Wednesday, August 9 2023 20:15

ArmInfo. Artsakh Republic President Arayik Harutyunyan had a call-meeting with Luis Moreno  Ocampo, the first prosecutor of the International Criminal Court and  professor of world-class Harvard and Yale universities.  According to  the press service of the NKR Head, during the call-meeting Ocampo  presented the results of his legal research on the blockade of  Artsakh to a group of officials led by the Artsakh President.

The President expressed his gratitude to the distinguished  international expert for pro bono undertaking the investigation of  the blockade of Artsakh and providing a legal assessment of the  situation. Luis Moreno Ocampo emphasized that the results of the  research and analysis are very clear: Azerbaijan is committing  genocide against the local Armenian people of Artsakh and the  international community is obliged to take urgent and effective  measures to prevent its further course.

The main findings are outlined below:

"There is an ongoing Genocide against 120,000 Armenians living in  Nagorno- Karabakh, also known as Artsakh.

The blockade of the Lachin Corridor by the Azerbaijani security  forces impeding access to any food, medical supplies, and other  essentials should be considered a Genocide under Article II, (c) of  the Genocide Convention: "Deliberately inflicting on the group  conditions of life calculated to bring about its physical  destruction." There are no crematories, and there are no machete  attacks. Starvation is the invisible Genocide weapon. Without  immediate dramatic change, this group of Armenians will be destroyed  in a few weeks.

Starvation as a method to destroy people was neglected by the entire  international community when it was used against Armenians in 1915,  Jews and Poles in 1939, Russians in Leningrad (now Saint Petersburg)  in 1941, and Cambodians in 1975/1976.  Starvation was also neglected  when used in Srebrenica in the winter of 1993/1994.  Analyzing the  Srebrenica case, the International Court of Justice ruled that  "deprivation of food, medical care, shelter or clothing" constitute  Genocide within the meaning of Article II(c) of the Genocide  Convention.

State parties of the Genocide Convention assumed the duty to prevent  and punish Genocide. The International Court of Justice ruled that  state parties should "not wait until the perpetration of Genocide  commences," and "The whole point of the obligation is to prevent or  attempt to prevent the occurrence of the act."

This report analyzes:

1.The existence of an ongoing Genocide in Nagorno-Karabakh.

2.How to investigate those responsible for Genocide?

3.How to prevent the final destruction of the Armenian group?

1.Genocide in Nagorno-Karabakh in 2023

There is a reasonable basis to believe that a Genocide is being  committed against Armenians living in Nagorno-Karabakh in 2023.  The  International Court of Justice, at the request of Armenia, has  already analyzed the Lachin corridor's 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."

The Court's preliminary findings considered "plausible" that the  Lachin corridor blockade produced "a real and imminent risk" to the  "health and life" of an ethnic group, "the Armenians living in  Nagorno-Karabakh."

The intention, a subjective element required by the crime of  Genocide, should be deduced from the facts and statements from  President Aliyev, who has supreme authority in Azerbaijan.

President Aliyev, in a fair trial, would have the opportunity to  provide a different interpretation of the indicia. In the meantime,  there is reasonable basis to believe that President Aliyev has  Genocidal intentions: he has knowingly, willingly and voluntarily  blockaded the Lachin Corridor even after having been placed on notice  regarding the consequences of his actions by the ICJ's provisional  orders.

The facts are:

A.President Aliyev deliberately blocked the provision of life's  essentials to the Armenians living in Nagorno-Karabakh.

B.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."

C.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)Azerbaijan becomes a state party (Article 12(1) of the Rome  Statute);

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".