Έποικοι – Εγκλήματα πολέμου – Καταστατικός Χάρτης ΟΗΕ, Διεθνές Δίκαιο
Το κείμενο του Alfred de Zayas δημοσιεύτηκε υπό μορφή επιφυλλίδας σε δύο συνεχείς εκδόσεις της «Καθημερινής». Τις επιφυλλίδες αυτές μπορεί κάποιος να τις βρει στις εξής ηλεκτρονικές διευθύνσεις: «Το Σχέδιο Ανάν και το Διεθνές Δίκαιο», Η Καθημερινή 24.7.2005, http://www.kathimerini.gr/4dcgi/_w_articles_columns_110304_24/07/2005_151446 και «Oι Τούρκοι έποικοι στη Βόρεια Κύπρο», Η Καθημερινή 31.7.2005, http://www.kathimerini.gr/4dcgi/_w_articles_columns_446477_31/07/2005_152056.
by Alfred de Zayas, Geneva
THE ANNAN PLAN AND THE IMPLANTATION OF TURKISH SETTLERS IN NORTHERN CYPRUS
by Alfred de Zayas, University of Alcala de Henares
I. The Annan Plan and International Law
On 24 April 2004 a “Comprehensive Settlement of the Cyprus Problem” (the Annan Plan) was put to a referendum in Cyprus. While a majority of the Turkish population in occupied Northern Cyprus, including some 100,000 illegal settlers, voted in favour of the plan, the democratic vote in the Republic of Cyprus resulted in 75.8% of the Cypriot population rejecting the proposed plan.
The vote was followed by apparent disappointed in the United Nations and a surprising level of critical comment from politicians and the media. One year after the vote, upon a calmer rereading of the Annan plan, the non-committed observer may wonder whether anyone could have reasonably expected the Cypriot population in non-occupied Cyprus to vote in favour of a plan that entailed abandoning positions held by the Security Council and the General Assembly since July 1974, and which seriously undermined fundamental principles of international law contained in numerous universal and regional documents, including:
1) article 2, paragraph 4, of the United Nations Charter, which stipulates the prohibition of the threat and of the use of force;
2) The Nuremberg Judgment, which condemned inter alia the crime of aggression, and Nazi policies of forced population transfer and implantation of settlers;
3) Principle VI of the Nuremberg Principles, which includes the “crime against peace” among “crimes under international law”;
4) General Assembly Resolution 2650 of 24 October 1970 on “Friendly Relations”;
5) General Assembly Resolution 3314 of 14 December 1974, on the Definition of Aggression;
6) articles 18 and 20 of the 1996 International Law Commission “Draft Code on Crimes against the Peace and Security of Mankind”, which lists forcible population transfers among war crimes and crimes against humanity;
7) articles 7 and 8 of the Rome Statute of the International Criminal Court, which list the forced deportation or transfer of populations as war crimes and as crimes against humanity;
8) the indictments and emerging jurisprudence of the International Criminal Tribunal for the Former Yugoslavia;
9) Article 49 of the Fourth Geneva Convention of 12 August 1949;
10) numerous articles of the International Covenant on Civil and Political Rights (notably articles 1, 6, 12, 14, 16, 17, 23, 25, 26, 27); of the International Covenant on Economic, Social and Cultural Rights, of the International Convention on the Elimination of all Forms of Racial Discrimination;
11) numerous articles of the European Convention on Human Rights (notably articles 2, 5, 8, 14, Protocol 1, Protocol 4) and the established jurisprudence of the European Commission of Human Rights and the European Court of Human Rights; and
12) numerous principles of the legal order established by the European Union.
More specifically, important aspects of the Annan plan were inconsistent with much of what United Nations organs had hitherto discussed and elaborated over the years concerning the Turkish invasion of Cyprus. The Annan plan was inconsistent with the general condemnation of aggression, military occupation, demographic manipulation policies and the denial of the right of return of refugees. It was inconsistent with numerous resolutions of the United Nations Commission on Human Rights since 1975, inconsistent with the initial report, progress report and final report of the Sub-Commission on Promotion and Protection of Human Rights on “The Human Rights Dimensions of Population Transfers and the Implantation of Settlers” (Al Khasawneh (final) Report, UN Doc. E/CN.4/Sub.2/1997/23), and with the principles laid down by the Secretary General’s Special Representative on Internally Displaced Persons (Francis Deng, Guiding Principles on Internal Displacement, UN Doc. E/CN.4/1998/53/Add.2).
Although the Annan Plan did not go as far as specifically to legalize the Turkish aggression on Cyprus of July 1974, it did throw a mantel of legitimacy over it by virtue of its acceptance of many of the faits accomplis that followed the Turkish invasion and occupation of Northern Cyprus, expulsion of part of the Cypriot population, confiscation of their private property, settlement of the occupied Cypriot territory by over 100,000 Turkish colonizers from Anatolia, etc.
Can such grave violations of international law be retroactively legalized? International law experts hold the view that such violations cannot be legalized. Alas, the situation of violation of international law norms by States — in total impunity — is not rare. However, this does not mean that international law has ceased to exist or that these particular norms have ceased to be applicable. It only means that the enforcement mechanism remains imperfect.
Article 7 of the Draft Declaration appended to the 1997 Al Khasawneh Final Report stipulates:
“Population transfers and exchanges of population cannot be legalized by international agreement when they violate fundamental human rights norms or peremptory norms of international law.”
Thus, a hypothetical agreement among States such as The United Kingdom, Greece and Turkey that would approve the 1974 Turkish invasion, the expulsion of the native Cypriot population, the demographic manipulation in Northern Cyprus, would be invalid as contrary to international law and international ordre public. Indeed, article 53 of the Vienna Convention on the Law of Treaties stipulates that “A treaty is void if, at the time of its conclusion, it conflicts with a peremptory norm of general international law.”
Only the people of Cyprus can decide to waive certain rights and to abandon certain claims in exchange for economic or other concessions negotiated freely and set down in a compromise agreement. However, the people of Cyprus declined to abandon its rights, because the Annan Plan did not provide a satisfactory solution to their fundamental concerns, particularly the question of the right to return of the internally displaced Cypriots and the question of the continued presence of Turkish settlers in occupied Northern Cyprus. The Annan Plan also failed to remove the neo-colonial anachronism posed by the intervention rights of the “guarantor powers”. This remains an important issue, frequently overlooked, and a situation incompatible with the right of self-determination of the people of Cyprus.
Which fundamental human rights norms or peremptory norms of international law are at issue here? First and foremost the right to self-determination, which is considered by most experts in international law as jus cogens. This right is central to the United Nations Charter and was specifically codified as article 1 common to the International Covenant on Civil and Political Rights and to the International Covenant on Economic, Social and Cultural Rights.
Prior to and essential to the enjoyment of the right of self-determination is the right to one’s homeland, since the right of self-determination cannot be exercised if a population is subject to forcible displacement. Indeed, as the First High Commissioner for Human Rights stated at the opening of an expert meeting on the human rights dimensions of population transfers, held in Geneva in February 1997, the right to one’s homeland is one of the most fundamental collective rights, which in turn enables the exercise of many individual human rights.
The Nuremberg indictment (articles 6(b) and (c)) was unambiguous in identifying the Nazi policies of population transfers as war crimes and crimes against humanity.
Count 3, section J of the indictment charged the Nazis as follows:
“In certain occupied territories purportedly annexed to Germany, the defendants methodically and pursuant to plan endeavoured to assimilate these territories politically, culturally, socially, and economically into the German Reich. The defendants endeavoured to obliterate the former national character of these territories. In pursuance of these plans and endeavours, the defendants forcibly deported inhabitants who were predominantly non-German and introduced thousands of German colonists.”
The Nuremberg judgment held the Nazi officials guilty of the offence of forcibly transferring populations and implanting settlers, particularly of 105,000 Alsatians expelled from Alsace to Vichy-France and of one million Poles expelled from the occupied Warthegau into inner Poland.
By virtue of General Assembly Resolution 95(1) of December 1946, the Nuremberg judgment was unanimously affirmed.
Precisely the horror of Nazi crimes led the international community and the International Committee of the Red Cross to adopt the Fourth Geneva Convention of 12 August 1949 relative to the Protection of Civilian Persons in Time of War. Article 49 of this Convention stipulates:
“Individual or mass forcible transfers, as well as deportations of protected persons from occupied territory… are prohibited, regardless of their motive. … The Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies.”
Article 147 stipulates that a violation of article 49 of the Convention constitutes a grave breach, which, pursuant to article 146, requires penal sanctions.
Consistent with the above, the Security Council in its Resolution No. 353 of 20 July 1974 urged all States to respect the territorial sovereignty of Cyprus, the cessation of military intervention and the departure of foreign (Turkish) troops from Cyprus. This resolution was reaffirmed by the General Assembly in its Resolution 3212 (XXIX) of 1 November 1974, which also stipulates that “all the refugees should return to their homes in safety”. This was followed by Security Council Resolution 365 (1974) of 13 December 1974. In the absence of progress, the GA returned to the issue and adopted Resolution 3395 (XXX) on 20 November 1975, again calling upon “the parties concerned to undertake urgent measures to facilitate the voluntary return of all refugees to their homes in safety and to settle all other aspects of the refugee problem” Once again, GA Resolution 253 (1983) called for “the institution of urgent measures for the voluntary return of the refugees to their homes in safety”. Over a period of three decades the Security Council, the General Assembly and the Commission on Human Rights have adopted many similar resolutions.
Notwithstanding the above, Turkey continues to occupy Northern Cyprus, the expelled Cypriots have been prevented from returning to their homes, and a policy of demographic manipulation in Northern Cyprus by way of importing settlers from Turkey continues.
The failure of the United Nations to impose sanctions on Turkey to ensure the implementation of United Nations resolutions impacts negatively on the credibility of the Organization and on the practical importance of international law. This negative impact on the standing of the Organization is heightened when one considers that the United Nations visibly failed to enforce the principles and values it was created to uphold and even ignored its own previous resolutions regarding Cyprus.
In the context of Turkey’s invasion and occupation of Cyprus, crimes against peace, war crimes and crimes against humanity were committed. Notwithstanding the United Nations Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes against Humanity (26 November 1968, in force 11 November 1970), Turkish authorities have enjoyed and continue to enjoy impunity. The Annan Plan was tantamount to international acquiescence to this illegal situation.
This Annan Plan is all the more distressing, because it manifests the application of double-standards at the highest level of the United Nations. Ethnic cleansing was condemned at Nuremberg. It is condemned today at The Hague by the International Criminal Tribunal for the Former Yugoslavia. And yet Turkey is allowed to occupy militarily one third of the territory of another European country and to keep the fruits of the crime. Why this double-standard?
In the context of the policy of ethnic cleansing conducted by Serbia against certain non-Serbian populations in Croatia, Bosnia and Herzegovina and in Kossovo, the Security Council responded by the creation of the International Criminal Tribunal for the former Yugoslavia. It is revealing to read from the indictment of Ratko Mladic, Radovan Karadzic and Slobodan Milosevic.
Paragraph 25 of the indictment of 25 July 1995 against Karadzig and Mladic reads in part:
“Thousands of Bosnian Muslims and Bosnian Corats ….were systematically arrested … and thereafter unlawfully deported or transferred to locations inside and outside of the Republic of Bosnia and Herzegovina. In addition, Bosnian Muslim and Bosnian Corat civilians, including women, children and elderly persons, were taken directly from their homes and eventually used in prisoner exchanges. These deportations and others were not conducted as evacuations for safety, military necessity or for any other lawful purpose and have, in conjunction with other actions directed against Bosnian Muslim and Bosnian Croat civilians, resulted in a significant reduction or elimination of Bosnian Muslims and Bosnian Croats in certain occupied regions.”
Paragraph 35 of the indictment of Slobodan Molosevic of 24 May 1999 is even more pertinent:
The unlawful deportation and forcible transfer of thousands of Kosovo Albanians from their homes in Kosovo involved well-planned and co-ordinated efforts by the leaders of the FRY and Serbia, and forces of the FRY and Serbia, all acting in concert. Actions similar in nature took place during the wars in Croatia and Bosnia and Herzegovina between 1991 and 1995. During those wars, Serbian military, paramilitary and police forces forcibly expelled and deported non-Serbs in Croatia and Bosnia and Herzegovina from areas under Serbian control utilising the same method of operations as have been used in Kosovo in 1999: heavy shelling and armed attacks on villages; widespread killings; destruction of non-Serbian residential areas and cultural and religious sites; and forced transfer and deportation of non-Serbian populations.
Turkey in Northern Cyprus not unlike those commits the crimes for which they Karadzic, Mladic and Milosevic have been indicted.
II. The Issue of the implantation of settlers: general considerations
International law is clear on the issue of settlers in occupied territory: They are deemed to be illegal settlers and should be repatriated. The receiving State has no obligation in international law to grant residence or nationality to the settlers. However, humanitarian considerations must guide the process of repatriation, so as to ensure a just and equitable solution for all concerned, especially bearing in mind the imperative of respecting the human dignity of all members of the human family.
Articles 42 to 56 of the Hague Regulations appended to the 4th Hague Convention of 1907 significantly limit the rights of an occupying power. Article 43 states the general principle that the occupying power must respect the laws of the occupied country: Article 55 further stipulates that “the Occupying State shall be regarded only as administrator and usufructuary of public buildings, real estate, forests, and agricultural estates…” Bearing in mind that Article 46 prohibits the confiscation of private property, and that Article 47 prohibits pillage, it is clear that Turkey cannot dispose of Greek-Turkish private or public property, and that it cannot legally transfer this property to the new Turkish settlers. The limited right of military requisition envisaged in article 52 of the Hague Regulations is of no relevance in the context of the Turkish occupation of Northern Cyprus, in particular in the context of its policy of demographic manipulation. Thus, by confiscating and reassigning the properties of the displaced Cypriot citizens of Greek ethnic origin, Turkey committed internationally wrongful acts giving rise to State responsibility, and its officials committed war crimes giving rise to personal criminal liability.
Article 49, paragraph 6, of the Fourth Geneva Convention if 1949 is clear in prohibiting the implantation of settlers in occupied territory. In numerous Resolutions, the United Nations General Assembly has repeatedly deplored “all unilateral actions that change the demographic structure of Cyprus”.
The violation of Article 49, of the Geneva Convention entails a war crime. This is strengthened in Article 85 of the 1977 Protocol I to the Fourth Geneva Convention, which stipulates that:
“…(4) In addition to the grave breaches defined in the preceding paragraphs and in the Conventions, the following shall be regarded as grave breaches of the Protocol, when committed wilfully and in violation of the Conventions or the Protocol:
(a) the transfer by the Occupying Power of parts of its own civilian population into the territory it occupies”
Article 86 (1) of Protocol I also imposes an obligation on the High Contracting Parties to “repress grave breaches and take measures necessary to suppress all other breaches of the Conventions or of this Protocol which result from a failure to act when under a duty to do so.”
The International Law Commission in its Draft Code of Crimes against the Peace and Security of Mankind similarly includes the implantation of settlers in occupied territory in the category of war crimes. Article 20 c) prohibits: “(i) the transfer by the Occupying Power of parts of its own civilian population into the territory it occupies”.
Article 8 (b) (viii) of the Rome Statute of the International Criminal Court similarly includes the implantation of settlers among the war crimes subject to prosecution: “The transfer, directly or indirectly, by the Occupying Power of parts of its own civilian population into the territory it occupies, or the deportation or transfer of all or parts of the population of the occupied territory within or outside this territory.”
The Al Khasawneh Report, adopted by the UN Sub-Commission on Promotion and Protection of Human Rights in 1997, by the Commission for Human Rights and by the Economic and Social Council in 1998, focuses attention on the issue of the implantation of settlers. The report first makes certain general observations:
“Collective expulsions or population transfers usually target national, ethnic, religious or linguistic minorities and thus, prima facie, violate individual as well as collective rights contained in several important international human rights instruments” (para. 14)
“The range of human rights violated by population transfer and the implantation of settlers place this phenomenon in the category of systematic or mass violations of human rights” (para 16)
The report then focuses on the issue of settlers:
“Another problem related to prolonged military occupation involves the continuation of the policy of implanting settlers in the aftermath of a peace agreement underlying a territorial settlement which brings military occupation to an end. Such agreements cannot, by their nature, deal with this complex issue adequately or explicitly because they are often concluded in a political and military atmosphere in which the balance of power weighs heavily against the inhabitants or an occupied territory. The appropriate way of dealing with the problem is to look again at the Fourth Geneva Convention with a view to extending the prohibition on the implantation of settlers even after the general close of military or civilian operations in an occupied area. Indeed, it is not unreasonable to suggest that to the extent that agreements breach jus cogens rules, this might constitute grounds for invalidation.” (para 45)
Article V of the Draft Declaration on Population Transfer and the Implantation of Settlers, appended to the Final Report of Al Khasawneh, stipulates
“The settlement, by transfer or inducement, by the Occupying Power of parts of its own civilian population into the territory it occupies or by the Power exercising de facto control over a disputed territory is unlawful.”
Article VI stipulates:
«Practices and policies having the purpose or effect of changing the demographic composition of the region in which a national, ethnic, linguistic, or other minority or an indigenous population is residing, whether by deportation, displacement, and/or the implantation of settlers, or a combination thereof, are unlawful.”
Particularly significant are the erga omnes obligations of the international community toward the reestablishment of the legal order. All States are obliged to refrain from recognizing the illegal situation arising from a transfer of populations and from the implantation of settlers in occupied territory.
Article X stipulates:
«Where acts or omissions prohibited in the present Declaration are committed, the international community as a whole and individual States, are under an obligation: (a) not to recognize as legal the situation created by such acts; (b) in ongoing situations, to ensure the immediate cessation of the act, and the reversal of the harmful consequences; (c) not to render aid, assistance or support, financial or otherwise, to the State which has committed or is committing such act in the maintaining or strengthening of the situation crated by such act.”
III. The Turkish settlers in Northern Cyprus
It is estimated that between 80,000 and 100,000 Turkish settlers have been implanted in Northern Cyprus since July 1974.
No distinction should be made between those settlers who were directly transferred or implanted by decision of the Turkish government, or those who moved there voluntarily after 1974. Both settlements are prohibited. The Commentary on article 49, paragraph 6, of the Fourth Geneva Convention, clarifies that what the provision is intended to prohibit is the demographic manipulation by an occupying power that either actively transfers its own population into the occupied territory, or allows them to settle there voluntarily. “This clause is intended to prevent a practice adopted during the Second World War by certain Powers which transferred portions of their own population to occupied territory for political and racial reasons or in order, as they claimed, to colonize those territories.” 
In its Resolution 1987/50 of 11 March 1987, the United Nations Commission on Human Rights expressed concern over “the fact that changes in the demographic structure of Cyprus are continuing with the influx of great numbers of settlers.”
In its Resolution No. 1987/19 of 2 September 1987, the Sub-Commission on Promotion and Protection of Human Rights expressed: “its concern also at the policy and practice of the implantation of settlers in the occupied territories of Cyprus which constitute a form of colonialism and attempt to change illegally the demographic structure of Cyprus.” (para. 3).
This Resolution was born in mind by Special Rapporteur Al Kahasawneh in preparing his three reports on the Human Rights Dimensions of Population Transfers and the Implantation of Settlers. Alas, the crucial issue of the settlers is practically ignored in the Annan Plan. Nor was it taken into account by Secretary General Javier Perez de Cuellar in the Cuellar Ideas of 1989, nor in the Boutros Boutros Ghali Set of Ideas of 1992.
Bearing in mind that the presence of Turkish settlers in Northern Cyprus goes back to an act of aggression in contravention of article 2, paragraph 4, of the United Nations Charter, and to a policy of demographic manipulation in contravention of article 49 of the Fourth Geneva Convention of 1949, it is clear that the Turkish post-1974 settlers have no legitimate expectation that they would be able to stay in Cyprus.
Following reunification of the Island of Cyprus, the government in Nicosia would have the right to require their departure. It is for Cyprus to decide whether and how many of the settlers may be allowed to stay in Cyprus. In this context, humanitarian considerations, to be judged on a case-by-case basis, could lead to a significant number of settlers being granted residence permits and eventually the opportunity of obtaining Cypriot citizenship.
The State that suffered the illegal occupation would have a prima facie right to expel the illegal settlers. They would be returned to their homeland, Turkey, where they would not suffer any particular hardships, bearing in mind that they have genuine cultural and language links to Turkey and most of them have families in Turkey. Admittedly, every repatriation entails a degree of inconvenience, but this can be mitigated, especially if the international community shows solidarity and cooperates in the repatriation schemes.
Another reason for repatriation of the illegal settlers is the implementation of the right to return of the Cypriots displaced from Northern Cyprus in 1974. The right to return is affirmed in Resolutions Nos. 1994/24, 1998/26, 1999/47, 2000/53, 2001/54, and 2002/30 (of 15 August 2002) of the United Nations Sub-Commission on Promotion and Protection of Human Rights. Indeed, the presence of illegal settlers in Northern Cyprus significantly alters the character of the territory and thus violates the right to the homeland of the native Cypriot population
What rights do the Turkish settlers have? They enjoy all the rights guaranteed by the Cypriot Constitution and the rights to which Cyprus is bound pursuant to international treaties, including the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, the International Convention on the Elimination of all Forms of Racial Discrimination, and the European Convention on Human Rights and Fundamental Freedoms. While Cyprus may grant the Turkish settlers special rights, Cyprus is under no obligation to grant them citizenship or even the right to continued residence in the territory. Length of residence and marriage with the native Turkish population are considerations that the Cyprus government would have to take into account on a case-by-case basis.
Article 3 of Protocol 4 to the European Convention on Human Rights stipulates, “Collective expulsion of aliens is prohibited.” In due course the Cyprus government would have to devise status determination mechanisms and repatriation schemes with appropriate incentives. As a victim of aggression, the Cyprus government has a right to expect the solidarity of the world community in resolving the problems of illegal settlements in the most humane manner.
The United Nations could use its experience in organizing the repatriation of the settlers to Turkey. The United Nations High Commissioner for Refugees has vast experience in a variety of successful repatriation schemes involving millions of refugees, numbers much greater than the estimated 100,000 to 120,000 Turkish settlers in Northern Cyprus. The United Nations could also create a voluntary fund to assist in the repatriation and integration of the Turkish settlers in Turkey. The experiences of the International Organization on Migration in repatriation schemes could also prove helpful in the context of the repatriation of the Turkish settlers.
IV. Where does the Cyprus Question stand?
The Republic of Cyprus has entered the European Union. As a member of the European Union it will be able to argue its case within the Union and remind members of an erga omnes obligation under international law: that the European Union must refrain from recognizing the illegal situation arising from the invasion of Northern Cyprus by Turkey and from the implantation of Turkish settlers in Cyprus. Therefore, Turkey cannot entertain any hope of entering the Union for as long as it does not correct the illegal situation arising from its 1974 invasion, and satisfy all the Copenhagen criteria on human rights. This would entail
1) implementation of all relevant judgments of the European Court of Human Rights, recommendations in the reports of the European Commission of Human Rights, and resolutions of the Committee of Ministers of the Council of Europe;
2) withdrawal of all military forces from Northern Cyprus;
3) withdrawal of settlers brought to Northern Cyprus in contravention to article 49 of the fourth Geneva Convention of 1949;
4) recognition of the right of return of all displaced Cypriots; and
5) restitution and/or compensation to the displaced Cypriots for their confiscated or destroyed properties.
With regard to point 5, reference should be made to the Al Khasawneh report, which observed:
“The European Court of Human Rights has found Turkey to be responsible for the violation of the right to the peaceful possession or enjoyment of property by virtue of its occupation of northern Cyprus and required it to compensate the victims of such violations. (para 62)
Although Turkey, on 2 December 2003, made payment pursuant to the 1998 judgment on the Loizidou v. Turkey judgment, there are several other judgments that have not been implemented. Moreover, there remain the issues of the missing persons and of the right of some 200,000 expelled Cypriots and their descendants to return in safety and dignity to their homes in Northern Cyprus.
Because the European Union is obliged to respect the judgments and decisions of the European Court of Human Rights, it must insist on their full implementation as a conditio sine qua non to further negotiations to with Turkey concerning a possible entry into the European Union.
V. A new United Nations Initiative?
In proposing the Annan Plan, the United Nations sacrificed a degree of its credibility. It is particularly distressing that the World Organization whose vocation it is to ban war and to condemn aggression indirectly condoned such acts of aggression by allowing the impunity of the perpetrators and by acquiescing to the effects of the illegal occupation.
The United Nations, however, continues to have a role to play and can be potentially helpful in negotiating a compromise. Part of that compromise would be the waiver of prosecution and punishment of the perpetrators of crimes against peace, war crimes and crimes against humanity. Such waiver, however, should not encompass granting to the perpetrator the right to keep the fruits of the illegal war and occupation of Northern Cyprus.
Secretary-General Annan, or a future Secretary-General, may again be called upon to exercise his good offices to reach a compromise, which must be soundly based on international law, and consistent with prior United Nations decisions, resolutions, and studies (especially the 1997 Al Khasawneh reports of the Sub-Commission on Promotion and Protection of Human Rights).
In order to prepare the ground for a negotiated settlement, the UN Security Council or the General Assembly could ask the International Court of Justice, pursuant to article 96 of the United Nations Charter, to issue an advisory opinion on the “Legal Consequences of the Continued Occupation of Northern Cyprus by Turkey”, in which the issue of the repatriation of settlers could also be dealt with. This advisory opinion would build upon the 1971 advisory opinion on South-West Africa/Namibia and on the 2004 advisory opinion on the Wall being built by Israel on Palestine occupied territory.
Any new plan for Cyprus would have to be based on the following Basic Principles:
1) the self-determination of the people of Cyprus
2) state responsibility for aggression and military occupation
3) the right to return of internally displaced persons and refugees
4) the orderly repatriation of illegal settlers
5) the right to restitution and/or compensation
Let us look forward to a reasonable peace settlement based on the over-arching principle of equality and the imperatives of human rights.
© Draft/Alfred de Zayas/22 March 2005
UN Sub-Commission on Promotion and Protection of Human Rights, Final Report of the Special Rapporteur Awn Shawkat Al Khasawneh on the Human Rights Dimensions of Population Transfers and the Implantation of Settlers, E/CN.4/Sub.2/1997/23, especially annexes I and II.
Resolution on the right to return. UN Sub-Commission on Promotion and Protection of Human Rights, Doc. E/CN.4/Sub.2/Res/2002/30.
Report of the International Law Commission on the work of its forty-eighth session (6 May- 26 July 1996) General Assembly, Official Records, Fifty-first Session, Supplement No. 10 (A/51/10)
Cherif Bassiouni, The Statute of the International Criminal Court. A Documentary History. Transnational Publishers, Inc., New York 1998.
Kypros Chrysostomides, The Republic of Cyprus. A Study in International Law. Martinus Nijhoff Publishers, The Hague, 2000.
Jean Marie Henckaerts, Mass Expulsion in Modern International Law and Practice, Martinus Nijhoff, The Hague, 1995.
C.P. Ioannides, In Turkey’s Image, The Transformation of Occupied Cyprus into a Turkish Province, Caratzas, New Rochelle, New York, 1991.
Andreas Jacovides, “Cyprus_ the International Law Dimension”, 10 Amican Univesity Journal of International Law and Policy, pp. 1221 et seq.
Louikis G. Loucaides, Essays on the Developing Law of Human Rights, Martinus Nijhoff, Dordrecht, 1995.
Benjamin M. Meier, “Reunification of Cyprus: The Possibility of Peace in the Wake of Past Failure”, in 34 Cornell International Law Journal (2001), pp. 455 et seq.
Christa Meindersma, “Legal issues surrounding population transfers in conflict situations” Netherlands International Law Review, XLI, (1994) pp. 31-83.
Daniel Milne, “One State or Two? Political Realism on the Cyprus Question” in The Round Table. The Commonwelath Journal of International Affairs, January 2003, pp. 145-162.
Claire Palley, “Population Transfers” in Essays in Honour of Asbjord Eide. Broadening the Frontiers of Human Rights, Donna Gomien (ed.), Scandinavian University Press, Oslo 1993.
Alfred de Zayas, “Repatriation” in Rudolf Bernhardt (ed.) Encyclopaedia of Public International Law, North Holland Publishers, Vol. IV (2000), pp. 185-§9§, “Population, Expulsion and Transfer”, Vol. III (1997), pp. 1062-1067, “Forced Resettlement”, Vol. II, (1995), pp. 422-425,
Alfred de Zayas, Heimatrecht ist Menschenrecht, Universitas Verlag, München 2001.
Alfred de Zayas, „ Ethnic Cleansing, Applicable norms, emerging jurisprudence, implementable remedies“ in John Carey (ed.) International Humanitarian Law: Origins Transnational, New York 2003, pp. 283-307.
Alfred de Zayas, „The Right to One’s Homeland, Ethnic Cleansing and the International Criminal Tribunal for the Former Yugoslavia“, Criminal Law Forum, No. 6, 1995, pp. 257-314.
Marjoleine Zieck, UNHCR and Vaoluntary Repatriation of Refugees. A Legal Analysis. Martinus Nijhoff, The Hague, 1997.
 http://188.8.131.52/Comprehensive_Settlement_of_the_Cyprus_Problem.pdf. SC/8074 of 29 April 2004. See also Press Release SG/SM/9269 of 26 April 2004 “Unique and Historic chance to resolve Cyprus Problem Missed”. Report of the Secretary-General on his Mission of Good Offices in Cyprus, 28 May 2004, S/2004/437. See also Report of 16 April 2004 S/2004/302.
 The ILC commentary observes: „that a crime of this nature could be committed not only in time of armed conflict but also in time of peace … [Deportation] implies expulsion from the national territory, whereas the forcible transfer of populations could occur wholly within the frontiers of one and the same State … Transfers of population under the draft article meant transfers intended, for instance, to alter a territory’s demographic composition for political, racial, religious or other reasons, or transfer made in an attempt to uproot a people from their ancient lands. One member of the Commission was of the view that this crime could also come under the heading of genocide.” UN GAOR, 46th Sess. Supp. No. 10 (A/46/10) at 268.
 Alfred de Zayas, “The Right to One’s Homeland, Ethnic Cleansing, and the International Criminal Tribunal for the Former Yugoslavia”, Criminal Law Forum, Vol. 6, No. 2 (1995), pp. 257-314.
 See analysis of these reports in Alfred de Zayas, „ Ethnic Cleansing, Applicable norms, emerging jurisprudence, implementable remedies“ in John Carey (ed.) International Humanitarian Law: Origins Transnational, New York 2003, pp. 283-307.
 Alfred de Zayas, Heimatrecht ist Menschenrecht, Universitas, München 2001. See also the Statement by the first United Nations High Commissioner for Human Rights, Jose Ayala Lasso, to the “Expert Meeting on Human Rights Dimensions of Population Transfers including the implantation of settlers and settlements”, 17-21 February 1997.
 A. de Zayas, Ethnic Cleansing, op. cit., pp. 285-6.
 International Military Tribunal, Nuremberg, Trial of the Major War Criminals, Vol. 1, p. 51.
 International Military Tribunal, Nuremberg, Trial of the Major War Criminals, Vol. 22 p. 480.
 SC Res. 355(1974) demanding “the withdrawal without further delay of all foreign armed forces and foreign military persons and personnel from the Republic of Cyprus”, Res. 355 (1974), see also Res. 360 (1974), Res. 3212 (XXIX) 3395 (XXX), 33/15 (1978) etc.
 Cf Report of the Secretary-General on Cyprus, S/2004/302. Report of the Secretary-General on his mission of good offices to Cyprus, S/2004/437. Report of the Secretary-General on the United Nations operation in Cyprus, S/2004/427.
 Prosecutor v. Karadzic, Case No. I_95-5-1 (ICTY July 25, 1995).
 Prosecutor v. Milosevic, Case No. IT-99-37 (24 March 1999) http://www.un.org/icty/indictment/english/mil-ii990524e.htm. See also A. de Zayas, in Carey a.a.O., p. 293 (supra footnote 4).
 Res. 33/15 (9 November 1978), 24/30 (20 November 1979), 37/253 (13 May 1983) etc.
 Report of the International Law Commission on the work of its forty-eighth session (6 May- 26 July 1996) General Assembly, Official Records, Fifty-first Session, Supplement No. 10 (A/51/10) p. 111. In the prior draft of the Draft Code, article 18 was article 22.2(b). In the 1991 report, the International Law Commission commented: “…it is a crime to establish settlers in an occupied territory and to change the demographic composition of an occupied territory. a number of reasons induced the Commission to include these acts in the draft article. Establishing settler in an occupied territory constitutes a particularly serious misuse of power, especially since such act could involve the disguised intent to annex the occupied territory. Changes to the demographic composition of an occupied territory seemed to the Commission to be a serious act that it could echo the seriousness of genocide.” Report of the International Law commission on the work of its forty-third session, 29 August-19 July 1991, Official Records of the General Assembly, 46th Session, Supplement No. 10 (A/46/10), p. 271.
 Cherif Bassiouni, The Statute of the International Criminal Court, Transnational Publishers, Inc., New York 1998, p. 43.
 Kypros Chrysostomides, The Republic of Cyprus. A Study in International Law. Martinus Nijhoff Publishers, The Hague, 2000, pp.202 et seq. See also Loukis G. Loucaides, Essays on the Developing Law of Human Rights, Martinus Nijhoff Publishers, Dordrecht, 1995, p. 112. It is estimated that by the year 2005 the number of illegal Turkish settlers may be as high as 120,000.
 Jean Pictet (ed.) Commentary to the Fourth Geneva Convention, Geneva, 1958, p. 283. See also the legal opinion of the United States Legal Adviser to the Department of State: “Paragraph 6 appears to apply by its terms to any transfer by an occupying power of parts of its civilian population whatever the objective and whether involuntary or voluntary. It seems clearly to reach such involvement of the occupying power as determining the location of settlement, making land available and financing of settlements, as well as other kinds of assistance and participation in their creation.” Digest of United States Practice in International Law, 1978, pp. 1575 ff. at p. 1577.
 Marjoleine Zieck, UNHCR and Vaoluntary Repatriation of Refugees. A Legal Analysis. Martinus Nijhoff, The Hague, 1997.
 See relevant Resolutions of the UN General Assembly, including Resolutions 51/126 and 35/124 (1890), Security Council Resolutions 1287 (2000), 1244 (1999), 1199 (1998), 1036 (1996), 971 (1995), 876 (1993). Additionally UN Security Council Resolution 820 (19093) reaffirms that internally displaced persons and refugees have the right to return to their previous homes and places of residence and that they should be aided so as to achieve their return in safety and dignity.
 In this connection see “Housing and Property restitution in the context of the return of refugees and internally displaced persons”. Report of special Rapporteur Paulo Sergio Pinheiro submitted in accordance with Sub-Commission resolution 2002/7. UN Doc: E/CN.4/Sub.2/2004/22 (2 June 2004) See also commentary in E/CN.4/Sub.2/2004/22/Add.1 (8 June 2004). See also Resoluti0on 2004/34 of the UN Commission of Human Rights on the subject of restitution, compensation and rehabilitation for victims of grave violations of human rights and fundamental freedoms. Also Commission on Human Rights Resolutions 1993/70, 1993/77, 1993/95 and 2004/28, which characterize forced evictions and internal displacement as gross violations of human rights. Of relevance also: Report of the High Commissioner for Human Rights on Human Rights and Mass Exoduses, UN Doc: E/CN4/2005/80/Add.1
 Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), Advisory Opinion. ICJ Reports (1971) pp. 16-345.
 International Court of Justice, Advisory Opinion 9 July 2004, http://www.icj-cij.org/icjwww/ipresscom/ ipress2004/ipresscom2004-28_mwp_20040709.htm – 34k –