Alfred de Zayas, THE ANNAN PLAN AND THE IMPLANTATION OF TURKISH SETTLERS IN NORTHERN CYPRUS
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[1].
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;[2]
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)[3]; 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).[4]
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.[5]
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[6].
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INTERNATIONAL EXPERT PANEL on Cyprus
Victoria Νuland with the backing of the European Commission are exercising now maximum pressure to the governments of Nicosia and Athens in order to agree into a new version of the Annan plan for the solution of the Cyprus conflicted, which was rejected by the overwhelming majority of Cypriot citizens back in 2004.
The Annan plan runs counter to many fundamental provisions of the UN Charter, of the Constitutional, European and International Law. It is providing also Turkey with the status of member-non member of the EU already by now, because of the huge institutionalized influence it recognizes for Ankara into the new Cypriot “state” (in fact a post-modern protectorate).
We publish below the report of a panel of known international jurists on the Annan plan and on the principles they believe should regulate any Cyprus settlement conform with the principles of democracy, of Europe and of stability.
INTERNATIONAL EXPERT PANEL
CONVENED BY THE COMMITTEE FOR A EUROPEAN SOLUTION IN CYPRUS
A principled basis for a just and lasting Cyprus settlement in the light of International and European Law
Preamble
- The purpose of this Report, prepared by an International Expert Panel, is to seek a just Cyprus settlement providing for the peaceful and prosperous future of all the people of the island. In order to do this, one must apply the key principles drawn from international and European law which apply in the settlement of international disputes, including disputes concerning members of the European Union. Such principles lie at the heart of international and European law. Failure to respect such principles is likely not only to prejudice the success of any particular settlement plan by internalising contradictions with international law and thus weakening its sustainability, but also to constitute a destabilising element for the future. The precedent of a political settlement contrary to accepted international and European legal principles may well be resorted to in other dispute situations with serious consequences for the stability of the international order.
- The fundamental principles of international and European law offer a unique guide and methodology by which to initiate and successfully conclude a process leading to a Cyprus settlement within the framework of a new and genuinely Cypriot Constitution in accordance with the right of self-determination. This is at the very core of a European solution for Cyprus, consistent with international and European law.
- The solution of the Cyprus problem must be found by respecting and applying the fundamental principles on which international law and the European Union are founded: these are in brief, the peaceful settlement of disputes; the sovereignty, independence and equality of states; the prohibition of aggression and the non-recognition of its consequences; and respect for human rights, liberty, democracy and the rule of law. Both the present state of affairs in Cyprus and the terms of the current Annan Plan are inconsistent with these fundamental principles. It is also essential to arrive at a solution that fully respects the need for the reconciliation of, and cooperation between, the communities and all relevant parties.
- The European Union is called upon to seize this historic opportunity and to assume its special responsibility for actively helping to put in motion a process of constitution-making that will finally allow the Republic of Cyprus, as a member state, to recover full sovereignty and independence and to establish peacefully a constitutional order respecting the above mentioned principles, and based on full respect for diversity.
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