12:12, 9 August 2023

YEREVAN, AUGUST 9, ARMENPRESS. Luis Moreno Ocampo, a leading specialist in international law, former chief prosecutor of the International Criminal Court and lecturer at Harvard and Yale has issued an expert opinion in response to the Nagorno-Karabakh president’s request and concluded that the Azerbaijani blockade of Nagorno-Karabakh in fact constitutes genocide.

“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,” Ocampo said in the expert opinion.

“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,” he warned.

“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:

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,” the international law expert added.

Regarding President Aliyev’s intentions, Ocampo concluded, “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 personnel 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 NagornoKarabakh.”

“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,” he added.

Article IV of the Genocide Convention establishes that “persons 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, Ocampo said, citing 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.”

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

“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,” he said.