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THE CAUCASUS & GLOBALIZATION
Kamal MAKILI-ALIYEV
Ph.D. (Law), Leading Research Fellow at the Center for Strategic Studies under the President of the Republic of Azerbaijan, Editor of Caucasus International (Baku, Azerbaijan).
COMPARATIVE INTERNATIONAL
HUMANITARIAN LAW: THE ATROCITIES IN SYRIA AND THE NAGORNO-KARABAKH CONFLICT
Abstract
This article presents a comparative study of International Humanitarian Law in the cases of the Nagorno-Karabakh conflict and the recent atrocities in Syria. The article focuses on the similarities, as well as the differences in the crimes committed in both cases. While analyzing the nature of such crimes, the article provides legal insight into each case separately. The
author tackles both actus reus and mens rea of international crimes to provide a better understanding of the differences in approach of international law in each case. In the end, the article concludes that while there are many similarities in the criminal patterns in both cases, in one case International Humanitarian Law applies in full and in the other it is not applicable at all.
Introduction
The conflict over Nagorno-Karabakh that broke out between Armenia and Azerbaijan is still one of the greatest obstacles to security, peace, and regional development in the entire Caucasus. The Armenians of Nagorno-Karabakh who made up the majority of the population of the Azerbaijani Nagorno-Karabakh Autonomous Region originally sought to be unified with Armenia in 1988 before the dissolution of the U.S.S.R., but both Azerbaijan and the leadership of the U.S.S.R. rejected these territorial claims. However, after Azerbaijan and Armenia regained their independence in 1991, the Nagorno-Karabakh Armenians changed their policy, demanding secession from Azerbaijan. As a result of the undeclared war, between 1992 and 1994 the Armenian military forces seized almost one-fifth of Azerbaijan's internationally recognized territory, including the Nagorno-Karabakh region and seven adjacent Azerbaijani populated districts. Nearly one million people were displaced from these occupied territories, along with the ethnic Azerbaijanis expelled from Armenia in 1988-1989 due to ethnic tension.
Despite the ceasefire that has been maintained since 1994 and the ongoing negotiation process mediated by the OSCE Minsk Group (it was created to find a political solution to the Nagorno-Karabakh conflict by the Conference on Security and Cooperation in Europe in 1992), no tangible results have been achieved in the conflict resolution process so far.
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The situation in Syria has been grave since the spring of 2011. Estimates of the tragic events in Syria put the toll at 30 to 100 civilian deaths every day with some intermissions and pauses. The total number of victims is now estimated at more than 9,000'; the international community has yet to decide how to react to the situation. Syria's major opposition group has repeatedly condemned the government for its "brutal massacres" and called on the United Nations to protect civilians against "acts of genocide." As of 12 April, 2012, the situation achieved a U.N.-negotiated ceasefire, which maintains a fragile peace between the government forces and the opposition. Despite the intermission in active hostilities, the situation in Syria remains grave and on the verge of a humanitarian catastrophe.
One thing that brings together these two different situations is the uncertainty among international scholars over which regulations of International Humanitarian Law (IHL) should apply to them. There are skeptics on both sides and in both cases.
For example, although it seems quite clear that the situation in Syria cannot be considered a crime of genocide, widespread facts of crimes against humanity are quite evident in this particularly atrocious case. Still there are experts that argue that IHL should apply on a full scale in Syria as the tragic events should be considered war with all the ensuing consequences.2
This article will attempt to analyze how IHL, as well as International Criminal Law (ICL), applies in both of the aforementioned cases and compare them to draw a clear distinction between war crimes in Nagorno-Karabakh conflict and the crimes against humanity in the case of the recent atrocities in Syria. In addition, this article will focus on the similarities and differences in the approaches of the international community toward both situations.
War Crimes in the Nagorno-Karabakh Conflict
To understand the specifics of the war crimes committed during the active phase of the Nagorno-Karabakh conflict between Armenia and Azerbaijan, we should first establish the law applicable to the situation. Since it is widely known and accepted that this conflict is international in nature, the rules of IHL applicable to international armed hostilities apply on a full scale. This means both the Law of Geneva and the Law of The Hague.3
As the hostilities in the Nagorno-Karabakh conflict were landlocked, it is clear that out of the four Geneva Conventions of 1949 only I, III, and IV apply, as well as the provisions of Additional Protocols I and III to the conventions in the parts that relate to international conflicts.4
The Law of The Hague applies in regard to the means of warfare. There is a basic provision set forth in Art 22 of the Hague Regulations that reads: "The right of belligerents to adopt means of injur-
1 See: AFP, 27 March, 2012, available at [http://bit.ly/HTSg8D].
2 See: L. Blank and G. Corn, "Syria Must Be Held to the Law of War," CNN, 4 April, 2012, available at [http:// bit.ly/Id2guf].
3 The Law of Geneva provides protection for those who as a consequence of war have fallen into the hands of the enemy. The main purpose of protection here is not against the violence of war itself, but from the power that one side acquires over those persons of the party that have fallen into its hands. There are four Geneva Conventions of 1949 that create the basis of the Geneva Law. The Law of The Hague is one of the current laws of IHL. It is a set of regulations regarding some aspects of IHL where a distinction should be made between smaller groups of norms addressing issues like: combatants and their qualifications, means and methods of warfare, civilian protection, cultural property, etc.
4 See: The Geneva Conventions of 12 August, 1949, ICRC, Geneva, pp. 76, 155; Protocols Additional to the Geneva Conventions of 12 August, 1949, ICRC, Geneva, 1977, p. 3; Third Additional Protocol to the Geneva Conventions, 2005 [http ://www. icrc.org/eng/resources/documents/misc/emblem-keyfacts-140107.htm].
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ing the enemy is not unlimited." Several principles were subtracted from this general one, such as prohibition of use of arms that cause "unnecessary suffering" (Art 23(e)), prohibition of treachery toward the enemy in Art 23(b).5 These rules are applicable due to the number of crimes committed in violation of these provisions in the course of the Nagorno-Karabakh conflict, as will be demonstrated further.
All such regulations form the basic principles of IHL that have long become a part of customary international law and some of them even jus cogens. The basic principles of IHL include:
■ Persons hors de combat and those who do not take a direct part in hostilities are entitled to respect for their lives and physical and moral integrity. They shall in all circumstances be protected and treated humanely without any adverse distinction.
■ It is forbidden to kill or injure an enemy who surrenders or who is hors de combat.
■ The wounded and sick shall be collected and cared for by the party to the conflict which has them in its power. Protection also covers medical personnel, establishments, transports and materiel. The emblem of Red Cross (Red Crescent) is the sign of such protection and must be respected.
■ Captured combatants and civilians under the authority of an adverse party are entitled to respect for their lives, dignity, personal rights and convictions. They shall be protected against all acts of violence and reprisals. They shall have their right to correspond with their families and to receive the relief.
■ Everyone shall be entitled to benefit from fundamental judicial guarantees. No one shall be held responsible for an act he/she has not committed. No one shall be subjected to physical or mental torture, corporal punishment or cruel or degrading treatment.
■ Parties to a conflict and members of their armed forces do not have an unlimited choice of methods and means of warfare. It is prohibited to employ weapons or methods of warfare of a nature to cause unnecessary losses or excessive suffering.
■ Parties to a conflict shall at all times distinguish between the civilian population and combatants in order to spare the civilian population and property. Neither the civilian population nor civilian persons shall be object of attack. Attacks shall be directed solely against military objectives.6
Such principles underline the IHL regulations to be followed during a conflict. However, not following the regulations of IHL to the book does not yet make them crimes. Not every crime committed in an armed conflict is a war crime. A war crime must be sufficiently linked to an armed conflict itself and does not need to be a part of the policy or of practice officially sanctioned or tolerated by one of the parties to a conflict.7 War crimes in international armed conflicts are dealt with by Art 8(2)(a) of Statute of International Criminal Court (Rome Statute), which penalizes grave breaches of the Geneva Conventions of 1949, and by Art 8(2)(b), which penalizes other serious violations of the laws and customs applicable in international armed conflicts, within the established framework of international law.8
Thus, grave breaches of IHL are war crimes. Numerous such crimes were committed during the active phase of the Nagorno-Karabakh conflict and some of them are continuing to be perpetrated today.
5 See: International Law Concerning the Conduct of Hostilities. Collection of Hague Conventions and some other International Instruments, ICRC, Geneva, 1996, pp. 17-22.
6 !
7 See: Tadic Case (Prosecutor v. Dusko Tadic), 10 August, 1995, Case No. IT-94-1-T, Decision of the Defense
1 See: International Review of the Red Cross, ICRC, Geneva, 1978, pp. 248-249.
Motion on Jurisdiction, para. 70.
8 See: Rome Statute, Art 8(2), available at [www.un.org/law/icc/statute/romefra.htm].
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During the course of the conflict, Armenian forces attacked while Azerbaijani forces were in defensive positions. Armenian armed forces continue to this day to occupy territories of Azerbaijan. Throughout the occupation, Armenian armed forces have committed willful killings in a large number of cases.9 Willful killing is considered a grave violation of IHL and a war crime according to ICL.10 Such acts of murder include killing the civilian population, as well as prisoners-of-war. Both of these instances have been recorded in Nagorno-Karabakh. Such crimes occurred during attacks on Kelbajar, Agdam, Qubatli, Djabrail, Fizuli, Zangelan, and other parts of Azerbaijani territory.11 They continue to be committed at the present time. For example, there was a recent event when a civilian, a 9-year-old boy, was killed by an Armenian sniper.12
Another crime widespread during the conflict and punishable according to the Rome Statute was hostage-taking. The Armenians used that prohibited method of warfare many times and later traded the hostages for POWs. Numerous reports suggest that this was a policy on the part of the Armenian armed forces.13 Taking hostages is punishable by ICL due to mens rea of the crime—demonstration of intention on the part of the accused to deprive the victims of freedom in the interests of the accused to gain an advantage during the hostilities.
During their offensive, the Armenian armed forces also used such methods of warfare as indiscriminate fire, causing intentional damage to civilians.14 Indiscriminate fire is considered to be a type of war crime that breaches the rule of IHL and prohibits intentional launch of an attack in the knowledge that such attack will cause incidental loss of life or injury to civilians or damage to civilian objects. Such crime is very common in armed conflict, which makes it even graver considering the consequences of such actions.
Art 49 of Geneva Convention IV prohibits individual or mass deportations or transfers of all or parts of protected persons from occupied territories to the territory of the Occupying Power or to that of any other country, occupied or not, regardless of motive. At the same time Art 85(4)(a) of Protocol I makes a grave breach the transfer 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, in violation of Art 49 of aforementioned convention. Any actions in breach of these rules of IHL constitute a war crime under ICL.15 However, this is exactly what Armenia as an occupying power has been doing. The pain and suffering caused to civilians by that crime is unimaginable. Not only were the Armenian armed forces able to displace more than 0.6 million of the Azerbaijani population, they have transferred parts of their own population to the occupied territories.16
One more very common war crime committed by the Armenians in Nagorno-Karabakh was pillaging. Many Azerbaijani towns and villages were plundered and looted during the active stage of the conflict. Civilian property lost by Azerbaijanis in pillaging is estimated at up to several hundred thousands of U.S. dollars.17 Pillaging constitutes a grave breach of IHL and has been properly defined in the Celebici case (ICTY), which later paved the way for its inclusion in the Rome Statute.18
9 See: Azerbaijan. Seven Years of Conflict in Nagorno-Karabakh, Human Rights Watch, Helsinki, 1994, p. xiii.
10 See: Rome Statute, Art 8(2)(a)(i).
11 See: Azerbaijan. Seven Years of Conflict in Nagorno-Karabakh, pp. 8-34.
12 See: "Armenian Sniper Kills Azerbaijani Child," Reuters, Washington, 10 March, 2011, available at [http://reut. rs/J1bqJk].
13 See: Azerbaijan. Seven Years of Conflict in Nagorno-Karabakh, pp. 51-58.
14 See: Ibid., pp. 8-34.
15 See: Rome Statute, Art 8(2)(b)(viii).
16 See: K. Makili-Aliyev, Enforcement of International Law in Nagorno-Karabakh Conflict, UNIVERSAL, Tbilisi, 2008, p. 72.
17 See: Azerbaijan. Seven Years of Conflict in Nagorno-Karabakh, pp. 8-34.
18 See: Celebici case (Prosecutor v. Delalic, Mucic, Delic & Landzo), 16 November, 1998, Case No. IT-96-21-T, para. 591.
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As can be seen from the above, these crimes are related to the armed conflict and have been carried out in close relation to the hostilities. All of these instances are easily definable and clearly reflected in international law. War crimes are applicable only when IHL is active—in other words jus in bello. However, a distinction should always be made between international and non-international armed conflicts; the proper identification, if the crime falls under the definition of a "war crime," always depends on the notion of "armed conflict" itself. Since IHL applies only to armed conflicts (wars), war crimes can only be committed while there are hostilities defined as such.
War crimes should not be confused with the crime of genocide.19 One such instance is the infamous genocide in Khojali, something that also took place during the active stage of the Nagorno-Karabakh conflict. In the early hours of 26 February, 1992, the armed forces of Armenia, the armed Armenian militants of Nagorno-Karabakh, and Motor-Infantry Regiment No. 366 of the former Soviet Union dislocated between Askaran and Khankendi occupied the town and committed genocide against the Azerbaijanis.20 During the offensive, full-scale atrocities were committed, however the crimes committed in that particular case were neither crimes against humanity, nor were they war crimes, thus beyond the scope of this article.
On the other hand, when it comes to Syria, the situation is not as definite. There are different views that argue the inapplicability of IHL to Syria, on the one hand, and that the situation in Syria clearly amounts to a non-international (internal) armed conflict, on the other.
Crimes against Humanity in Syria
Recently, the United Nations Human Rights Council (U.N. HRC) adopted a Report of the Independent International Commission of Inquiry on the Syrian Arab Republic.11 This report provides a valuable base for the facts and materials on the human rights situation in Syria.
However, to understand the humanitarian situation in Syria, we need to be clear about what crimes against humanity are. As defined by Art 7 of the Rome Statute, crimes against humanity are the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack: murder; extermination; enslavement; deportation or forcible transfer of population; imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law; torture; rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity; 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, in connection with any act referred to in Art 7(1), or any other crime within the ICC's jurisdiction; enforced disappearance of persons; the crime of apartheid; other inhumane acts of a similar character intentionally causing great suffering or serious injury to the body or mental or physical health.11
An important specific feature of such crimes is that commission of an attack that is inhumane in nature and character, causing great suffering, or serious injury to body or to mental or physical health, must be committed as part of a widespread or systematic attack against members of the civilian population.13 Thus forming the actus reus of crimes against humanity.
19 The Rome Statute, which came into effect on 1 July, 2002 and established the International Criminal Court, attributes to the Court's jurisdiction four types of crimes: genocide, war crimes, aggression, and crimes against humanity.
20 See: K. Makili-Aliyev, op. cit., pp. 57-59.
21 See: U.N. Doc. A/HRC/19/69, available at [http://bit.ly/zBpeYa], 20 April, 2012.
22 See: Rome Statute, Art 7.
23 See: Akayesu case (Prosecutor v. Jean-Paul Akayesu), 2 September, 1998, Case No. ICTR-96-4-T, para. 497; Kambanda case (Prosecutor v. Jean Kambanda), 4 September, 1998, Case No. ICTR-97-23-S, para. 578.
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When it comes to mens rea of the aforementioned crimes, if we depart from the specific elements of each individual crime against humanity, the perpetrator in each case must knowingly commit the crime in the sense that he must understand the overall broader context in which his act occurs. A person who commits such a crime must know that his actions (or acts) are part of a widespread or systematic attack on a civilian population, forming the context of mass crimes and pursuant to the policy or plan.24 Without such knowledge, the perpetrator would have mens rea of an ordinary crime.
As can be seen from the above-mentioned facts, international law is quite clear on what crimes against humanity are and what is required for the crime to be prosecuted as such.
In Syria, the government was not able to uphold its duty to protect its people. The government forces committed acts of violence against the people of Syria, including widespread, systematic, and gross human rights violations. Anti-Government groups have also committed abuses, although not comparable in scale and organization to those carried out by the State.25
The violence recorded by the U.N. provides evidence of the crimes committed. Specifically it is reported that Syrian army snipers and gunmen posted at strategic points terrorized the population, targeting and killing small children, women, and other unarmed civilians. Densely populated neighborhoods were fired at with fragmentation mortar bombs. When League of Arab States observers withdrew in late January 2012, the army intensified its bombardment with heavy weapons. The population was given no warning and unarmed civilians were given no chance to evacuate. As a result, large numbers of people, including many children, were killed. Several areas were bombarded and then stormed by State forces, which arrested, tortured, and summarily executed suspected defectors and opposition activists. In the Idlib governorate, the army shelled the villages of Ihsim, Ibleen, Ibdita, Kasanfra, and Kafar Awid in mid-December. When State forces took control of the villages, security agents pillaged houses and loaded their loot into trucks brought along to transport detainees.26
From these reports it is clear that the government forces committed crimes that included murders, exterminations, persecutions, torture, etc. All of these crimes can be found in Art 7 of the Rome Statute.
Furthermore, the U.N. HRC report mentions: "On 24 January, tanks and snipers surrounded and shelled Bab Qebli neighborhood in Hama, where an FSA group had been present. FSA members had apparently withdrawn upon the approach of the army, but many opposition activists remained in the neighborhood. The next day, soldiers raided the neighborhood, arresting many and looting homes. On 26 and 27 January, State forces conducted a similar operation in the Al Hamidieh neighborhood in Hama. After the operations in Bab Qebli and Al Hamidieh, the handcuffed bodies of persons who had apparently been executed were dumped in Hama."27
These events provide evidence of deprivation of physical liberty in violation of the fundamental rules of international law, as well as executions with the aim of extermination. These categories of crimes can serve themselves as evidence of the widespread character of the attacks as they are usually conducted summarily.
Moreover, there are reports that there have been widespread and systematic cases of arbitrary arrests, torture, abductions, and forced disappearances. There are many examples of arbitrary arrests and detention of suspected protesters, opposition activists, human rights defenders, and deserters. Arbitrary arrests typically were not formally acknowledged and suspects were often held incommunicado without their families being notified about their arrest or whereabouts.28
There are reports that arbitrary arrests were conducted across the country and followed similar patterns. During protests, military and security forces would often encircle the protesters. Those arrested, including the wounded among them, would be transported in government buses and trucks to
24 See: Tadic case (Prosecutor v. Dusko Tadic), 10 August, 1995, Case No. IT-94-1-T, Decision of the Defense Motion on Jurisdiction, paras. 626, 638, 656, 657.
25 See: U.N. Doc. A/HRC/19/69, p. 1.
26 See: Ibid., paras. 39-42.
27 See: Ibid., para. 45.
28 See: Ibid., para. 58.
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detention centers operated by security agencies, sometimes after being temporarily held in facilities such as sports stadiums or schools. More large-scale raids were conducted, especially in areas where defectors are presumed to be hiding or in areas perceived as being sympathetic to the protesters. The regular army normally cordoned off the area before security forces or elite army units, sometimes accompanied by Shabbiha,29 carried out house-to-house searches. In such raids, women were targeted for arbitrary arrest and detention, in many cases also to force male relatives to turn themselves in. Many women also emphasized the traumatic invasion of their privacy when security forces raided their houses, typically at night, and vandalized or looted their personal possessions. Torture took place predominantly in detention centers. According to U.N. HRC, victims and witnesses provided credible and consistent accounts of places and methods of torture.30
These actions of the government forces can also be added to the list of crimes. Although they constitute a separate group of violations of international law as defined by Art 7 of the Rome Statute, they nonetheless were committed on a systematic basis and thus can be identified as part of the government's plan of attack on civilians. If we add to this that prohibition of all forms of torture itself is part of jus cogens, we have the entire picture of actus reus and mens rea of the crimes.
However, the most horrible of crimes against humanity were those that targeted children. Snipers and other Syrian state forces reportedly killed or wounded children, even those aged 10 years and younger. Many children were killed when the government forces shelled residential areas in Homs and other cities in January and February 2012. There are many reports that children are arbitrarily arrested and tortured while in detention. In some cases, children, in total disregard of their age, were treated in the same way as adults. They were kept in the same cells and subject to the same methods of torture as adults. Moreover, injured children did not benefit from adequate medical treatment, not least because hospitals and health clinics were not safely accessible and due to the fact that the adults accompanying them risked arrest.31
Targeting children in mass military operations is usually a clear sign of the indiscriminate character of the attacks. And due to the fact that the casualties among children in Syria right now exceed 500 victims, it is clear that they have been the result of a widespread and systematic attack directed against the civilian population. Such attack is a main prerequisite for considering these crimes to be crimes against humanity.
Conclusion
Since we have been able to establish clear indications that the government planned to carry out widespread and systematic attacks against the civilian population, the violence in Syria has all the characteristics of a crime against humanity. So the question arises of what is the difference between the war crimes in Nagorno-Karabakh and the crimes against humanity in Syria? Most of these crimes are of the same character: they include murder, extermination, indiscriminate attacks, torture, etc.; they both target the civilian population... So what is so different?
First of all, war crimes are acts that are committed aside from government policy and planning. They can be related to the military forces and their own mens rea in each and every case. In addition, war crimes target civilians, as well as combatants and prisoners of war, while crimes against humanity can target only civilian populations. Engagement of troops in the territory of Azerbaijan during the hostilities clearly indicates that combatants were present in the conflict, making the injustice toward them a war crime. At the same time, the only organized military presence in Syria was the government
29 The word gained international notoriety at the beginning of the 2011 Syrian uprising due to its use to describe armed men in civilian clothing who assault protesters against the regime of Bashar Al-Assad. It is widely believed that the shabbiha are hired goons of the regime, including some members of the security forces.
30 See: U.N. Doc. A/HRC/19/69, paras. 60, 62.
31 See: Ibid., paras. 78-80.
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forces and security agencies linked to the government, rendering the notion of combatants void during the atrocities in Syria.
However, most importantly war crimes can be committed only during a war—an armed conflict. With that in mind, there is no proof that the situation in Syria amounts to an armed conflict. Such a position is widely supported by the U.N. HRC. The commission that prepared the report for the Human Rights Council stated that International Humanitarian Law did not apply because it is only applicable in armed conflicts that depend on the intensity of the violence and the level of organization of the parties participating in the conflict. And although it is clear that the violence in certain areas may have reached the requisite level of intensity, the Commission was not able to verify that the Free Syrian Army, local groups identifying themselves as such, or other anti-government armed groups had reached the necessary level of organization.32
Conclusively we have the situation where:
1. The atrocities in Syria are linked to government policy and planning, whereas the atrocities in Nagorno-Karabakh conflict were an integral part of the armed conflict;
2. Only civilians were targeted during the breakdown in Syria, while victims of the crimes in Nagorno-Karabakh included combatants and POWs;
3. The Nagorno-Karabakh conflict is a widely-recognized international armed conflict, whereas the U.N. failed to identify the Syrian situation as an armed conflict.
Thus, the crimes committed during the violence in Syria can be identified only as crimes against humanity and should be distinguished from the war crimes committed in actual armed conflicts. If nothing else, there is a difference in who will be held responsible for these crimes.
: See: U.N. Doc. A/HRC/19/69, para. 13.
