THE LEGAL ASPECTS OF KHOJALI ISSUE

Ata ATUN

 

THE LEGAL ASPECTS OF KHOJALI ISSUE

 

Ata ATUN

Near East University & SAMTAY Foundation

Nicosia, North Cyprus

 

 

Abstract

 

Khojali[1] (Azerbaijani: Xocalı) also, Ay-Khodzhaly, Khodgalou, Khodzhalv, Khodzhaly, Khojalu, and Khozhali, is a town in Daghlig Karabakh (Nagorno Karabakh), located some 10 km northeast of its capital Khankendi[2]. Internationally, it is still considered a de-jure part of Azerbaijan, and Azerbaijan counts it as the capital of its Khojali Rayon.

The de jure belonging of the currently Armenian occupied region to Azerbaijan is recognized by all relevant international bodies and organizations, including the United Nations Security Council[3], UN General Assembly (49/13[4] and 57/298[5]), Organization for Security and Cooperation in Europe (OSCE)[6], Organization of Islamic Conference (OIC)[7], Parliamentary Assembly of the Council of Europe[8].

Azerbaijan has endured ethnic cleansing and genocide by Armenian nationalists for 200 years. The people of Azerbaijan were deported from their historical lands and became refugees and internally displaced persons because of Armenian occupation[9].

During the Soviet period, Azerbaijan people harshly forced out from their centuries long owned lands. 167,000 Azerbaijanis were deported from Armenia and placed in the Kur-Araz plain between 1948 and 1953[10].

In the year 1988 an Azerbaijani population as much as 250,000 was expelled from Armenia and Armenia became a mono-ethnical state[11]. The Daghlig Karabakh events, which began in 1988 along with continuous efforts to implement the Armenian desire of building a state from sea to sea, led to the destruction of Azerbaijanis towns and villages, the murder of thousands of innocent Azerbaijani people, as well as the exile of hundreds of thousands of Azerbaijanis from their native lands[12].

 

Preface

 

Armenian troops strengthened by 366th Mechanised Infantry Regiment of the Russian Army attacked the town Khojali on the night of February 25, 1992 and occupied the defenseless town in 36 hours committing one of the most heinous, ruthless and bloody crime in the human history[13].

The 2nd battalion of the 366th regiment under the command of Major Oganyan Seyran Mushegovich, now the Defence Minister of the illegal regime in Daghlig Karabakh, the 3rd battalion under the command of Yevgeniy Nabokhin, the staff chief of the 1st battalion Chitchyan Valeriy and more than 50 officers and ensigns, serving in the regiment took part in the attack[14].

Serzh Sargsyan was the chair of Nagorno-Karabakh Republic Self-Defense Forces Committee and during his era Armenian military forces committed genocides in the town of Khojali with a population of seven thousand people on February 26, 1992[15].

There were three thousand people in the town at the time of the Armenian military forces’ attack. Most of the population had to leave town during the four month blockade.

As a result of the Armenian military forces’ attack to Khojali, total of 613 people were killed, 1,000 peaceful people of different ages became invalid, 106 women, 63 children, and 70 old men were killed, eight families were completely annihilated, 130 children lost one parent, while 25 lost both of them, 1275 peace residents were taken hostages and the fate of 150 of them is still unknown[16].

All these were committed by the Armenian military of inconceivable ruthless barbarism.

 

The Main Issue

 

The Genocide issue legally defined by the “Convention on the Prevention and Punishment of the Crime of Genocide” and the UN General Assembly adopted it on December 9, 1948[17].

Any of the following acts committed with intent to destroy, in whole or in part, а national, ethnical, racial or religious group, is considered to be a “Genocide”[18].

  Deliberately inflicting on the group conditions of life calculated to bring about its physica1 destruction in whole or in part

  Imposing measures intended to prevent birth within the group;

  Killing members of the group;

  Forcibly transferring children of the group to another group.

  Causing serious bodily or mental harm to members of the group;

 

In the Khojali massacre, the existence of the genocidal intent can be conceived from the fact that special traps were prepared in advance and then used for shooting civil Azerbaijanis, who were trying to run away to save their lives.

The most important fact is that those acts were aimed at the Azerbaijani national group only, living in the town of Khojali. The other inhabitants belonging to another nation were not attacked and harmed at all.

 

The analysis of the genocide crime requires that there should be at least three major topics to be considered[19];

  Any of the genocidal acts must be actually committed (actus reus).

  There must be а specific intent (mens rea) to destroy such group in whole or in part,

  Victims of the massacre must belong to а particular national, ethnical, racial or religious group,

 

Accordingly, genocide can be committed only against a specific national, ethnical, racial or religious group, as done in Khojali[20].

 

Why Khojali Targeted

 

To understand the causation of this ruthless genocide, the Armenians’ purpose on Khojali should be analyzed in depth.

The main cause is to houseclean the strategic interception, in the form of exterminating the Azerbaijani residents of the mountainous part of Daghlig Karabakh or Nagorny Kharabakh.

The second is the knocking down the town of Khojali to the ground and erase it from the map due to her rich Azerbaijani roots and glorious history.

The town of Khojali reflected the history and traditions of Azerbaijan since the ancient times and classified as the “Khojali-Gadabay[21]” in the Azerbaijani and Caucasus history.

Dolmens, cromlechs, Cyclops and tumuluses of Khojali, as well as different housing wares are the patterns of material culture that reflect the dynamics of social development. The destruction of all these material culture monuments and Khojali graveyard, which one of the most ancient cemeteries in history, after the Armenian occupation are obvious examples of Armenian barbarism and aggression against the world culture[22].

 

The datum to qualify the Khojali Massacre as a Genocide[23]

 

The following adoptions and acts can be considered as а legal basis to qualify “Khojali Massacre” as “Genocide” and an “International Crime”.

 

1.      Jurisdiction of the Nuremberg Military Tribunal[24]

2.      Statute of the International Criminal Tribunal for Rwanda[25]

3.      Convention on the Prevention and Punishment of the Crime of Genocide[26],

4.      Ordinance of the International Criminal Court[27],

5.      Statute of the International Criminal Tribunal for the Former Yugoslavia[28],

6.      Decree of the President of the Republic of Azerbaijan on genocide of the Azerbaijani people [29],

7.      Criminal Code of the Republic of Azerbaijan[30],

 

International sanctions to be enforced

 

In case of genocide, the international law determines the following:

 

1.      The principles of the universal jurisdiction and international conventions must be applied,

2.      Statutory limitations must not be applicable to the crime of genocide,

3.      With regard to genocide, backward applications of the law must be in force,

4.      Not only the felons but also those who gave directions to commit genocide must be held responsible and taken into court for a trial.

5.      Felons must either be tried and punished by the detaining state or extradited to the requesting one.

6.      Committing crime under an order must not exempt the felon from responsibility,

7.      Superiors and high ranking officers must bear responsibility not to prohibit the genocide,

8.      Persons who committed genocide must be taken into court for a trial and punished if found guilty,

 

Conclusion

 

The world must know that the crime committed in Khojali is directed not only against the Azerbaijan nation, but also the whole civilized world and mankind.

The facts prove that the intentional extermination of the Azerbaijanis living in the Khojali town was directed at their mass extermination only because of their race. Khojali was chosen on purpose as a start point for further hostility, invasion and the ethnic cleansing of the Azerbaijani lands.

State of Armenia paid no attention to the UN Security Council’s resolutions 822[31] (1993) adopted in April 30, 1993 on occupation of territories of Azerbaijan Republic by Armenian army, resolution 853[32] (1993) adopted in 29 July 1993, resolution 874[33] (1993) adopted in 14 October 1993 and resolution 884[34] (1993) adopted in 12 November 1993.

 

Over a million innocent Azerbaijani immigrants still live even after long years over the Khojali massacre, under harsh conditions where they could barely shed in luggage wagons, barns, tent stations, houses-in-built and other unhealthy places not fit to live humanly because of the ruthless Armenian assault on February 25-26, 1992 to the town of Khojali.

The crime should not remain without punishment. Armenian military-political aggression must be condemned by the world community. International organizations and parliaments of the world states must give a political-legal appraisal of the Khojali genocide, which is a bloody military crime and an offense against the right to live of civilian human beings, committed by the Armenian Republic in the Azerbaijan territories.

 

 

References



[1] WikipediA The Free Encyclopeadia, Xocali, Khankendi, http://en.wikipedia.org/wiki/Xocal%C4%B1 , Khankendi , March 20, 2011

[2] WikipediA The Free Encyclopeadia, Hankendi, http://tr.wikipedia.org/wiki/Hankendi , March 20, 2011

[3] UN Resolutions, http://www.un.org/Docs/scres/1993/scres93.htm , Merch 20, 2011

[4] UN General Assembly Resolution 49/13, forty-ninth session, agenda item 27, (November 25, 1994), http://www.un.org/gopher-data/ga/recs/49/9460075e.txt , March 20, 2011

[5] UN General Assembly Resolution 57/298, fifty-seventh session, agenda item 22 (I), (February 6, 2003), http://daccess-ods.un.org/access.nsf/Get?Open&DS=A/RES/57/298&Lang=E

[6] OSCE Lisbon Summit Final Documents, DOC.S/1/96, (3 December 1996), p. 15,

  http://www.osce.org/item/4049.html

[7] OIC Secretary General's Report On The Aggression of The Republic of Armenia Against The Republic of Azerbaijan, OIC/ICFM-33/POL/SG.REP.7, (2006),

  http://www.oic-oci.org/baku2006/english/SG-report/SGREP-33ICFM-AZERBAIJAN-REV.doc

[8] PACE Doc. 10364, Report of the Political Affairs Committee, 29 November 2004, Atkinson, David, United Kingdom, European Democrat Group, (Rapporteur), The conflict over the Nagorno-Karabakh region dealt with by the OSCE Minsk Conference, Parliamentary Assembly of the Council of Europe (PACE), (29 November 2004), http://assembly.coe.int/Documents/WorkingDocs/doc04/EDOC10364.htm 

[9] O.N. Aras, Daglik Karabag Sorunu’nun Tarihi Gecmisi, http://www.antalyadayiz.net/azerbaycani-taniyalim/4141-daglik-karabag-sorunu-nun-tarihi-gecmisi.html , March 20, 2011  

[10] T. Heleniak, Ethnic Unmixing and Forced Migration in the Transition States, http://www.worldbank.org/html/prddr/trans/julaug99/pgspgs8-11.htm , March 20, 2011

[11] A. Baguirov, Nagorno-Karabakh: basis and reality of Soviet-era legal and economic claims used to justify the Armenia-Azerbaijan war, Page 4, http://vugar-seidov.azeris.com/wp-content/uploads/2010/07/Adil-Baguirov-CRIA.pdf , March 20, 2011

[12] Armed conflict vents Data, Armenian_azerbaijani Conflict 1988-1994,

http://www.onwar.com/aced/chrono/c1900s/yr85/farmaze1988.htm , March 20, 2011

[13] Armenian Genocide Resource Center, 2401) A Confession on Hocali Massacre,

   http://armenians-1915.blogspot.com/2008/03/2401-confession-on-hocali-massacre.html , March 20, 2011

[14] From the investigation materials concerning Khojaly occupation.

[15] The Official Site of the President of the Republic of Armenia, Serzh Sargsyan the President of Armenia, http://www.president.am/president/biography/eng/ , March 20, 2011

[16] Kavkaz Center, Armenian massacre of Azerbaijanis, http://www.kavkazcenter.com/eng/content/2006/02/27/4468.shtml , March 20, 2011

[17] UN General Assembly, Resolution 260 (III) Prevention and Punishment of the Crime of Genocide, http://www.un.org/documents/ga/res/3/ares3.htm , March 20, 2011

[18] ibid

[19] ibid

[20] R.J. Rummel, Genocide, http://www.hawaii.edu/powerkills/GENOCIDE.ENCY.HTM , March 20, 2011

[21] WikipediA The Free Encyclopedia, Khojaly-Gadabay Culture,

http://en.wikipedia.org/wiki/Khojaly-Gadabay_culture , March 20, 2011

[22] S. Najafov, Chronology of Graves From Zayamchay Necropolis,

http://www.shamkir-archeo.az/userfiles/Arxeologiya_Shamil_en.doc ,  March 20, 2011

[23] The Republic of Azerbaijan, The Supreme Court of the Republic of Azerbaijan,

http://www.supremecourt.gov.az/?mod=2&cat=303&c=1&id=128&lang=en&t=g , part II.  Legal basis for qualification of Khojaly massacre as аn international crime, March 20, 2011.

[24] Holocaust Encyclopedia, International Military Tribunal at Nüremberg,

   http://www.ushmm.org/wlc/en/article.php?ModuleId=10007069 , March 20, 2011

[25] United Nations, International Criminal Tribunal for Rwanda, http://69.94.11.53/default.htm ,   General Information and Paragraph 1, March 20, 2011

[26] Adopted bу UN General Assembly оn December 9, 1948, Resolution number 260 (III),  саmе into force in 1951, http://www.un.org/documents/ga/res/3/ares3.htm , March 20, 2011

[27] International Criminal Court (ICC), Rome Statute, Part II Jurisdiction, admissibility and applicable law, Article 6, http://www.icc-cpi.int/NR/rdonlyres/EA9AEFF7-5752-4F84-BE94-0A655EB30E16/0/Rome_Statute_English.pdf , March 20, 2011

[28] United Nations, International Criminal Tribunal for the former Yugoslavia, http://www.icty.org/ , Paragraph 4, Gotovina (IT-01-45), Karadzic (IT-95-5-/18-I), Tolimir (IT-05-88/2) “Srebrenica” , March 20, 2011

[29] H. Aliyev, President of the Republic of Azerbaijan, Baku, March 26, 1998,

http://www.president.az/azerbaijan/memories/?locale=en , Decree of the President of the Republic of Azerbaijan on genocide of the Azerbaijani people, March 20, 2011

[30] UNHCR, The UN Refugee Agency, Criminal Code of the Azerbaijan Republic, Paragrapgh 103, http://www.unhcr.org/refworld/docid/4417f82d4.html and

http://www.unhcr.org/refworld/country,,NATLEGBOD,,AZE,4562d8cf2,4417f82d4,0.html

Publication September 1, 2000, March 20, 2011

[31] United Nations Security Council, Resolution 822 (1993), Armenia-Azerbaijan 3205th meeting, 30 April 1993,  http://daccess-dds-ny.un.org/doc/UNDOC/GEN/N93/247/71/IMG/N9324771.pdf?OpenElement , March 20, 2011

[32] United Nations Security Council, Resolution 853 (1993), Armenia-Azerbaijan, 3259th meeting 29 July 1993,  http://daccess-dds-ny.un.org/doc/UNDOC/GEN/N93/428/34/IMG/N9342834.pdf?OpenElement , March 20, 2011

[33] United Nations Security Council, Resolution 874 (1993), Armenia-Azerbaijan, 3292th meeting 14 October 1993, http://daccess-dds-ny.un.org/doc/UNDOC/GEN/N93/557/41/PDF/N9355741.pdf?OpenElement , March 20, 2011

[34] United Nations Security Council, Resolution 884 (1993), Armenia-Azerbaijan, 3313th meeting 12 November 1993, http://daccess-dds-ny.un.org/doc/UNDOC/GEN/N93/631/20/PDF/N9363120.pdf?OpenElement , March 20, 2011