FORCIBLE DISPLACEMENT UNDER TURKISH AND INTERNATIONAL LAW AND STANDARDS

The Turkish government's policy of forcible displacement of civilians and village destruction was illegal under domestic law and in breach of international human rights and humanitarian law. The government continues to fail in its duty of care toward the internally displaced under international standards, and in its legal responsibility to provide restitution to them.

Most of the displacements occurred in provinces that were under a state of emergency. Turkish law permits state authorities to move populations under a state of emergency, but simultaneously imposes clear responsibilities on those authorities to provide alternative housing and financial support. The Decree concerning the Establishment of the Emergency Region Governorate¹² states,

Where the Emergency Region Governor considers appropriate, villages and mezra [hamlets] may be temporarily or otherwise evacuated, unified or resettled in another place for security reasons. Compulsory purchase procedures may be carried out for such purposes on [the governor's] own initiative. Persons evacuated from their villages for security reasons may be rehoused if they so wish, and financial support must be provided.... These powers belong exclusively to the Emergency Region Governor.¹³

In practice, security forces almost invariably by-passed these formal powers and the responsibilities attached to them, choosing instead to displace villagers and destroy their property in an arbitrary and unlawful manner. Under the Turkish Criminal Code (TCC) it is a criminal offense to coerce a person by force or threats (article 188), to issue threats (article 191), unlawfully to search a person's home (articles 193 and 194), to commit arson or aggravated arson putting human life at risk (articles 369, 370, 371, 372 and 382), to kill livestock (article 521), or deliberately to damage another's property (article 516). Articles 245, 246, 248 and 250 of the TCC provide for imprisonment of state officials guilty of ill-treating citizens, infringing citizens' property rights, occupying their land, or stealing their money or food.

International humanitarian and human rights law strictly limits governments' right to move populations, imposes strong conditions on the methods used, and places a responsibility of care on the authorities carrying out the movement. There are also clear legal precedents for governments' duty of restitution and compensation towards persons whom they have displaced.

The conflict in southeastern Turkey during 1984-99 was intense enough to qualify as a non-international (internal) armed conflict under international humanitarian law, also called the laws of war. Provisions for the protection of civilians and civilian property in internal armed conflicts is found in Common Article 3 to the four Geneva Conventions of 1949¹⁴ and the 1977 Second Additional Protocol to the Geneva Conventions (Protocol II).¹⁵ Turkey is a state party to the 1949 Geneva Conventions, but not to Protocol II. However, much of Protocol II is considered to reflect customary international law and is thus binding on all states and opposition armed groups. Protocol II states that the "displacement of the civilian population shall not be ordered" unless the security of the civilians involved or imperative military reasons so demand.¹⁶ The ICRC Commentary on the Additional Protocols notes that "imperative military reasons cannot be justified by political motives. For example, it would be prohibited to move a population in order to exercise more effective control over a dissident ethnic group."¹⁷ In the event of a lawful population transfer, Protocol II requires that the authorities must "take all possible measures" to ensure that the internally displaced are provided with shelter, hygiene, health, safety, and nutrition.¹⁸

Article 12 of the International Covenant on Civil and Political Rights (ICCPR), which Turkey signed in 2000, establishes that everyone shall have "the right to liberty of movement and freedom to choose his residence."¹⁹ The freedom to choose one's residence incorporates the right not to be moved.²⁰ Restrictions on movement and choice of residence are permitted only when provided by law and for reasons of "national security, public order (ordre public), public health or morals, or the rights and freedoms of others;" such restrictions must be consistent with other rights recognized by the ICCPR.

Various U.N. bodies have further defined this right. In a 1997 resolution, the Sub-Commission on Prevention of Discrimination and Protection of Minorities of the U.N. Commission on Human Rights affirmed "the right of persons to remain in their own homes, on their own lands, and in their own countries." It also urged governments and other actors to do everything possible "to cease at once all practices of forced displacement [and] population transfer ... in violation of international legal standards."²¹

In another resolution in 1997, the Sub-Commission reaffirmed the right "not to be evicted arbitrarily ... from one's home, land or community." It noted that "coerced and involuntary removal" of persons from their homes and lands could result in "greater homelessness and inadequate housing and living conditions."²² It also noted that for an eviction to be considered justifiable would require that it not be carried out arbitrarily but through legal procedures that ensure appropriate due process protections. Arbitrariness may be presumed from widespread displacement where cases have not been examined on an individual basis.

The United Nations Guiding Principles on Internal Displacement (U.N. Guiding Principles), though not binding on governments, reflect and are consistent with international human rights law and international humanitarian law, and are intended to provide guidance to states confronting internal displacement.²³ Specific provisions of the guidelines are quoted elsewhere in this report, but in summary, they state that:

· the decision to move a population should be taken by a state authority empowered to take such measures;
· internally displaced communities should be given full information on the reasons and procedures for their displacement as well as on compensation and relocation;
· those to be displaced should be consulted about the move and included in decision making as far as is practicable;
· internally displaced people should have the right to an effective remedy against such measures, including judicial review;²⁴
· states have a special obligation to protect minorities, peasants, and pastoralists from displacement,²⁵ and must under no circumstances carry out displacements as a form of collective punishment,²⁶ or discriminate against internally displaced persons by forcing them into armed forces and military groups;²⁷
· the right of the population to life, dignity, liberty, and security must be respected during displacement;²⁸
· while a population is internally displaced, its members should have the right to an adequate standard of living, safe access to food and drinking water, basic housing and shelter, medical facilities, and sanitation;²⁹
· displaced people should not be deprived of their possessions and their property should not be destroyed or appropriated as a form of collective punishment;
· states must protect property left behind by internally displaced persons against destruction and arbitrary and illegal appropriation, occupation, or use;³⁰
· states are primarily responsible for ensuring the welfare of the displaced, but they must ensure free passage for humanitarian assistance from nongovernmental or intergovernmental organizations;³¹
· displacement must last no longer than required by the circumstances;³²
· the state authorities are primarily responsible for providing the conditions, as well as the means, to allow internally displaced persons to return voluntarily in safety to their homes or places of habitual residence, or to resettle voluntarily in other parts of the country, and should seek to ensure the participation of the displaced in the planning and management of their return;³³ and
· the authorities must assist the displaced in the recovery of their property and provide appropriate compensation or another form of just reparation when this is not possible.³⁴

Principle 28 of the Guiding Principles deserves particular attention. While not going so far as to guarantee the right of internally displaced people to return to their homes, Principle 28 draws on existing international human rights and humanitarian law, as well as various U.N. Resolutions, to assert that governments and international organizations should establish the conditions and provide the means for internally displaced persons "to return voluntarily, in safety and with dignity, to their homes or places of habitual residence." Influential in the formulation of the Guiding Principles on return was the Dayton Peace Agreement for Bosnia and Herzegovina, of December 14, 1995. Annex 7 of the Dayton Agreement explicitly provided for the right of more than two million refugees and internally displaced persons to "freely return to their homes of origin." The Agreement continues, "They shall have the right to have restored to them property of which they were deprived in the course of hostilities since 1991 and to be compensated for any property that cannot be restored to them." ³⁵

Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention), to which Turkey is a party, safeguards the right to respect for private and family life,³⁶ and Article 1 of Protocol 1 to the convention protects the right to enjoyment of possessions.³⁷ The European Court of Human Rights (ECHR) has found the security forces' destruction of property in southeast Turkey to be a violation of both articles (see below).

The question of restitution is not directly addressed in applicable international instruments. The U.N. Sub-Commission on Prevention of Discrimination and Protection of Minorities recommended that governments provide "immediate restitution, compensation and/or appropriate and sufficient alternative accommodation or land" to those who had been forcibly evicted from their homes.³⁸ In its judgment in Akdivar and others v Turkey (Article 50), the ECHR states that where a state has been found in breach of the European Convention, that state has "a legal obligation to put an end to such breach and make reparation for its consequences in such a way as to restore as far as possible the situation existing before the breach (restitution integrum)." ³⁹

Guiding Principle 29 (2) stipulates that internally displaced persons should be provided with compensation or other just reparation for property lost during the course of displacement. Annotations to the Guiding Principles document the strong precedents for providing compensation to displaced persons for the loss of property during displacement.⁴⁰ For example, the procedural rules of the International Criminal Tribunal for the former Yugoslavia (ICTY) allow the Tribunal to award restitution of property or its proceeds to victims.⁴¹ Also, in the Miskito case, the Inter-American Commission on Human Rights recommended payment of just compensation to returning internally displaced persons for the loss of their property, including homes, crops, livestock, and other belongings.⁴² The World Bank also provides for compensation for losses at full replacement cost for persons displaced involuntarily as a result of development projects that have a severe social, economic, and environmental impact.⁴³ The Dayton Peace Agreement established a Commission for Real Property Claims of Displaced Persons and Refugees in Annex 7 and has dealt with many claims, as has the Human Rights Chamber for Bosnia and Herzegovina.⁴⁴

12 Decree 285, Article 4, paragraph H, 1987 (unofficial translation).

13 Housing Law 2510.

14 Although Common Article 3 to the 1949 Geneva Conventions is silent on the issue of population transfers during internal armed conflicts, it nonetheless prohibits "inhumane and degrading treatment."

15 Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), 1125 U.N.TS 609, adopted June 8, 1977. Protocol II applies when opposing forces in an internal armed conflict are under a responsible command, exercise enough control over territory to mount sustained and coordinated military operations and have the capacity to implement Protocol II.

16 Protocol II, art. 17(1).

17 ICRC Commentary on the Additional Protocols, p. 1473.

18 Protocol II, art. 17(1).

19 International Covenant on Civil and Political Rights, art. 12.

20 See, e.g., Patrick McFadden, "The Right to Stay," Vanderbilt Journal of Transnational Law, vol. 29, p. 36 (1966).

21 United Nations, Economic and Social Council, Commission on Human Rights, Sub-Commission on Prevention of Discrimination and Protection of Minorities, "Freedom of Movement and Population Transfer," E/CN.4/SUB.2/RES/1997/29. See also United Nations, Economic and Social Council, Commission on Human Rights, "Further Promotion and Encouragement of Human Rights and Fundamental Freedoms Including the Question of the Programme and Methods of Work of the Commission, Questions of Human Rights, Mass Exoduses and Displaced Persons, Report of the Representative of the Secretary General, Dr. Francis Deng, Addendum, Compilation and Analysis of Legal Norms, Part II: Legal Aspects Relating to the Protection Against Arbitrary Displacement," E/CN.4/1998/53/Add.1, Section II, A, paragraph 4. Hereafter cited as "Report of Dr. Francis Deng ... Part II."

22 United Nations, Economic and Social Council, Sub-Commission on Prevention of Discrimination and Protection of Minorities, Forced Evictions, E/CN.4/SUB.2/RES/1997/6.

23 Although non-binding, the U.N. Guiding Principles are based upon and reflect international humanitarian and human rights law, which are binding. Resolutions of the United Nations Commission on Human Rights and the General Assembly have described the Guiding Principles as a comprehensive framework for the protection of internally displaced persons and have welcomed their use and encouraged U.N. agencies, regional organizations, and nongovernmental organizations to disseminate and apply them. U.N. agencies and nongovernmental umbrella groups in the Inter-Agency Standing Committee have endorsed the Guiding Principles. Regional bodies in the Americas, Africa, and Europe have endorsed or acknowledged the Guiding Principles with appreciation. In particular, the OSCE and its Office for Democratic Institutions and Human Rights (ODIHR) have widely endorsed and promoted the Guiding Principles throughout their work. The Council of Europe has also endorsed the Guiding Principles through its Parliamentary Assembly Committee on Migration, Refugees and Demography, which recommends respect for the Guiding Principles in the course of fact-finding missions to displacement-affected countries. Individual governments have begun to incorporate them in national policies and laws, and some national courts have begun to refer to them as a relevant restatement of existing international law. For more information, see United Nations Commission on Human Rights, Report of the Representative of the Secretary General on internally displaced persons, Dr. Francis Deng, Specific Groups and Individuals: Mass Exodus and Displaced Persons, January 16, 2002 E/CN.4/2002/95, published in The Brookings-CUNY Project on Internal Displacement: Recent Commentaries about the Nature and Application of the Guiding Principles on Internal Displacement, April 2002.

24 This and the foregoing points are covered in Principle 7.

25 Principle 9.

26 Principles 6 (e) and 21.

27 Principle 13.

28 Principle 8.

29 Principle 18.

30 Principle 21.

31 Principle 25.

32 Principle 6.

33 Principle 28.

34 Principle 29.

35 Guiding Principles on Internal Displacement: Annotations, by Walter Kalin, jointly published by the Brookings Project and the American Society of International Law (ASIL), Studies in Transnational Legal Policy, No 32, June 2000, p. 70.

36 Article 8 states: "Everyone has the right to respect for his private and family life, his home and his correspondence.
There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."

37 Protocol 1, Article 1 states: "Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law."

38 United Nations, Economic and Social Council, Sub-Commission on Prevention of Discrimination and Protection of Minorities, Forced Evictions, E/CN.4/SUB.2/RES/1997/6.

39 Akdivar and others v Turkey (Article 50), April 1, 1998, paragraph 47 (dealing with the destruction of houses by gendarme in the village of Kelekci in Diyarbakır province).

40 Guiding Principles on Internal Displacement: Annotations, by Walter Kalin, jointly published by the Brookings Project and the American Society of International Law (ASIL), Studies in Transnational Legal Policy, No 32, June 2000, p. 72.

41 Article 105 of the Rules of Procedure and Evidence, adopted February 11, 1994 by the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of Humanitarian Law committed in the Territory of the Former Yugoslavia since 1991, U.N.Doc.IT/32, March 14, 1994.

42 Report on the situation of human rights of a segment of the Nicaraguan population of Miskito origin, OEA/Ser.L/V/II.62, doc. 10, rev. 3, November 29, 1983.

43 The World Bank, Involuntary Resettlement, Operational Directive 4.30 (1990); see also The World Bank, Involuntary Resettlement, Draft Operation Policy 4.12 (1999), available at http://www.worldbank.org/html/extdr/projects.html.

44 Medan et al. v. the State and the Federation of BH, Decision of November 7, 1997, CH/96/3; Kalincevic v. the State and the Federation of BH, Decision of March 11, 1998, CH/96/23; Kevesevic v. Federation of BH, Decision of September 10, 1998, CH/97/46; Erakovic v. Federation of BH, Decision of January 15, 1999, CH/97/42; Gogic v. Republika Srpska, Decision of June 11, 1999, CH/98/800; Pletilic et. al ("20 Gradiska Cases") v Republika Srpska, Decision of July 8,1999.