2023-08-09 14:13:41
Artsakh Republic President Arayik Harutyunyan had a call-meeting with the first chief prosecutor of the International Criminal Court, the world-famous Harvard and Yale University lecturer Luis Moreno Ocampo, who presented the results of his legal research on the blockade of Artsakh to the group of officials led by the Artsakh president.
The President thanked the leading international expert for agreeing to voluntarily investigate the blockade of Artsakh and submit a legal opinion on it. Luis Moreno Ocampo emphasized that the results of the research and analysis are very clear: the genocide of the local Armenian people is being carried out by Azerbaijan in Artsakh, and the international community is obliged to take urgent and effective steps to prevent its further course.
Ocampo’s full report can be found here, with key highlights below:
“In Nagorno-Karabakh, also known as Artsakh, genocide against 120,000 Armenians is underway.
The blocking of the Lachin Corridor by the Azerbaijani security forces, which prevents access to food, medical supplies and other essential goods for the 120,000 Armenians living in Nagorno-Karabakh (Artsakh), should be considered Genocide under Article II, Clause (c) of the Genocide Convention: the deliberate creation of such conditions aimed at its total or partial physical destruction”.
There are no crematoria and knife attacks. Hunger is the invisible weapon of genocide. Without immediate drastic change, this group of Armenians will be destroyed in a few weeks.
Starvation as a means of extermination was ignored by the entire international community when it was used against the Armenians in 1915, against the Jews and Poles in 1939, against the Russians in Leningrad (now St. Petersburg) in 1941, and against the Cambodians in 1975. – in 1976. Starvation was also ignored in Srebrenica during the winter of 1993-94.
Analyzing the Srebrenica case, the International Court of Justice ruled that “deprivation of food, medical care, shelter or clothing” constitutes Genocide under Article II(c) of the Genocide Convention.
The states participating in the Genocide Convention have undertaken the obligation to prevent and punish the Genocide. They should not “wait until the execution of the Genocide begins,” the International Court of Justice ruled, “The whole meaning of the obligation is to prevent or attempt to prevent the commission of the act.”
This report analyzes:
1) The presence of ongoing genocide in Nagorno Karabakh.
2) How to investigate the perpetrators of genocide?
3) How to prevent genocide?
Genocide in Nagorno Karabakh in 2023
There is a reasonable basis to believe that in 2023 a genocide is being carried out against the Armenians living in Nagorno Karabakh (Artsakh).
At the request of Armenia, the International Court of Justice has already analyzed the blockade of the Lachin Corridor. The Court focused on state responsibility for alleged violations of the International Convention on the Elimination of All Forms of Racial Discrimination, rather than individual criminal responsibility for the commission of the Genocide.
Although based on different state obligations, the Court confirmed the existence of the essential elements of genocide, which are enshrined in Article II(c) of the Genocide Convention: “deliberate creation of conditions of life for any group aimed at its total or partial physical destruction.”
The preliminary conclusions of the court considered it “probable” that the blockade of the Lachin Corridor created a “real and immediate danger” to the “health and life” of the ethnic group, “Armenians living in Nagorno-Karabakh”.
Intent, the subjective element of the crime of Genocide, must be derived from the facts and the statements of President Aliyev, who holds the highest power in Azerbaijan.
President Aliyev, under the conditions of a fair trial, would have had the opportunity to interpret the facts differently. At the same time, there are reasonable grounds to believe that President Aliyev has genocidal intentions. he knowingly, willingly and voluntarily blocked the Lachine Corridor even after the US was notified of the consequences of his actions through interim orders.
The facts are:
a. President Aliyev deliberately blocked the supply of vital goods to Armenians living in Nagorno-Karabakh.
b. he openly disobeyed the special order of the International Court of Justice to “ensure unhindered movement of people, vehicles and cargo in both directions through the Lachine Corridor”,
c. The FSA order notified him of a “real and imminent danger” to the “health and life” of the group of Armenians.
President Aliyev’s public statements that the blockade is the result of people smuggling minerals and phones through the Lachin Corridor are just a diversionary ploy.
Smuggling activities should be properly investigated, but they are not a justification for disobeying a binding order of the International Court of Justice or committing Genocide.
Can the International Criminal Court investigate President Aliyev?
Article IV of the Genocide Convention states that “Perpetrators of genocide must be punished” even if “they are constitutionally responsible rulers.” But there is no independent criminal justice system ready to investigate the crime of genocide allegedly committed by President Aliyev.
President Aliyev cannot be investigated by any foreign government authorities because he enjoys immunity as head of state.
The International Criminal Court provides jurisdiction when such immunity does not apply. There are three ways to initiate an ICC investigation into crimes committed in the Lachine Corridor and Nagorno-Karabakh:
1) Azerbaijan becomes a member state (paragraph 1 of Article 12 of the Rome Statute).
2) Azerbaijan accepts the jurisdiction of the Court in its territory (paragraph 3 of Article 12 of the Rome Statute);
3) After December 2022, the UN Security Council transfers the situation of the Lachine Corridor and Nagorno-Karabakh to the ICC (Article 13 of the Rome Statute).
But Azerbaijan is not a member state of the Rome Statute (Article 12(1)), does not accept the jurisdiction of the International Criminal Court (Article 12(3)). Therefore, immediate action by states is required to adopt a UN Security Council resolution to refer the situation in the Lachin Corridor and Nagorno-Karabakh to the International Criminal Court.
There are similar precedents. In March 2005, the UN Security Council adopted Resolution 1395, according to which the Darfur-Sudan issue was referred to the ICJ. Five years later, President Al Bashir was accused of genocide.
In February 2011, the UN Security Council referred the situation in Libya to the court. In June 2011, the ICC issued an arrest warrant for Muammar Gaddafi for war crimes and crimes against humanity.
Adoption of a UN Security Council resolution to confer jurisdiction on the ICC should be feasible. The Genocide Convention requires states parties to prevent and punish genocide, and 14 of the current 15 members of the UN Security Council are also parties to that Convention, providing an overwhelming majority.
Back in 2013, France proposed that the five permanent members of the Council voluntarily and collectively stop using the veto in the case of Genocide and other mass atrocities.
How to prevent the final destruction of the Armenian group?
President Aliyev, as well as the international community, have a rare opportunity to prevent further casualties and the “physical destruction” of the group through this Genocide. Timely prevention requires the adoption of urgent political decisions:
a. end the blockade and restore the supply of essential goods to Nagorno Karabakh within a week or two;
b. provide institutional solutions to disputed territorial claims. It must be adopted by May 2025, because at that time Azerbaijan can ask to stop the mission of Russian peacekeeping forces.
There are no central bodies at the international level that would adopt such urgent measures. A special judgment of the International Court of Justice on Genocide, selective sanctions and other classical diplomatic tools will not be fast and strong enough.
In the short term, which is crucial to stopping the ongoing Genocide through starvation, the obligation to prevent will be determined solely by the interests of the states involved in the conflict.
In April 1994, most of the members of the UN Security Council refused to call what was happening in Rwanda a “Genocide”. During the debate, the Czech ambassador suggested not focusing on negotiating a new armistice, which would be the same as asking the Jews to sign an armistice with Hitler.
In A Problem from Hell, Samantha Power explains the crucial role of the citizen in transforming the interests of national leaders into genocides in other countries. The voice of Diaspora Armenians can reduce the degree of failure of the international legal architecture. They must come together around the world to reach out to national leaders and promote pragmatic solutions.
Russia, which is responsible for maintaining peace in Nagorno-Karabakh, the United States, which supports the ongoing negotiations between Armenia and Azerbaijan, and all members of the European Union are parties to the Genocide Convention. They have a privileged position to prevent the Genocide. Due to the Ukrainian conflict, their intense confrontation should not turn Armenians into bystander victims.
Is it possible to support the leaders of Europe, Russia and the USA to reach a united position in order to stop the ongoing Armenian Genocide? If they agree, the food will reach the Armenians within a day.
The conflict in Nagorno Karabakh (Artsakh) is an opportunity for the international community to develop an innovative and harmonious solution to prevent genocide. Under Article 16 of the Rome Statute, criminal investigations may ultimately be terminated by the UN Security Council in order to find a final and just solution.”
President Aliyev asks: “Why does Spain not allow Catalonia to hold a referendum? Why should we tolerate separatism?’ The simple answer to the complex questions of sovereignty involved is that Spain is not committing genocide to control separatist efforts.”
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