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55AZERBAIJAN'S POLICY OF ETHNIC CLEANSING AGAINST THE ARMENIAN POPULATION OF ARTSAKH AFTER THE 44-DAY WAR*
UDC 341.4 DOI: 10.52063/25792652-2022.4.15-69
ARMAN ASRYAN
Artsakh State University, Department of History and Law, Lecturer;
Master of Laws in Human Rights and Civil Liberties, Stepanakert, the Republic of Artsakh arman 17asryan@gmail. com
Ethnic cleansing as a phenomenon, despite its new name, is not new in the history of mankind at all. Among different nations, Armenians also have been the victim of this horrific crime and, unfortunately, have to face it till today.
This article intends to present the terrorist criminal actions of Azerbaijan carried out continuously and widely against the people of Artsakh after the 2020 44-day war, as well as to provide the goals of these actions and their legal qualification within the framework of international law.
The work was done by means of historical research, analysis of norms of international law, court rulings, and scientific doctrines, as well as research and comparison of factual circumstances relevant to this article.
in the end, it has been concluded that the crimes committed by Azerbaijan against the people of Artsakh are not isolated, local incidents, but a continuation of a systematic and widespread deliberate state policy planned and carried out for decades, having the goal of achieving the final depopulation of Artsakh.
Keywords: Artsakh, Nagorno-Karabakh, Azerbaijan, ethnic cleansing, international crime, elements of the crime, terror, forcible transfer of population.
1. Introduction
The history of humanity is full of bloody and cruel pages. Only in the 20th century, mankind endured two world wars, the cold war, and extreme ideological regimes. The century was riddled with the most heinous atrocities, among which are the Armenian Genocide, Stalin's Gulags, the Holocaust, The Rape of Nanking, the Cambodian Genocide. The last decade of the century was marked by Rwanda's Genocide and the horrific crimes committed during the Yugoslav wars. It was at the time of those wars that the term "ethnic cleansing" circulated for the first time. Initially, it was a term from journalistic and military rather than legal vocabulary. Later it was used in the resolutions of the United Nations Security Council and became a legal concept. Resolution 771 qualifies the practice of "ethnic cleansing" as a violation of international humanitarian law (S.C. Res. 771, 1992). Resolution 819 provides individual responsibility in respect of the practice of "ethnic cleansing" (S.C. Res. 819, 1993). By resolution 827 the Security Council decided to establish an international tribunal for the prosecution of persons responsible for serious violations of international humanitarian law (including the practice of "ethnic cleansing") committed in the territory of the former Yugoslavia (S.C. Res. 827, 1993). However ethnic cleansing was not included in the Statute of the International
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Criminal Tribunal for the Former Yugoslavia (ICTY) as a crime and the perpetrators were charged only under crimes defined by the Statute. Similarly, the International Criminal Court doesn't have jurisdiction to prosecute ethnic cleansing, since it is not included in the Rome Statute as a crime.
As a general understanding, ethnic cleansing is "the attempt to create ethnically homogeneous geographic areas through the deportation or forcible displacement of persons belonging to particular ethnic groups" (Andreopoulos 2021).
The concept of ethnic cleansing has generated a lot of debates. Some scholars consider that "ethnic cleansing" is a new name for an old crime and argue that people experienced this practice throughout history. Some scholars voice objections to its use considering it a dangerous euphemism for genocide. Others consider that ethnic cleansing is not precisely defined as an international crime. However, "ethnic cleansing" is commonly used in diplomacy and public international law and is commonly recognized as a practice in violation of international law. And even though there is no international tribunal that has jurisdiction over the crime of ethnic cleansing, the acts that constitute the policy of ethnic cleansing can be qualified as crimes against humanity, war crimes, or genocide (arguably). For example, after the international condemnation of alleged ethnic cleansing in Rohingya, the ICC ruled that it has jurisdiction to investigate the displacement of hundreds of thousands of Rohingya people as a possible crime against humanity. One of the UN fact-finding missions concluded that those atrocities amounted to "genocidal intent." Another one qualified them as alleged war crimes (Menzies 2018).
Unfortunately, there are still ongoing policies of ethnic cleansing in the world. It has been more than a century since Azerbaijan started it systematic attempts to forcefully remove the indigenous ethnic Armenian population from Artsakh. This paper is aimed to discuss whether Azerbaijan's criminal policy circumscribed by the period from November 9, 2020, till today, amounts to ethnic cleansing.
2. Historical Background
Artsakh (internationally known as Nagorno Karabakh) is a mountainous region in the South Caucasus mainly populated by ethnic Armenians. For centuries the region was part of the Armenian kingdom. After the fall of the kingdom, Artsakh was concurred by Persians, and later by Russians. In 1917 the Russian Empire collapsed and three Caucasian nations: Armenians, Georgians, and Azeris declared their independence by the formation of nation States. The Republic of Azerbaijan with the support of the Turkish army claimed Armenian-inhabited Artsakh. But attempts of Azerbaijan to take control over the region were met with resistance by the Armenian population. In the following years, the Red Army of Soviet Russia took control over the region and on July 5, 1921, decided on "the necessity of establishing peace between Muslims and Armenians" to give Nagorno Karabakh to the Azerbaijani SSR, granting it wide regional autonomy. At that time 94% of the population of the region was Armenian (Blakemore 2020).
For about 70 years of the existence of the Soviet Union, the Armenian population of Artsakh was the object of discrimination and gross human rights violations by Azerbaijani authorities (Nagorno Karabakh: 1921-1988). As a result of the criminal State policy, in 1979, the Armenian population of the region decreased to 75.9% (University of Maryland 2004). For instance, a much higher proportion of Armenians from Nagorno-Karabakh were drafted to WW2 than others in the Azerbaijani SSR. In the 1950s, the capital investments per capita in NKAO were ten times less than the average indicator of Azerbaijan (Nagorno Karabakh: 1921-1988). Armenian, as a language, had practically been ousted from official use - a fact that was reflected even in the Azerbaijan SSR law "On NKAO" (law on the Nagorno Karabakh Autonomous Oblast) where there was not a single mention of the word "Armenian" (Id.).
In order to protect the ethnic identity and prevent the further decrease of the Armenian population, on February 13, 1988, tens of thousands of Armenians started a mass demonstration in Stepanakert (current capital of the Republic of Artsakh), demanding NKAO's reunification with the Armenian SSR (Id.). Azerbaijani SSR, in response to the peaceful movement, organized pogroms of the Armenian population in Azerbaijani big cities such as Sumgait, Baku, and Kirovabad (Id.). Further, from April to August 1991, the Special Forces of the Azerbaijani Interior Ministry (known as OMON), launched "Koltso" (Ring) operation on the deportation of the Armenian population of Artsakh. The conflict moved to its military phase. To organize self-defense, Armenians formed voluntary military units that later became the basis for the regular army.
On September 2, 1991, a joint session of deputies of all levels of NKAO and the Shahumyan region proclaimed the independence of the Nagorno Karabakh Republic (NKR) as an expression of "the will of the people... and its desire for freedom, independence, equality, and good neighborliness" (Proclamation of the Nagorno Karabakh Republic). By the end of the war in 1994, the territory of NKAO and the adjacent seven regions were under the control of NKR.
In September 2020 Azerbaijan, with the support of Turkey and mercenary groups launched full-scale aggression against the Republic of Artsakh. The bloody 44-day war ended on November 10. Armenia, Azerbaijan, and Russia have issued a ceasefire declaration brokered by the Russian Federation. Under the declaration, Azerbaijan now controls in full the seven adjacent regions to Nagorno-Karabakh and holds a part of the former NKAO itself. The rest is patrolled by a Russian peacekeeping force but still governed by local authorities of the Republic of Artsakh. As a result of the aggression, Azerbaijan's military forces have been located in the immediate vicinity of the villages of Artsakh. Since that time those forces deliberately and systematically have been terrorizing and pressuring the Armenian population of Artsakh intending to compel them to abandon their homes.
3. Definition of the Crime of Ethnic Cleansing
Even though the UN Security Council uses the term "ethnic cleansing" in its several resolutions, none of them defines it. Nevertheless, by Resolution 780 the Security Council established a Commission of Experts and assigned to provide a report "on the evidence of grave breaches of the Geneva Conventions and other violations of international humanitarian law committed in the territory of the former Yugoslavia" (S.C. Res. 780, 1992). The Commission defined ethnic cleansing as "a purposeful policy designed by one ethnic or religious group to remove by violent and terror-inspiring means the civilian population of another ethnic or religious group from certain geographic areas" (Final Rep. of the Commn of Experts,1992).
Andrew Bell-Fialkoff defines ethnic cleansing "as the expulsion of an undesirable population from a given territory due to religious or ethnic discrimination, political, strategic or ideological considerations, or a combination of these" (Bell-Fialkof 2004).
"Ethnic cleansing may be equated with the systematic purge of the civilian population based on ethnic criteria, with the view to forcing it to abandon the territories where it lives" (Pegorier 2010). This means that for the action to be qualified as ethnic cleansing, a systematic or widespread element is required. The ILC in its work of the 48th session interpreted the term "systematic" as "an act committed pursuant to a preconceived plan or policy" (Int'l L. Comm'n,1996) It also can be defined as "thoroughly organized and following a regular pattern on the basis of a common policy involving substantial public or private resources" (Roberts 2017). Christopher Roberts states that for the violation to be demonstrated as widespread or systematic, "one cannot simply pick
violations at random; rather, one must show that a common situation exists linking the violations and evidence one presents" (Id. p. 19).
The Commission of Experts established by Resolution 780 of the UN Security Council defining ethnic cleansing uses the phrase "purposeful policy" (Final Rep. of the Comm'n of Experts,1992). It can be implied from the term "purposeful" that the crime must be committed with intent or knowledge. The Rome Statute provides that "a person has intent where: (a) In relation to conduct, that person means to engage in the conduct; (b) In relation to a consequence, that person means to cause that consequence or is aware that it will occur in the ordinary course of events." The Statute defines "Knowledge" as "awareness that a circumstance exists, or a consequence will occur in the ordinary course of events" (Rome Statute 1998).
The Commission of Reporters further provides the acts by which ethnic cleansing can be carried out (actus reus). According to the report ethnic cleansing can be committed by "murder, torture, arbitrary arrest and detention, extra-judicial executions, rape and sexual assaults, confinement of civilian population in ghetto areas, forcible removal, displacement and deportation of the civilian population, deliberate military attacks or threats of attacks on civilians and civilian areas, and wanton destruction of property" (Final Rep. of the Comm'n of Experts 1992). For example, in the Plavsic and Krajisnik cases, the ICTY Trial Chamber stated that "the Bosnian Serb leadership initiated and implemented a course of conduct which included the creation of impossible conditions of life, involving persecution and terror tactics, that would have the effect of encouraging non-Serbs to leave those areas; the deportation of those who were reluctant to leave; and the liquidation of others" (Pegorier 2010).
4. Azerbaijan's Policy of Ethnic Cleansing: Analysis Element of Mens Rea and the Contextual Element of State Policy
It can be proved that Azerbaijan's actions are part of purposeful State policy from the statements of Azerbaijani government officials. These statements serve as self-incriminations. For example, in an interview with the Azerbaijani media, president Ilham Aliyev mentions with dissatisfaction that "the Russian peacekeeping force is creating obstacles for the outflow of Armenians from the territory of Artsakh and is using various means to keep the Armenians in Artsakh" (Horizon Weekly 2022).
In December of 2020, Azerbaijan's State-owned postage stamp company began the production of a commemorative stamp depicting Nagorno-Karabakh being chemically "disinfected." The Universal Postal Union declined to register it, noting that i t contradicted the provisions of the Union Convention and Code of Conduct (ICJ, Arm. v Az., 2021). Former Deputy Prime Minister of Azerbaijan, Hajibala Abutalybov, explicitly acknowledged that Azerbaijan's goal is "the complete elimination of Armenians" (Id.) Former presidential candidate and Modern Musavat Party leader, Hafiz Hajiyev stated that "there should be no Armenian left in Azerbaijan" (Id.) The spokesperson of the Ministry of Defense stated that Armenians "have no right to live in this region" (Id.)
Element of Actus Reus
Murder and torture: The Prosecutor's office of Artsakh reported that after the trilateral declaration of November 9, 2020, until 01.01.2022, Azerbaijani armed forces located in the vicinity of the Armenian villages and cities committed 69 crimes: a total of 5 cases of murder (3 cases of civilian murder), 28 cases of attempted murder (19 of which were directed against the military), 1 case of a terrorist act, 4 cases of torture, 1 case of a death threat, 1 case of kidnapping. 3 civilians and 10 servicemen were killed, 77 (50 servicemen) were attempted to be killed, 37 people (28 servicemen) were wounded to
varying degrees, 8 were physically assaulted and 2 were threatened with death (Prosecutor's Office of Artsakh, 2022).
Forcible removal, displacement, and deportation of the civilian population: On 24 March 2022, the Azerbaijani Armed Forces have violated the line of contact in the direction of Parukh village in the Askeran region. They entered the village from different sides forming a chain. The head of the village stated that "We quickly evacuated people. There were roads. We passed through them." Women and children were also evacuated from the nearby Khramort village following the Azerbaijani advance.
Deliberate military attacks or threats of attacks on civilians and civilian areas: From March 7 to 12, 2022, the Azerbaijani armed forces used a 60 mm grenade launcher, and a total of 57 shells were fired at various villages of Artsakh (Azerbaijani side used a 60 mm grenade launcher, 2022). The ceasefire regime has been and is continuously violated by firearms targeting residential houses and other civilian infrastructures in all directions (Azatutyun, 2021).
Wanton destruction of property and cultural heritage: Azerbaijani forces have destructed and continue to destruct Armenian historical-cultural heritage in places that are under Azerbaijan's control after the November 10 ceasefire. They destructed memorials, tombstones, cross-stones, crosses, churches, monuments, and statues of Armenian heroes (HRD of Artsakh, 2021).
On February 3, the Azerbaijani Minister of Culture Anar Karimov announced that "A working group of specialists in Albanian history and architecture has been set up to remove the fictitious traces written by Armenians on Albanian religious temples" (Isayev 2022).
Persecution and terror tactics: the Azerbaijani side, by using loudspeakers near Armenian villages, "calls on" the civilians of the community to leave the village under the threat of force. So-called "calls and exhortations" are videotaped and spread on social networks by channels that were used for spreading Azerbaijani propaganda during and after the 44-day war (Calls and exhortations, 2022).
Azeris also find the phone numbers of the people of Artsakh, call them, and urge them to sell their apartments. The main idea conveyed by them is that in any case Artsakh will be surrendered (Tert, 2021).
Moreover, Azerbaijan has been disrupting the operation of the main gas pipeline for several weeks, creating a humanitarian catastrophe. About 120,000 residents were deprived of heating and hot water. Because of the lack of heating classes at schools were suspended. Most health organizations, hospitals, and maternity hospitals were deprived of proper heating (Azerbaijani side used a 60 mm grenade launcher, 2022).
5. Relationship of Ethnic Cleansing to Crimes for which there are International Criminal Tribunals with Jurisdiction
However, there is no judicial organ that has jurisdiction to prosecute and punish "ethnic cleansing" as an independent crime, nor is there a precise definition and classification of the exact acts and contextual elements of those acts to be qualified as ethnic cleansing. What is clear is that the practice of ethnic cleansing violates international law and those carrying out such practice must be held accountable. The issue that arises is how the court can hold an individual accountable for the crime over which it doesn't have jurisdiction, as it will be contrary to the well-known principle of legality.
The principle of legality, also known as nullum crimen sine lege (no crime or punishment without law) provides that "a person shall not be criminally responsible., unless the conduct in question constitutes, at the time it takes place, a crime within the jurisdiction of the Court. The definition of a crime shall be strictly construed and shall not
be extended by analogy. In case of ambiguity, the definition shall be interpreted in favor of the person being investigated, prosecuted, or convicted" (Rome Statute, 1998).
Some scholars argue that even though ethnic cleansing was considered by the drafters of the Rome Statute, it was not included in it because of its apparent closeness to genocide (Pegorier 2010). Moreover, while referring to war crimes and crimes against humanity, the drafters of the Statute defined that the goal of the ICC is to punish those charged with committing monstrous acts, including ethnic cleansing. It means that for the drafters of the Rome Statute ethnic cleansing is not an independent crime but can perhaps constitute an element or indication of the commission of other crimes, such as genocide, a crime against humanity, or a war crime (Id.).
Ethnic cleansing and Genocide
The ICJ in the "Case concerning the application of the Convention on the Prevention and Punishment of the Crime of Genocide" referring to ethnic cleansing found that "neither the intent, as a matter of policy, to render an area 'ethnically homogeneous', nor the operations that may be carried out to implement such policy, can as such be designated as genocide: the intent that characterizes genocide is "to destroy in whole or in part" a particular group, and deportation and displacement of a group, even if effected by force, is not necessarily equivalent to the destruction of that group, nor is such destruction an automatic consequence of the displacement." It further states that "this is not to say that acts described as "ethnic cleansing" may never constitute genocide... Whether a particular operation described as "ethnic cleansing" amounts to genocide depends on the presence or absence of acts listed in Article II of the Genocide Convention, and of the intent to destroy the group as such" (ICJ, Bosn. & Herz. V. Serb. & Montenegro, 2007). For example, if a state is committing against an ethnic group within its jurisdiction acts that fall within Article II of the Genocide Convention (killing them, preventing them from giving birth, etc.), the fact that the state also ethnically cleanses that group can support an inference that the state is committing the Article II acts with genocidal intent - that is, with the goal of destroying that group "in part" within its jurisdiction (and ethnically cleansing the other part).
Ethnic Cleansing and War Crimes
The Rome Statute in the Article 8 defines war crimes as "Grave breaches of the Geneva Conventions of 12 August 1949" and "other serious violations of the laws and customs applicable in international armed conflict, within the established framework of international law" (Rome Statute, 1998). Among those crimes are: 8(2(a (iv))) extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly; 8(2(b(viii))) the transfer, directly or indirectly, by the Occupying Power of parts of its own civilian population into the territory it occupies, or the deportation or transfer of all or parts of the population of the occupied territory within or outside this territory. Both seem to correspond to the concept of ethnic cleansing, at least on territory that is considered occupied under international law (Id.). It means that in some cases ethnic cleansing on occupied territory might be qualified as a war crime.
On the other hand, the contextual element of war crimes requires that "the conduct took place in the context of and was associated with an international/non-international armed conflict" (UN office on Genocide prevention and the R2P). While for the ethnic cleansing the existence of armed conflict is not a necessary element.
Ethnic Cleansing and Crimes against Humanity
The Rome Statute in Article 7 provides that "crimes against humanity" mean any act "when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack" (Rome Statute, 1998). Among those acts are murder, extermination, deportation or forcible transfer of population, persecution against any identifiable group or collectivity on political, racial, national,
ethnic, cultural, religious, gender, or other grounds that are universally recognized as impermissible under international law (emphases added) (Id.).
Ethnic cleansing seems to share most of the elements defining crimes against humanity and has been classified as such in several works of scholars and some of the ICTY judgments. For example, in the Nikolic the Trial Chamber indicated that: "the implementation of that discriminatory policy, commonly referred to as ethnic cleansing, over the region of Vlasenica alone, seems to have been so widespread as to fall within the Tribunal's jurisdiction under Article 5 (Pegorier 2010). The ICC in the case of the Prosecutor v. Omar Hassan Ahmad Al Bashir states that it is the majorities' view that the practice of ethnic cleansing usually amounts to the crime against humanity of persecution (Prosecutor v. Al Bashir, 2009).
In sum, even though ethnic cleansing is not involved in the Statute of any international tribunal, it doesn't mean that those who committed acts constituting ethnic cleansing cannot be punished by such tribunals. For instance, in the situation of Darfur, which has been widely qualified as ethnic cleansing (Human Rights Watch, 2004), the ICC investigations focus on allegations of genocide, war crimes, and crimes against humanity (Situation in Darfur, Sudan).
6. Conclusion
The fact that Azerbaijan wants to establish an ethnically homogenous geographic area is not unfamiliar to Armenians, nor is Artsakh the only region where Azerbaijan exercised and is exercising its criminal policy of ethnic cleansing. In 2002, in an interview with the Azerbaijani media, Heydar Aliyev, referring to the times of the Soviet Union, stated: "At the same time, I tried to change the demographics there. We sent Azerbaijanis from the adjacent regions, not to Baku, but there [Nagorno-Karabakh Autonomous Oblast] ... By these and other measures, I tried to have more Azerbaijanis in Nagorno-Karabakh, and reduce the number of Armenians" (Gegham Stepanyan, 2022). In Nakhichevan (another region under Azerbaijan SSR), the policy of ethnic cleansing led to the Armenian population decreasing from 40% to 2% in a few decades (Nagorno Karabakh: 1921-1988).
Considering the intent of the Azerbaijani government to force Armenians to leave the region, the systematic and widespread criminal activities of Azerbaijan and knowledge of what consequences will such actions have, it can be concluded that Azerbaijan is committing ethnic cleansing of the Armenian population of Artsakh.
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ПОЛИТИКА ЭТНИЧЕСКОЙ ЧИСТКИ АЗЕРБАЙДЖАНА В ОТНОШЕНИИ АРМЯНСКОГО НАСЕЛЕНИЯ АРЦАХА ПОСЛЕ 44-ДНЕВНОЙ ВОЙНЫ
АРМАН АСРЯН
преподаватель факультета истории и права Арцахского государственного университета, магистр права в области прав человека и гражданских свобод, г. Степанакерт, Республика Арцах
Этническая чистка как явление, несмотря на свое новое название, вовсе не ново в истории человечества. Наряду с некоторыми народами, армяне также стали жертвой этого ужасного преступления и, к сожалению, вынуждены сталкиваться с ним и по сей день.
Данная статья преследует цель представить широкомасштабные террористические и преступные действия Азербайджана, последовательно проводимые против населения Арцаха после 44-дневной войны 2020 года, а также раскрыть цель данных действий и их правовую оценку в рамках международного права.
Данная работа выполнена с использованием метода исторического исследования, анализа норм международного права, судебных решений и научных доктрин, а также методом исследования и сопоставления фактических обстоятельств, имеющих непосредственное отношение к данной статье.
В заключении статьи был сделал вывод о том, что преступления, совершаемые Азербайджаном против населения Арцаха, не являются отдельными и локальными инцидентами, а продолжением систематической, широкомасштабной и преднамеренной государственной политики, планируемой и проводимой десятилетиям и преследующей цель окончательной депопуляции Арцаха.
Ключевые слова: Арцах, Нагорный Карабах, Азербайджан, этническая чистка, международное преступление, элементы преступления, террор, насильственное перемещение населения.
