ARMENIAN QUESTION TODAY
II. International Legal Level
2. The Case of Armenocide and Ethnic Cleansing In Azerbaijan (1918-2010)
The first Republic of Armenia (1918-1920) had neither the time, nor the possibility to conduct an open trial of the organizers and perpetrators of the Armenian Genocide. Despite that, the decision to punish them was made during this short period, in October of 1919 and precisely in Yerevan, at the IX Congress of ARF Dashnaktsutyun, the ruling party at the time. In contrast the leadership of the “Third” Republic of Armenia (1991 to present) – absolutely failing to comprehend the essence of the Armenian Question and pinning their hopes on a speedy settlement of the Nagorno-Karabakh and the Turkish-Armenian conflicts via international mediation – has simply decided to discard the effective and available means for self-defense and retribution, namely, the exclusive right of a sovereign state to pursue national and international prosecution of the organizers and perpetrators of Armenocide and ethnic cleansing in Azerbaijan that partially took place during the existence of the “Third” republic.
Hopeless attempts by all three presidents of RoA to appease the Armenian-hating regime in Baku and its patrons in Ankara have led only to an acceleration of Azerbaijan’s comprehensive preparation for a new war against Armenia, as well as intensification of the anti-Armenian propaganda both within that country and internationally. Therefore at present, much like before, it is possible to respond adequately to the genocidal plans of the Azerbaijani state-sponsored fascism by instigating legal proceedings against it, exposing it in the courtroom and finding it guilty of Armenocide (genocide), starting from the massacres of Armenians in the newly created Azerbaijani (Musavatist) Republic, particularly in Baku (September 1918) and Shushi (March 1920), to ethnic cleansings in Nakhichevan (1918-1988), Sumgait, Kirovabad, Baku again, then in Lowland and Mountainous (Nagorno) Karabakh (1988-1994). These proceedings should have been instituted in Yerevan long ago, case by case and in their minute details, within the framework of a special tribunal instituted in the Republic of Armenia. Additionally, the relevant structures in RoA and Armenian Diaspora should have been actively – legally, financially, and organizationally – contributing to the initiation of a series of separate cases against Armenocide and ethnic cleansing in Azerbaijan in the national courts of foreign states by the exiled victims of these crimes, who are now refugees in different parts of the world. All this remains undone, but there can be no more delay, especially since Azerbaijan is preparing a proactive international legal offensive of its own, based on trumped-up fraudulent charges. А special fact-finding team must be urgently established by a competent investigative body in RoA, which will take on all the work of collecting and analyzing the facts of crimes against Armenians in Artsakh, Nakhichevan, districts and towns of pre-Soviet, Soviet and post-Soviet Azerbaijan, and prepare this vast case for legal proceedings. Nakhichevan is a special case, since under the Treaty of Kars, Art. V., it is under the protectorate of Azerbaijan, by agreement of Turkey, Armenia and Azerbaijan, so Armenia has even more standing to investigate and condemn Soviet and Azerbaijani misrule of this predominantly Armenian territory and to withdraw its consent to the protectorate on the grounds that Azerbaijan has violated its duties under international law. An auxiliary fact-finding team should be established in the Nagorno-Karabakh Republic (NKR). Finally, trials must be conducted, in the RoA and NKR, based on the entire range of modern international laws on crimes against humanity. In addition, international world-class experts should be involved in preparing and conducting the trial.
Defending the right of Armenians in Artsakh to self-determination and, at the same time, omitting to give a legal assessment to Azerbaijan’s crimes against humanity in a courtroom was a mistake that greatly weakened the position of RoA and NKR on the diplomatic front. A separate inquiry needs to be made into Azerbaijan’s failure to fulfill its sovereign obligations toward the Armenian populations of NKR and Nakhichevan throughout the Soviet era, in order to demonstrate that in addition to its criminal record, Azerbaijan is unfit to act in any sovereign capacity with respect to Armenian populations and lands. Azerbaijan’s crimes against humanity must be prosecuted in a court of law and at the state level, first of all in the independent Republic of Armenia, regardless of any possible future international proceedings and verdicts. If the independent Armenian state does not endeavor to convict the organizers and perpetrators of massacres, pogroms and forced deportations of its own countrymen, that is, it is not trying to pursue legal means of defense against the genocidal policies towards its own people, then serious questions arise regarding the degree of sovereignty of this state, as well as on the level of professionalism and system of values of its political elite.
A relatively fresh example of an acute deficit of political will and international legal competence of the authorities of RoA transpired when they failed to give an adequate response to Azerbaijan’s barbaric anti-Armenian criminality, namely the murder of the Armenian officer in Budapest in February of 2004 and the destruction in Julfa (in Nakhijevan) of thousands of irreplaceable monuments of world cultural heritage and Armenian medieval architecture – cross-stones (khachqars), the fact of their barbaric demolition caught on tape during one of the regular episodes of vandalism in December of 2005.
Further, the injured party (Republic of Armenia) should have categorized the crime in Budapest not simply as “aggravated murder” based on unspecified “despicable motives,” as it was put by the Budapest court under Article 166 of Hungarian Penal Code (and readily accepted by the Armenian side), but as an act of state terrorism motivated by racial hatred and prepared by Azeri special forces, with the possible complicity of their Turkish counterparts (let us recall that the murderer was a graduate of two Turkish elite military schools: from 1992 to 1996 he studied in Istanbul Military College, then from 1996 to 2000 in Turkish Military Academy). Only a month after the murder of Gurgen Markaryan and long before the beginning of the Budapest process, I proposed to demand the consideration of strong evidence on the basis of which the offender could be indicted on these very charges, stressing that the available evidence “provides a solid ground to the Armenian party at the forthcoming court hearings in Budapest to explore this version of the murder, implying a premeditated and thoroughly planned action by the Azerbaijani special services, in other words, making a case for a state crime” (see www.defacto.am, 03/29/2004; “Novoye Vremya”, 3/30/2004, in Russian). The inadequacy of Budapest’s verdict, as well as the impunity of Azerbaijani vandalism in Julfa are fully sufficient reasons for separate trials to be conducted in Armenia and verdicts handed down in absentia to the organizers and executors of these crimes. On a related note, I would like to point out that RoA authorities did not properly respond to these barbaric displays of Armenophobia even on a purely political level, continuing their meetings and negotiations with the fascist leaders of the Baku regime as if nothing had happened, instead of — at least temporarily – suspending all relations and contacts with them! Termination of negotiations, necessary if only to maintain national and state dignity, would have been, among other things, a powerful tool to inform the international public opinion about the impossibility of Artsakh’s return under the rule of Azerbaijan, which raised the anti-Armenian racism to the level of state ideology.
Of course, trials in absentia are a relatively rare form of bringing justice in international jurisprudence, because, occurring in the absence of the accused, they limit the chances for his/her defence. But such courts аre quite typical when it comes to serious and very serious crimes, and, for whatever reason, the perpetrators do not get caught or brought to justice. This was how in 1919 many of the leaders of Young Turks were sentenced in absentia by the Military Tribunals in Istanbul. Also, numerous trials in absentia of Nazi criminals have been held in various countries of the world. In the years 2009-2010 alone, five individuals were convicted of Nazi war crimes, three in absentia in Italy and two in Germany. Based on the uniquely specific challenges of the national security of Armenia, expressed principally in the ongoing genocidal policy against the Armenian people, a lack of international legal assessment of this policy, as well as the impunity of its perpetrators, Turkey and Azerbaijan, the legislation of the Republic of Armenia must be fundamentally reassessed both in terms of punishment for crimes against humanity, and in terms of organizing and conducting effective trials of such crimes.
Further, the materials of the trials in absentia held in Armenia should be, in parts or in their entirety, be transferred to the international courts, and, first of all, to the UN International Court of Justice or a specially created International Tribunal in the Hague on Armenocide and ethnic cleansing in Azerbaijan. Armenia will demand a verdict against Azerbaijan for material and financial reparations, moral, cultural and territorial compensation, and the return of the occupied territories of RoA and NKR.
3. The Case of Ethnic Discrimination of Georgia’s Armenian Population And the Rights of Armenians of Javakhk
It is high time that the protection of undermined national interests and rights of Armenians in Georgia took the form of international legal pressure on Georgian authorities. This applies especially to the inherent right of Javakhk Armenians to self-rule and administrative-cultural autonomy within Georgia. Numerous instances of discriminatory policies of official Tbilisi in the linguistic, cultural-educational, demographic, religious, and administrative aspects of life of this Armenian region may serve as basis for Javakhk Armenians to initiate legal proceedings in Georgia and in international courts on their own. In the struggle for national self-preservation, Javakhk Armenians are experiencing a critical shortage of professional, financial and organizational resources. RoA and organizations of the Armenian Diaspora must support Javakhk Armenians in legal matters now, to avoid being forced to engage in firefighting an open conflict in the near future or facing the fact of “Nakhichevanization” (de-Armenization) of this strategically important territory. There are also opportunities for direct international legal intervention of the Republic of Armenia to protect the rights and interests of its compatriots in Javakhk. The basis for such pressure on Georgian authorities can be the international treaties within the framework of UN and the Council of Europe, signed and ratified by Georgia, including (the years of accession by Georgia are given in parenthesis) the Universal Declaration of Human Rights (1991), the International Covenant on Civil and Political Rights (1994), the Council of Europe’s Framework Convention for the Protection of National Minorities (2005), and so on. At the same time, it should be noted that Javakhk Armenians are not a national minority in the conventional sense, since they live in their homeland, the northern part of the historical Armenian province of Gugark.
The loss of Javakhk, its de-Armenianization according to the Nakhichevan scenario (moving along, by the way, at full speed) must be excluded, or it would entail catastrophic complications in the geostrategic situation of Armenia, comparable only to that of the loss of Artsakh. Javakhk Armenians are completely within their rights to proclaim autonomy without looking back at official Tbilisi, as well as to bestow upon the Armenian the status of official language at the regional level.
It is useful to note that there are recent precedents in Europe: for example, on September 5th of 2009, a congress of representatives from local governments in the Hungarian-populated Transylvanian region of Romania, declared the establishment of Székely Land Autonomy ( “Székely” is the endonym for Transylvanian Hungarians). The main decision of the participants in the second congress of this newly formed Autonomy, held on March 12th of 2010, was to recognize the Hungarian as the official language at the regional level. And although the central government of Romania does not recognize the legality of decisions for either of the two Hungarian congresses, the self-organization of Transylvanian Hungarians through the establishment of an autonomy and raising the status of the Hungarian language substantially strengthened their position in Transylvania and was a successful example of Hungary’s resolute policy to protect the rights and interests of their compatriots abroad.
(To be continued)
Doctor of Political Sciences
This is a slightly expanded English version of the article, which was first
Zrutsakits” weekly (Yerevan), #1 (164), January 14, 2011.