Expecting Justice for 30 Years Old Human Tragedy: The Khojaly Genocide in the Context of International law

Analytical Research

Introduction: 200 Years of Genocide- Innocent Human Massacres in the History of Azerbaijan

After gaining the independence, truths hidden and restrained for many years finally have got investigated and the distorted events has started to take its true value. The Azerbaijanis gained the opportunity to restore their own unbiased true historical past. The continuous genocides committed against the Azerbaijani people and not having received a political and legal assessment for many years, including the occupation and seizure of our historical lands within last two centuries have also remained as one of the uninvestigated pages of history so far.

As a result of complex political processes in the territory of Azerbaijan over the past two hundred years, the Azerbaijanis have been victims of forced evictions from their ancestral homes, ethnic cleansing and deportation. This policy was implemented in two directions. On the one hand, after the signing of the Turkmenchay and Gulustan Agreements, the Armenians from Iran and Turkey were massively resettled to Azerbaijani lands. On the other hand, the Azerbaijanis whose lands were occupied became refugees and displaced. In the 19th century alone, with the support of Tsarist Russia, more than 400,000 Armenians from other territories were relocated to Azerbaijan.

During the events of 1905-1907 and 1918-1920, the March massacres, Azerbaijanis were mass murdered, their villages were looted, destroyed, and various armed forces and violent methods were used to displace thousands of compatriots. When Azerbaijan declared its independence on May 28, 1918 and aimed to define its borders, it again faced land claims by Armenian nationalists. These issues became more acute after the idea of ​​creating an Armenian state on the lands of the Azerbaijani Khanate Iravan.

According to international law, genocide is an act against peace and humanity and is considered the most serious crime. The term genocide was first coined in 1944 by Rafael Lemkin, an American scholar of Jewish descent. The term was coined by the Third Reich to refer to the mass extermination of people from Jewish descent. The term genocide is derived from the combination of the Greek word “genos”, meaning "race," and the Latin word “caedere” meaning "to kill, to destroy." This statement was used by the Nuremberg tribunal in 1945 to accuse war criminals.[1]

The General Assembly of the United Nations in its resolution 96 (I) dated 11 December 1946 declared that genocide is a crime under international law, contrary to the spirit and aims of the United Nations and condemned by the civilized world, recognized that at all periods of history genocide has inflicted great losses on humanity, and in order to liberate mankind from such an odious scourge, international co-operation is required.[2]

According to the Convention, the concept of genocide is defined as follows: "While the act of murdering is the killing of one person, genocide means the deprivation of the right of a group of people to life."[3]

Under the Resolution No. 96 (1) of 11 December 1946 of the United Nations General Assembly Convention[4] on the Prevention and Punishment of the Crime of Genocide adopted by UN General Assembly Resolution No. 260 (III)[5] of 9 December 1948 the legal basis of genocide has been identified. During the Armenian aggression against Azerbaijan, all the acts constituting the crime of genocide enshrined in that convention were applied against Azerbaijanis. Although the Khojaly massacre took place during the war, it was carried out deliberately and on purpose. As a result of this massacre, the city was completely destroyed, and the people living there were brutally killed and tortured.

In the modern world, genocide is recognized as an international crime and it is banned. If a genocide has been committed, its responsibility lies with both the state and those directly involved in the crime. To this end, international law requires that each state include in its domestic legislation provisions that establish the responsibility of persons convicted of genocide. By doing so, the perpetrators of the crime of genocide must be prevented from evading responsibility.

A crime is not committed by unknown bodies, but by certain people. According to the approach adopted by the International Court of Justice, saying "a crime is committed by certain individuals, not by indefinite bodies", international law

recognizes the possibility of dual responsibility, the responsibility of both the state and the individual. Thus, not only the Republic of Armenia, but also Armenian officials who took an active part in the Khojaly genocide are responsible. However, in the justice of the International Court of Justice, unfortunately, these people went unpunished, even some of them are represented in the authorities of the Republic of Armenia and in the socio-political spheres.

All the tragedies of Azerbaijan occurred during the XIX-XX centuries, accompanied by the occupation of its lands, formed separate stages of the deliberate and planned policy of genocide pursued by the Armenians against the Azerbaijanis. An attempt was made to give a political assessment to only one of these events - the March 1918 massacre. A special body has been set up under the Ministry of Foreign Affairs to inform the world community about the grave crimes committed by Armenians. March 31, 1919 and 1920 were twice noted by the ADR as a day of national mourning. In fact, this was the first attempt in history to give a political assessment to the genocide against Azerbaijanis and the occupation of our lands, which lasted more than a century. However, the collapse of the Democratic Republic of Azerbaijan did not allow to proceed it. Today, the Republic of Azerbaijan as the successor of the Azerbaijan Democratic Republic (ADR), accepts the obligation to make a political assessment of the genocide as a verdict of history being a logical continuation of the decisions failed to be completely implemented.[6] 

The culminating point of Armenia's military aggression against Azerbaijan

After the collapse of the Soviet Union in 1991, both Armenia and Azerbaijan were recognized as international entities, from so on armed operations and Armenian attacks on Azerbaijan intensified. Armenia started a war, used force against Azerbaijan and occupied its territories, including the Nagorno-Karabakh region and seven surrounding regions. By expelling about one million Azerbaijanis from their native lands, Armenia carried out ethnic cleansing in the occupied territories and committed other serious crimes during the conflict. In late 1991 and early 1992, armed operations and Armenian attacks on Azerbaijan intensified. Khojaly, one of the regions in the Nagorno-Karabakh region with a predominantly Azerbaijani population, became the target of one of these operations.

Armenia started the war, used armed forces against Azerbaijan and occupied its territories, including the Nagorno-Karabakh region and seven surrounding regions. By expelling about one million Azerbaijanis from their native lands, Armenia carried out ethnic cleansing in the occupied territories and committed other serious crimes during the conflict. In late 1991 and early 1992, armed operations and

Armenian attacks on Azerbaijan intensified. Khojaly, one of the regions in the Nagorno-Karabakh with a predominantly Azerbaijani population, became the target of one of these operations.

Before the occupation, Khojaly included 940 sq.m. km area and had a population of 7,000. Khojaly is located 10 kilometers in the northeastern part of Khankendi, on the Aghdam-Shusha and Askeran-Khankendi roads. There is one city, one settlement (Askeran), 50 villages in Khojaly and its neighboring districts are Lachin, Kalbajar, Aghdam, Khojavend and Shusha.

Khojaly was considered an important communication center, having the only civilian airport in the Karabakh region. To escape the bloody ethnic clashes in Central Asia, Khojaly provided shelter for the Mahsati/Ahiska Turks, as well as Azerbaijani refugees expelled from Armenia.

Since October 1991, Khojaly has been completely bloackaded by Armenian forces.[7] From October 30, all roads to the city were closed, only means of transportation was the helicopter.  However, in January helicopter communication was also cut off. The last civilian helicopter landed in Khojaly was on January 28, 1992, and the last military helicopter landed was on February 13. The air communication with the city was cut off as well when the civilian helicopter over Shusha was shot down and 40 Azerbaijanis inside the helicopter died.  Khojaly did not have electricity supply since January 02.  The people of Khojaly were struggling for their existence and were defending the territory with the bravery and courage of its heroes. The city's defense consisted mainly of local self-defense forces and local militias armed with machine guns and shotguns.[8]

By occupying Khojaly, Armenia aimed to gain a strategic advantage and favorable opportunities to capture other cities in the Nagorno-Karabakh region. The intention behind the Armenian atrocities was to break the will of the Azerbaijanis in order to gain a psychological advantage in the next military operations. They also aimed to wipe Khojaly off the face of the earth, as historical traces in Khojaly and surrounding areas nullified Armenian territorial claims.

Khojaly was a settlement that reflected and represented the historical and cultural traditions of Azerbaijan from ancient times up to modern times. Khojaly has always been historically inhabited place. Ancient historical monuments still remain here. There are monuments of Khojaly-Gadabay culture belonging to XIV-VII centuries near Khojaly.[9] One of the issues that concerned Armenians was the location of Khojaly. The land area situated 10 kilometers south-east from Khankendi, on the Karabakh mountain range and on the Aghdam-Shusha, Askeran-Khankendi roads.

The only airport in Karabakh was in Khojaly. Khojaly's strategic position was of interest to Armenian chauvinists. One of the main tasks of the Armenian armed forces was to evacuate the Askeran-Khankendi road passing through Khojaly and seize the airport.[10]

It should be noted that despite the fact that the Khojaly genocide was the bloodiest and largest-scale massacre in the conflict, it was not the only (isolated) case. Prior to this genocide, there were numerous massacres in other settlements of Azerbaijan, as well as in the villages of Jamilli, Meshali, Karkijahan, Malibeyli and Gushchular committed by Armenia that served the purpose of enabling the siege of Khojaly.[11]

One of the worst crimes in the history of mankind - the Khojaly tragedy:

After a powerful artillery bombardment on the night of February 25-26, 1992, the Armenian armed forces and paramilitary units took actions to capture the city with the help of the 366th Motor Rifle Regiment of the former USSR.[12]

Soon after the assault started, about 2,500 dwellers, who were still in the town, were trying to flee for their life and reach to the nearest area that were under the Azerbaijanis’ control. They did not make it, however: they were ambushed, either shot or taken captive by Armenian military posts near the villages of Nakhchivanli and Pirjamal. The rest of the population, mostly women and children, died of frostbite in the mountains. Only a small number of people were able to reach the Azerbaijani-controlled city of Agdam.

On February 28, a group of journalists, including two helicopters, managed to reach the place where the Azerbaijanis were killed. The horrible scene terrified everyone - the area was full of dead bodies and corpses. The helicopter pilots were tasked to land in the mountains and pick up the bodies of dead. Despite the escort of the second helicopter, they managed to take only four dead bodies because Armenians started intense firing.[13] On March 1, when a group of local and foreign journalists arrived to the area, the situation was even worse: the bodies were mutilated and scalpels were removed.[14]

According to journalist Chingiz Mustafayev,[15] who was in that group, among the dead were "dozens of children between 2 and 15 years old, women and old people, in most cases shot at point blank range in the head. The position of the bodies indicated that the people had been killed in cold blood, calculatedly, there were no signs of resistance of attempts to escape. Some had been taken aside and shot individually; in some cases whole families had been killed. Some corpses displayed several wounds, one of which was invariably to the head, suggesting that the wounded had been finished off.[16]

Undoubtedly, what happened in Khojaly was the largest massacre of the conflict. In all, 613 people, including 106 women, 63 children and 70-year-olds, were killed druing the assault and capture of the city. 1,275 residents were taken captive, and the fate of 150 still remains unknown. The city was totally destroyed. During that tragic night, 487 Khojaly residents were seriously injured and 76 of them were children. 8 families were wiped out to the last man, 25 children lost both parents and 130 children lost one of the parents.[17] Fifty-six of those murdered were brutally burned alive, with scalp, neck and eyes gouged out, pregnant women having their abdomens cut open.[18]

Uniqueness of Khojaly distinguishes it in many respects. First, Khojaly was a completely civilian settlement with no serious military equipment or fortifications. Therefore, assaulting on the city with heavy equipment can not be justified militarily, as there is no military necessity. Thus, it was unnecessary and excessive use of force. Second, the attack on Khojaly coincides with the beginning of the interstate phase of military operations. For this reason, no doubt, Armenia intended to intimidate the Azerbaijanis in order to gain a psychological advantage in carrying out the next aggressive operations. The unprecedented degree of Armenian atrocities, the shots at point blank range in the heads and particularly brutal killing of the population, the humilliation and mutilation of the corpses and dead bodies, provide unquestionable grounds for this conclusion.

Another important issue is the "corridor" claims of the Armenians. Armenia asserts to have provided a "free passage corridor" for civilians to leave the city.[19] The falsity and grooundlesness of so called free corridor claims can be easily seen against the background of occured evidence, in the testimony of witnesses, as well as international reports and even the confessions of Armenian officials.[20] This evidence shows that the population fled the city forcibly, in chaotic manner, without any instructions and advance notice. If such a "corridor" existed, the population would be aware of it. In addition, if Armenia's intention was to provide humanitarian access, it must explain why, as soon as the population left the city to reach the Azerbaijani-controlled city of Agdam, they were ambushed and killed by Armenian troops along the way - in that "corridor".[21]

British journalist Thomas de Waal wrote that the terrible event was led by the current President of Armenia Serzh Sargsyan. He confirmed this fact by publishing an interview with Serzh Sargsyan in the book "Black Garden". In an interview with Thomas de Waal, Sargsyan said: “Before Khojaly, Azerbaijanis thought that we were kidding. They thought that Armenians were a people who could not raise their hands to the civilian population. But we were able to overcome this stereotype."[22] The tragedy committed by the Armenians was so terrible that even they were later socked. For example, one of the participants in the genocide, an Armenian from Beirut, David Kheyrian, later wrote in his book “For the Sake of Cross”: “On March 2, an Armenian group called Gaflan, which carried out the cremation, collected more than a hundred Azerbaijani bodies. They were burnt about 1 kilometer away from Khojaly ... For a moment I heard one of the burning corpses screaming, as if someone was asking for help and mercy ... I could not go further after that, I returned. Others continued to fight for the sake of cross. ”

American journalist Thomas Goltz wrote in his book "Azerbaijan Diary" about the Khojaly mass murder: "According to the officials of the main mosque in the eastern part of the war zone of Nagorno-Karabakh, 27 bodies brought from the Azerbaijani city in the war zone, which were seized by the Armenian armed forces on Wednesday, were buried today. Some 6,000 refugees fleeing Khojaly, northeast of the enclave's capital, Stepanakert (Khankendi), claim that about 500 people, including women and children, were killed in the attack. No independent estimate of the deaths was available here. Said Muan oglu Sadigov, an official at the Aghdam mosque, said that since Wednesday, refugees had registered the names of 477 victims with his mosque.”[23]

The criminal characterization and awareness of the Khojaly massacre under the  international law

There are enough arguments to prove that the Government of the Republic of Armenia and its subordinate forces are responsible for serious violations of international humanitarian and human rights, which are considered a crime under international law. Violations of the rules of war by Armenia include: attacks that do not distinguish between civilian and military targets, including the killing of civilians; hostage-taking and detention; This includes the brutal treatment of prisoners of war and hostages and their killing without proper legal procedures

The relevant resolutions adopted by the United Nations (UN) in 1993 in response to the use of illegal force against Azerbaijan. The occupation of its territories also include cases of mass displacement of civilians in Azerbaijan, attacks on civilians and bombing of settlements in Azerbaijan, including violations of international humanitarian law. The European Court of Human Rights ruled on 22 April 2010 that the massacre of Azerbaijani civilians in Khojaly was "particularly grave acts that could be assessed as war crimes or crimes against humanity".[24]

As a consequence of the official investigation in Azerbaijan, the elements of the genocide were identified in relation to the attacks on civilians in Khojaly under international law, in particular the Convention on the Prevention and Punishment of the Crime of Genocide: actus reus (objective aspect of the act) ); the existence of a specially protected group that targets the perpetrators of the crime; and a specific genocidal intent to destroy, in whole or in part, a group on racial, ethnic, national or religious grounds. According to the investigation, it was established that the following grounds existed for the continuation of criminal proceedings in connection with the crimes committed in Khojaly: well-founded evidence of intent to destroy the group in whole or in part that the event of destruction in Khojaly was "sufficient" for the group determined to have full consequences; and the commission of a crime in a particular geographical area^.  Violations committed during the conflict between Armenia and Azerbaijan create both state and individual liability under international law. In accordance with the customs and treaty norms of the international criminal law of the Republic of Armenia, in addition to state responsibility for violations of international law, certain acts committed in the context of armed conflict, including Khojaly, are considered international crimes.[25]

Former presidents of Armenia Serzh Sargsyan,  Robert Kocharyan, and  many other high-ranking political and military officials of this country, as well as leaders of the separatist regime established by Armenia in the occupied territories of Azerbaijan were personally involved in the occupation of  Azerbaijani lands and acts against Azerbaijani civilians and servicemen.[26] It is clear that the scale and gravity of their actions make it necessary to prosecute them.

Evidence from various sources[27], including government, intergovernmental and non-governmental organizations, as well as the media, testifies to the responsibility of Armenia, including its political and military leadership and subordinate separatist armed groups, for the crimes committed in Khojaly are available. The European Court of Human Rights stated in its decision of 22 April 2010: “Independent sources indicate that hundreds of Azerbaijani civilians of ethnic origin were killed during the capture of Khojaly on the night of 25 to 26 February 1992. He was killed, wounded and taken hostage by Armenian militants who tried to leave the captured city.

According to Markar Melkonyan, an Armenian author who dedicated his book to his brother, the famous international terrorist Monte Melikonian, the city was "a strategic goal, but it was also an act of revenge." The author emphasizes the role of the militants of the two Armenian gangs "Arabo" and "Aramo" and describes in detail how they brutally killed the civilians of Khojaly. According to him, some residents of the city almost left the danger behind after traveling about six miles "before the Armenian soldiers pursued them." "The soldiers took out the knives they had been carrying on their hips for a long time and started stabbing them," he said.[28]

The Khojaly events took place when former Armenian President Serzh Sargsyan was the head of the "committee of self-defense forces" of the illegal separatist regime, and therefore his memories are one of the most important sources of evidence in this area. Sargsyan's words leave no doubt about the perpetrators of the crimes committed in Khojaly: “Before Khojaly, Azerbaijanis thought that they were joking with us, they thought that Armenians could not raise their hands against the civilian population. We were able to break this [stereotype]. And here is what happened. And we must also take into account that among those children there were those who fled from Baku and Sumgayit.[29] " Asked if he regretted the deaths of thousands of people, Mr Sargsyan said shamelessly: "I have no regrets." Such remarks by a high-ranking political and military official in Armenia are unnecessary and undermine Armenia's efforts to deny responsibility for crimes committed against Azerbaijani civilians during the conflict.[30]

 

Legal bases of recognition of the Khojaly massacre as an act of genocide in the field of international law

 

The following documents allow us to describe the Khojaly events as an act of genocide under international law:

1. Convention on the Prevention and Punishment of the Crime of Genocide of 9 December 1948, adopted by UN General Assembly Resolution 260 A (III).

2. Statute of the Nuremberg Military Tribunal (although the Charter does not directly refer to the crime of genocide, the acts constituting genocide are classified as crimes against humanity and war crimes).

3. Statute of the International Criminal Tribunal for Yugoslavia (Article)

4. Statute of the International Criminal Tribunal for Rwanda (Article 1).

5. Statute of the International Criminal Court (Article 6).

6. Criminal Code of the Republic of Azerbaijan (Article 103).

7. Decree of the President of the Republic of Azerbaijan "On the genocide of Azerbaijanis" dated March 26, 1998.

 

Legal consequences of the Khojaly massacre

International law has established the following in connection with the crime of genocide:

1. Criminal prosecution and punishment of perpetrators of genocide is inevitable.

2. The criminal component is not only the commission of an act of genocide, but also conspiracy to commit genocide, direct and open incitement to commit genocide, conspiracy to commit genocide and participation in genocide.

3. The principles of universal jurisdiction must be applied to perpetrators of genocide.

4. Referring to the execution of an order when committing a crime of genocide shall not release from liability.

5. Leaders are responsible for failure to take action to prevent the crime of genocide.

6. The term of criminal liability for genocide crimes shall not apply.

7. Retroactive application of the law in relation to the crime of genocide is allowed.

8. The perpetrators of genocide must be extradited to the requesting country in order to be prosecuted.

 

Therefore, the actions committed by Armenians against ethnic Azerbaijanis in the city of Khojaly are classified as genocide in accordance with international legal documents and a crime against humanity in accordance with the principles of international law.

The document entitled "Khojaly tragedy as an international crime - part of the purposeful policy of the Republic of Armenia against the Azerbaijani people" addressed to the Milli Majlis of the Republic of Azerbaijan, parliaments of Turkey, Georgia, Russia and other countries, UN High Commissioner for Human Rights International organizations such as the General Directorate of Human Rights, the OSCE Parliamentary Assembly, the OSCE Office for Democratic Institutions and Human Rights, as well as national and international human rights organizations and Azerbaijani Diaspora centers abroad.

In fact, the international community has consistently condemned the use of military force against Azerbaijan and the consequent occupation of its lands. Speaking on behalf of all members of the United Nations (UN) in 1993, the UN Security Council reaffirmed Azerbaijan's sovereignty, territorial integrity and inviolability of its internationally recognized borders and condemned the use of force against Azerbaijan and the occupation of its territories. 822 (1993), 853 (1993), 874 (1993) and 884 (1993). In these resolutions, the UN Security Council reaffirmed that the Nagorno-Karabakh region is part of Azerbaijan and demanded the immediate, complete and unconditional withdrawal of the occupying forces from all occupied territories of Azerbaijan. The UN General Assembly adopted three resolutions on this conflict (48/114 of 20 December 1993, 60/285 of 7 September 2006 and 62/243 of 14 March 2008) and included a special item on the agenda of the sessions entitled "The situation in the occupied territories of Azerbaijan." Despite the similar position of other international organizations, the Armenian state showed complete indifference and thus ignored the word of the international community.

Our occupied lands were liberated as a result of the 44-day war that began on September 27, 2020 with a counter-offensive carried out by the Azerbaijani Army. During the war, the Armenian political and military leadership, as in previous years, targeted the civilian population and bombed Azerbaijani cities tens of kilometers away from the conflict zone. 93 people, including 12 children, were killed and more than 400 civilians were injured.

Obviously, it is an  undeniable fact that from time to time Armenians pursue a policy of genocide against Azerbaijanis and Turks. This was also covered by the world's leading media outlets, and factual documents prepared on the basis of official documents were sent to the world community. The Khojaly tragedy is one of the worst tragedies of the last decade of the 20th century. The overnight killing of hundreds of innocent people, especially women, the elderly and children, is one of the rare tragedies in the history of the world. For 30 years, serious efforts have been made to convey the essence of the tragedy in full detail to the international community. But the world "for some reason" did not want to respond to Khojaly. The lesson of history, law and pride that Azerbaijan passed in 44 days to Armenia and the countries that patronized it for 30 years makes it a student to look at the Khojaly tragedy with the eyes of truth. The Khojaly tragedy goes hand in hand with the genocides of Khatin, Holocaust, Songmi, Lidice, Babi Yar, Rwanda and Srebrenica, which have left a deep mark on the history of the world as a massacre of civilians.

 

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