Loizidou v. Turkey: A Precedent For Palestinian Refugees?

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Overview:

When Israel was created in 1948, 800,000 Palestinians were expelled by Jewish forces or fled from their homes and land in historic Palestine. Today, there are more than five million Palestinian refugees worldwide. Their fate remains unresolved.

A situation similar to that of the Palestinians resulted from Turkey’s occupation of Cyprus. Therefore, it is worth examining the case of Greek Cypriot Titina Loizidou, a refugee who was prevented from returning home by Turkey. More than four years ago, Loizidou won a lawsuit against Turkey before the European Court of Human Rights (ECHR). This legal action could provide a precedent for Palestinian refugees wishing to file claims against Israel.

Historical Comparisons:

The historical similarities between the Israeli and Turkish cases are striking, including the creation of refugees, colonization, and international condemnation. In July 1974, after Turkey invaded the Republic of Cyprus, 200,000 Greek Cypriots-or one third of the population-were forcibly expelled from their homes. They continue to be deprived of the right to return to their homes and land. More than 80,000 settlers from Turkey were imported illegally to colonize the occupied areas with the aim of changing the demographic structure of Cyprus. Properties usurped from the expelled Greek Cypriots were distributed to these settlers.

A series of resolutions adopted by the UN General Assembly and Security Council, as well as by numerous other international organizations, have condemned the Turkish invasion of Cyprus, demanded the return of refugees to their homes, and called for the respect of all Cypriots’ human rights. The UN, in Security Council Resolution 361 and General Assembly Resolution 3395, called for urgent measures to facilitate the voluntary, safe return of all Cypriot refugees to their homes. Twenty-six years have elapsed since then, and Turkey still refuses to implement these resolutions.

Likewise, Israel has refused to allow Palestinian refugees and those who are internally displaced to exercise their right of return for more than 50 years. This is the case despite the fact that the international community has consistently and formally recognized the right of Palestinian refugees to return to their homes, as well as their right to their property and to the income derived from their property (the key documents in this regard are UN General Assembly resolutions 194 and 51/129).

Loizidou v. Turkey:

In December 1996, the ECHR examined a case against Turkey by Titina Loizidou, a refugee from Kyrenia in Turkish occupied Cyprus. The Court ruled that she remains the legal owner of her property in Kyrenia, and that Turkey is in violation of the European Convention for the Protection of Human Rights by not allowing her to access her property. Article 1 of Protocol 1 of this Convention 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.”

This unprecedented ruling offers the opportunity to hundreds of Greek Cypriot refugees to claim their right to use and enjoy their property in the Turkish occupied part of Cyprus. The ECHR said in its ruling that it “holds by eleven votes to six that the denial of access to the applicant’s property and consequent loss of control thereof is imputable to Turkey.”

The ECHR’s decision invalidated Turkey’s expropriation laws. The ECHR not only ordered Turkey to return Loizidou’s property, it also awarded her compensation for Turkey’s interference with her right to full enjoyment of her property. Loizidou remained the legal owner of her land. Consequently, the continued denial of the applicant’s access to her property interfered with her right to her property, which the ECHR found unjustified.

Achilleas Demetriades, who argued Loizidou’s case before the ECHR, asked for approximately $1 million in compensation with regard to the denial of access to the property, and asked that Loizidou be able to freely exercise the right to peacefully enjoy her property.

In July 1998, the ECHR ordered Turkey to pay $600,000 in damages to Loizidou for the continued violation of her right to peaceful enjoyment of her property, $40,000 for non-pecuniary damage, and $244,168 for her costs and expenses. The amount of damages was assessed as the loss suffered by Loizidou with reference to the annual ground rent, calculated as a percentage of the market value of the property that could have been earned on her properties between 1989 and 1997. Finally, the ECHR ordered that within the six months following the ruling, Loizidou and the Turkish government submit written observations on the issue of compensation and costs.

This ruling set another precedent, stressing that in light of the December 1996 decision, Loizidou “is still the legal owner of the property, no issue of expropriation arises, . . . and that her claim is thus confined to the loss of use of the land and the consequent lost opportunity to develop or lease it.”

In January 2000, three Greek Cypriot refugees originally from the village of Lefkoniko, but now residents of the United Kingdom, the United States, and Australia, filed a lawsuit before the ECHR. They are suing Turkey for denying them access to and use of their properties, which have been incorporated into a Turkish military airbase. They have been unable to access these properties since Turkey invaded Cyprus in 1974.

Relevance to Palestinian Refugees: At present, Palestinian refugees have limited avenues to seek remedies for violations of their basic rights. An issue which has been carefully hidden since 1948, but which is a potential nightmare for Israeli governments, is that of restitution claims for extensive Palestinian properties in the entire pre-1948 territory of historic Palestine. Palestinian property claims involve an enormous amount of land, potentially encompassing the overwhelming bulk of Israel. Given the inherent rights of refugees, the confiscatory nature of Israel’s land and property legislation after 1948, and other refugee groups’ increasingly successful efforts to reclaim dispossessed properties, the basis for Palestinian claims has great potential.

The case of Loizidou v. Turkey established a precedent for Palestinian restitution claims to be made even after the conclusion of an agreement between states. Legal research has shown that the right of return and restitution, being an individual right, cannot be overridden by intergovernmental agreements. Based on the guiding principle of refugee choice, i.e. voluntary participation by the refugee community, Palestinian refugees can reject any deal that does not meet the parameters set forth in Resolution 194.

Neither Israel nor the Palestine Liberation Organization (PLO), nor the two in concert, have the legal capacity to extinguish claims of individuals. If a PLO-Israel agreement makes inadequate provision for repatriation and compensation, the claims of individuals will survive.

Although Israel is not a member of the European Union (EU) or the Council of Europe, it has close economic ties with the EU. The practice of including explicit human rights clauses in the Euro-Mediterranean Association Agreements, which bind the EU and Israel, demonstrates a declared intention of the EU to incorporate respect for human rights as a material condition of EU external relations. This practice could be enhanced by submitting nonmember countries, such as Israel, to the jurisdiction of the ECHR. Petitions regarding Palestinian restitution/compensation claims against Israel might then be brought before the ECHR.

The ECHR took jurisdiction over Loizidou’s claim even though Turkey was not a member of the EU. Loizidou was a citizen of Greece, however, which is an EU member state. Therefore, even though Israel is not a EU member state, Palestinian refugees who are residents or citizens of a member state of the EU are prospective petitioners in a future case brought directly before the ECHR.

The author is a Dutch-Palestinian political scientist, human rights activist and is affiliated to the the Palestine Right to Return Coalition (Al-Awda) and ElectronicIntifada.net

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