Combating impunity for international crimes: the case of Nagorno-Karabakh
Dr Najiba Mustafayeva
With the end of World War II, and the creation of the United Nations, “the international community vowed never again to allow atrocities like those of that conflict happen again” . World leaders decided “to complement the UN Charter with a road map to guarantee the rights of every individual everywhere”. In the Preamble of the UN Charter the founding fathers to reaffirm faith in fundamental human rights, in the dignity and worth of the human person, and to establish conditions under which justice and respect for the obligations arising from treaties and other sources of international law can be maintained .
As the imperative jus cogens principle of international law, respect for human rights and fundamental freedoms was proclaimed in the 1975 Helsinki Final Act with the recognition of states the universal significance of human rights and fundamental freedoms, respect for which is an essential factor for the peace, justice and well-being. In the field of human rights and fundamental freedoms, the participating states commit “to act in conformity with the purposes and principles of the UN Charter and with the Universal Declaration of Human Rights”. They also pledge “to fulfill their obligations as set in the international declarations and agreements in this field, including inter alia the International Covenants on Human Rights, by which they may be bound” .
Moreover, according to the “Responsibility to protect” Report of the International Commission on Intervention and State Sovereignty, “what has been gradually emerging is a parallel transition from a culture of sovereign impunity to a culture of national and international accountability”. The significant achievement in this realm was the establishment of the Nuremberg and Tokyo international tribunals after World War II, dealing with the core international crimes, as well as ad hoc tribunals on the former Yugoslavia (ICTY) and its sister court for Rwanda (ICTR), which were created by the UN Security Council. Moreover, in 2002 the International Criminal Court (ICC) began functioning due to ratification of the Rome Statute by 60 states. The ICC has the jurisdiction to prosecute individuals for the international crimes of genocide, crimes against humanity, war crimes and crimes of aggression. Noteworthy, the Statute shall apply equally to all persons without any distinction based on official capacity. In particular, “official capacity as a head of state or government, a member of a government or parliament, an elected representative or a government official shall in no case exempt a person from criminal responsibility under this Statute, nor shall it, in and of itself, constitute a ground for reduction of sentence” .
However, despite these significant achievements in international human rights regime, millions of innocent people have been victims of unimaginable atrocities that threaten the international peace and security.
Azerbaijani people had also faced gross violations of human rights in their century-old history. “For centuries Armenian nationalists have committed bloody crimes, terrorist acts and genocide actions against Azerbaijani people. A great number of historical documents prove that hundreds of thousands Azerbaijanis were massacred and deported from their own lands, exposed to ethnic cleansing and genocide by Armenian nationalists in their historical and ethnic territories, in the Caucasus as far back as 1905-1907, 1918-1920, 1948-1953” .
Armenian invasion in Azerbaijan since the end of the 1980`s is the continuation of this policy. The conflict started after Armenia’s territorial claims on Nagorno-Karabakh and, in parallel, the systematic expulsion of Azerbaijanis from the Armenian SSR, started in 1988. During the 1992-1993, a considerable area of Azerbaijan fell under Armenian occupation, including Nagorno-Karabakh and seven adjacent districts. It also resulted in over 30,000 military and civilian deaths and made about a million Azerbaijanis IDPs and refugees.
"Since January 1988, the Armenians began to implement into life the policy of “Armenia without Turks”. The government of Armenia, nationalistic organizations "Karabakh" and “Krunk”, and representatives of the church of Echmiedzin committed thousands of brutal crimes under the protection of the administration of the USSR in the process of forcible deportation of the Azerbaijanis from Armenia". According to the State Commission on Prisoners of War, Hostages and Missing Persons, as a result of this ethnic cleansing “185 Azerbaijani settlements were emptied, over 250,000 Azerbaijanis and 18,000 Kurds were compelled to leave their houses; 217 Azerbaijanis were murdered and 49 of them froze in the mountains when escaping to save their lives, 41 of them were beaten to death, 35 of them were tortured to death, 115 of them were burnt, 16 of them were shot, 10 of them died of heart attacks unable to endure the tortures, 2 of them were murdered by physicians in the hospital, some people were drowned in the water, some were hung, some were electrified to death, and some were beheaded” .
One of the most flagrant crimes which Azerbaijan faced in the XX century is the genocide in Azerbaijani town Khojaly, which took the lives of 613 of its people, including 106 women, 63 children and 70 elderly. 1275 were taken hostage, while the fate of another 150 people remains unknown.
Despite the signing of a ceasefire agreement in Bishkek in 1994, the Armenian traditional tactics on killing of civilians, including children in Azerbaijan, is still widely used. According to the State Committee on Family, Women and Children’s Affairs, overall, 33 children were victims of Armenian terrorism, fourteen of them were killed and nineteen were wounded .
Furthermore, “in order to consolidate the current status quo of the occupation Armenia undertakes consistent measures in the occupied territories of Azerbaijan”. Such measures include implantation of settlers from Armenia and abroad, destruction and appropriation of Azerbaijani historical and cultural heritage, illegal economic activities, and exploitation of natural recourses, accompanied by substantial and systematic inference with the public and private property rights .
Undoubtedly, the vulnerability of civil population during the wartime actualizes the term of a special urgency and international commitment of the world community to protect this category of people, as well as to undertake legal measures to combating impunity for international crimes.
The crime of genocide committed by Armenia against Azerbaijanis in Khohaly is condemned all over the world. Thus, the Parliaments of Mexico, Columbia, Peru, Pakistan, Bosnia and Herzegovina, Romania, the Czech Republic, Sudan, Jordan and Honduras, Guatemala and Panama, Slovenia and Djibouti already recognized the crime in Khojaly as genocide from the perspective of the international law. In addition, the States of the USA namely, the State of Massachusetts, Texas, New-Jersey, Maine, New Mexico, Arkansas, Georgia, Oklahoma, Tennessee, Pennsylvania, Connecticut, Florida, Mississippi, West Virginia, Indiana, Utah, Nebraska, Hawaii, Montana and Arizona have also adopted the related resolutions. The Organization of Islamic Cooperation (OIC) was the first international intergovernmental organization that recognized Armenia as an aggressor and the Khojaly tragedy as a crime of genocide.
However, international crimes, committed by Armenia, have not been received the full legal assessment and recognition at the international level. Creation of ad hoc tribunal to deal with the war crimes, crimes against humanity, genocide and crime of aggression that have been committed during the Armenia-Azerbaijan Nagorno-Karabakh conflict is urgently needed to ensure justice, as well as maintenance international peace and security.
In 1993, the United Nations Security Council adopted four resolutions (822, 853, 874, and 884) in connection with the armed seizure of Azerbaijani territories . These legally binding documents demand the unconditional and immediate withdrawal of the occupying forces from Nagorno-Karabakh and other occupied regions of Azerbaijan. However, Armenia has not adhered to the terms of these resolutions and continues to occupy Azerbaijani territories.
Articles 41 and 42 of the United Nations Charter give the Security Council the authority to use a variety of measures to enforce its decisions . Furthermore, as may be necessary to maintain or restore international peace and security, the Security Council assists the sovereign states in investigation of international crimes which is graphically observed in the case of above-mentioned ICTY and ICTR. In fact, this international practice can be used in the establishment of ad hoc tribunal for the investigation of international crimes committed by Armenia against Azerbaijani people during the Armenia-Azerbaijan Nagorno-Karabakh conflict.
The most challenging problems in international human rights regime are inaction and neglect civilian suffering with a prevailing atmosphere of impunity and lack of accountability . Combating impunity is important effort not only for the purposes of prosecuting crimes and bringing those responsible to justice, but also for ensuring sustainable peace and security based on faith in fundamental human rights, dignity and worth of the human person.
- The United Nations, http://www.un.org/en/sections/universal-declaration/index.html
- The Charter of the United Nations, 26 June, 1945, http://www.un.org/en/sections/un-charter/preamble/index.html
- The Responsibility to Protect // Report of the International Commission on Intervention and State Sovereignty, December 2011, http://responsibilitytoprotect.org/ICISS%20Report.pdf
- Helsinki Final Act, Organization for Security and Co-operation in Europe, 1 August, 1975, http://www.osce.org/helsinki-final-act
- The Rome Statue of the International Criminal Court, 17 July 1998, https://www.icc-cpi.int/nr/rdonlyres/ea9aeff7-5752-4f84-be94-0a655eb30e16/0/rome_statute_english.pdf
- The Statement of the Commissioner for Human Rights (Ombudsman) of the Republic of Azerbaijan in connection with 14th anniversary of Khojaly Genocide, 26 February, 2007, http://ombudsman.gov.az/en/view/pages/84
- The State Commission of the Republic of Azerbaijan on prisoners of war, hostages and mission persons, http://human.gov.az
- The State Committee on Family, Women and Children’s Affairs of the Republic of Azerbaijan, http://scfwca.gov.az/en/post/684/beynelxalq-teskilatlara-ve-xarici-dovletlere-azerbaycan-qadinlari-qadin-ve-usaq-meseleleri-uzre-feal
- Illegal economic and other activities in the occupied territories of Azerbaijan // Report by the Ministry of Foreign Affairs of the Republic of Azerbaijan, 2016, http://mfa.gov.az/files/file/MFA_Report_on_the_occupied_territories_March_2016_1.pdf
- The Republic of Azerbaijan in the United Nations Security Council 2012/2013, New York, 2014, p.365.