Justice for Khojaly
Ilham MAMMADOV* International legal responsibility for crimes against humanity
Murderers of civilians must be brought to book
AFTER WORLD WAR II, PROCEEDING FROM VITAL INTERESTS OF THE INTERNATIONAL COMMUNITY, THE ACTS QUALIFIED AS A CRIME AGAINST INTERNATIONAL PEACE AND SECURITY WERE DEFINED IN THE CHARTER AND THE JUDGMENT OF THE INTERNATIONAL MILITARY TRIBUNAL ON THE CASE OF MAJOR WAR CRIMINALS FOR THE FIRST TIME. hese principles were confi rmed by resolution No 95 (1) of Tthe United Nations General Assembly dated 11 December 19461, the Convention on the
* The former fi rst deputy military prosecutor of the Republic of Azerbaijan, the head of a joint group to investigate the crimes committed during Armenian aggression against Azerbaijan. 1 UN General Assembly Resolution No 95 (1) “Confi rmation of the principles of international law recognized by the Statute of the Nuremberg Tribunal,” 11 December 1946. See text at
20 Head of the Justice for Khojaly campaign Leyla Aliyeva www.irs-az.com attending a ceremony to unveil a Khojaly memorial in Sarajevo
Heritage_1_(12)_2013_last.indd 20 1/29/13 4:00 PM Memorial for the victims of war in Bosnia and Herzegovina and for Khojaly in Sarajevo, Bosnia and Herzegovina
Prevention and Punishment of the Crime of Genocide2, four Ge- neva Conventions on the Protec- tion of Victims of War from 1949 and Additional Protocols thereto from 19773. The said documents and the in- ternational legal instruments adopt- ed afterwards establish a complete list of actions that fall under the con- cept of “crimes against international peace and international security”, require States to investigate these facts, provide guarantees of a fair trial, and establish the principle of non-use of prescription and retroac- tivity of the law to such crimes. Thus, the Convention for the their obligations assumed under the Protection of Human Rights and Convention on the Prevention and Fundamental Freedoms (the Euro- Punishment of the Crime of Geno- pean Convention on Human Rights) cide (Article 6, §3). The Covenant prohibits the retroactive application also provides for the prohibition of of the criminal law (Article 7, para- retroactive application of the crimi- graph 1), but makes an exception, nal law, and yet there are specifi ed providing in paragraph 2 of Article 7, exceptions “in accordance with the that “it does not prejudice the tri- general principles of law recognized al and punishment of any person by civilized nations” (Article 15). 5 humanity, whenever and wherever for any act or omission which, at The Convention on the Non-Ap- they occur, are subject to investiga- the time committed, was criminal plicability of Statutory Limitations to tion, while persons against whom according to the general prin- War Crimes and Crimes against Hu- there is evidence of such crimes ciples of law recognized by civi- manity ensures the certainty of pun- must be searched, arrested, put on lized nations.” 4 ishment for such crimes no matter trial and, if found guilty, punished7. The International Covenant on how long the off ender may evade States are under a duty to assist Civil and Political Rights prohibits from justice.6 in the extradition of such per- states from derogating from any of War crimes and crimes against sons, collection of information
2 The Convention on the Prevention and Punishment of the Crime of Genocide adopted by UN General Assembly Resolution No 260 A (III) dated 9 December 1948. See text in the Collection of International Treaties on Human Rights (New York, Geneva: United Nations, 1994), Volume I (part Two), p. 780-785. 3 See text in the Collection of International Treaties on Human Rights, Volume I (part Two), p. 792-1132. 4 Convention for the Protection of Human Rights and Fundamental Freedoms, 4 November 1950. See text at the Council of Europe web-site:
www.irs-az.com 21
Heritage_1_(12)_2013_last.indd 21 1/29/13 4:00 PM Justice for Khojaly Khojaly memorial in Berlin, Germany
and e vidence which would help As a result, despite the exis- ment of national criminal law began to bring them to justice, the ex- tence of evidence of the most to enhance following Azerbaijan’s change of such information, and serious international crimes com- accession to the Council of Europe. not to provide asylum to any per- mitted during the Armenian ag- Obviously, a judicial system that son with respect to whom there gression against Azerbaijan, the was not based on the principles of are serious reasons for consider- principle of criminal liability of the Convention on the Protection ing that he has committed such individuals has been breached. of Human Rights and Fundamental crimes. In addition, States should Accordingly, no-one has been Freedoms could not fully ensure the not take any legislative or other brought to trial for these crimes, prosecution of perpetrators and rec- measures which may be prejudicial while the acts themselves were ognition of such deeds as crimes. to their international obligations not classifi ed as international The Criminal Code of the Re- in the detection, arrest, extradition crimes. In the Azerbaijan SSR and public of Azerbaijan, which entered and punishment of persons guilty then in the independent Republic into force on 1 September 2000, of these crimes. of Azerbaijan, criminal proceedings was supplemented with regulations The Soviet Union, one of the were instituted and investigations internationally recognized as war main military prosecutors at Nurem- conducted on acts of terror, mass crimes and crimes against human- berg taking an active part in the murders, violations of the interna- ity. The Code of Criminal Procedure, creation of norms and principles of tional humanitarian law which were which came into force at the same a new legal relationship and sign- qualifi ed as crimes against the state, time, laid down high human rights ing international legal conventions, crimes against the person, public standards in the implementation of for whatever reason did not in- safety and public order. criminal prosecution. corporate criminal sanctions for The principle of state sovereign- Since it is the responsibility of na- the commission of the said inter- ty was seen in absolute terms in tional judicial authorities to prosecute national crimes into the national the USSR, citizens were denied the those liable for war crimes and crimes criminal law. Neither were such opportunity to submit complaints against humanity, a joint investiga- sanctions established in the Crimi- concerning violations of their civil tive team was set up in December nal Code of the Azerbaijan SSR ad- and political rights to international 2003 to look into more than 800 opted in 1960, which remained in bodies. The infl uence of democratic criminal cases investigated previ- force with some modifi cations until legal ideas and rules of international ously by the competent investi- 1 September 2000. humanitarian law on the develop- gating authorities of the Azerbai-
22 www.irs-az.com
Heritage_1_(12)_2013_last.indd 22 1/29/13 3:42 PM Khojaly memorial in the Hague, the Netherlands
jan SSR and then of the Republic of Azerbaijan in the format of common crimes which were sus- pended in the early 1990s. In March 2004, Interpol orga- nized a fi rst international conference on genocide, war crimes and crimes against humanity, inviting repre- sentatives of international tribunals, nongovernmental organizations, representatives of authoritative in- stitutions and member states. Inter- pol has held two more conferences on the same topic and established a special working group of experts. Azerbaijan actively participated in cide and crimes against humanity”. (Rwanda, the former Yugoslavia, these activities, submitted materi- In May 2005, management of the Sierra Leone); (ii) The International als documenting the international joint investigative team was vested Criminal Court which has jurisdic- crimes committed in the occupied in the Military Prosecutor’s Offi ce of tion only with respect to crimes Azerbaijani territories and put for- Azerbaijan. committed after the entry into force ward the initiative on Interpol act- On 12 May 2006, a constitutional of the Rome Statute, which places ing as a coordinator in the investiga- law on war crimes, crimes against responsibility for the prosecution of tion of such crimes. humanity and genocide was ad- the perpetrators of these crimes on The Interpol General Assembly, opted. Thus, the criminal law of the national judicial authorities, and (iii) referring to Articles 2 and 41 of the country was brought into line with the principle of universal jurisdic- Interpol Charter, adopted very im- international standards. tion, which requires States to pros- portant Resolution No AC-2004 17 At present, there are three main ecute those suspected of commit- “On strengthening the support for areas to investigate and punish ting the most serious international national offi ces in the prosecution of those responsible for internation- crimes or to take action with a view those accused of war crimes, geno- al crimes: (i) specialized tribunals to their extradition.
www.irs-az.com 23
Heritage_1_(12)_2013_last.indd 23 1/29/13 3:42 PM Justice for Khojaly Memorial for the victims of Khojaly in Mexico City ians in Khojaly, including women, children and the elderly. All of them were charged and the investi- gating materials forwarded to Inter- pol. Documents were also collected identifying the said persons and many others suspected of commit- ting the crime of genocide. Interpol agreed to the charges, accepted the fi ndings of the Republic of Azerbai- jan with regard to the arrest of the perpetrators of international crimes and circulated them in 184 countries. Armenian aggression against Azerbaijan was also accompanied by numerous systemic and system- atic violations of international hu- manitarian law. Almost every pris- oner of war regardless of gender, age and condition was subjected to physical and mental abuse the forms and methods which can not be dis- closed for ethical reasons. All these tortures was fi xed by cameras and video equipment and later shown to the prisoners in an attempt to blackmail them in the process of re- cruitment for Armenian secret ser- vices. The presence of prisoners of war was for the most part concealed by the Armenian side. The prison- ers were kept both in Armenia and in occupied territories, where they were held in temporary detention centers of police departments and security agencies, in corrals or in the basements of private homes. Complete personal data has Given the specifi city of the case In accordance with international been collected on 4,407 Azerbai- examined by the joint investigating law, the criminal case instituted ear- jani citizens who went missing dur- team, the large number of crimes lier as a massacre in Khojaly and sus- ing the confl ict, including children, committed and a lack of experienced pended in 1994, was reopened and women and the elderly. A total of and qualifi ed professionals, the inves- re-qualifi ed as a crime of genocide. 1,392 people have been freed tigating team was divided in several The investigation collected suffi - from Armenian captivity. Physical groups to study the available material: cient evidence to charge a total and psychological violence subse- the genocide in Khojaly, Garada- of 37 people, including soldiers of quently caused the death of 137 gly, crimes against prisoners of the 366th regiment of the former people, while 32 people have lost war, murders, deportation of the Soviet army who were directly in- their reason. Of those freed from peaceful population and terror. volved in the mass murder of civil- captivity, 248 persons were kept in
24 www.irs-az.com
Heritage_1_(12)_2013_last.indd 24 1/29/13 3:42 PM which generally improves the dem- ocratic capacity of the judicial sys- tem. The Court accepts complaints from states, individuals and nongov- ernmental organizations. These effi - cient legal tools were absent at the time of emergence of confl icts and prior to the accession of interested States to the Council of Europe. Despite the collapse of the USSR as a result of the underlying politi- cal events of the late 1980s and ear- ly 1990s, the “birthmarks” of the to- talitarian regime based on the sup- pression of human rights still haunt the newly independent states. The integration of independent states into the international and Europe- Armenia, while the rest in the occu- to avoid any doubt as to the prosecu- an legal space has triggered a slow pied territories of Azerbaijan. tion and trial of these individuals, the but irreversible process of over- According to eye-witnesses, the generally accepted rules of interna- coming the vestiges of the totali- majority of prisoners were executed tional law apply to them. tarian past in their legal systems. In without trial, others died from tor- The guarantor of due process light of this progressive trend, it is ture or starvation. The investigation in the administration of justice in becoming increasingly important has revealed 851 facts of violations of the Convention signatory states to implement the rules and princi- international humanitarian law com- is the European Court of Human ples of international humanitarian mitted by 628 suspects. A total of 73 Rights. Decisions of the Court law, establish cooperation of States terrorist attacks have been perpe- form a common European legal in the investigation, fair trial and trated. A total of 29 people have been space and impose obligations on punishment of those who have charged with these off enses. The States. They serve as guidelines for committed crimes against peace joint investigative team has brought judicial and legislative authorities, and international security. charges against a total of 274 persons. The need for eff ective coopera- tion among states is confi rmed by the deportation in 2005 from the United States by a decision of a San Diego court of Armenian citizen V. Patatyan who had committed crimes in the occupied territories of Azerbaijan. International treaties require States to enact any legislation neces- sary to provide eff ective penal sanc- tions for persons committing or or- dering to commit grave crimes and to search for them. At the same time, the accused are guaranteed due pro- cess of law and the right to defense. It is made explicitly clear that in order
www.irs-az.com Ceremony to unveil the Khojaly memorial in Mexico City 25
Heritage_1_(12)_2013_last.indd 25 1/29/13 3:42 PM