Genocide of Armenian Christians underway. Who cares? (II)
26 Agosto 20231 Commento
Dear friends and foes of Stilum Curiae, we publish the second part of the study conducted by Dr. Luis Moreno Ocampo, former Prosecutor of the International Criminal Court on the crisis that has been going on for months now in Artsakh (Nagorno Karabagh). Part one is at this link. And at this link you will find the index of articles published by Korazym on this topic. Enjoy reading and sharing.
1. Material elements of Article II (c) of the Genocide Convention: “Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part.”
a. Historical Background
When debating the parameters of Article II(c) during the early-stage drafting of the Convention by the UN Economic and Social Council’s Ad Hoc Committee on Genocide, France observed that “[i]f any group were placed on rations so short as to make its extinction inevitable, merely because it belonged to a certain nationality, race or religion, the fact would also come under the category of genocidal crime.”21
The proposal on which France was affirmatively commenting was accepted by the other members of the Ad Hoc Committee,22 eventually manifesting in the final text in the form of Article II(c).23
i. Jurisprudence on the elements of the crime
The demarcation between genocide by the imposition of conditions of life and by killing or serious injury was captured by the District Court of Jerusalem in its Eichmann case, where it opined that, “there were two separate actions: first, subjection to living conditions calculated to bring about their physical destruction, and later the physical destruction itself.”24
The jurisprudence of the International Tribunals for the former Yugoslavia and Rwanda describes this form genocide as “the denial to members of a certain group of the elementary means of existence enjoyed by other sections of the population.”25 This
process occurs through methods “by which the perpetrator does not immediately kill the members of the group, but which, ultimately, seek their physical destruction.”26
Notably, genocide through such underlying acts does not require the acts in question actually result in any physical or mental harm to members of the protected group.27 In fact, when such results do occur, the ICTY Appeals Chamber has found that paragraphs (a) or (b) of Article II of the Genocide Convention relating to killing members of the group or causing serious harm to them, respectively,28 are more fitting than those under Article II(c).29
The travaux préparatoires of the Genocide Convention demonstrate an explicit rejection of a causal element in the form of the UN General Assembly’s Sixth Committee’s rejection of a proposed amendment by Uruguay and the United Kingdom that suggested the phrase “likely to cause,”30 which was instead attenuated to thephrase “calculated to bring about.”31
A similar conclusion on the war crime of ‘starvation’ under Article 54(1) of Additional Protocol I to the Geneva Conventions was reached in 2020, by the UN Commission on Human Rights in South Sudan:
The term “starvation” should be understood to encompass deprivation not just of food and water but also of other goods essential for survival in a particular context. The crime of starvation does not require that victims die from starvation, only that they should intentionally be deprived of objects indispensable to their survival.32
ii. The Findings of the International Court of Justice in the Armenia v. Azerbaijan Case.
The ICJ has already analyzed the Lachin corridor’ blockade. The Court focused on State liability 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 Genocide.
Though predicated on a different set of State obligations, the Court confirmed the occurrence of the material elements of Genocide that are set out in Article II, (c) of the Genocide Convention: “Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction.”33
The ICJ’s preliminary decision indicates the plausible concurrence of the material elements of the crime of Genocide required by Article II of the Genocide Convention: (c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction, in whole or in part.
The Court issued provisional measures considering “plausible” that the rights of a part of an ethnic group, the “Armenians in Nagorno-Karabakh,” are affected by the blockade of the Lachin Corridor established in December 2022.34 Therefore, the
International Court of Justice assessed that the “persons affected belonged to a particular ethnical group” as required by the Genocide Convention.
According to the “Elements of the Crimes” adopted by the International Criminal Court, the term “conditions of life” calculated to bring about the physical destruction of that group “may include, but is not necessarily restricted to, deliberate deprivation of resources indispensable for survival, such as food or medical services, or systematic expulsion from homes.”35
In its February order, the ICJ accepted the request related to food and medicines, affirming “[a] prejudice can be considered as irreparable when the persons concerned are exposed to danger to health and life. The Court has further noted that restrictions on the importation and purchase of goods required for humanitarian needs, such as foodstuffs and medicines, including lifesaving medicines, treatment for chronic disease or preventive care, and medical equipment, may have a serious detrimental impact on the health and lives of individuals.”36
The International Court of Justice concluded that the blockade “may entail irreparable consequences to those rights and that there is urgency, in the sense that there is a real and imminent risk that irreparable prejudice will be caused before the Court makes a final decision in the case.”37
Such a conclusion is an indication of the concurrence of the infliction of “certain conditions of life calculated to bring about the physical destruction of that group.”
The requirement of a plan or a manifest pattern of similar conduct directed against that group is evident, but it will be further analyzed below.
b. Subjective Element of the Crime of Genocide
The crime of Genocide requires intention: “The perpetrator intended to destroy, in whole or in part, that ethnical group, as such.”38 A blank confession is not the only way to prove intention. Voluntary actions, even in silence, express intentions to “[d]eliberately [inflict] on the group conditions of life calculated to bring about its physical destruction.”
President Aliyev’s Genocidal intentions can be deduced from the following:
- 1) He knowingly took systematic steps to stop the transit and transport of people
and goods through the Lachin Corridor and ultimately blockaded it by placing a
checkpoint with cement blocks;
- 2) Having been placed on notice by the International Court of Justice regarding the
“impending” dangers of blockading the Lachin Corridor, he continued with the
- 3) In addition to having the specific knowledge of the consequences of his
deliberate acts, President Aliyev has willingly refused the execute the International Court of Justice’s orders.
i. Jurisprudence on intention
The ICTR Appeals Chamber in Kayishema and Ruzindana observed that “explicit manifestations of criminal intent are … often rare in the context of criminal trials.”39
The ICTY Appeals Chamber similarly noted in Karadžić that “by its nature, genocidal intent is not usually susceptible to direct proof,”40 with the ICTR Appeals Chamber adding in Gacumbitsi that “[o]nly the accused himself has first-hand knowledge of his own mental state, and he is unlikely to testify to his own genocidalintent. Intent thus must usually be inferred.”41
The ICTR trial Chamber accordingly had held in Rutaganda that “[i]n the absence of explicit, direct proof, the dolus specialis may … be inferred from relevant facts and circumstances” and that “[s]uch an approach prevents perpetrators from escaping convictions simply because such manifestations are absent.”42
Similarly, the ICTY Appeals Chamber held in Krstić that “[w]here direct evidence of genocidal intent is absent, the intent may still be inferred from the factual circumstances of the crime.”43
ii. Analysis of President Aliyev’s Intentions.
The President of Azerbaijan, Ilham Aliyev, is de jure and de facto Supreme Commander of the security forces in Azerbaijan. Under his command the security border personelle have been placed in control of the checkpoint on the Lachin Corridor and blocked transit of all goods and people.
President Alliyev’s intention to destroy the “Armenians in Nagorno-Karabakh” should be deduced from his informed, voluntary and antagonistic decisions with full disregard of the International Court of Justice orders.
In 2020, when President Aliyev accepted the Russian peacekeepers and agreed to guarantee a free corridor between Armenia and Nagorno-Karabakh, he implicitly recognized the Nagorno-Karabakh’s de facto autonomy.
Then, a few months later, when Russia became engaged with Ukraine, President Aliyev reversed direction and decided that the region has no autonomy. Instead of negotiating the autonomy of the people of Nagorno-Karabakh, he systematically took steps through a series of decisions to eliminate the Armenians living in Nagorno- Karabakh.
First, he allowed a group of civilians to block the Lachin Corridor.
Second, one year after the beginning of the Ukrainian war, he established a checkpoint on the border with Armenia, obstructing free transit through the Lachin Corridor. He imposed the Lachin Corridor blockade knowing the consequences described by the International Court of Justice’s order.
Third, he completely sealed the Lachin Corridor and refused to obey the Court’s order.
It is possible to deduce that President Aliyev’s instructions to establish a full blockade of the Lachin Corridor was adopted voluntarily with the intention to ‘deliberately inflict on the group conditions of life calculated to bring about its physical destruction.’
The inference is confirmed that President Aliyev had knowledge that the International Court of Justice reached the conclusion that the blockade created “real and imminent risk” to the “health and life” of the people of Nagorno-Karabakh. Furthermore, President Aliyev’s genocidal intention is so strong that he openly challenges a binding order of the International Court of Justice.
iii. President Aliyev’s Statement on August 1, 2023.
To safeguard my accuracy and impartiality, before producing this report, I wrote to President Aliyev explaining the consequences of the blockade and offering him an opportunity to clarify his position. My letter put President Aliyev on notice of the commission of Genocide. He could be responsible for Genocide. I received no answer, and the blockade continues.
President Aliyev discussed the matter during a Euronews interview aired two days after my letter. He indirectly recognized that the blockade was his official policy and pretended to justify the starvation of 120,000 Armenians to avoid the alleged smuggling of minerals, cigarettes, iPhones, and gasoline.
He justified the December blockade produced by the “representatives of civil society of Azerbaijan” because of the “illegal excavation of natural resources in Karabakh.”
He said that an Azerbaijan checkpoint was established to implement the International Court of Justice decision. “And as soon as we established a border checkpoint on our border with Armenia, which is our legitimate right…we communicated through my representative here in Shusha with NGOs’ representatives for them to stop, and they stopped. They left. So now, freedom of movement is not blocked.”
Then he explained that “On June 15, Armenia made another military provocation and wounded one of our border security guards, and temporarily the road was closed for investigation.”
“But then it was reopened. Red Cross restarted again to transport medications and evacuate patients who need treatment in Armenia. But unfortunately, Red Cross trucks, when checked, we found smuggling goods like cigarettes, iPhones, and gasoline. Red Cross admitted that. So, that is how, again, it was blocked.” The ICRC clarified the incident. This statement confirms that President Aliyev is in command of the situation, providing misleading arguments to divert attention from his commission of Genocide.
He pretends that he is disobeying an ICJ decision and starving 120,000 persons to control the smuggling of some iPhones or minerals. The smuggling cases should be properly investigated but they should not distract from the genocidal impact of his decisions.
In the interview, President Aliyev stated his motive, which is to “put an end to separatism.” He said he is “not organizing ethnic cleansing,” but he proposes that Armenians in Karabakh could live as a minority in Azerbaijan, ignoring the discrimination and the Genocide, or they have to leave.
Perpetrators of genocide attempt to conceal their genocidal intent. Combating such concealment is the raison d’être of the explicit distinction between motive and intent with respect to genocide.44
Intent refers to the actual goal the perpetrator strives to achieve, while motive refers to the specific reason of the perpetrator in the commission of criminal acts. Accordingly, the ICTY Appeals Chamber conclusively declared in Stakić that “the reason why the accused sought to destroy the victim group has no bearing on guilt.”45
Thus the existence of a “personal motive,” such as the acquisition of territory or integration of a separatist entity, “must be distinguished from intent and does not preclude a finding of genocidal intent.”46
President Aliyev rightly said that Azerbaijan recovered in the 2020 war a territory occupied by Armenia, but now, he threatens Armenia with a new war to end the special status of Nagorno-Karabakh.
He explained that the last year’s geopolitical changes were in his favor and posed the question: “Who will protect Armenia?” This is akin to Hitler’s statement that he made in August of 1939, when he said, “who remembers now the extermination of the Armenians?”47
President Aliyev ended his interview with a threatening message to the Armenians: “They should understand that the situation where they are today would not change in their favor if they continue to ignore us if they continue to behave that we do not exist.”
D. Who Could be Personally Responsible?
President Aliyev should be investigated for Genocide because he is at the top of the state apparatus and controls decisions politically, militarily and diplomatically. He’s the mastermind behind the operations of the Genocide.
There are reports that identify other perpetrators involved in the blockade, but there is no indicia against them about their genocidal intention. They should still be investigated for their eventual participation in Genocide and in the blockade as crimes against humanity.
There are confidential reports alleging that the following individuals should be investigated. The list includes, but is not limited to the following:
- 1) Zakir Asker Oghlu Hasanov (Azerbaijani: Zakir Əsgər oğlu Həsənov) – Minister of Defense
- 2) Elchin Guliyev (Azerbaijani: Elçin Isa oğlu Quliyev) – Chief of State Border Service of Azerbaijan
- 3) Akshin Maherramov – Chief of Staff of the Border Detachment for State Border Protection
- 4) Misir Aliyev – Rapid Response Brigade of the Rapid Response Forces of the State Border Guard Service
- 5) Farid Shafiyev – Center of Analysis of International Relations
E. Could President Aliyev be Investigated by the International Criminal Court?
Article IV of the Genocide Convention establishes that “Persons committing genocide shall be punished,” even if “they are constitutionally responsible rulers.”48 But there is no independent criminal justice system to investigate the crime of Genocide.
President Aliyev cannot be investigated by any national authorities because he enjoys immunity as a head-of-state.49
Such immunity does not apply at the International Criminal Court.50 There are three ways to start an ICC investigation for the commission of the crimes in the Lachin Corridor and Nagorno-Karabakh:
- 1) Azerbaijan becomes a state party (Article 12.1 of the Rome Statute);
- 2) Azerbaijan accepts intervention of the Court on its territory (Article 12.3 of
the Rome Statute); and
- 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
But Azerbaijan is not a state party of the Rome Statute, and, did not accept an
ICC intervention. As a result, immediate state action is required to adopt a UN Security Council Resolution referring the situation in the Lachin Corridor and Nagaorno- Karabakh to the ICC.
There are precedents. In March 2005, the UN Security Council adopted Resolution 1395, referring the Darfur situation to the ICC. Five years later, President Omar Al Bashir was indicted for Genocide.51
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.
F. How to Prevent the Final Destruction of the Armenian Group?
50 Prosecutor v. Al Bashir (Judgment in the Jordan Referral re Al-Bashir Appeal) ICC-02/05-01/09-397 (May 6, 2019) paras 113–17.
51 See Prosecutor v. Al Bashir (Second Warrant of Arrest for Omar Hassan Ahmad Al Bashir) ICC-02/05- 01/09-95 (July 12, 2010).
Determining that Genocide against Armenians is being committed in 2023 would transform the understanding of the conflict in Nagorno-Karabakh.
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.
One hundred and fifty-three nations, including Azerbaijan, Russia, the United States, and members of the European Union are contracting parties of the Genocide Convention. Under the Convention, the Parties confirm that Genocide is a crime under international law which they undertake to prevent and punish. Timely prevention requires the adoption of urgent political decisions.
- a) to stop the blockade and reestablish the provision of essential goods to Nagorno- Karabakh in one or two weeks, and
- b) institutional solutions to the disputed territorial claims. This should be adopted before May 2025 because at that time, Azerbaijan can request that Russia ends its peacekeeper role.
1. A failure by design
By design, there are no central authorities at the international level to adopt such urgent measures. A ruling by the International Court of Justice on Genocide, smart sanctions, and other classic diplomatic tools are slow and inadequate measures to respond and prevent the current dire situation.
In the short term, which is crucial to stop the damages caused by the ongoing Genocide by starvation, the duty of prevention is exclusively defined by the interests of the states involved in the conflict.
Samantha Power affirmed that U.S. policymakers did almost nothing to deter genocides, because America’s “vital national interests” were not considered imperiled.52
She described magnificently in “The Problem from Hell” how politicians avoid efforts to control genocides. They appease, bribe, seduce or manipulate their constituencies that demand action.53
The reluctance, described by Samantha Power to act before a Genocide, was exposed in April 1994, when most of the UN Security Council members refused to call what was happening in Rwanda a “Genocide.” During the debate members of the Council requested negotiations to achieve a ceasefire. The Czech Ambassador challenged them and likened it to asking the Jews to reach a truce with Hitler.54
In “A Problem from Hell,” Samantha Power also 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 collective and pragmatic solution.
2. The role of Russia, the U.S. and European Union
As mentioned, Russia, responsible for peacekeeping in Nagorno-Karabakh, and the U.S., promoting current negotiations between Armenia and Azerbaijan, are state parties of the Genocide Convention as all the European Union members. They have a privileged position to prevent the 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 U.S. leaders to reach a joint position to stop the ongoing Armenian Genocide? If they agree, the food will reach the Armenians within one day.
Secretary of State Antony J. Blinken spoke with Azerbaijan’s President Ilham Aliyev a few days after the full blockade was imposed, rightly requesting to open the Corridor. But, at the time, there was no clarity on the genocidal circumstances surrounding the event. Secretary Blinken limited the conversation to stressing “the need for all parties to keep up positive momentum on peace negotiations.”55
President Aliyev’s actions show that he is under the perception that his method of committing Genocide to force his victims to accept his demands, is tolerated by the international community.
The U.S., Russia and the European Union involved in the negotiations between Azerbaijan and Armenia must make publicly clear that they do not allow, and will not allow, explicitly or implicitly, President Aliyev to commit a genocide.
3. The time to prevent is now
As the International Court of Justice established, accepting genocide as a method to procure an agreement is complicity.
In its 2007 Bosnia v. Serbia judgment, the International Court of Justice established the principle that the states’ “obligation to prevent, and the corresponding duty to act, arise at the instant that the State learns of, or should normally have learned of, the existence of a serious risk that genocide will be committed.”56
The Court added: “This obviously does not mean that the obligation to prevent Genocide only comes into being when the perpetration of Genocide commences; that would be absurd since the whole point of the obligation is to prevent or attempt to prevent the occurrence of the act.”57 From the moment when a State has information that leads it to believe that a Genocide is afoot, it establishes its obligation to take all measures possible to prevent and stop the further “physical destruction” of a group of people.
Secretary of State Blinken explained in the Holocaust Museum that one of his responsibilities “is determining, on behalf of the United States, whether atrocities have been committed. It’s an immense responsibility that I take very seriously, particularly given my family’s history.”58 He identified intent to destroy a group and hate speech as a path in the Rohingya situation, “mirroring in so many ways the path to the Holocaust and other genocides.”59
President Biden took a courageous step and became the first U.S. President that labeled the 1915 events as the Armenian Genocide. “The American people honor all those Armenians who perished in the genocide that began 106 years ago today. Let us renew our shared resolve to prevent future atrocities from occurring anywhere in the world.”60
Now that the path of Genocide against an Armenian group in Nagorno- Karabakh is exposed, it is time for the U.S. to put words into action.
The U.S., Russia, members of the European Union, all state parties of the Genocide Convention, and UN members have a rare historic opportunity to stop Genocide against an Armenian group in 2023.
In many respects, the starvation of the ethnic Armenians of Nagorno-Karabakh, represents the archetype of genocide through the imposition of conditions of life designed to bring about a group’s destruction.61 It closes a tragic circle because “[t]he treatment of the Armenians by the Turkish rulers in 1915 provides the paradigm for the Genocide provision dealing with imposition of conditions of life.”62
As an individual with some experience in the field, I was honored to make my contribution providing an impartial report and I am ready to assist any party committed to prevent the destruction of the Armenian group in Nagorno-Karabakh.
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