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
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
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
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
- 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
- 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,
- 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
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
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.
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.
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
As to the Greek-Cypriot population, the principal remedies would
- 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
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.
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.
Prof. Dr.iur. et phil. Alfred de Zayas
23 Créts de Pregny
CH-1218 Grand Saconnex
Tel. 004122 7882231