Table of Contents
As we are now in what so called the “age of apology” there is a rising attention of the aftermath of conflicts, and a growing attention to the need for compensating the victims of conflicts and genocides. International law and norms regarding indigenous people have been rapidly evolving. However, the case of Circassian genocide is often neglected or forgotten both in the academia and in practice. Circassians are basically the native ethnic group whose origin can be traced to North Caucasus Mountains. It is no news that “the Black Sea had been an arena of international competition for centuries”(Richmond 2013). During the eighteenth century, Russia continually pressed for control of the northern shore and progressively regarded access to the Caspian and Black Sea as a precious trade route(Richmond 2013). Due to the decline in the rival powers such as the Othman empire and the Persian empire, Russia saw this as an opportunity to spread its power and build its empire. Russia and in order to achieve its goals used military tactics which can only be described as genocidal the majority of the Circassian population as a result of such tactics have either killed or are living the diasporas. For almost a decade now, majority of Circassians, living outside their native land, have been making efforts to return to their home in Circassia. They have expressed their mission at different times through activisms and protests in front of Russian embassies in Jordan, and Turkey. These demands had been neglected by the Russian government. To make things worse, the Russia government issued laws and altered some existing laws to prevent them from returning. This action by the Russian government has been viewed as illegal by the Circassians because under the Article 12 section 4 in International Covenant on Civil and Political Rights(ICCPR) which states that ” No one shall be arbitrarily deprived of the right to enter his own country”(ICCPR1966), Circassian therefore believed that they have the right to return to their homeland and that Russia is also obliged to respect this law. This paper aims to assess the validity of the Circassian claims to return to their homeland using liberalism as a theoretical framework. This paper will begin by giving a brief historical background on the Circassian population, illustrate the theoretical framework, and finally, it will discuss why the Circassians qualify to be given the right of return.
I.I History of Circassians
Circassians are the native ethnic group whose origin can be traced to North Caucasus Mountains. Circassians language can be credited to that of North West of Caucasian family established in the northwest of the Caucasus which comprises of many other languages. Evidently, the language they speak is uncommon and its phonological system has got many consonants with few vowels which have caught the attention of researchers, philosophers, and even linguistics to conduct research with an attempt to unveil the depth and soundness of the language (Abzakh 1996). Circassians were organized into tribes and clans and lived by a code of behavior they call khabza, which focus on honour, hospitality, respect for elders, egalitarianism and liberty”(Ahmed and Martin 2012). They were united people who coexisted among the numerous communities. It was very hard for one to differentiate them as they all assume a single national identity which to them was vague (Abzakh 1996). During the 18th centuries and due to the rivalry between Russia and the Othman empire and the Persian empire Russia seized the opportunity to spread its empire and gain access to the Caspian Sea. Hence, they had to conquer that land which was initially inhabited by the Circassian who Russia had also regarded as security threats. Captured Circassian women and children were often sold to the new settlers to be raised as Christians, or “sent off to serve in the palaces and harems of the Ottoman Empire” (King 2009,59). In 1864, the war had come to an end when almost all Circassian tribal groups were either killed or expelled from the lands they inhabited for ages (King 2009,99). Circassian who escaped their ancestral homelands are now scattered all over the world such as Turkey, Syria, Iraq, Lebanon, Jordan and Israel and even Australia and America. Currently, more than 60 percent of Circassian population lives outside their homeland. But majority of them lives in Turkey. There is no exact number of their population , however, it is approximated to be around 5-6 million (Er 2013).
I.II Theoretical frame work
Liberalism was advanced by Adam Smith and later was advanced by David Ricardo over 200 years ago. Liberalism became more public and gained wide acceptance during and after the first and the second world war. Liberalism as a political philosophy was established based on the ideas of liberty and justice and equality. As presented by Spinner-Halev, “liberalism is committed to the idea of equal respect and equal concern of persons. The moral equality of persons is central to many versions of liberalism”(Spinner-Halev 2012, 13). Moreover, Spinner-Haley notes that, “the idea behind equal regard and respect suggests that safeguarding individual rights may be insufficient for equality if some people are left victims of sever discrimination or are impoverished”(2012,13). Liberal theory handles historical injustices as a political problem and not a social problem. It recognizes the existence of globalization and internationalization which allows people from different countries or background to mingle with other countries and be fully assimilated into that country. Liberalism focus on socially-determined state preferences (Moravcsik, 2010). Also, liberalism theory considers people as autonomous who can act freely and the primary Importance is placed on individual freedom (Christman, 2015). The right of return may be considered as a part of such freedom, which can either be documented or not. Therefore, liberalism holds that people have the right and authority to return to their countries with no objection. The liberal theory holds that the source of historical injustices like the invasion of one country by another basically stems from the countries government set up as well their final influence on international laws, International security and its prosperity are contingent on the widespread of democracy as well as global trade. It also depends on the effectiveness of resolving historical injustices using the formal international institutions (Lieberfeld, 2005,6). It also advocates that to achieve a long-lasting solution to any injustice more democracy needs to be promoted as it is directly related to peace and coexistence among people. In prescriptive terms, therefore, “crusading Liberal theory “favor applying force to substitute autocracies with democracies, insofar as spreading equality and human rights enhance national security as well as those of other democracies (Lieberfeld 2005, 6). Moreover, according to Rawls: “the aims of political philosophy depend on the society it addresses In a constitutional democracy one of its most important aims is presenting a political conception of justice that can not only provide a shared public basis for the justification of political and social institutions but also helps ensure stability from one generation to the next” (Rawls 1987,1). Taking Rawls argument about the need to present a political conception of justice this means that we need to accommodate the disagreements we have about what is justice in order to reach an “overlapping consensus” about justice, and with the case of rectifying past wrongs there is a general agreement about the important of compensation the people whom went through injustice acts in the past and how those unrectified wrongs could affect the state stability and peoples cooperation’s with the state and the laws. Moreover, with liberal theory we can find answers to questions that rose with the case of reparation such as who may claim reparation.(Galoob 2015). Finally, Liberalism as Rawls stated also emphasizes on individuals(Rawls 1987) which is the main focus of the ICCPR. Or any case of justice or reparation.
II The path to departure
In this section I will raise some of the questions that people might ask when looking into the claims of the Circassian right of return. First what were the reasons behind the Russian -Circassian war? were Circassian causing threats to Russian and as such Russia acted for self -defense or in order to secure itself? The reasons behind the Circassian -Russian war is no different from any other contemporary war. The Circassian land has a strategic location which led all the major rivalry powers back then to aim for control of that region. The Othman knew the importance of that region and if the Russians gained control of such land that would threatens their already troubled empire therefore, they tried to establish trade with Circassian and miniplate them for its purpose (Richmond 2013,32). On the other hand, “Great Britain saw its own interests in the Black Sea threatened. Suddenly European newspapers and politicians took up the Circassian cause, and some even called for military intervention”(Richmond 2013,33). Russia saw the great attention to that region by the Othman and the British and realized that if the other (British or Othman) gained control of that region it would threaten its existence and the mindset of the Russian towards the Circassian had changed and as Richmond notes they ” were no longer future subjects; they were eternal enemies who had to be wiped out”(2013, 54). Hence, Russia seized the opportunity of the weak Othman empire to expand its empire to that region. However, Russia imperial system was different from other empires, “the nobility at the core of the Russian imperial system was remarkable for its ability to embrace the aristocracy of neighboring peoples”(King 2009,37). Russia used this tactics to persuade other nations but when dealing with the Circassian population it had to deal with a population “where the political economy was based on cooperative arrangements among discrete households or loose networks of extended families, there were few credible elites on whom the Russians could rely” (King 2009,38). Hence, it regard military force rather than economic or other forms of influencing is the best way for extending its influence (King 2009, 38). Moreover, not only that the Russian invasion was due to the strategic region and the potential threat that Circassian and other forces may cause to the Russian empire. Russia considers the Circassian as “savage” who need to be emancipated and they view them self as liberator (Richmond 2013). At this point, it is important to note that applying realist perspective on the Circassian-Russian war would justify Russian conquest of the north-west Caucasse because if other powers such as the Othman or the British gain access to this land, this will result in great security threat to Russia. However, if applying liberalism lens Russian conquer is not justified at all, because as mentioned earlier liberal theory emphasizes on the freedom of individuals and advocate for the protection of human rights even if that means using force to spread democracies. In that sense, nations have the rights to establish relations with whom they want in their case was the Othman. Secondly, if supposedly the Russians were liberator and their mission was to emancipate Circassian the large-scale human rights violations that were caused by the Russian did not then suggest that human-rights concerns or liberating the people were a main motive for the conquer decision. Another question that might be raised which is also important in cases for reparation is: was it the Russian conquest of Circassia that led to the expulsion of the Circassian nation in 1864 upto the level of genocide? To answer this question, we should look into the definition of genocide. In the definition of UN Convention on Genocide: “genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious groups, as such: a. Killing members of the group; b. Causing serious bodily or mental harm to members of the group. c. Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; d. Imposing measures intended to prevent births within the group; e. Forcibly transferring children of the group to another group.”(“U.N. Convention on Genocide” 1951). In this definition of genocide and looking into the background of the conflict, Russia violated all five of these principles, however there is a debate going on what is meant by “intent”. Gellately and Kiernan emphasize on the importance of distinguishing between “intent” with “motive” I feel it is important to quote their entire debate here. As they wrote: “If a colonial power, motivated by conquest of a territory, or a revolutionary regime with the aim of imposing a new social order, in the process destroys all or part of a human group, does that constitute genocide? Not according to most popular definitions of intent. But in criminal law, including international criminal law, the specific motive is irrelevant. Prosecutors need only prove that the criminal act was intentional, not accidental. A conquest or a revolution that causes total or partial destruction of a group, legally qualifies as intentional and therefore as genocide whatever the goal or motive, so long as the acts of destruction were pursued intentionally. In this legal definition, genocidal intent also applies to acts of destruction that are not the specific goal but are predictable outcomes or by-products of a policy, which could have been avoided by a change in that policy. Deliberate pursuit of any policy in the knowledge that it would lead to the destruction of a human group thus constitutes genocidal intent”(2003, 15). In that sense it could be argued that the intent of the Russian were just to gain control of the Circassian land and they had no intent for the mass killing however, it is hard to accept that they did not know that such military actions and tactics will not lead to the killing of the thousands of Circassian. Therefore, I believe that it is plausible to say that what happened to the Circassian was genocide.
II.I Reparation and the right to return
It is widely acceptable that human rights are protected in a liberal society and any liberal theory would work in the framework of achieving justice and ensuring equal rights and liberty. However, reparation in general and the right of return in particular often imposes great challenges on the practical and theoretical level. In this section I will try to address the arguments for and against the right of return on both practical and theoretical levels. Let me start with some of the facts, and as mentioned earlier it is well known that Circassian and after their lost the war with Russia have resettled in any countries including Turkey, Syria, Israel and Jordan. They have been living there for 154 years now and they integrated with these societies. This fact raise a question of why Circassian want to return to their homeland? Are any marginalization or injustices being done to them in their current homes? Is their claim to return based on the fact that they are not happy in the foreign land or they just want to have a feel of their ancestral homes? Is the right of return an appropriate way to compensate for the injustice that happened to them? Reparation is generally understood as a way to compensate for the past wrongs. Reparation refers to the process of one country compensating another country of the damage it suffers in its hand either through war, forced slavery or any other form of social injustices(Maiese2003). Reparation could be in different forms: monetary which include paying the victims for the suffer they had or it could be symbolic which include acknowledgment of the wrongs or repatriate the victims. According to liberal theory victims who have suffered wrongful actions and activities are to receive full compensation to offset it. Financial reparation and support let victims gratify their immediate requirements and buy food, afford medical care, pay for the housing, and even for education. This is designed to recover the value of victims’ lives by assisting them attain their former status before the injustices were conducted in their countries (Maiese 2003). Maiese also noted that financial reparation and support let victims gratify their immediate requirements. Victims can buy food, afford medical care, pay for the housing, and even for education. This is designed to recover the value of victims’ lives by assisting the victims to meet their former status before the injustices were executed to their nations (2003). While financial reparation is an undeniably integral aspect in addressing historical injustices by promoting peaceful environments, many critics have found this method to have many flaws and are often limited. Since reparation programs are often considered an internal issue and not an international one, it is certainly difficult to fully carry out these programs. Various regimes that are tolerable to human rights abuses are not ready to appreciate their past social injustices. By and large, those people who are responsible for perpetrating social and historical injustices will be in front line in playing all they can to oppose any move to punish them (Boven cited in Maiese 2003). Undeniably, financial support is scanty in addressing all psychological and social injustice desires of the person’s affected. Moreover, to physical injury suffered by the victims, fatalities of human rights abuses usually suffer emotional hurt and psychological distress. It is not sufficient enough for financial reparation to cool down all this torment(Maiese 2003). Mental and psychological damage cannot be healed with financial incentives. In addition, the amount of psychological torment cannot be quantified in monetary terms. It is impossible to use financial incentives to remedy years of sexual harassment and eviction from your home country. Financial reparation cannot bring back your beloved ones who died in the genocide or whom you have witnessed suffer historical injustices that have crippled them to date. Additionally, it is impossible for losses suffered to be an equivalent of money given. This is basically the case where your family members died during the injustices Compensating for such loss over the years cannot be gauged against financial incentives offered to offset the loss (Maiese 2003). Financial support can only help them sort their most immediate needs while overlooking their long-term effects. Studies have shown that in as much as financial reparation is advocated by many; with time its importance and relevance diminishes. The failure in use of financial reparation in the past is evidence enough that the financial reparation has flaws in dealing with historical injustices. Sample cases can be drawn from Serbia where after the country experiencing genocide in the country, the court questioned the amount of compensation made. The court gave no explanation for their verdict as it regarded the evidence less linked to the case. (Tomuschat 2007). Despite that many have advocated from financial reparation to offset prior evil, right of return to homeland is the best way to heal the wounds of the victims. Individuals should be allowed to go back to their native countries because historical injustices are over. Being at home is the best way to make sure that these persons can enjoy their initial relationships with their friends and family members. About the community that has been focused in this appear. It is evident that you find many of them expressing their imminent affection to their native land. They compose songs about it, and their heart longs that one day the right of return shall be realized in their lives. Avishai Margalit and Moshe Halbertal in their article ‘Liberalism and the Right to Culture’ stated that “human beings have a right to culture- not just any culture, but their own”(2004,529). It is impossible to say that all Circassian in the diaspora are facing injustice and that is the reason for their claims to return because they are treated differently in each of the countries they settle in. However, the major concern for the Circassian is that they are being forgotten and their culture and language is fading. For instance, all minorities languages in Turkey had been banned from being taught in institution since 1923 including the Circassian language(Besler 2017). Nowadays, Turkey had issued a new legislative allowing those languages to be taught in private institutions after getting a permission, but many Circassians fear that “it may be too late to revive widespread use of their mother tongues”(2017). Further, they believe that those language courses that are being taught in the private institutions have poor quality and are being done by untrained teachers (Besler 2017). Furthermore, in Jordan, Circassians there also have the same concerns about their culture being fade over time. Although there is no law that prevent them from teaching that language or speaking it. It is impossible to maintain the language when you are a small minority in an Arab speaking country as resulted of being a minority and as the history tells us it is highly likely that the Circassian language will dissolve into Arabic which is already happening as the number of people who speaks the language in each generation are declining dramatically. Taking the argument of Margalit and Halbertal it is plausible to say that giving Circassians the right to return to their homeland is the best way to insure the survival of their culture. The case of the Syrian Circassian is even more pressing due to their unique status in the ongoing Syrian conflict. Beside the original concerns of the fading culture, they are facing huge insecurity which threaten their existence. Hedges and Karasik wrote that Syrian -Circassian “are viewed with suspicion from all ways of life”(2012). The reason behind that is because of their affiliation to the Syrian regime which made the opposition to view them as a threat and on the other hand because of their religion as Sunni Muslims which made the regime look at them with suspicious because the majority of the opposition is considered to be a Sunni Muslims (Hedges and Karasik 2012). Furthermore, the Middle East region in general and Turkey-Jordan in particular is relatively unstable. Hence, I believe that Circassian in Jordan or Turkey will face the same injustice that is facing Circassian in Syria. Therefore, with the above, it is reasonable for the Circassian to claim the right to return to their homeland. These claims are not only based on their yearning for their lands but also on the ground that their lives is under threats and they have the right under the liberal theory to return whenever they wish. However, there had been arguments from scholars against the right of return. As argued by one scholar, the “ethnic demographic would greatly shift in the Caucasus with large numbers of Circassians returning to their homeland” if the Circassian are allowed to return to their native land.(Hedges and Karasik 2012). This argument is easily defeated, it is well known that Russia is the largest country in the world with an estimated population of 143 million(World Population Review 2017). Due to these records, even if all Circassian returned to their native land this will not lead to great demographic change which affect Russia negatively, moreover, if Russia grant the right of return to Circassian this would be a huge step in the Russian history to rectify its past wrongs. In addition to the fact that such gesture from Russia would make it look good. It will bring economical benefits to it. Because an increase in the population with resources and the vast space of land Russia has will lead to more development. Taking Canada for instance, and its gesture to bring 25000 Syrian refugees which made Canada look good internationally and would help the Canadian economy to flourish as Dwayne Benjamin, a professor of economics at the University of Toronto stated “Refugees represent a net contribution to the Canadian economy,” (Bengamin cited in Wangkhang 2016). Another line of arguments against the Circassian right of return have it roots in the theories of transitional justice. The question here would be, do Circassian still have the right to return to their homeland after 154 years of the original genocide and expulsion or they lost this right due to considerable changes in the circumstances in Russia? Note that for the sake of the argument the assumption would be that they had the right to come back but now this right has been superseded. The first argument could be made against the Circassian right of return is based on the idea of adverse possession, which means that, I can gain the right of your property, for example, by trespassing for long enough, and you can lose your right to exclude me(Simmons1995,170). However, these arguments are not valid for two main reasons. First, according to Simmons 1995 the idea of adverse possession, “were never intended to legitimize the positions of those who, say, maliciously seize another’s property and cleverly manage to hold it long enough for the prescriptive legal rules to apply.”(171). Secondly, one cannot gain property right if the original owner kept claiming the possession of the property, because when two parties claiming the right to possess an object the possession of this object becomes a manner of dispute and there is no law that take the actual position in consideration to solve such dispute. Now, this point is crucial and it is without doubts that Circassian have always claimed recognition of the genocide that happened to their ancestors. Each year on May 21 Circassian protest in front of Russian embassies around the world claiming recognition those claims have become stronger when Russia decided to have the 2014 Olympics in Sochi which Circassian people see it as a sacred land to them which many of their ancestors were killed there (Bahimani, in Sykes 2017). Therefore, Russia cannot claim property right to this land by adverse possession simply because Circassian kept protesting and demanding for recognition and their right to that land. Similar argument could be made based on Jermy’s Waldron controversy thesis “superseding historic injustice” which he in his thesis made it clear that entailment to the land may fade or supersede by time and because of the changing in circumstances. He wrote: “If something was taken from me decades ago, the claim that it now forms the center of my life and that it is still indispensable to the exercise of my autonomy is much less credible. For I must have developed some structure of subsistence. And that will be where my efforts have gone … I may of course yearn for the lost resource… [and] even organize my life around the campaign for its restoration. But that is not the same thing as the basis of my original claim.”(1992, 18-19). Waldron, after rejecting Locke’s ‘mixing of labor’ conception, places his argument on the idea that the original acquisition is based on how important the object plays in someone life, who “alters it, and uses it, makes it in effect a part of her life, a pivotal point in her thinking planning, and action.”(Waldorn1992,18). To put Waldron’s argument in the context of the Circassian case and if for the sake of the argument we agreed with Waldron’s idea, this means that Circassian do not have the right to claim entitlement to their land because they have been away from it for decades and the circumstances have changed and the land does not play a crucial role in their lives anymore. Suppose that Waldron argument is true and the circumstances matter It is plausible to say that Circassian’s native land does play an important role in their lives, as mentioned earlier they view their homeland as a way to maintain their culture and hence, their identity. Further, it is also plausible to say that Syrian-Circassian have the right to return because of the ongoing conflict in Syria that endanger their lives, the right of return in this case is a way to survive. I do not see a clearer example on how entitlement to property can play an important role in someone life than this and. Continuing with Waldron’s argument which I quoted earlier Waldron had illustrated in that quote that yearning is not enough to gain entitlement to land or the lost object. Unless the lost object play an important role to one’s identity and he also he made a distinction between individuals entitlement and group entitlement to the stolen object he wrote: “It may not apply so clearly to cases where the dispossessed subject is a tribe or a community, rather than an individual, and where the holding of which it has been dispossessed is particularly important for its sense of identity as a community”(Waldron 1992,19). I do not see why there is a difference between the importance of property in creating a group or individuals sense of identity. However, even if there is such a difference the Circassian claims are group claims not individuals. Hence, this objection is not relevant and I have proved earlier that their claims to that land affect their identity. A final argument could be made against the Circassian right of return rise with almost each case related to transitional justice this case is called the “non-identity” problem, this where the actual perpetuator of the wrong had died. Here someone would argue that the Russian government had gone through dramatic changes and it is not the same as the tsar Russia that it used to be. Article 11 of the Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power which was adopted by the General Assembly resolution 40/34 of 29 November 1985 state “In cases where the Government under whose authority the victimizing act or omission occurred is no longer in existence, the State or Government successor in title should provide restitution to the victims.”(OHCHR 1985). Finally, looking to the arguments for and against the Circassian right of return it is with no doubts that Circassian have the right to return to their native land as they have maintained an honest attachment to their land and because that land plays an important role in maintain their identities and how given them the right to return would make them better off without affecting Russia negatively but on the contrary it would make it better off as it would enhance its international image and may bring more development to its economy ,which should be the aim of any liberal or even a decent society.
III CONCLUSION AND RECOMMENDATIONS
The Circassian genocide which ended in the year 1864 resulted in the methodical elimination of almost all the Circassian residents that had occupied the Caucasus Mountains for ages. Thousands of Circassians for over 150 years have been in exile. Comparable to other expelled communities, Circassians retain a right of return to their native homelands. This right spread to successive generations of Circassians who are exhibiting a genuine link to Caucasus region. It is, therefore, evident that those Circassian who are scattered all over the world in Syria, Turkey, Jordan and Israel still maintain their right of return to their country. There is a need to look into their right of return at international level using various theories like liberal theory for a better understanding of the genocide and the call for their return. The liberal theory considers the right of return as a political issue and not a social act. It advocates that the right of return can only be arrived at through mutual understanding between the parties involved. Essentially, international institutions like the United Nations are some of the institutions which are tasked with defining the boundaries and execution of the right of return. Liberal theory has proved to be less effective in handling the right of return and its reparation although it strongly recommends reparation for historical injustices; this method has many glitches which ought to be addressed. In the process of enforcing reparation for social injustices and not providing a leeway from returning the victims back to their native country, the truth about the injustice always remains veiled. In addition, compliance to reparation penalties or laws remains in the hands of the offender. Most of the time they violets the agreement and distort the available evidence. It’s recommended that if reparation is the only way to handle historical injustices, then the financial methods which are frequently opted for should be evaluated to match the damage suffered. Secondly, instead of focusing only on reparation through financial incentives, victims who have suffered historical injustices should be given the kind of compensation that suite their suffering and demands and in the case of the Circassian the right of return would be the best solution.
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