for President Makarios of the Republic of Cyprus to embrace a set of ‘guidelines’ dated 12 February 1977. The first of these ‘guidelines’ affirmed that President Makarios and the ‘leader’ of the Turkish Community, Mr Rauf Denktash, were ‘seeking an independent, non-aligned, bi-communal Federal Republic …’. In other words, Dr Waldheim helped to steer President Makarios into accepting a central tenet of post-1964 Turkish strategy: the idea that the Republic of Cyprus should become a ‘Federal Republic’.
In the long term, this policy of appeasement led the United Nations Security Council to endorse the core ‘bi-zonal’ as well as ‘bi-communal’ and ‘federal’ objectives of Turkish strategy. This policy came to be crystallised on least two key occasions. The first was via the adoption of UN Security Council Resolution 649 of 1990 under which the UN Security Council expressly endorsed the proposed formation of a ‘bi-communal, bi-zonal federation’. This second was via the adoption of United Nations Security Council Resolution 750 of 1992 under which the Security Council endorsed the segregationist definition accorded to ‘bi-zonality’ by the then UN Secretary General, Boutros Boutros-Ghali: ‘… each federated state [of the proposed ‘bi-communal, bi-zonal federation] would be administered by one community which would be guaranteed a clear majority of the population and of land ownership in its area’.
By adopting Resolutions 649 and 750, the United Nations Security Council appeared to endorse the creation of a perverse ‘bi-communal’ and ‘bi-zonal’ post-settlement ‘federal’ Cyprus subject to legalized segregation, supremacism, discrimination and the restrictions on freedom inherent in any ‘zone’. By going down this path, the Security Council effectively turned a blind eye to what appear to have been flagrant violations of Article 49 of the Fourth Geneva Convention and other provisions and principles of international law.
Today, in consequence of the above, the Republic of Cyprus finds itself subject to a secretive and otherwise opaque ‘leader-led process’, as the UN describes what is, in effect, a process of surrender in line with the post-1964 demands of Turkey and with the post-1974 de facto demographic realities procured by the use of brute force and coercion. Thus, the undignified if unspoken aims of this ‘leader-led process’ include the purported normalization of a de facto partition, the acceptance of de facto demographic engineering, the legalization of other illegalities, the cementing of segregation, the promotion of supremacism and, in sum, the institutionalization of injustice.
By bowing to the segregationist pro-‘federation’ demands of Turkey and by thereby appeasing an aggressor, the United Nations Security Council has in effect, undermined the credibility as well as the integrity of the post-1945 European legal order in what is today the south-east flank of the Council of Europe and the European Union. After all, if legalized segregation, supremacism, discrimination, ethno-religious ‘communities’ and ethno-religious ‘zones’ are, in principle, authorized by the United Nations Security Council in one Member State of the Council of Europe and the European Union, this must surely mean that, one day, they may be authorized in other parts of Europe as well.
Put simply, the Security Council appears to have acted in a way which is difficult if not impossible to reconcile with the principles and purposes of the United Nations as laid down by its very own Charter dating back to the dark days of 1945.
On 4 February 2016, the former Prime Minister of the United Kingdom, Gordon Brown, reminded the world that the post-2011 conflict in Syria had generated the world’s ‘biggest humanitarian crisis since 1945’. (Source: BBC News Online, 4 February 2016.) With this in mind, one is obliged to ask a pertinent question.
If those responsible for committing grave breaches of the Geneva Conventions of 1949 had been brought before an ad hoc international criminal tribunal established in the aftermath of the Turkish invasion of 1974, could this development have served as a deterrent which might have prevented the appalling crimes inflicted since 2011 on the citizens in Syria? The question gains added resonance if one considers that Syria is a sovereign state situated next door to the Republic of Cyprus in the eastern Mediterranean. If the answer to this question must remain a matter for conjecture, three things are not in any real doubt.
Firstly, a ‘Conference on Cyprus’ is due to begin in Geneva on 12 January 2017. The participants will include ‘the two sides’ (a euphemism to describe the ‘leader’ of the Greek Community and the ‘leader’ of the Turkish Community of the Republic of Cyprus) plus the ‘three guarantor powers’ of the Republic of Cyprus (i.e. Greece, Turkey and the United Kingdom). The stated aim of the forthcoming ‘Conference on Cyprus’ in Geneva is to address ‘the international dimension of the Cyprus problem, Security and Guarantees.’ (Source: Statement by the Deputy Government Spokesman of the Republic of Cyprus, 10 December 2016.)
Secondly, as a result of the above, the Republic of Cyprus may be on the verge of a ‘settlement’ designed to transform this de facto partitioned sovereign state into a ‘bi-communal, bi-zonal federation’ i.e. in line with the post-1964 demands of Turkey, as serviced by the United Kingdom and the United States and as endorsed by the United Nations Security Council.
Thirdly, but perhaps most importantly of all, the rule of law is at stake in Geneva. Quite apart from the security of the Republic of Cyprus and the European Union of which it forms part, what is specifically at stake in Geneva is the credibility and the integrity of the European legal order and the fundamental values of liberal democracy. By the same token, what is specifically at stake in Geneva is the credibility as well as the integrity of the post-1945 international legal order and the principles of humanity, fairness and justice upon which that order rests.
In the light of the above, this article concludes with a non-exhaustive list of questions. In the interests of the rule of law and justice, as well as peace, security and transparency, the President of the Republic of Cyprus (in his constitutional capacity as President) plus the various parties to the forthcoming ‘Conference in Geneva’ and the Secretary-General of the United Nations are hereby invited to publish written replies to these questions before the ‘Conference’ begins.
- Does each party to the forthcoming ‘Conference on Cyprus’ in Geneva agree with the principle which lies at the core of the rule of law i.e. that no persons and no states are above the law? If so, will the ‘Conference on Cyprus’ in Geneva take a firm stand against what appears to have been the commission of multiple violations of international law, including violations of Article 49(1) and Article 49(6) of the Fourth Geneva Convention of 1949, since Turkey invaded the Republic of Cyprus on 20 July 1974?
- Since 20 July 1974, has the Republic of Cyprus – or any other party to the armed conflict triggered on that date – invoked Article 149 of the Fourth Geneva Convention to ‘request’ the institution of ‘an enquiry … concerning any alleged violation of the Convention …’? If not, why not? If so, what was the outcome of any such ‘request’?
- Since 20 July 1974, have any criminal proceedings been brought in the criminal courts of the Republic of Cyprus, Greece, Turkey or the United Kingdom against any individuals for allegedly infringing any domestic laws – such as the Geneva Conventions Act 1957 in England and the Geneva Conventions Ratification Law of 1966 in the Republic of Cyprus – which, in line with Articles 146 and 147 of the Fourth Geneva Convention, incorporate the prohibition against deportations, transfers and other grave crimes specified in the Fourth Geneva Convention? If not, why not? If so, what was the outcome of such proceedings?
- Since 20 July 1974, how many citizens of Turkey have purportedly been granted (i) ‘citizenship’ or (ii) a permanent ‘right of residence’ in the Turkish-occupied area of the Republic of Cyprus by the de facto authorities in that area? More broadly, why does Turkey appear to have been granted impunity in spite of ostensibly violating Article 49(6), as well as Article 49(1), of the Fourth Geneva Convention of 1949?
- Since 20 July 1974, has Turkey, in its capacity as the Occupying Power in the Turkish-occupied area of the Republic of Cyprus, complied with the duty imposed by Article 65 of the Fourth Geneva Convention of 1949 under which ‘The penal provisions enacted by the Occupying Power shall not come into force before they have been published and brought to the knowledge of the inhabitants in their own language. …’. If so, how? If not, why not?
- On the basis that it is never too late for criminal justice to be served, do the various parties to the forthcoming ‘Conference on Cyprus’ in Geneva agree with the proposition that no settlement can be ‘just’ if criminal justice is not served by means of a new independent international criminal tribunal for Cyprus formed along the lines of the tribunals established since 1993 by the United Nations Security Council in relation to the former Yugoslavia and Rwanda?
- Under any settlement, will Turkey or any other party be compelled to provide any reparations and other appropriate remedies for any violations of the Geneva Conventions and for any other violations of international law? If not, why not?
- How can any settlement guarantee peace, security or justice if Turkey continues to refrain from making any Declaration under Article 36 of the Statute of the International Court of Justice in The Hague so that Turkey recognizes as compulsory the jurisdiction of the International Court of Justice?
- Why has Turkey hitherto failed to become a State Party to numerous legal instruments of substantial importance to peace, security or justice including (i) the Additional Protocols of 1977 to the Geneva Conventions of 1949, (ii) the Crime of Apartheid Convention 1973, (iii) the United Nations Law of the Sea Convention 1982, (iv) the Rome Statute on the International Criminal Court 1998, (v) Protocol No. 12 to the European Convention on Human Rights (regarding the principle of equality) 2000, (vi) the International Convention for the Protection of All Persons from Enforced Disappearance of 2006, (vii) the Cluster Munitions Convention of 2008 and (viii) the Arms Trade Treaty of 2013? Under any settlement, will Turkey be compelled to become a State Party these and to other significant legal instruments?
- Why have the Republic of Cyprus, Greece and the United Kingdom, as well as Turkey, failed to join 109 other states and thereby become State Parties to the Crime of Apartheid Convention 1973? Under any settlement, will each be compelled to become a State Party?
- Why does the definition of ‘bi-zonality’ endorsed in 1992 by United Nations Security Council Resolution 750 – i.e. ‘… each federated state [of the proposed ‘bi-communal, bi-zonal federation] would be administered by one community which would be guaranteed a clear majority of the population and of land ownership in its area’ – appear to envisage the legalization of violations of Article 49(1) and Article 49(6) of the Fourth Geneva Convention?
- How, if at all, can the definition of ‘bi-zonality’ quoted above be reconciled with (i) the principle of freedom inherent in liberal democracy (ii) the free market (iii) the founding values, treaties and other legal instruments of the European Union (iv) the founding values and legal instruments of the Council of Europe including the European Convention on Human Rights 1950 and Protocol No. 12 to the European Convention on Human Rights (regarding the principle of equality) 2000 (v) the prohibition against racial segregation in inter alia the International Convention on the Elimination of All Forms of Racial Discrimination of 1965 and (vi) the prohibition against apartheid in the Crime of Apartheid Convention of 1973 and the Rome Statute on the International Criminal Court of 1998?
As each of the above questions has been raised in the interests of the rule of law, it is worth drawing attention to the Report of the Secretary-General on the Rule of Law and Transitional Justice in Conflict and Post-Conflict Societies. This was a document published in 2004. Therein, the then Secretary-General of the United Nations, Kofi Annan, ventured the following views on the significance, meaning and implications of the rule of law. These views are as pertinent today as they were back in 2004.
‘The rule of law is a concept at the very heart of the [United Nations] Organization’s mission. It refers to a principle of governance in which all persons, institutions and entities, public and private, including the State itself, are accountable to laws that are publicly promulgated, equally enforced and independently adjudicated, and which are consistent with international human rights norms and standards. It requires, as well, measures to ensure adherence to the principles of supremacy of law, equality before the law, accountability to the law, fairness in the application of the law, separation of powers, participation in decision-making, legal certainty, avoidance of arbitrariness and procedural and legal transparency.’ (Source: Report of the Secretary-General on the Rule of Law and Transitional Justice in Conflict and Post-Conflict Societies (United Nations Security Council, New York, 23 August 2004, S/2004/616), paragraph 5 on page 3.)
In the light of the above, various supplementary questions inevitably arise. Above all, will the rule of law prevail in the Republic of Cyprus? Or will the rule of law give way to the crude idea that ‘might is right’? Will criminal justice will be served, in part, as a means of creating a deterrent to help to prevent in the future any repetition of the crimes committed in the Republic of Cyprus in 1974 and in other years? Or will criminal justice continue to be denied so that a culture of impunity continues to thrive?
The citizens and lawful residents of the Republic of Cyprus and the European Union of which it forms part deserve to receive answers to the various questions posed above. Looking ahead, one lives in hope that the future of the Republic of Cyprus will be built in a transparent manner on the humane bedrock formed by the rule of law, the principles of liberal democracy and the Aristotelian idea that ‘the administration of justice’ is the key to ‘order’. Time will tell whether these hopes will ever be fulfilled.
In the meantime, one is left to mull over another wise warning given by Aristotle in Politics: ‘The weaker are always anxious for equality and justice. The strong pay no heed to either.’
- Published by Agora Dialogue on 2 January 2017
- Dr Klearchos A. Kyriakides is an Assistant Professor of Law at the Cyprus Campus of the University of Lancashire and the Co-ordinator of its programme dedicated to the Rule of Law and the Lessons of History.
The author declares an interest as a British citizen with roots in Lysi and Petra, two ethnically-cleansed villages in the Turkish-occupied areas of the Republic of Cyprus; on a voluntary unpaid basis, he is also an independent academic consultant of Lobby for Cyprus, a non-party-political NGO based in London which campaigns on behalf of displaced persons from the Turkish-occupied area of the Republic of Cyprus. Crown Copyright material quoted in this article is reproduced by permission of the Controller of Her Majesty’s Stationery Office.
Any views expressed in this article are personal.
© Klearchos A. Kyriakides, Larnaca, January 2017