Cyprus-Forum.com

[CopperLine]

Sorry I've just noticed a crucial typo error in that last posting :

In the second para I wrote

".... though the T of Guarantee does mention settlers and settlement ..."

it should of course read :

"... though the T of Guarantee does NOT mention settlers and settlement ..."

[Pyrpolizer]

In fact a strong argument could be made that until the policy of bringing in settlers - was that 1977, later, earlier ? - Turkey had a a reasonably strong legal position.

I don’t know how you define "reasonably strong" but for the sake of argument on a scale of 1-10 I would suspect you give it at least give it 5, meaning it had more chances to win at a court than loose.

Well I think it’s exactly the opposite. Turkey in fact came to Cyprus under the veil of intervention, using her rights as Guarantor power. Those rights ( I mean to take action are in fact questionable but lets assume they were limited on military action as the 1st and only option. Even as such those rights were clear. They were just to restore the costitutional order and for that ONLY There was absolutely no ambiguity. If you think Turkey intervened to protect the TCs, well she could have done so through restoring the constitutional order. In reality what happened is that Turkey found a golden excuse- that the constitutional order was violated by the coup and getting a non elected President to the chair- to intervene and put her partition plans in action.

The initial intervention which noone not even the UN has condemned, not even our Goat Priest Makarios who went to the UN calling for it, turned up to ba an INVASION from the very fiirst day. So there was no intervention-occupation result, but intervention that turned up to be an invasion from the very first day and later on-occupation-ethnic cleansing-killing-settlement-and finally selling of unsurped properties to foreigners etc etc. Settlement started from the very first months btw. Waves of settlers/colonisers followed later in various years.

So what "relatively strong legal" position Turkey ever had? It never had any, in fact she was put under embargo from the Americans immediately, and the UN resolutions against her were flying all over in just months.

The moment it effectively failed to follow occupation law i.e, don't change the pre-existing laws and institutions, then the its legal position got weaker and weaker. It may be, and I am just speculating here, that the realisation that its legal position was getting weaker gave impetus to declaring the TRNC.

You have to first examine if Turkey had any right for that kind of occupation and then whether she would aplly occupation law. It never had any such right unless in parallel with restoring the constitutional order. What Turkey did was occupation for the sake of ethnic cleansing, not occupation for any other reason.
Furthermore occupation should one day sooner or later end. Turkeys argument that she is not leaving unless a total solution is found is another proof that her occupation was not intended for any other reason than the obvious one. The simplest way would be for all 3 guarantor powers to have a joined force in the northern part and the souther part guaranteeing the safety of all civilians, and application the 1960 law everywhere in Cyprus.

Furthermore the declaration of "trnc" was actually a very simple move towards a pre-planed schedule of the occupation-ethnic cleansing project. The plan said "as soon as possible after the dust settles finalise the partition by declaring a new state". Whether the move actually came from Denktash or from Turkey is totally irrelevant,as Denktash was the local pawn of the Military deep state of Turkey.

Yes, the T. of Guarantee makes no provision for settlers, but then again one wouldn't expect it to. The T of Guarantee is a limited instrument, it is not an open cheque, and again going back to an earlier posting, any ambiguous elements of the T of Guarantee are hedged off and delineated by other instruments of international law.

I am sorry but the there was absolutely nothing ambigous in the treaty of Guarantee. If you mean the treaty of Guarantee should guarantee also the safety of the inhabitants then that’s a whole new story. So assuming that the Treaty of guarantee was ambigous and hence it’s ambigous elements are delineated by other instruments of International law as you say, then is just plain obvious you are jumping into conclusions. If it were like that anybody could claim ambiguity in everything, invade a foreign country and do whatever he likes as occupier, either in line or out of line of International law .

Thus though the T of Guarantee does NOT mention settlers and settlement, a number of the laws of war and occupation do so these other provisions then kick in to prohibit permanent expulsion or settlement.

Although I agree with you, I really don’t know why you examine whether the treaty of Guarantee could possibly mention such a thing. In case you’ve heard ANY treaty that includes such a clause for settlement/colonising then I would like to see it. As far as I know settlement/colonising today is considered illegal under any circumstances. Especially as an act of war following ethnic cleansing, which is exactly what happened in Cyprus.

[Kifeas]

No CopperLine, you are totally wrong! The fact that the 1959-1960 set of agreements were deposited with the UN, doesn't validate or legalise their content, if and when they are found to be in conflict with the UN Charter!

Kifeas, you obviously believe this with a passion. You are equally mistaken.

See Article 102 of the Charter. Since it is axiomatic to UN membership and Charter signatories that they act in 'good faith', that they make public agreements which are consistent with and not at odds with the fundamental principles of law, and since the function of a depositary organisation is to confirm the legal integrity of an agreement, it is inconceivable that an agreement would be accepted for deposition that it was in obvious breach of international law. This is just a daft proposition.

You are right to say that deposition doesn't 'validate' an agreement: that is not the purpose of deposition. You are half wrong/half right when you say it doesn't 'legalise' - part of the legal recognition of a treaty or other agreement is precisely the process of depositing with the UN (or other body) Depositing in that sense is part of the means by which a treaty is 'legalised'.

CopperLine, why waste our times arguing over a dead case? The RoC called upon Turkey in various occasions in the past, to accept to proceed to the ICJ of Hague, and accept a verdict by the court on the issue of its invasion’s legality or illegality. Turkey refused! Why refuse, if one believes s/he has a case?

You said, read article 102 of the Charter! Well, here it is, both article 102 and 103!

Article 102
1. Every treaty and every international agreement entered into by any Member of the United Nations after the present Charter comes into force shall as soon as possible be registered with the Secretariat and published by it.
2. No party to any such treaty or international agreement which has not been registered in accordance with the provisions of paragraph 1 of this Article may invoke that treaty or agreement before any organ of the United Nations.

Article 103
In the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail.

It is more than clear, from par. 2 of article 102, that the purpose of depositing any international agreement with the UN, is merely to be registered so that they may be invoked later by any interested parties; and NOT to launder them per se (white wash and legalise them,) in case they bear possible discrepancies with the UN Charter! Depositing such agreements with the UN, does NOT require the UN or any judicial body of it to examine their compliance with international law, or the Charter itself.

If this would have been the purpose of article 102, then there would have been no need to draft article 103, and set the record straight in this way as to which treaty’s or agreement’s provisions will take precedence, in case of a conflict! It is clear that no matter what, the provisions of the UN Charter take precedence!

Furthermore, the treaty of guarantee does refer only to “unilateral intervention!” It doesn’t specifically include “military intervention!” Even if we were to accept that there is an ambiguity here, and therefore it is a matter of interpretation whether military intervention was also assumed, such interpretation would have been immediately in breach of the UN Charter which prohibits such acts, without a UN SC approval or authorisation! One may argue that should “military intervention” was specifically mentioned in the 1959 treaty of guarantee; the UN may have not accepted its depositing and registering at all! However, because only the word “intervention” was used, the UN interpreted it to mean a political, a diplomatic or even an economic one; and it is upon this basis (interpretation) that it accepted it’s mere depositing.

Things become even more clear and straight, if one reads article 52 (below) of the UN Charter.

Article 52
1. Nothing in the present Charter precludes the existence of regional arrangements or agencies for dealing with such matters relating to the maintenance of international peace and security as are appropriate for regional action provided that such arrangements or agencies and their activities are consistent with the Purposes and Principles of the United Nations.
2. The Members of the United Nations entering into such arrangements or constituting such agencies shall make every effort to achieve pacific settlement of local disputes through such regional arrangements or by such regional agencies before referring them to the Security Council.
3. The Security Council shall encourage the development of pacific settlement of local disputes through such regional arrangements or by such regional agencies either on the initiative of the states concerned or by reference from the Security Council.
4. This Article in no way impairs the application of Articles 34 and 35.

Paragraph 1 of article 52 makes reference to the existence of regional arrangements or agencies dealing matters relating to the maintenance of international peace and security, PROVITED they are in line with the purposes and principles of the UN!

Who are the purposes and principles of the UN? They are listed under articles 1 and 2 of the UN Charter! Precisely the provisions that constitute the basis of Turkey’s illegal violation of international law and the UN Charter, with its 1974 invasion of Cyprus!

[Kifeas]

This is what one of the most well known international law experts, Professor Alfred de Zayas, says about the issue under discussion in this thread.

THE IMPLANTATION OF TURKISH SETTLERS IN NORTHERN CYPRUS
By Professor Alfred de Zayas

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

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

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

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

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

NORMS

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

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


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

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

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

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

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

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


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

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

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

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

PROCEDURES

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

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

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

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

REMEDIES

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

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

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

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

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

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

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

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

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

ENFORCEMENT

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

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

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

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

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

http://alfreddezayas.com/Lectures/Cypruslimassol.shtml

[Jerry]

Very interesting Kifeas. Reading this it's becomes more apparent that the 1960 agreement was not made for the benefit of the Cypriots but for other more powerful countries and even the UN on at least one occasion tried an unfair solution,
Quote:
The solution of the settler issue depends on the reunification of Cyprus. This in turn depends on the freely exercised right of the Cypriot people. No Plan should be imposed on the Cypriot people from the outside. All five Annan Plans were ill-conceived, basically colonialist and undemocratic.

As for a solution to the Cyprus Problem, I think the professor's last pargraph says it all.

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

If Turkey is serious about joining the EU (the recent election has confirmed this) perhaps she should take note of what Professor Alfred de Zayas has to say.

[bigOz]

I do not know how this guy became a proffessor, but clearly he is a bogus and an ignorant one by starting off his argument with a claim that 120,000 Turkish settlers were moved to TRNC! What a wanker?

As for settlers, I wonder how many articles in the UN cover the 12,000+ Greek settlers that moved to Cyprus from the Greek islands during World War II, and thousands of mainland Greek soldiers (and their families) that settled in Cyprus between 1963-1974, after they were recruited by Makarios to reinforce the National Guard!

Taking into account the contribution to population by their offspring over the years; 15,000 Greek settlers 45 - 65 years ago, and 30,000 Turkish settlers 30 years ago would probably cancel each other out - would they not?

[CopperLine]

Kifeas,
Extraordinary !

why waste our times arguing over a dead case?

From people who have argued the importance of 3,000 year old ancestry that's a mind-boggling thing to say ! Moreover, for such a dead case it not only continues to have fundamental significance to today's disposition but it is clearly very much alive in your own thinking.

Why refuse, if one believes s/he has a case?

The obverse of this, also holds - why test a case when you already know you're right. And this is a basic difference between municipal (domestic) and international law. Does the US present itself before an international court when 'it knows it's right' ? China ? Britain ? Egypt ? No of course not. What states typically do is say, this piece of law is not applicable in this case or, sometimes, we don't accept the jurisdiction of this court. You and I as citizens under domestic law cannot do any of those things : states can.

It is more than clear, from par. 2 of article 102 ....

I'm not going to get into an extended legal discussion on this forum, but I will say two things briefly here : (i) you have a basic misunderstanding of the nature and function of deposition (ii) try not to put words into my mouth and then build a flimsy argument around them - I made no mention of the absurd idea of 'laundering'

the treaty of guarantee does refer only to “unilateral intervention!” It doesn’t specifically include “military intervention!”

That was rather the point of my endnote about the brevity of treaty agreements in the 1950s and the ambiguity that was thereby left open. You're right, it doesn't mention the words 'military intervention', but the rest is wide open for interpretation. And that is exactly what Turkey did. You disagree with its interpretation, we know. It should not need to be said, but the law is not black-and-white, it is a framework of which the outlines are constantly struggled over.

such interpretation would have been immediately in breach of the UN Charter which prohibits such acts, without a UN SC approval or authorisation!

I see, so following your argument here, had there been war between NATO and the Warsaw Pact, neither of these parties would have been able to act 'without prior UN SC approval or authorisation'. Seriously ! Moreover, remember we are talking about 1959-1974 here : do not assume that the legal norms that you are now familiar informed the reasoning and justifications of that time.

because only the word “intervention” was used, the UN interpreted it to mean

How on earth do you know how the UN interpreted this ? Who is the UN anyway - the Secretary-General ?, the Security Council ? the General Assesmbly ? one of the Courts ?

(I just want to point out a logical contradiction in your overall argument : Earlier in order to make your first argument you say that the UN doesn't check whether treaty depositions are Charter consistent. Now to make this argument about the meaning of intervention you say "it is upon this basis (interpretation) that it accepted it’s mere depositing." So which one is it ? Does the UN check interpretations and meanings of treaties before deposition or does it not ?)

If you think Turkey intervened to protect the TCs, well she could have done so through restoring the constitutional order.

Maybe so, but Turkey (which like any state, is not a he or she) manifestly didn't think this a sufficient guarantee for the long-term security of TCs. The point is not that you or I would have done something differently or even wished that things had been otherwise; the point is that within the ambiguous terms of the T of Guarantee in particular, Turkey insisted that it had certain duties and TCs certains rights which had to be protected.


What I find very odd and curious about some of these responses is the difference in treatment of the Turkish (and British) actions in and around 1974 on the one hand, and the role of RoC (and Greece) on the other hand. Turkey is presented as a monolithic, all-knowing, all-scheming, coherent and incredibly calculating entity (with little or no internal politics, with no variance of views or strategies or ambitions between different parts of the state and society; similar picture for Britain); whereas the RoC is presented as a rather incoherent, unknowing, hoodwinked, dizzy, innocent entity outwitted by a malice aforethought. This massively overstates the unity and purpose of Turkey, and radically understates the purposefulness of RoC leadership.

So what "relatively strong legal" position Turkey ever had? It never had any, in fact she was put under embargo from the Americans immediately

That the Americans put an embargo on Turkey is, legally, neither here nor there. It doesn't show one iota that Turkey's actions were illegal, it just shows that for a short time the US was annoyed with Turkey (or had to show that it was annoyed at Turkey).

If it were like that anybody could claim ambiguity in everything

I wouldn't go so far as to say 'ambiguity in everything', but not far off ..... Welcome to international law ...



I'm not going to say too much about the settler question because I've already said that this breached occupation law which was applicable until at least 1983. I will ask however, when did RoC bring a case against Turkey for "crimes against humanity" on Nuremburg grounds ? Which tribunal was this brought to ? What was the outcome of this tribunal ? I'd be interested to know - I've never heard reference to it. Incidentally, Prof Zayas should know that legislation cannot be applied retrospectively and so reference to the 1998 (Rome) Statute of ICC is irrelevant. Zayas should also know that Ecevit is not equivalent to the Turkish state, and the prosecution of individuals for actions of the state is notoriously difficult to secure. The reference to execution of Nazi war criminals in that context is pure disingenuous mischief. I've got nothing much to complain about in the rest of Zayyas' article, there are many bits I agree and share the spirit of his proposals; there are other bits where I think he's mistaken in fact and law.

[Jerry]

CopperLine, with reference to your last pargraph Professor Zayas clearly says:
Admittedly, the ICC statute has no retroactive application, but it is essentially declarative of pre-existing international law.
So he knows that legislation cannot be applied retropspectively, I suppose he is commenting on the principle of the law.

As for Ecevit, if you followed the detail of events leading up to the invasion you will see that he was the political driving force behind that event and without him it probably would not have happened. You may not wish to compare him to Nazi war criminals, perhaps the more recent trial of Slobodan Milosevic is a better comparison.

It's not clear to me who is being disingenuous.

[CopperLine]

CopperLine, with reference to your last pargraph Professor Zayas clearly says:
Admittedly, the ICC statute has no retroactive application, but it is essentially declarative of pre-existing international law.
So he knows that legislation cannot be applied retropspectively, I suppose he is commenting on the principle of the law.

Sorry, you're right I missed that later qualification. Having said that, the Rome Statute is not just a bit of tidying up and codifying of already established principles of law, it is a real and substantive innovation in international law, and certainly one that is welcome in my opinion.

The problem with invoking Nuremburg in international and human rights law has always been that (a) it was an example of "victor's justice" and (b) there was a heavy degree of retrospectivity to it. Both of these characteristics are regarded by lawyers and lawmakers as pretty dodgy. In that light I would not point to Nuremburg as a firm foundation fo seeking justice against war criminals (however they are defined) and instead rely more heavily on positive law (i.e, statues and agreements such as the Genocide Convention, or the Geneva Conventions and Protocols and so on.

I agree that there may have been a case for Ecevit to answer either personally (though I doubt that very much) or as a representative of a state. For what it is worth, one would have to say he would be small fry compared with the global 'most wanted' list. And again, for what it is worth, that 'most wanted' list should surely have the Turkish military coup generals much higher up than Ecevit, even for the Cyprus case ? However the cases of Pinochet, Sharon, Milosevic, the Rwanda tribunals and several others show how immensely difficult it still is, despite substantial changes in international law from the mid-1990s onwards, to bring alleged war criminals to account. In short from a strictly legal point of view, I'd have thought if George Bush and Tony Blair can escape m'learned justice, then Ecevit would have had no worries (he died last year didn't he ?)

[Pyrpolizer]

Maybe so, but Turkey (which like any state, is not a he or she) manifestly didn't think this a sufficient guarantee for the long-term security of TCs. The point is not that you or I would have done something differently or even wished that things had been otherwise; the point is that within the ambiguous terms of the T of Guarantee in particular, Turkey insisted that it had certain duties and TCs certains rights which had to be protected.

You still insist the treaty of Guarantee was ambiguous and Turkey thought that the treaty of Guarantee meant the protection of whatever ethnic group. You are totally wrong. Just show me this ambiguity in the treaty of Guarantee. The treaty of Guarantee is crystal clear it says RESTORE THE CONSTITUTIONAL ORDER. This means restore the state itself including security forces like police, government running etc etc and everything which by themselves would restore security for everyone.

If Turkey thought that was not clear enough for her she could easily go to any international court and claim ambiguity , and ask for her actions to be covered. She never did. You know the reason? Because the only way to win such a case would be to declare insanity, and as you very well said only individuals can claim insanity, not states.

That the Americans put an embargo on Turkey is, legally, neither here nor there. It doesn't show one iota that Turkey's actions were illegal, it just shows that for a short time the US was annoyed with Turkey (or had to show that it was annoyed at Turkey).

Oh the Americans just got annoyed-there was no legal basis for what they did!!! International law doesn’t cover their action. Is that what you are saying? How about the UN resolutions then? And if you still hold your orginal argument that Turkey did in fact had a "strong legal basis" for their so called intervention that turned up to be a clear cut invasion-occupation-ethnic cleansing etc etc, then just show me one legal decision Turkey ever managed to win based on your proclaimed "strong legal basis".