Former Chief Prosecutor of the UN ICC submits report to Karabakh president, concludes that genocide is being committed against people of Artsakh

Artsakh (Nagorno-Karabakh) 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.

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, Armenian News-NEWS.am learns from the office of the President of Artsakh.

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.

You can access Ocampo’s comprehensive report here, and 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:

The existence of an ongoing Genocide in Nagorno-Karabakh.

How to investigate those responsible for Genocide?

How to prevent the final destruction of the Armenian group?

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:

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

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.”

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.

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:

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

Azerbaijan accepts the jurisdiction of the Court on its territory (Article 12(3) of the Rome Statute); or

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.

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,

  1. a) to stop the blockade and reestablish the provision of essentials to Nagorno- Karabakh in one or two weeks, and
  2. 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.”

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