The Status of Internally Displaced Kurds in Turkey: - Kurdish Human ...

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KHRP / BHRC 2006the right to liberty and security of person (Article 9); freedom from arbitrary orunlawful interference with one’s privacy, family, home or correspondence, andfrom unlawful attacks on one’s honour and reputation (Article 17); and freedomfrom discrimination based on race, colour, sex, language, religion, political or otheropinion, national or social origin, property, birth or other status (Article 26). 11The provisions of Articles 6 (right to life) and 7 (freedom from torture) are nonderogableand may not be limited during times of public emergency which threatenthe life of the nation (Article 4). The rights contained in Articles 9 (liberty andsecurity of person), 10 (the right to be treated with humanity and respect), 17(freedom from arbitrary or unlawful interference with privacy, family, home orcorrespondence), and 26 (freedom from discrimination) are classed as derogableprovisions and may be dispensed with in times of public emergency which threatenthe life of the nation. 12 However, this qualification is strictly interpreted. Anylimitations imposed by states on these rights must be for one of the purposesspecified and it must be proportionate to achieving that purpose. 133. UN Guiding PrinciplesIn 1992, the UN appointed a Special Representative on Internally DisplacedPersons, who set about developing the ‘UN Guiding Principles on InternalDisplacement’, a document whose purpose is to address the specific needs to IDPsworldwide by identifying rights and guarantees relevant to their protection. 14 TheGuiding Principles reflect and are consistent with international human rights lawand international humanitarian law. They provide guidance to states when facedwith the phenomenon of displacement, to authorities, groups and persons in theirrelations with IDPs, and to intergovernmental and non-governmental organisationsaddressing internal displacement.In addition to setting out principles which states should follow to protect againstarbitrary displacement and standards which should be met during actual periodsof displacement, the Guiding Principles also address the return, resettlement andreintegration of displaced persons. Principle 28 provides1. Competent authorities have the primary duty and responsibility toestablish conditions, as well as provide the means, which allow internally11 ICCPR, supra note 157.12 Id. Article 4, para 2.13 Hensler, et al, supra note 115, at 28.14 Guiding Principles on Internal Displacement, Introductory Note, UN Doc e/cn.4/1998/53/Add.2(1998), noted in Comm. Hum. Rts. Res. 1998/5016
The Status of Internally Displaced Kurds in Turkeydisplaced persons to return voluntarily in safety and with dignity, to theirhomes or places of habitual residence, or to resettle voluntarily in anotherpart of the country. Such authorities shall endeavour to facilitate thereintegration of returned or resettled internally displaced persons.2. Special efforts should be made to ensure the full participation ofinternally displaced persons in the planning and management of theirreturn or resettlement and reintegration.Although the Guiding Principles are not considered to be binding on Governments,they reflect international human rights and humanitarian legal obligations andtherefore set standards which Turkey should respect in providing redress for IDPs.4. European Convention for the Protection of Human Rights and FundamentalFreedomsTurkey, as a party to the European Convention for the Protection of Human Rightsand Fundamental Freedoms (ECHR), has international obligations towards itsIDPs under Articles 2 (the right to life), 3 (prohibition on torture), 8 (right to home,privacy and family life), 13 (right to an effective remedy) and Article 1 Protocol 1(protection of property). Over the last ten years, Turkey has been held in violationof these rights in a stream of cases brought by mainly Kurdish IDP applicants beforethe ECtHR 15 . In each case, the Applicants generally alleged that the security forceshad destroyed villagers’ homes, personal belongings, livestock and crops, forciblyevicting them from their homes and, in some cases, torturing, killing or beingresponsible for the disappearance of their relatives. Although the Governmentusually denied the allegations, asserting that the PKK was responsible instead,the Court has increasingly found Turkey responsible for these serious violationsand ordered them to pay the applicants pecuniary and non-pecuniary damages,which reflect both the damage to their property and the significant trauma andpsychological suffering.One of the most important provisions under the ECHR is the obligation to providean effective remedy. This includes a ‘thorough and effective investigation capableof leading to the identification and punishment of those responsible, includingeffective access for the complainant to the investigatory procedure’, under Article13 ECHR, and under Articles 2 and 3 ECHR where an allegation exists of a killing,15 Inter alia, İpek v Turkey, ECtHR Application No 25760/94; Akdıvar and Others v Turkey, ApplicationNo 99/1995/605/693; Menteş v Turkey, Application No23186/94; Selçuk and Asker v Turkey, ApplicationNos 23184/95 and 23185/95, Bilgin v Turkey, Application No 23819/94; Dulaş v Turkey, ApplicationNo 25801/94; Orhan v Turkey, Application No 25656/94; Yöyler v Turkey, Application No26973/95; Toğcu v Turkey, Application No 27601/95; Akdeniz v Turkey, Application No 25165/9417
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