Earlier this month, a former prosecutor of the International Criminal Court (ICC), Luis Moreno Ocampo, released a legal opinion claiming that genocide is under way against ethnic Armenians in the Azerbaijani region of Nagorno-Karabakh. Such serious allegations should not be made lightly and require careful scrutiny. In light of this opinion, the Government of Azerbaijan appointed me to review the allegations and produce an independent expert legal assessment. It was released yesterday.
For the Ocampo opinion’s potentially wide-reaching consequences, no evidence is identified to support the central claim that a genocide is presently unfolding in Nagorno-Karabakh. Yet its provocative assertions threaten to undermine a peace process between Azerbaijan and Armenia over their nearly three-decade dispute concerning Karabakh. A peace settlement is closer than ever before under EU and US mediation: the Armenian government has broken with precedent and stated it is ready to recognise that Nagorno-Karabakh is part of Azerbaijan – as has been the position of the international community in accordance with international law. Armenia invaded the territory in the 1990s and expelled the hundreds of thousands of Azerbaijanis that lived there. It has since financially and militarily supported the breakaway territory.
The Ocampo opinion was written on behalf of those who have everything to lose in a peace deal: the self-proclaimed government of the illegal entity. Its release coincides with rising prospects for a settlement and the region’s imminent reintegration into Azerbaijan. Unfortunately, it risks stirring tensions on the ground. Moreover, its allegations could limit Armenian Prime Minister Nikol Pashinyan’s freedom to pursue a peace deal if taken at face value. After close examination of the opinion’s assertions, they have been found to be strikingly unsubstantiated.
It claims Azerbaijan has imposed a blockade on Nagorno-Karabakh which is causing mass starvation, and thus conditions of life calculated to bring about the physical destruction of the inhabitants. In 2020 a short conflict broke out which saw Azerbaijan reclaim some of its internationally recognised territory. That included a region through which a road – the Lachin corridor – passes, linking Armenia to the territory of the separatist entity. Azerbaijan has established a checkpoint on this road near the border, which is said was necessary “to stop the illegal flow of weapons, military equipment, and soldiers into [its] sovereign territory”. The road remained open to humanitarian aid supplied by the International Committee of the Red Cross (ICRC). The ICRC confirmed in a statement that its emblem has been misused for smuggling. It has also most recently confirmed that it has provided extensive medical, food and other supplies since December 2022 (when Ocampo claims the blockade commenced), and continues to evacuate persons in need of medical care and provide safe passage to reunite separated families.
The opinion does not grapple with these factual matters. Significantly, it fails to mention that Azerbaijan suggested an alternative route (the ‘Aghdam-Khankandi route’) through which the ICRC and government could supply the ethnic Armenian inhabitants of Nagorno-Karabakh. This option has been acknowledged by the EU. But these offers have been rejected by the de facto authorities in Karabakh. These are plainly relevant circumstances to take into account particularly when claiming that Azerbaijan is deliberately inflicting conditions of life designed to physically destroy those living there.
Information that clearly undermines the opinion’s conclusions is simply left out. The very serious allegation of genocide, from an individual of standing in international law, carries certain responsibilities, in particular meeting the exacting burden of proof and weighing all available evidence. It is therefore unjustifiable that these pertinent considerations have seemingly been passed over. It falls far short of the rigorous hallmarks of a fair minded and balanced expert opinion. Moreover, genocide has a high threshold in international law – the specific intent to physically destroy the group in whole or in part. The stringent requirement of this intent can only be inferred with very considerable caution and when it is unequivocally established, as has been stressed by various international courts. The opinion ignores the well-established international law position. Given that the opinion claims genocide is already underway, it is also curious that there is no mention of the material impact on the local population.
Last week, a UN Security Council meeting was held at the request of the Armenia on the situation in Nagorno-Karabakh. Whilst many speakers noted the issue of humanitarian aid had been politicised, no speaker – bar the Armenian ambassador – mentioned the phrase genocide or ethnic cleansing. However, Edem Wosornu, the Director of Operations and Advocacy at the UN Office for the Coordination of Humanitarian Affairs said humanitarian relief should be allowed to resume through any available routes. No statement was issued by the Council at the end of the session. The unsupported claims of the opinion have not provided any basis for international action.
It is essential that the unverified conclusions of the Ocampo opinion should not be allowed to obstruct the peace process between Armenia and Azerbaijan. Instead, its publication should galvanise the international community in doubling down on mediation efforts to bring a durable peace.
Rodney Dixon KC is a leading counsel and expert in international law. He has both prosecuted and defended before all international criminal courts, going back to the International Criminal Tribunals for the former Yugoslavia and Rwanda (ICTY / ICTR). He has particular expertise in cases involving alleged genocide and crimes against humanity, having acted in cases before the ICTY, ICTR and the International Criminal Court (ICC), for example, in the Sudan Situation concerning the alleged genocide case against President Bashir; in Syria for the mass crimes committed against the civilian population; and, for the East Turkestan Government in Exile regarding the alleged genocide of the Uyghurs. Rodney also represents the widow of Jamal Khashoggi. He is co-author with the current chief prosecutor of the ICC Karim Khan KC of the leading textbook on international criminal courts, Archbold International: Practice, Procedure and Evidence. He practices from Temple Garden Chambers, London, and The Hague.
