Artsakh. There is a genocide of Armenians going on. Does it interest anyone? (I)

1. President Aliyev deliberately blocked the provision of life’s essentials to the Armenians living in Nagorno-Karabakh.
2. He openly disobeyed the specific orders of the International Court of Justice, “to ensure unimpeded movement of persons, vehicles, and cargo along the Lachin Corridor in both directions.”
3. The ICJ order put him on notice about the “real and imminent risk” created by the blockade to an Armenian group “health and life.”

President Aliyev’s public statements affirming that the blockade was the consequence of people smuggling minerals and i-phones through the Lachin Corridor is a diversion.

Smuggling activities should be properly investigated but they are not an excuse to disobey a binding order of the International Court of Justice or a justification to commit a Genocide.

2. Could President Aliyev be investigated by the International Criminal Court?

Article IV of the Genocide Convention establishes that “[p]ersons committing genocide shall 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 national authorities because he enjoys immunity as a head of state.

The International Criminal Court provides a jurisdiction where such immunity does not apply. There are three ways to start an ICC investigation for the commission of the crimes in Lachin Corridor and Nagorno-Karabakh:

1. 1)  Azerbaijan becomes a state party (Article 12(1) of the Rome Statute);
2. 2)  Azerbaijan accepts the jurisdiction of the Court on its territory (Article 12(3)of the Rome Statute); or

   3) The UN Security Council refers the situation of the Lachin Corridor and Nagorno-Karabakh after December 2022 to the ICC (Article 13(b) of the Rome Statute).

   But Azerbaijan is not a state party of the Rome Statute (Article 12(1)), the treaty creating the ICC and has not accepted the ICC’s jurisdiction (Article 12(3)). As a result, immediate state action is required to adopt a UN Security Council Resolution referring the situation in the Lachin Corridor and Nagorno-Karabakh to the ICC.

   There are precedents. In March 2005, the UN Security Council adopted Resolution 1395, referring the Darfur, Sudan situation to the ICC. Five years later, President Omar Al Bashir was indicted for 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.

   Obtaining a UN Security Council Resolution to provide ICC jurisdiction should be feasible. Under the Genocide Convention, state parties have an obligation to prevent and punish Genocide, and 14 of the current 15 members of the UN Security Council are also parties of that Convention, providing an overwhelming majority.

   France proposed, as early as in 2013, that the five permanent members of the Council voluntarily and collectively suspend the use of the veto in case of Genocide and other mass atrocities.

   3. How to Prevent the Final Destruction of the Armenian Group?

   President Aliyev as well as the international community has the rare opportunity to prevent further casualties and the “physical destruction” of a group in this Genocide. Timely prevention requires the adoption of urgent political decisions,

   a) to stop the blockade and reestablish the provision of essentials to Nagorno- Karabakh in one or two weeks, and

   b) institutional solutions to the disputed territorial claims. It should be adopted before May 2025 because, at that moment, Azerbaijan can request the end of the Russian peacekeeper protection.

   By design, there are no central authorities at the international level to adopt such urgent measures. A specific International Court of Justice ruling on Genocide, smart sanctions, and other classic diplomatic tools would not be quick and strong enough.

   In the short term, which is crucial to stop the ongoing Genocide by starvation, the duty of prevention would be exclusively defined by the interest of the states involved in the conflict.

   In April 1994, most of the UN Security Council members refused to call “Genocide” what was happening in Rwanda. During the debate the Czech Ambassador challenged the intense focus on a negotiation to achieve a new ceasefire, which he likened to asking the Jews to reach a truce with Hitler.

   In “A Problem from Hell,” Samantha Power explains the crucial role of the citizen in transforming the national leaders’ interests in a Genocide abroad. The voice of the Armenians in the diaspora could reduce the failure by design created by the international legal architecture. They should be mobilized worldwide to reach national leaders and promote a pragmatic solutions.

   Russia, responsible for peacekeeping in Nagorno-Karabakh, and the US, promoting current negotiations between Armenia and Azerbaijan, are state parties of the Genocide Convention, as are all the European Union members. They have a privileged position to prevent this Genocide. Their intense confrontation due to the Ukrainian conflict should not transform the Armenians into collateral victims.

   Is it possible to assist European, Russian, and USA leaders to reach a joint position to stop the ongoing Armenian Genocide? If they could agree, the food will reach the Armenians within one day.

   The conflict in Nagorno-Karabakh is an opportunity for the international community to develop an innovative and harmonious solution to prevent Genocide.

   Under Article 16 of the Rome Statute, a criminal investigation could eventually be suspended by the UN Security Council to find a final and fair solution.

   President Aliyev asked: “Why Spain does not allow Catalunya to have a referendum? Why should we tolerate separatism?” The simple answer to complex issues of sovereignty involved in the question is that Spain is not committing genocide to control separatist efforts.

   A. Background 1. History

   Nagorno-Karabakh, known as Artsakh by Armenians, is predominantly inhabited by ethnic Armenians, living there for more than 20 Centuries.1 It is in a landlocked mountainous area in the South Caucasus. Institutionally, it has de facto autonomy although it is part of the recognized territory of Azerbaijan.

   After the 1917 Russian revolution, Armenia and Azerbaijan emerged as independent states, Azerbaijan for the first time. The first republics of Armenia and Azerbaijan both asserted claims over Nagorno-Karabakh. Both republics continued to assert jurisdictional claims over Nagorno-Karabakh while the indigenous Armenianpopulation rejected Azerbaijan’s attempts at conquest. During the Soviet Union, Nagorno-Karabakh became an autonomous oblast, an administrative division or region, within Azerbaijan.

   a. War in 1992/1994

   In 1988 Nagorno-Karabash adopted a resolution requesting to be transferred to Armenia, triggering conflicts and violence. In early 1992, following the Soviet Union’s collapse, the region descended into an outright war between Armenia and Azerbaijan.

   A Russian-brokered ceasefire was signed in May 1994. As a result of a military victory, Armenia consolidated the autonomy of the Nagorno-Karabakh region and occupied the surrounding Azerbaijani territories. Peace negotiations were conducted but they were never conclusive. Nagorno-Karabakh became the Republic of Artsakh with its own government, but it has never been recognized by any member of the UN.

   b. War in 2022 and the Trilateral Agreement

   A second war started in 2020, it lasted for 44 days, and Azerbaijan recovered the territories lost in the first war surrounding Nagorno-Karabakh, including the Agdam, the Kalbajar, and the Lachin Districts.

   On November 9, 2020, Azerbaijan, Armenia, and Russia signed the Trilateral Statement ending the war between the first two countries recognizing the new situation and established special agreements regarding Nagorno-Karabakh.2

   The Nagorno-Karabakh factual autonomy was not mentioned, but Azerbaijan authorized the presence of Russian peacekeepers to protect the Armenians living in Nagorno-Karabakh and the role of the UN High Commissioner for Refugees to facilitate the return of internally displaced persons and refugees return to the territory of Nagorno-Karabakh.

   “The Lachin corridor (5 km wide), which will ensure the communication between Nagorno-Karabakh and Armenia…shall remain under the control of the peacekeeping contingent of the Russian Federation” for five years.3 “The Republic of Azerbaijan shall guarantee the safe movement of citizens, vehicles, and cargo in bothdirections along the Lachin corridor.”4 A similar clause requested Armenia to guarantee the safety of transport communication between the western region of Azebaijan and the Nakhchivan Autonomous Republic.5

   After decades of de facto autonomy, Armenians living in Nagorno-Karabakh risk discrimination by Azerbaijan. It is remarkable that the Russian Federation has accepted to play the role of peacekeepers in the region in order to “prevent the mass death of the

   civilian population of Nagorno-Karabakh.”6

   2. Armenia v. Azerbaijan Case before the International Court of Justice

   1. On September 16, 2021, Armenia started proceedings against Azerbaijan beforethe International Court of Justice (ICJ). Armenia alleged that “[f]or decades, Azerbaijan has subjected Armenians to racial discrimination” in violation of the International Convention on the Elimination of All Forms of Racial Discrimination (CERD).7
   2. On December 7, 2021, the Court considered that “propaganda promoting racial hatred and incitement to racial discrimination or to acts of violence against any group of persons based on their national or ethnic origin can generate a pervasive racially charged environment within society. This holds particularly true when rhetoric espousing racial discrimination is employed by high-ranking officials of the State. Such a situation may have serious damaging effects on individuals belonging to the protected group. Such damaging effects may include, but are not limited to, the risk of bodily harm or psychological harm and distress.”8
   3. After reviewing the information placed before it, the International Court of Justice considered “plausible the rights allegedly violated through incitement and promotion of racial hatred and discrimination against persons of Armenian national or ethnic origin by high-ranking officials of Azerbaijan and through

      vandalism and desecration affecting Armenian cultural heritage” and added “that the alleged disregard of the rights deemed plausible by the Court … may entail irreparable prejudice to those rights and that there is urgency, in the sense that there is a real and imminent risk that such prejudice will be caused before the Court makes a final decision in the case.”9

      iv. The Court adopted a unanimous decision ordering Azerbaijan to “[t]ake all necessary measures to prevent the incitement and promotion of racial hatred and discrimination, including by its officials and public institutions, targeted at persons of Armenian national or ethnic origin.”10

      To reach such a conclusion the International Court of Justice took into consideration that “there is a real and imminent risk that irreparable prejudice will be caused to the rights claimed before the Court” validating Armenia claim of expressions of hate by Azerbaijan high ranking officers.11
      Armenia had affirmed the existence of “obsessive and continuing expressions of hatred for persons of Armenian national or ethnic origin emanating from Azerbaijani politicians and high-ranking government officials, including the President.” It alleges that this environment of hate may entail irreparable consequences, in particular by making the physical and mental abuse of all Armenians more likely, “including those living in Nagorno- Karabakh.”12

      3. The UN Committee on the Elimination of Racial Discrimination Report

      In its latest periodic review of Azerbaijan, the UN Committee on the Elimination of Racial Discrimination also expressed deep concern over the “[i]ncitement to racial hatred and the propagation of racist stereotypes against persons of Armenian national or ethnic origin, including on the Internet and social media, as well as by public figures and government officials, and the lack of detailed information on investigations, prosecutions, convictions and sanctions for such acts.”13

      4. The Blockade of the Lachin Corridor.

      On the morning of December 12, 2022, President Aliyev allowed individuals without formal ties with the state apparatus to block the Lachin Corridor near the city of Shushi or Shusha, affecting the provision of food, medicines, oil, and all other essentials to Nagorno-Karabakh. President Aliyev denied the involvement of the State in the creation of the problem but justified the action to stop alleged illegal export of mineral resources.

      5. The European Court of Human Rights and ICJ Provisional Measures

      Armenia brought the problem to the attention of both the European Court of Human Rights and the International Court of Justice. It affirmed that “The 120,000 ethnic Armenians in Nagorno-Karabakh are now entirely encircled by Azerbaijan, completely cut off from access to the outside world.” They are now “effectively under siege.”

      1. On December 21, 2022, the European Court of Human Rights evaluated the State’s responsibility and instructed Azerbaijan to “take all measures that are within their jurisdiction to ensure safe passage through the ‘Lachin Corridor’ of seriously ill persons in need of medical treatment in Armenia and others who were stranded on the road without shelter or means of subsistence.”
      2. On January 2023, Azerbaijan’s agents before the ICJ affirmed that Armenia has not demonstrated that “the protest is actually blocking the road or seriously obstructing the flow of traffic along it”; that “to the extent the traffic is obstructed, the intention or effect was racial discrimination”; and that “the consequences of the restrictions were such that there is now a real risk of irreparable prejudice.” “Armenia tries to suppress the fact that for nearly 30 years, it has been illegally exploiting the resource-rich territories of Azerbaijan that it invaded and occupied in violation of international law.”

         iii. On February 22, 2023, the International Court of Justice ordered: “The Republic of Azerbaijan shall, pending the final decision in the case and accordance with its obligations under the International Convention on the Elimination of All Forms of Racial Discrimination, take all measures at its disposal to ensure unimpeded movement of persons, vehicles, and cargo along the Lachin Corridor in both directions.” 14 The order was reaffirmed on July 6, 2023.

         6. The Checkpoint on Hakari River Bridge

         On April 23, Azerbaijan installed a checkpoint over the Hakari River bridge blocking the Lachin corridor, claiming that it was implementing the ruling of the Court. The demonstrators stopped their intervention.

         On June 15, 2023, Azerbaijan escalated the situation, completely sealing off the Lachin Corridor, the lifeline of Nagorno-Karabakh. Since then, the International Committee of the Red Cross (ICRC) and Russian peacekeeping forces have been banned from delivering humanitarian relief.

         The last attempt happened on July 26, 2023, when the Azerbaijan forces did not allow a convoy with humanitarian cargo to pass through the Lachin Corridor and enter Nagorno-Karabakh.

         The International Committee of the Red Cross (ICRC) said that despite their “persistent efforts,” they are currently unable “to bring humanitarian assistance to the

         civilian population through the Lachin corridor or through any other routes, including Aghdam.”

         B. Is there a reasonable basis to believe that the Lachin corridor blockade implemented since December 12, 2022, constitutes the crime of Genocide against Armenians in Nagorno-Karabakh?

         Some specialized institutions have already claimed a Genocide is underway in Nagorno-Karabakh.15 As has happened in previous cases, Genocide, in particular, when committed by starvation, is neglected.

         An estimated 1 million Armenians were murdered or died of disease and starvation in 1915 and the world did not stop it.16 Starving children in the Warsaw ghetto produced no reaction.17 Leningrad (now Saint Petersburg) became a “prison of starvation.”18 “A factor that blunted understanding of the evil of Khmer rouge’s regime was that many Cambodians died of starvation and malnutrition, which outsiders associated with “natural” economic and climatic forces.”19 “Photos of emaciated prisoners and refugee accounts of torture, starvation, and executions,” promoted false promises of change in Srebrenica by the Milosevic regime.20

          

   ***

   1 Felix Light and Guy Faulconbridge, ‘Explainer: What is Nagorno-Karabakh – and why are tensions rising?’ (Reuters, April 24, 2023), https://www.reuters.com/world/asia-pacific/what-is-nagorno- karabakh-why-are-tensions-rising-2023-04-24/.

   2 Statement by President of the Republic of Azerbaijan, Prime Minister of the Republic of Armenia and President of the Russian Federation (November 10, 2020) UN Doc. S/2020/1104.
   3 Ibid., para 6(1)
   4 Ibid., para 6(3).

   5 Ibid., para 9.

   6 ‘Decree of the Federation Council of the Federal Assembly of the Russian Federation on the use of a military unit of the Armed Forces of the Russian Federation in Nagorno-Karabakh’ (November 18, 2020), http://council.gov.ru/activity/documents/121580/.
   7 Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Armenia v. Azerbaijan) (Application Instituting Proceedings) September 16, 2021, para 3.

   8 Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Armenia v. Azerbaijan) (Order on Provisional Measures) [2021] ICJ Rep 361, para 83.

   9 Ibid., paras 61, 88. 10 Ibid., para 91.
   11 Ibid., para 88.
   12 Ibid., para 74.

   13 UN Committee on the Elimination of Racial Discrimination, ‘Concluding observations on the combined tenth to twelfth periodic reports of Azerbaijan’ (September 22, 2022) UN Doc. CERD/C/AZE/CO/10-12, para. 4(c).

   14 See Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Armenia v. Azerbaijan) (Order on Provisional Measures) February 22, 2023, paras 62, 67. See also Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Armenia v. Azerbaijan) (Order on Request for Modification of Provisional Measures) July 6, 2023, para 30.

   15 On February 1, 2023, the International Association of Genocide Scholars Executive and Advisory Boards stated: “Significant genocide risk factors exist in the Nagorno-Karabakh situation concerning the Armenian population.” Available at: https://genocidescholars.org/wp- content/uploads/2023/02/IAGS-EB-AB-Statement-on-Azeri-Blockade-of-Artsakh.pdf. On June 22, 2023, the Lemkin Institute for Genocide prevention issued a Red Flag Alert for Genocide, see Lemkin Institute for Genocide, ‘Azerbaijan Update #8’ (June 22, 2023), https://www.lemkininstitute.com/_files/ugd/ 391abe_2bdcf33e1e0d4acf95e82292efed03c8.pdf.

   16 See Samantha Power, “A Problem From Hell”: America and the Age of Genocide (Basic Books 2002) 27; Taner Akçam, ‘The Armenian Genocide’ in Ben Kiernan et al. (eds), The Cambridge World History of Genocide, vol. III (Cambridge University Press 2023) 67, 83.
   17 Power (n 16) 74. An official Nazi order commanded that “the basic provisioning of the Jewish Residential District must be less than the minimum necessary for preserving life, regardless of the consequences.” Economic Sector of Jewish Residential District in Warsaw, Order, 7 BFG 65 (April 19, 1941).

   18 Ales Adamovich and Daniil Granin, Leningrad Under Siege: First-Hand Accounts of the Ordeal (Pen & Sword Books 2007) 190.
   19 See Power (n 16) 179–80; Adam Jones, Genocide: A Comprehensive Introduction (Routledge 2006) 198; Ben Kiernan, ‘The Genocides in Cambodia, 1975–1979’ in Kiernan et al. (n 17) 518, 534.
   20 Power (n 16) 580. See also Markéta Slavková, ‘Starving Srebrenica and the Recipes for Survival in the Bosnian War (1992–1995)’ (2019) 106 Český Lid 297.

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