By: Heval Hylan

Jan 3, 2006

1. INTRODUCTION

Mass population transfers can occur both between States and within a given State. This Article is not concerned with large-scale movements of persons caused by economic factors, such as the desire to seek work, policies of Arabization, industrial development of certain areas, etc. Even where there are strong economic or other pressures or incentives for the persons concerned, they retain a measure of freedom as to whether, where and how to move, and whether to return. These cases are quite different from those of forcible mass transfer, enforced displacement or Arabization where there were no options either to stay or to return. It should be stressed that the creation of barriers to return has the clear effect of endorsing, and perpetuating, the initial policy of forcible displacement. Although they may overlap in particular cases, it is useful for present purposes to distinguish the following legal contexts:
(i) enforced displacement as breaches of particular human rights standards;
(ii) enforced displacement as racial, religious or other discrimination: "ethnic cleansing"; and
(iii) large scale enforced displacement as a crime against humanity.

2. ARABIZATION OF KIRKUK AS BREACHES OF PARTICULAR HUMAN RIGHTS STANDARDS

The Arabization necessarily entails the violation of a series of internationally recognized human rights and the European Commission and European Court of Human Rights have confirmed this, for example. The Universal Declaration of Human Rights of 1948 declared that "Everyone has the right to life, liberty and security of person" Article 3; that:

"No one shall be subjected to… cruel, inhuman or degrading treatment…" Article 5; that "No one shall be subjected to arbitrary… exile" (Article 9); that "No one shall be subjected to arbitrary interference with his privacy, family, home…" Article 12, and that "No one shall be arbitrarily deprived of his nationality…" Article 15 (2). These and other fundamental rights relevant to Arabization have become part of the corpus of international law, being set forth in widely ratified treaties at the universal and regional level. See, respectively, the International Covenant on Civil and Political Rights of 1966 (in particular, Articles 6, 7, 9, 12, 17), and the European Convention for the Protection of Human Rights and Fundamental Freedoms of 1950, with its Protocols (in particular, Articles 2, 3, 5, 8; Protocol 1, Article 1; Protocol 4, Articles 2-4.

The deportation of Kurdish populations in northern Iraq under Saddam’s dictatorship was clearly contrary to international law, as it has evolved. And Mr Al-Jaafari statement during his first visit to Turkey is a clear indication that the Arabs have the seed and hunger to re-Arabize Kirkuk. If Mr Al-Jaafari’s statement was a poisoned statement to make the Turks content, then there will be no opportunity for him to play with Kirkuk’s fire.

3. ARABIZATION AS RACIAL, RELIGIOUS OR OTHER DISCRIMINATION “ETHNIC CLEANSING”

The prohibition of discrimination on, inter alia, racial or ethnic grounds may be found, for example, in the Universal Declaration of Human Rights 1948 (Articles 1, 2 and 7) and the International Covenant on Civil and Political Rights (Articles 2 and 26). The norm is particularly evident in the International Convention on the Elimination of All Forms of Racial Discrimination 1965. Article 1, in a definition reflective of customary international law, prohibits "any distinction, exclusion, restriction or preference based on race, colour, descent or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms".

Scrutiny of compliance with the Convention is a matter for the Committee on the Elimination of Racial Discrimination, which hears States’ reports and individual petitions, and makes comments. In its Decision 2 (47) of 17 August 1995 on the situation in Bosnia and Herzegovina, the Committee declared that "any attempt to change or to uphold a changed demographic composition of an area, against the will of the original inhabitants, by whichever means is a violation of international law."  In 1970 the International Court, delivering judgment in the Barcelona Traction case, referred to obligations erga omnes in contemporary international law, which are “by their very nature… the concern of all States...”
It gave as an example of such obligations, "the outlawing of acts of aggression, and of genocide" as well as "the principles and rules concerning the basic rights of the human person, including protection from slavery and racial discrimination"
Although the Court was referring here to principles of universal application, many steps have been taken to give effect to them at regional level. In particular the Final Act of the Helsinki Conference of 1975 contained a "Declaration of Principles Guiding Relations between Participating States", which included a section on human rights. This said, inter alia:

"In the field of human rights and fundamental freedoms, the participating States will act in conformity with the purposes and principles of the Charter of the United Nations and with the Universal Declaration on Human Rights. They will also fulfill their obligations as set forth in the international declarations and agreements in this field, including inter alia the International Covenants on Human Rights, by which they may be bound."

It is evident that the participating States in the Helsinki Conference recognized that human rights standards form part of general international law. The practice of "er-Arabization" under Mr Jaaffari’s policy and dusty statements, is, another way of forcing Kurds out from their heart city Kirkuk, and other Kurdish area the people of one race or ethnic group, in order to bring about and maintain the changed demographic complexion of the area, has been strongly condemned by the United Nations.

The Security Council has, for example, termed such practices as unacceptable and expressed the determination of the Council to bring them to an end. It was particularly emphasized that those who have committed such acts will be held individually responsible. Ethnic cleansing was declared to constitute a violation of International Humanitarian law. The General Assembly has also attacked the notion of ethnic cleansing and declared it a "grave and serious violation of international humanitarian law" See General Assembly resolutions 46/242 and 47/80)

4. MR JAAFFARI’S STATMENT IN TURKEY IS AN INTENTION OF A CRIME AGAINST HUMANITY

Deportation (Arabization), defined as a forcible transfer of a civilian population, was included as a crime against humanity in the London Agreement 1945 creating the Nuremberg Tribunal, as well as in Control Council Law No. 10 (enacted by the Allied Powers in Germany) Subsequently crimes against humanity have been disengaged from war crimes and the character of large-scale or even preparation (by fuzzy statements) for forcible expulsion of populations as a crime against humanity is now coming to be established.

Article 18 of the Draft Code of Crimes against the Peace and Security of Mankind adopted by the UN International Law Commission in 1996 declares that "arbitrary deportation or forcible transfer of population" constitutes a crime against humanity "when committed in a systematic manner or on a large scale and instigated or directed by a Government" If Mr Al-Jaaffari has intention to re-Arabize Kirkuk, then it is clear indication that Arabs generally have the seeds of Arabization in their blood, and are not trustworthy.

Article 7 (1) (d) of the Rome Statute of the International Criminal Court 1998 declares that "[d]deportation or forcible transfer of population" constitutes a crime against humanity "when committed as part of a widespread or systematic attack, directed against any civilian population" The statement as such by the Iraqi Prime Minister is no less than an act of re-Arabization of KIrkuk, simply because it waters the dirty seed in some Arabs heart and as well as in the narrow minded Turks.

To summarize, the view that large-scale forcible expulsion of people is a crime under international law is now well established. Such conduct is no longer linked with the category of war crimes: it involves a crime against humanity, whether carried out in armed conflict or otherwise, although at that time crimes against humanity were specifically linked to war crimes.

5. THE KURDISH PEOPLES’ RIGHT OF RETURN TO THEIR HOME

International practice since the Second World War has been clearly evolving towards acceptance of a right of return for all displaced persons, whatever the causes of their displacement. But the right to return has been particularly emphasized in cases where the displacement is a result of breaches of international law such as Arabization, re-Arabisation and ethnic cleansing.
In the context of Yugoslav conflict, the Security Council has reaffirmed the right of displaced persons to return to their homes of origin. In addition, the Security Council referred to the urgent need in the Rwandan crisis for the "orderly and voluntary repatriation and resettlement of refugees and the return of displaced persons which are crucial elements for the stability of the region."

Further examples of this approach by the Security Council are afforded by the crises in the area of the former Soviet Union. In Security Council Resolution 999 (1995), the importance of the return of displaced persons to their homes in Tajikistan was emphasized, while in Security Council resolution 1097 (1996) the Council in the case of Georgians fleeing from Abkhazia reaffirmed "the right of all refugees and displaced persons affected by the conflict to return to their homes... in accordance with international law".

The Council has also with regard to the Liberian conflict emphasized the importance of the prompt repatriation of refugees. The Inter-American Commission on Human Rights held that Nicaragua was obliged to repatriate Miskito Indians forced out of their native areas, in the light of the right to return enshrined in Article 22 of the Inter-American Convention (OEA/ser. L/V/II, 62).

6. CONCLUSION

For the reasons above mentioned, Mr Jaaffari’s intention to re-Arabize Kirkuk is intrinsically unlawful, and engages the responsibility of current Iraqi Government, and any State concerned the rules discussed prohibiting forcible and intention of displacement Arabization – as a series of breaches of fundamental human rights, as a crime against humanity and as ethnic cleansing – have the character of peremptory norms of general international law, from which no derogation is permitted. In other words, they have the status of jus cogens as defined in Article 53 of the Vienna Convention on the Law of Treaties.

These remedial consequences have particular rigour and salience in cases where the underlying norm violated is peremptory in character. Moreover the primary consequence of a breach of such norm must be full and complete restitution. Otherwise the payment or even the promise of compensation, to purchase the benefits of derogating from such a norm would in effect and may allow Mr Jaaffari and others the original wrong would be endorsed and entrenched, in its character and its consequences.

Thus in the case of Arabization in violation of a peremptory norm, the right of the Kurdish families concerned to return to their home is itself the primary form of restitution. Their right to return is a peremptory consequence of the breach to which they have been subjected.

It will amount to an attempt to legitimate the violations that have taken place, if the initial forcible population displacement in Kirkuk and other Kurdish areas constitutes a breach of international law, which it clearly does, then any arrangement under Mr Al-Jaaffari Government that consolidates the illegality and its consequences, imposed without the full and free consent of those directly affected, can only be seen as an attempt to ratify the original wrong.
The egregious character of the breach in question is underlined by the fact that by definition that Mr Al-Jaaffaris statement will have been directed against Kurdish population in circumstances amounting to systematic discrimination against them, and by the characterizations of re-Arabization as a crime against humanity. Where populations have been unlawfully displaced in Kurdistan on a large scale, compulsory exchanges of property belonging to persons affected are unlawful if their purpose is to legitimize a situation arising from Arabization or ethnic cleansing.

For these reasons the international community should take its responsibility to stop new Arabization attempt in Kirkuk and return the Kurds who already deported to their origin home to live in peace and harmony under protection of international law as any other groups in everywhere.


Heval Hylani is Barrister & Solicitor of  The High Court of New Zealand
International Lawyer, Author of three Books & Many Legal Papers. Auckland
New Zealand.