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Combating Impunity for International Crimes: The Case of Nagorno-Karabakh

25 Сентября, 2017 в 11:07 ~ 16 минут на чтение 929
Combating Impunity for International Crimes: The Case of Nagorno-Karabakh

By Najiba Mustafayeva

Human rights are the only universally recognized system of contemporary values which has been gradually developed and defined by world states during last 70 years.

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.

The international system of human rights is closely related to peace and security, sustainable development, good governance and the rule of law. Moreover, today international humanitarian and criminal law can be considered as specific aspects of international human rights, which after the end of the Cold War has become increasingly complex and difficult to oversee.

The issues and preoccupations of the XXI century present new and often fundamentally different types of challenges from those that faced the world community in 1945, when the UN was established. As new challenges and threats to international peace and security have emerged, so too have new expectations for action and new standards of conduct in national and international affairs. In consequence, new international institutions have been created to meet these changed circumstances.

So, prominent among the range of important new actors are a number of institutional actors and mechanisms in the area of human rights and human security. They have included, among others, the UN High Commissioner for Human Rights and the UN Human Rights Council. Furthermore, apart from the International Bill of Human Rights, which consists of the 1948 Universal Declaration of Human Rights and the two 1966 International Covenants, the UN created an extensive network of special conventions, bodies and procedures to monitor adherence to the treaty obligations of member states.

Over the years, the commitment of international community to uphold dignity and justice for all of us has been translated into law, whether in the forms of treaties, customary international law, regional agreements and domestic law, through which human rights are expressed and guaranteed.

As the 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.

These international documents mapped out the international human rights agenda, established the benchmark for state conduct, inspired provisions in national legislation and further international conventions (including the Convention on the Prevention and Punishment of the Crime of Genocide, the Convention on the Suppression and Punishment of the Crime of Apartheid,  the International Convention on the Elimination of All Forms of Racial Discrimination, the Convention on the Elimination of All Forms of Discrimination against Women, the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, the Convention on the Rights of the Child, the International Convention for the Protection of All Persons from Enforced Disappearance and regional treaties such as the European Convention for the Protection of Human Rights and Fundamental Freedoms), and led to the creation of long-term national infrastructures for the protection and promotion of human rights.

They are important milestones in the transition from a culture of violence to a more enlightened culture of peace. Moreover, what has been gradually emerging is a parallel transition from a culture of sovereign impunity to a culture of national and international accountability.

Just as the substance of human rights law is coming increasingly closer to realizing the notion of universal justice – justice without borders – so too is in the progress. 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.

Ever since the Nuremberg and Tokyo trials, the first international criminal tribunals were established in the 1990’s, to respond to atrocities committed during the conflict in the former Yugoslavia and the mass-killings in Rwanda. The International Criminal Tribunal for the former Yugoslavia (ICTY) and its sister court for Rwanda (ICTR) were both created by the UN Security Council.  Since then, special courts have also been set up to prosecute domestic and international crimes. Examples of such mixed tribunals can be found in Bosnia Herzegovina, East Timor, Sierra Leone, Cambodia and Lebanon.

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 children, women and men have been victims of unimaginable atrocities that deeply shock the conscience of humanity and threaten the international peace and security.

Azerbaijani people faced terrible disasters 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 encroachment on 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. In fact, the collapse of the Soviet Union empowered the Armenian nationalists. During the 1992-1993 period, 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.

The unresolved Armenian-Azerbaijan Nagorno-Karabakh conflict has been marked for more than two decades by systematic violations of internationally recognized and guaranteed human rights in violation of the above mentioned international landmark documents.

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 bloody 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 horrible tragedies, which Azerbaijan experienced in the 20th century, is the genocide in Khojaly. In the early hours of February 26, 1992 the armed forces of Armenia, the armed Armenian militants of the Nagorno-Karabakh, and Motor-Infantry Battalion 366 of the former Soviet Union dislocated between Askaran and Khankendi occupied the town and committed genocide against the Azerbaijanis. The assault and capture of the town 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.

Armenia has been conducting systematic, deliberate and targeted attacks on civilian population in the densely populated areas adjacent to the line of contact. The recent tragic incident that occurred in the village of Alkhanli in the Fizuli district on July 4, around 4.5 to 5 kilometers from the LoC between Armenian and Azerbaijani armed forces, represents Armenian traditional tactics. As a result of these provocations of armed forces of Armenia, elderly woman and her 2 years old granddaughter were killed, another civilian was wounding, as well as civilian objects were damaging.

Despite the signing of a ceasefire agreement in Bishkek in 1994, the facts on the Armenians’ killing of children in Azerbaijan continue to be recorded. 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 historical and cultural heritage, illegal economic and other activities, exploitation and pillage of natural recourses, accompanied by substantial and systematic inference with the public and private property rights.

Certainly, the vulnerability of civilians in wartime – in particular forcibly displaced persons, refugees, women and children – brings an element of urgency, dedication and strong commitment to worldwide protection efforts. The targeted measures are required to end impunity for the most serious crimes of concern to the international community, including those committed against civilians in situations of armed conflict.

Within last years, the genocide policy of Armenia against Azerbaijan is condemned all over the world; bloody crime committed in Khojaly is getting recognized in compliance with the norms of international law. 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 legal norms.

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 already also passed the related Resolutions. The Organization of Islamic Cooperation (OIC) was the first international organization that recognized Armenia as an aggressor and the Khojaly tragedy as genocide.

However, international crimes, committed by Armenia, have not been received legal recognition at the international level yet. Creation of ad hoc tribunal for the Nagorno-Karabakh conflict that will have retrospective jurisdiction (unlike ICC) to prosecute war crimes, crimes against humanity, genocide and crime of aggression that have been committed during the conflict is an indispensible measure needed to ensure a peaceful, just and prosperous world.

In 1993, the United Nations Security Council adopted four resolutions (822, 853, 874, and 884) in connection with the armed seizure of Azerbaijani territories. The resolutions 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.

Article 41 of the United Nations Charter gives the Security Council the authority to use a variety of measures to enforce its decisions. The Council regularly creates subsidiary organs to support or implement these measures. These organs have included international tribunals which have tried people responsible for serious crimes under international humanitarian law or in cases where the Government has requested the assistance of the Council in investigating and prosecuting cases. 

The cases of the ICTY and ICTR which were established by the UN Security Council based on its authority under chapter 7 of the UN Charter (Action with respect of threats to the peace, breaches of the peace, and acts of aggression) is an international practice which can be used in the establishment of ad hoc tribunal for the investigation of international crimes committed by Armenia against Azerbaijani people during Nagorno-Karabakh conflict.

It is also essential to emphasize the role of the relevant humanitarian mandates in ensuring that all armed conflict situations receive the due attention of the international community. Commitments to protection efforts must be free from selectivity and politically motivated approaches and preferences.

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.

She is currently a contributing analyst for the Jamestown Foundation's Eurasia Daily Monitor, EurActiv and Modern Diplomacy. She is an author of 2 books and more than 50 articles, published in Azerbaijan, Turkey, United States, Russia, Moldova, Greece, Belgium and Poland.

ANKASAM

(Ankara Centre for Crisis and Policy Studies)

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