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 <http://www.un. org/russian/ga/1/ docs/res1.htm>. 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: <http://conventions.coe.int/Default.asp> 5 The International Covenant on Civil and Political Rights adopted by Resolution of the UN General Assembly No 2200 (XXI) dated 16 December 1966. See text in the Collection of International Treaties on Human Rights, Volume I (part One), p. 22-47. 6 The Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes against Humanity was adopted by UN General Assembly Resolution No 2391 (XXIII) dated 26 November 1968. See text in the Collection of International Treaties on Human Rights, Volume I (part Two), p. 785-789. 7 Principles of International Cooperation in the Detection, Arrest, Extradition and Punishment of Persons Guilty of War Crimes and Crimes Against Humanity, UN General Assembly Resolution No 3074 (ХХVIII) dated 3 December 1973. See text in the Collection of International Treaties on Human Rights, Volume I (part One), p. 790-791. 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.