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Qualification of the crime

The full range of international legal principles applies to the situation concerning the territories of Azerbaijan currently under occupation by Armenia, that is, the Nagorno-Karabakh region and seven surrounding territories seized during the armed conflict of the early 1990s. Such legal principles include those relating to the use of force; international humanitarian law; international human rights law and international responsibility.

There are sufficient grounds to conclude that the government of the Republic of Armenia and the subordinate forces for which it is liable under international law are responsible for serious violations of international humanitarian and human rights law that amount to crimes under international law. The violations of the rules of war by the Armenian side include but are not limited to: indiscriminate attacks, including the killing of civilians, the taking and holding of hostages, and the mistreatment and summary execution of prisoners of war and hostages.

In relevant resolutions adopted in 1993, in response to the unlawful use of force against Azerbaijan and occupation of its territories, the United Nations Security Council made specific reference to violations of international humanitarian law, including the displacement of a large number of civilians in Azerbaijan, attacks on civilians, and the bombardment of inhabited areas within Azerbaijan. In its judgment of 22 April 2010, the European Court of Human Rights determined the massacre of the Azerbaijani civilian population of the Khojaly town to be “acts of particular gravity which may amount to war crimes or crimes against humanity”.

The official investigation conducted in Azerbaijan found that the following elements of the crime of genocide, as defined under international law, particularly the Convention on the Prevention and Punishment of the Crime of Genocide, are present with regard to the attacks on civilians in Khojaly: the actus reus consisting of killing and causing serious bodily or mental harm; the existence of a protected group being targeted by the authors of criminal conduct; and the specific genocidal intent to annihilate, in whole or in part, a group distinguished on racial, ethnic, national or religious grounds. According to the findings of the investigation, the following requirements are met for the purpose of sustaining charges of genocide with regard to crimes committed in Khojaly: clear and convincing proof of intent to destroy a group in whole or in part; the fact that the destruction that took place in Khojaly was “significant” enough to affect the defined group as a whole; and the crime committed within a specific geographic locality.

Responsibility under international law

Offences committed during the conflict between Armenia and Azerbaijan entail both state and individual criminal responsibility under international law.

Thus, due to its initial and continuing aggression against Azerbaijan and its continuing occupation of that state’s territory, the Republic of Armenia bears full international responsibility for breaches of international law. Such responsibility arising from Armenia’s internationally wrongful acts involves legal consequences manifested in an obligation to cease such acts, to offer appropriate assurances and guarantees that they will not recur and to provide full reparation for injury in the form of restitution, compensation and satisfaction, either singly or in combination.

Alongside the Republic of Armenia’s responsibility as a state for internationally wrongful acts, under the customary and treaty norms of international criminal law, certain acts perpetrated in the context of an armed conflict, including those in the town of Khojaly, are viewed as international criminal offences and individual responsibility for them is borne by those who participated in the acts, their accomplices and accessories. It is well known that the former presidents of Armenia, Serzh Sargsyan and Robert Kocharian, together with many other high-ranking political and military officials of that state, as well as leaders of the separatist regime established by Armenia in the occupied territories of Azerbaijan, participated personally in seizing Azerbaijani lands and in the actions taken against Azerbaijani civilians and military. It is clear that, given the scale and gravity of the offences that they committed, criminal prosecution of those persons should be an inevitable consequence.

Apart from denying responsibility for its occupation and military presence in the territories of Azerbaijan, official Yerevan does all it can to represent the massacre in Khojaly as an action by Azerbaijanis, who allegedly obstructed the evacuation of the civilian population from the area and, even worse, gunned down their compatriots, in order to exploit large numbers of civilian casualties for their own internal political ends.

However, there is more than sufficient evidence, in reports from numerous sources, including eyewitnesses, governments, intergovernmental and non-governmental organizations and the mass media, that testifies to Armenia’s responsibility, including that of its political and military leaderships and subordinate separatist armed groups, for the crimes committed in Khojaly.

In its judgment of 22 April 2010, the European Court of Human Rights noted in particular the following:

It appears that the reports available from independent sources indicate that at the time of the capture of Khojaly on the night of 25 to 26 February 1992 hundreds of civilians of Azerbaijani ethnic origin were reportedly killed, wounded or taken hostage, during their attempt to flee the captured town, by Armenian fighters attacking the town” (emphasis added).

According to Armenian author Markar Melkonian, who dedicated a book to his brother, the well-known international terrorist Monte Melkonian, the town “had been a strategic goal, but it had also been an act of revenge”. The author particularly mentions the role of the fighters of the two Armenian military detachments “Arabo” and “Aramo” and describes in detail how they butchered the peaceful inhabitants of Khojaly. Thus, as he puts it, some inhabitants of the town had almost made it to safety, after fleeing for nearly six miles, when “[Armenian] soldiers had chased them down”. The soldiers, in his words, “unsheathed the knives they had carried on their hips for so long, and began stabbing”.[1]

The Khojaly events took place in a period when Serzh Sargsyan, the previous president of the Republic of Armenia, served as the head of the illegal separatist regime’s “Self-Defence Forces Committee” and, accordingly, his recollections constitute one of the most important sources of evidence. The following words by Mr. Sargsyan leave no doubt as to the perpetrator of the crime in Khojaly:

“Before Khojali, the Azerbaijanis thought that they were joking with us, they thought that the Armenians were people who could not raise their hand against the civilian population. We were able to break that [stereotype]. And that’s what happened. And we should also take into account that amongst those boys were people who had fled from Baku and Sumgayit”.[2]

In answer to the journalist’s question as to whether he had any regrets about the deaths of thousands of people, Mr. Sargsyan answered quite unabashedly: “I have absolutely no regrets”, since “such upheavals are necessary, even if thousands have to die”. These words, from a man holding the highest political and military post in Armenia, speak for themselves and disprove any attempt to deny Armenia’s responsibility for the crimes committed against Azerbaijani civilians during the conflict.

[1] Markar Melkonian, My Brother’s Road: An American’s Fateful Journey to Armenia (London and New York, 2005), pp. 213-214

[2] Thomas de Waal, Black Garden: Armenia and Azerbaijan through Peace and War (New York and London, 2003), p. 172