AMERICAN HELLENIC LAWERS SOCIETY SPEECH
Speech of the Ambassador of Cyprus to the US
Mrs. Erato Kozakou-Marcoullis
at the American Hellenic Lawyers Society
Washington, DC - November 19, 1998
Distinguished Members of the American Hellenic
Ladies and Gentlemen,
Let me begin by saying how honored I am to have been invited by the American Hellenic Lawyers Society to speak at your Fall Luncheon and to have been given this opportunity to meet with all of you and exchange views on a number of issues relating to the Cyprus problem, which I am certain are of interest and concern to you.
Since I am speaking before prominent Greek American Lawyers, I thought it would be of interest to you to concentrate my remarks on some of the legal issues surrounding the Cyprus problem, taking also into account that most of the aspects of the problem are of a legal nature, involving violation of international law and the international legal order.
The starting point of my remarks is the very issue of the Turkish invasion in 1974 and the subsequent military occupation of nearly 37 percent of the territory of the Republic of Cyprus that continues up to this very day.
Using as a pretext the coup of the military junta in Athens against the President of the Republic of Cyprus, Archbishop Makarios, Turkey launched a massive naval, land and air offensive against the Republic of Cyprus, an independent Member State of the United Nations on 20 July 1974 and again on 14 August 1974. The nature and extent of the illegal aggression and military operations of Turkey were such that by the 20th of August when a cease-fire was reached, Turkey had effectively occupied by military force 36.7 percent of the territory of the Republic of Cyprus. Almost 5000 persons had been brutally killed, some with napalm bombs and the vast majority in cold blood, and a further 1618 are still missing, four of which are US citizens of Cypriot descent. The 200.000 Greek Cypriot inhabitants of the occupied territory, who made up 80 percent of the inhabitants of that area and one third of the population of Cyprus, were forcibly expelled from their homes by the invading forces in an ethnic cleansing operation and in fulfillment of the long term objective of Turkey, namely to effect the partition of Cyprus on ethnic criteria.
The claim used by the Government of Turkey at the time to justify its invasion, which has been held since then, is that Turkey acted based on the provisions of Article IV of the Treaty of Guarantee, which along with the Treaty of Establishment and the Treaty of Alliance established the independence of the Republic of Cyprus. By Article II of the Treaty of Guarantee, Greece, Turkey and the United Kingdom, recognized and guaranteed the independence, territorial integrity and security of the Republic of Cyprus and also the state of affairs established by the basic Articles of the Constitution. Article IV of the Treaty of Guarantee states that: " In the event of a breach of the provisions of the present Treaty, Greece, Turkey and the United Kingdom undertake to consult together with respect to the representations or measures necessary to ensure observance of those provisions. Insofar as common or concerted action may not prove possible, each of the three guaranteeing Powers reserves the right to take action with the sole aim of re-establishing the state of affairs created by the present Treaty".
The validity of Article IV, or rather the interpretation given by Turkey that it has a unilateral right to intervene militarily, has been contested by the Government of the Republic of Cyprus which maintains that such interpretation of Article IV contravenes the principle of jus cogens, i.e. it is in violation of peremptory norms of international law, and more particularly Articles 2(1) and 2(4) of the United Nations Charter which declare in the first case that the UN is based on the sovereign equality of states and in the second case that it prohibits the threat or use of force against the sovereignty, territorial integrity or political independence of a member state.
Attention is also directed to Article 103 of the UN Charter which provides that the Charter shall prevail in the case of conflict between obligations assumed by the Charter and obligations under any other international agreement entered into by members.
Furthermore, Turkey has clearly ignored a host of resolutions of the UN Security Council, which has recorded its formal disapproval of the unilateral military actions undertaken against the Republic of Cyprus, has demanded an immediate end to foreign military intervention in the Republic of Cyprus, the speedy withdrawal of all foreign armed forces and foreign military presence and personnel from the Republic of Cyprus and the cessation of all foreign interference in its affairs. It has also called upon all states to respect the sovereignty, independence and territorial integrity of the Republic of Cyprus and to refrain from all acts and interventions directed against it; and has also demanded the return of all the refugees to their homes in safety.
If these resolutions are legally binding, and based on Article 25 of the UN Charter the Members of the United Nations agree to accept and carry out the decisions of the Security Council, then clearly Turkey, in having so far failed to end her armed intervention and withdraw her occupation troops, has flagrantly violated her obligations assumed under Article 25 of the UN Charter.
Despite the repeated calls for the withdrawal of all foreign armed forces and foreign military presence and personnel from the Republic of Cyprus, Turkey continues to maintain more than 35.000 occupation troops throughout the whole of the occupied area of Cyprus, which is considered by the UN Secretary General as one of the most densely militarized areas in the world.
Let us now move to the attempted secession of the occupied part of the Republic of Cyprus and its status in international law. As you know on 15 November 1983 the illegal regime in the occupied area issued a declaration by which it purported to create an independent state in that area self styled the "Turkish Republic of Northern Cyprus". The UN Security Council was immediately seized of this development and adopted on 18 November 1983 resolution 541 (1983) which provides, inter alia, the following:
"1. Deplores the declaration of the Turkish Cypriot authorities of the purported secession of part of the Republic of Cyprus;
2. Considers the declaration as legally invalid and calls for its withdrawal;
6. Calls upon all States to respect the sovereignty, independence and territorial integrity of the Republic of Cyprus;
7. Calls upon all States not to recognize any Cypriot state other than the Republic of Cyprus;" Following additional secessionist actions in the occupied area in May 1984, i.e. the exchange of "ambassadors " between Turkey and the "TRNC", the Security Council was again seized and adopted resolution 550 (1984) on 11 May 1984 which provides inter alia:
" 1. Reaffirms its resolution 541(1983) and calls for its urgent and effective implementation;
2. Condemns all secessionist actions, including the purported exchange of ambassadors between Turkey and the Turkish Cypriot leadership, declares them illegal and invalid and calls for their immediate withdrawal;
3.Reiterates the call upon all States not to recognize the purported State of the "Turkish Republic of Northern Cyprus" set up by secessionist acts and calls upon them not to facilitate or in any way assist the aforesaid secessionist entity;
4. Calls upon all States to respect the sovereignty, independence and territorial integrity of the Republic of Cyprus;"
Turkey remains the only country in the world that recognizes this illegal entity. Apart from the UN, it has received the same condemnation from all other international organizations such as the Council of Europe, the Commonwealth, the European Union and others.
All countries and all international organizations continue to recognize the existence of one state on the island of Cyprus, the Republic of Cyprus, and its Government as the only legitimate Government with which they maintain relations. This non recognition of the illegal entity by the international community is based on the fact that the use of force as an instrument of national policy, the acquisition of territory by force and attempts to use self determination as a cover for obtaining territorial advantages and legalizing the fruits of aggression and occupation are considered illegal and condemnable actions, that cannot be condoned by the international community.
The so called "Turkish Republic of Northern Cyprus" is a legally invalid entity which is the result of the illegal use of force by Turkey in 1974 and its so called territory is the product of Turkish aggression and occupation in violation of international law. It should also be made clear that the unit of self- determination recognized in the independence agreements of 1960 consisted of the population of Cyprus as a whole, which comprise of all the ethnic or religious groups that lived interspersed throughout the island.
The population of the occupied area, which consists of Turkish Cypriots forcibly removed from other areas of the Republic and Turkish mainland settlers, numbering over 80.000, illegally transferred from the Anatolian provinces of Turkey, cannot be considered a separate unit of self-determination for the additional reason that 200.000 of the occupied area's legitimate inhabitants, the Greek Cypriot refugees, were forcibly expelled from their homes and are prevented by the Turkish occupation troops from returning thereto, in violation of legally binding Security Council resolutions calling for their return as a matter of urgency.
Having discussed the legal parameters of the Cyprus problem and the legal order as far as the situation on the island is concerned, I shall now refer to an issue which is of great interest and vital concern, that of the massive violations of human rights as a result of the Turkish invasion and continuing occupation and how the issue is viewed from the point of international law and the legal obligations of Turkey.
The violation of the human rights of the people of Cyprus by Turkey has been repeatedly confirmed by the European Commission of Human Rights and the European Court of Human Rights of the Council of Europe in the three interstate applications of the Government of Cyprus against the Government of Turkey and the individual application of the Greek Cypriot refugee Titina Loizidou against the Government of Turkey.
Both Turkey and Cyprus are states parties to the Convention for the Protection of Human Rights and Fundamental Freedoms of the Council of Europe which entered into force in 1953. Cyprus, whose citizens have been victims of gross human rights violations as a result of the Turkish aggression and military occupation, invoked the Convention and charged Turkey for violations of a number of Articles of the Convention.
In the First Application submitted on 19 September 1974 and the Second Application submitted on 21 March 1975, the Government of Cyprus charged that in the course of the military operations following Turkey's military aggression and occupation in the summer of 1974, the armed forces of the Republic of Turkey have, by way of systematic conduct and adopted practice, caused deprivation of life, including indiscriminate killing of civilians, have subjected persons of both sexes and all ages to torture, inhuman and degrading treatment and punishment, including commission of rapes and detention under inhuman conditions, have arrested and detained in Cyprus and in Turkey hundreds of persons arbitrarily and with no lawful authority, have forcibly evicted 200,000 Greek Cypriots from their homes and lands and have caused through such displacement and refusal to all of them to return thereto, separation of families and other interferences with private life, have caused the disappearance of a large number of civilians who are still missing, have caused destruction and looting of property and obstruction of free enjoyment of property and all the above have been directed against Greek Cypriots only due to their ethnic origin and religion.
The two Applications were jointly considered by the European Commission of Human Rights of the Council of Europe and in finding them admissible the Commission decided that Turkey is accountable for her actions in Cyprus by way of the presence of her armed forces in the occupied territory, which are authorized agents of the Government of Turkey.
This was a most important decision by which an independent body took the clear and unequivocal position that Turkey, by way of her occupation of the northern part of Cyprus, exercised control over that area and should be held responsible for actions or omissions of her agents.
In its report adopted on 10 July 1976, the European Commission held Turkey responsible for violating Articles 2,3,5,8,13 and 14 of the Convention, as well as Article 1 of Protocol 1 on account of its refusal to allow the return of more than 170,000 Greek Cypriot refugees to their homes in the north of Cyprus, the continuing eviction of Greek Cypriots from their homes, the separation of families brought about by measures of displacement, the confinement of Greek Cypriots to detention centers in the occupied part of Cyprus and in Turkey, deprivation of lives of Greek Cypriots, ill treatment, including rapes in a number of cases and deprivation of possessions of Greek Cypriots.
The Government of Cyprus submitted its Third Application against the Government of Turkey on 6 September 1977 and charged Turkey with similar violations of continued forcible eviction, forcible displacement, refusal to allow the return of the refugees, separation of families, disappearance of persons, and looting, destruction, seizure, appropriation, expropriation, occupation and distribution of movable and immovable property of Greek Cypriots.
In its report adopted on 4 October 1983, the Commission, having established and having found sufficient indications in an indefinite number of cases that Greek Cypriots who are still missing were unlawfully deprived of their liberty, in Turkish custody in 1974, noting that Turkey had failed to account for the fate of these persons, concluded that Turkey violated Article 5 of the Convention. Turkey was also found responsible for violating Article 8 of the Convention on account of her continued refusal to allow the Greek Cypriot refugees to return to their homes in the occupied part of Cyprus, as well as for separation of families resulting from such refusal. The Commission also found that Turkey violated Article 1 of Protocol 1 for the deprivation of possessions of Greek Cypriots and Article 14 of the Convention for having failed to secure the rights and freedoms set forth in the above Articles to the Greek Cypriots because of their ethnic origin, race and religion.
Eleven years later on 22 November 1994, the Government of Cyprus submitted its Fourth Interstate Application against the Government of Turkey, contending that Turkey continued to commit in the northern part of Cyprus breaches of a number of Articles of the Convention on account of her unlawful detention and deprivation of the liberty of 1619 persons missing since 1974, the refusal to allow the Greek Cypriot refugees to return to their homes, the continued eviction of the few remaining Greek Cypriots in the occupied area from their homes, the continuing expropriation and illegal possession of the properties of the Greek Cypriots, the separation of families, the continuing settlement of the occupied area by Turkish mainland settlers, the inhuman treatment of the Greek Cypriot enclaved in the occupied area, and violations of the rights of the Turkish Cypriots. The Application was found admissible by the Commission, which will now have to submit its Report on the merits of the case by the end of 1998.
Another very important case as far as the vindication of the rights of the refugees are concerned, has been the case of the individual application of the Greek Cypriot refugee, Ms Titina Loizidou against the Republic of Turkey. Ms. Loizidou , who is owner of property in the occupied town of Kyrenia, filed her application on 22 July 1989, charging that she had been prevented and continues to be prevented by the Turkish forces from returning to Kyrenia and from peacefully enjoying her property there.
Following an Opinion expressed by the Commission that there had been no violation, the case was brought this time to the European Court of Human Rights of the Council of Europe jointly by the Government of Cyprus and Ms. Loizidou.
It is very significant to note that the Court determined that as it is obvious from the large number of Turkish troops engaged in active duties in northern Cyprus, Turkey's army exercises effective control over that part of the island. The Court further stated that such control makes Turkey responsible for the policies and actions of the illegal entity in the occupied part of Cyprus, the so called "Turkish Republic of Northern Cyprus", which according to the Court is not recognized by the international community as a state under international law, the Republic of Cyprus remaining the sole legitimate Government of Cyprus.
Persons affected by policies or actions of the so called TRNC therefore come within the jurisdiction of Turkey for the purposes of Article 1 of the Convention and Turkey's obligation to secure to the applicant the rights and freedoms set out in the Convention extends to the northern part of Cyprus. This is a most clear and pronounced position of one of the most respected international judicial bodies on an issue of major significance, that of the non-recognition of the illegal entity and of the responsibility of Turkey, the occupying power for its actions or policies in the occupied area.
In its final judgment the Court concluded that the denial of access to the applicant's property and consequent loss of control is imputable to Turkey and that there has been a breach of Article 1 of Protocol 1 of the Convention.
In another historic decision of 28 July 1998, the Court ruled that under Article 50 Turkey was obliged to pay Ms. Loizidou 600,000 US dollars in pecuniary damages for preventing her from enjoying her property. Furthermore, Turkey was ordered to pay 40,000 dollars in non-pecuniary/ psychological damages and 270,000 dollars to cover her legal costs. The figure of 600,000 Dollars was derived from estimates on Ms Loizidou's property value since 1990, the year when Turkey accepted the jurisdiction of the Court.
It is very significant to note that the Court also judged that Ms. Loizidou is still the legal owner of her property in the occupied area and no issue of expropriation arose. Her claim was thus confined to the loss of use of the land and the consequent lost opportunity to develop or lease it.
The findings of the European Commission of the Council of Europe and the Court of Human Rights of the Council of Europe that I just referred to, are of historical significance but also of great legal value because they establish beyond any doubt the grave responsibilities of Turkey for the continuing massive and gross violations of the human rights of the people of Cyprus, who continue to suffer the tragic consequences of Turkey's invasion and occupation of 37 percent of the territory of their country.
There are many other legal aspects of the Cyprus problem on which I would like to refer, such as the continuing destruction and looting of the cultural and religious heritage of the occupied territory, and the Kanakaria mosaics case brought before the courts and tried in the United States, is a famous legal case that enabled the return of the mosaics to their legal owner in Cyprus, the Church of Cyprus, the illegal export of products from the occupied territories, and the judgment of the then Court of Justice of the European Communities of 5 July 1994 is an important one, as well as many other issues, but our time is, unfortunately, very limited.
I hope that in my remarks I was able to give you some insight on the legal background of the Cyprus problem which might be useful. I shall be at your disposal to answer any of your questions on these and other issues afterwards.
In conclusion I would like to stress that the present period is very critical. The Turkish intransigence is at its peak. It now openly seeks recognition of the illegal "TRNC", withdrawal of our application for membership to the European Union and confederation, in violation of Security Council resolutions and the agreed basis for a solution, which is a bicommunal, bizonal federation.
What is urgently needed is for the necessary influence to be exerted on Turkey to end her forcible division of the island and to cooperate for a solution that should bring an end to the suffering of the people of Cyprus, Greek Cypriots and Turkish Cypriots alike. As we are approaching the downing of a new millennium, we should send a loud and clear message to all those who can help bring about the necessary changes, particularly the United States Government, which is the only remaining superpower in the world, that this shameful and anachronistic status quo, established by the use of force and deemed by the international community as unacceptable, should not be allowed to shatter our hopes and expectations for a new era of a more just and humane world order in the new millennium. Other more intractable problems around the world have seen their way to a solution or in that direction. People who have long suffered from similar or more painful conflicts, can now count on a better future for their children. The people of Cyprus deserve to have the same opportunity to see their children's future in peace, prosperity and security in a reunited country, member of the European Union.