By Tasoula Hadjitofi
As I explained in a previous article, Turkey has been trying to block the possible road to justice for Cyprus through the International Court of Justice (ICJ) in The Hague in the Netherlands.
The Netherlands is my adopted country where I have lived for many years after being forcibly displaced from my city of Famagusta after the Turkish invasion. However, there are other possible roads to justice. These include one passing through the International Criminal Court (ICC) which is also based in The Hague, where my family and I still live.
I will never forget how, while travelling from Larnaca to Amsterdam after the establishment of the ICC in 2002, I read in a newspaper that one of the first of the founding judges to serve in the ICC was Georgios Pikis, Cyprus Supreme Court president from 1995 until 2004, ICC judge from 2003 until 2009 and the first president of the Appeals Division of the ICC.
I knew what an honour this was for Cyprus, and what a giant Pikis must have been to have been elected to fill such an important judicial post in The Hague. As a Cypriot, I wished to convey to the judge how proud I was that he would join the ICC. I also wanted him to know that I would love to meet him in the Netherlands. This finally occurred in February 2004, when I met the judge at the Hotel Kurhuis, where we were joined by his philosophical and wise wife, Mary. We sat watching the waves of the North Sea and he explained to me what the ICC would do.
For six years, Pikis served with distinction at the ICC. He eventually wrote a leading scholarly book on its Statute: The Rome Statute for the International Criminal Court: Analysis of the Statute, the Rules of Procedure and Evidence, the Regulations of the Court and Supplementary Instruments (Martinus Nijhoff, 2010).
Pikis has given a number of lectures on the ICC. For example, at the Cyprus Supreme Court on July 5, 2018, he marked the 20th anniversary of the Rome Statute on the ICC by delivering a lecture, which began with an explanation of why the ICC “is a milestone in the history of mankind”:
“For the first time, a criminal court was established with global jurisdiction over heinous crimes that demeaned humanity. The [Rome] Statute of the ICC lays down that every individual, worldwide, is subject to the jurisdiction of the Court, liable for the commission of grave crimes that have scarred the face of humanity.”
Having in mind the wise words of Pikis, I asked, can the ICC bring justice to Cyprus? On the basis that nobody is above the law, the answer must surely be “yes”. However, there are formidable though not necessarily insurmountable obstacles on the road to justice through the ICC. Let me mention three of these.
The first obstacle is the suspicious refusal of Turkey to become a state party to the Rome Statute on the ICC.
Turkey has not even signed the Rome Statute.Thus, despite being a candidate country to join the EU, Turkey has not followed the example set by the Republic of Cyprus, the Netherlands and all other EU members who have become state parties to the ICC.
A second obstacle is the ongoing failure of the UN Security Council to activate Chapter VII of the UN Charter and refer any of the alleged international crimes committed in the Republic of Cyprus to the Prosecutor of the ICC. The UN Security Council has thereby failed to invite the ICC to “exercise its jurisdiction” under Article 13 (b) of the Rome Statute “with respect to” any of the crimes listed in Article 5 of the same Statute – the crime of genocide, crimes against humanity, war crimes and the crime of aggression.
A third obstacle is the limited chronological jurisdiction of the ICC. This is confined to international crimes allegedly committed after the Rome Statute came into force on July 1, 2002. However, this restriction does not prevent the ICC from handling any cases arising from any international crimes allegedly committed in any part of the Republic of Cyprus after this date. According to the complaint filed with the ICC in 2014 by aMember of the European Parliament, Costas Mavrides, and the Cypriots Against Turkish War Crimes Foundation, such crimes would appear to include “The transfer, directly or indirectly, by the Occupying Power of parts of its own civilian population into the territory it occupies, or the deportation or transfer of all or parts of the population of the occupied territory within or outside this territory”, contrary to Article 8.2(b)(viii) of the Rome Statute.
Nor does the limited chronological jurisdiction of the ICC prevent the law enforcement authorities in Turkey or the Republic of Cyprus from instigating criminal proceedings in their domestic courts under domestic legislation such as a Cyprus Law of 1966. That law enshrines the four Geneva Conventions of 1949 into domestic Cypriot law. Those conventions appear to have been flouted, with impunity, in 1974 and in so many other years. However, will the law enforcement authorities in the Republic of Cyprus or Turkey ever bring any domestic criminal proceedings?
There are some glimmers of hope on the horizon. One appeared on June 15, 2021. In her “Farewell end of term statement” on that date, the outgoing prosecutor at the ICC, Fatou Bensouda of Gambia, disclosed that “during the past six months my staff has undertaken significant work, within available means, to advance our assessment on several so-called ‘Phase 1’ assessments – i.e. the initial filtering assessment as part of the preliminary examination process.” The outgoing prosecutor then mentioned Cyprus when she added:
“Last December, I announced our hope that during 2021 decisions could be reached either to dismiss or proceed, including with respect to Mexico, Cyprus (settlements), Yemen (arm exporters), Cambodia (land grabbing) and Syria/Jordan (deportation). Despite progress made on a number of these assessments … I will again be handing these over to the incoming prosecutor to consider and decide upon, as he deems appropriate.”
A decision is now awaited from the new prosecutor at the ICC, Karim AA Khan QC of the United Kingdom.
Whatever the new prosecutor decides, nothing can alter the basic facts. In 1974, Turkey invaded the Republic of Cyprus through two bloody military campaigns – first on July 20 and then again on August 14. During each campaign, the Turkish occupation forces terrorised the indigenous Greek Cypriot citizens of the Republic in its northern part into fleeing to the southern part. Turkey and its local agents also coerced Turkish Cypriot citizens of the Republic of Cyprus to head in the opposite direction.
In order to achieve the de facto partition of the Republic of Cyprus and the forcible physical segregation of its people, Turkey carried out human rights violations and what appear to be unpunished crimes against humanity and other international crimes. Such crimes would appear to include willful killings, forcible transfers of population, unlawful imprisonments, acts of torture, rape, enforced disappearances of persons and the persecution of people on ethnic and religious grounds. Evidence of such crimes has been documented – in the context of European Human Rights Law – in Volumes I and II of the Report of the European Commission of Human Rights adopted in 1976.
Since 1974, Turkey has illegally occupied 36 per cent of the territory and 57 per cent of the coastline of the Republic of Cyprus. This past July, on the 47th anniversary of the first Turkish invasion, Turkey’s President Recep Tayyip Erdogan visited the Turkish-occupied north of the Republic. At the time, I went to my Turkish-occupied birthplace of Famagusta with two journalists of der Spiegel, who reported on the four days we spent there trying to meet and confront Erdogan. He never turned up, but I made a promise: I would do everything I can to call for justice in response to the countless unpunished human rights violations and international crimes inflicted on me and on so many other forcibly displaced persons of various ethnic or religious backgrounds. I also promised to spare no effort in reaching out to the very best legal academics and lawyers to point me towards the possible roads to justice. Sooner or later, justice must be delivered on account of the ongoing injustices done to my country and people.
In the meantime, everyone should reflect upon the words with which Georghios Pikis ended his lecture on the ICC on 5 July 2018:
“Without justice there can be no peace and without peace, human existence is left at the mercy of the ill passions of the strong for power, domination, riches and sequential inhuman acts.”
About the author: Tasoula Hadjitofi is a human rights and cultural campaigner whose expertise is cultural heritage preservation. She is the founding president of the Walk of Truth and the author of the 2017 book The Icon Hunter.