Khojaly. Pain and suffering

February 26 is the 30th anniversary of the largest and most brutal bloodshed committed by Armenian armed formations during the I Karabakh war - Khojaly genocide.

Grown up for centuries on the ideology of superiority over other nations, on falsification of historical documents and monuments, references to the mythical Tigran, instructions of fascist Nzhdeh, and led by former Komsomol leaders, Armenians killed peaceful women, elders and children in Khojaly with cruelty of medieval executioners only because they were Azerbaijanis

It was in Khojaly, through the deaths of innocent civilians, that they were able to come out with the cloths of the so-called self-determined nation, presenting "proof" of the power of the strong over the right of law. 

At that time, the right of the strong as an argument in the subjugation of peoples began to dominate over the entire territory of the collapsed empire.

However, the path from the ruthless slaughter of helpless children, women, and elders in the snowy forest trails at night by the drunken rabble, drunk with national hatred and armed with the modern technology owned by the once mighty army of the country with the brand of "Evil Empire", to the 44-day victorious Patriotic War was a truly landmark in the modern history of Azerbaijan.

The triumph of Azerbaijani warrior, the winner of the II Karabakh war, confronted the medieval executioner of the helpless people, was a clear demonstration of the triumph of historical justice and true patriotism, conscious heroism over the ideology of rabid nationalism and barbarity of aggressive, armed to the teeth Armenians.

But no matter how desirable the liberation of our historical lands from occupation is, the responsibility of the carriers of fascist ideology for their crimes cannot be pardonable by the Azerbaijani people.

On the contrary, it should serve as an impetus for a new international consensus on war crimes in the modern world.

It is this idea, unfortunately, for some reasons incomplete that has to be pushed through the corridors of the inflexible and conservative judicial and legal system since the beginning of 2004.

In March 2004 Interpol for the first time held an international conference on genocide, war crimes and crimes against humanity, inviting representatives of international tribunals, non-governmental organizations, authoritative institutions and participating countries.

Preparations for the conference revealed the paradox of the legal and factual situation in the attitude to the facts of war crimes in the territory of Azerbaijan since the aggression of Armenia.

Thus, the USSR, as one of the main military prosecutors at the Nuremberg Trials, actively participated in the creation of norms and principles of the new legal relations, signed the international legal conventions, at the same time, for some political reasons, it did not introduce criminal law sanctions for the commission of the international crimes in line with norms and standards of the national criminal legislation.

It was the Criminal Code only which entered into force on 1 September 2000, that incorporated the norms recognized by the international community as war crimes and crimes against humanity, and the new Code of Criminal Procedure set high standards for the observance of human rights in criminal proceedings.

However, despite the self-evident facts of the most serious international crimes committed by Armenia during its aggression against Azerbaijan in 1988-1994, the principle of criminal liability of individuals was violated.    

Accordingly, no one has ever been held criminally responsible for those crimes, and the actions were not qualified as international crimes.

In the Azerbaijani SSR and later in the independent Republic of Azerbaijan, criminal cases were initiated and investigated for all the facts of committing terrorist acts, massacres, violations of international humanitarian law which were qualified as state crimes and crimes against the person, public security and public order.

And the criminal case on Khojali genocide, initiated by the Prosecutor's Office of the Republic of Azerbaijan in February, 1992 on the fact of killing of 2 and more citizens, was for the last time suspended on March 31, 1993, on the grounds of absence of the persons liable to prosecution. In this case not a single person was criminally liable for the commitment of international crime.

This situation with regard to the most important subjects of criminal prosecution caused us (and not only us) incomprehension and indignation.

In December 2003 a Joint Investigative Task Force was created to which more than 800 criminal cases, investigated earlier by the competent investigative bodies of the Azerbaijan SSR, and later the Republic of Azerbaijan in the format of common crimes and suspended in the early 1990s, were handed over.

The task of the group was to establish the material damage caused as a result of the Armenian aggression. However, not a single case was reclassified as an international crime and no criminal has been identified and prosecuted.

So, after the first Interpol conference (March 2004), there was hope for the assistance of international institutions in systematizing the concepts of "war crimes" and guiding national institutions to prosecute individuals for international crimes they have committed.

Azerbaijan actively participated in the events of Interpol, presented materials proving that international crimes were committed in the occupied Azerbaijani territories and came up with an initiative to coordinate the role of Interpol in the investigation of such crimes, taking into account the realities of the post-Soviet era.

From the rostrum of the General Assembly of the United Nations (GA) it was stated about the principles defining the acts as crimes against international peace and international security, and confirmed in the resolution 95 (I) of UN GA dated December 11, 1946; in the Convention on the Prevention and Punishment of the Crime of Genocide; in the four Geneva Conventions for the protection of war victims of 1949 and their additional protocols of 1977; in subsequent international legal instruments, establishing a complete list of acts falling under the notion of "crimes against international peace and security

The Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights) prohibits retroactive application of criminal law (Article 7 par. 1), but makes the exception as set forth in Article 7 Paragraph. 2 that "this shall not preclude any person from being tried and punished for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognized by civilized nations.

The International Covenant on Civil and Political Rights prohibits states from derogating in any way from any obligation assumed under the Convention on the Prevention and Punishment of the Crime of Genocide (Article 6(3)). The Covenant also prohibits retroactive application of criminal law, but again there are exceptions "in accordance with the general principles of law recognized by civilized nations" (Art. 15).

The Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes against Humanity guarantees the inevitability of punishment for such crimes, no matter how long the perpetrator manages to evade justice.

The General Assembly of Interpol, agreed with the proposals of our delegation and, referring to Articles 2 and 41 of the Interpol Charter, adopted a very important resolution AC2004 RES 17 "On the Strengthening of Support of National Bureaus for the Prosecution of Persons Accused of War Crimes, Genocide and Crimes against Humanity".

Interpol later held several conferences on the same subject, and created a special expert working group, in which a representative of Azerbaijan was also involved.

These documents paved the way for the prosecution of perpetrators of international crimes.

In May 2005, the leadership of the Joint Investigative Task Force was entrusted to the Military Prosecutor's Office of Azerbaijan.

Given the specificity of the case, a great number of the facts of the crimes committed, lack of experience and qualified personnel, the investigation grouped on the main directions as follows: genocide in Khojaly, Garadaghly; crimes against prisoners; killings, deportation of civilians and terror. And as a part of a comprehensive, complete and detailed investigative and operational plan, specific instructions were given to all members of the investigative team to gather evidence in accordance with international standards.  

In compliance with the international law, the criminal case, earlier launched and qualified as committing massacre in the city of Khojaly and suspended on 31.03.1993, was renewed and re-classified as committing the crime of genocide. As a result of investigative actions on this direction of investigation, it was possible to collect the proofs, providing grounds for indictment of 37 persons, including the military men of the 366th regiment of former Soviet army who directly participated in massacre of civilians of Khojaly, including women, children and the elderly. All of them were criminally prosecuted and the materials were sent to Interpol. The documents identifying the mentioned persons, as well as numerous suspects in committing genocide were also collected. Interpol has agreed to the charges and accepted reference letters of the Republic of Azerbaijan concerning detention of the persons who have committed international crimes, having distributed them in 184 countries.

Armenia's aggression against Azerbaijan was also accompanied by numerous, systematic violations of international humanitarian law. Practically every prisoner of war, regardless of gender, age, state of health was subjected to physical and mental violence, the forms and methods of which cannot be disclosed due to ethical norms. All these tortures were recorded by photo and video equipment and later presented to the POWs as compromising evidence in their attempts to recruit them to cooperate with the Armenian special services. The presence of POWs on the Armenian side was mostly concealed. They were held both in Armenia itself and in the occupied territories, hiding them in temporary detention facilities of the police and security agencies, as well as in cattle pens and in the basements of private houses.

Full questionnaires were collected for 4407 citizens of Azerbaijan who disappeared during the conflict, including children, women, and elderly people.  Physical and mental violence caused the death of 137 persons after their release, and 32 others lost their minds. Of those released from captivity, 248 were held in Armenia, while the rest were held in occupied Azerbaijani territories.

According to eyewitness accounts, most POWs were summarily executed, while others died under torture or from starvation. The investigation revealed 851 facts of violation of international humanitarian law, 628 of which were suspected and 73 terror acts were committed. Twenty-nine persons have been indicted for committing these crimes. A total of 274 persons have been brought to criminal responsibility by the Joint Investigative Task Force.

Nevertheless, the pressure and "friendly" advice on the impossibility of obtaining proper satisfaction in this area continued, since, according to the Regulations of the General Secretariat of Interpol, the organization does not accept the search for persons who have committed political, military, religious or racial crimes.

However all our reference letters on search of war criminals, and it included 274 persons, were accepted by Interpol and with red reference letters were distributed to the National Bureau, moreover, 3 of these persons were determined and detained.

The Armenian law-enforcement bodies found themselves in an unseemly situation and took various measures to exclude the persons taken from the Interpol red directives, issued their own directives on the Azerbaijanis who had committed common crimes in Armenia and later with the help of other friendly countries asked to suspend the Azerbaijani directives referring to the fact that they were allegedly of political nature.

Armenia made the same representations to the Prosecutor's Office of the Russian Federation.

Being in possession of sufficient legal and factual information about the international crimes committed in the territory of the Republic of Azerbaijan, Interpol has not stopped the reference letters for a long time, and taking into account the Regulations, proposed a joint commission for the study of these documents.

For unknown reasons, permission to participate in the work of the commission was not given.  

Three main lines of inquiry and punishment for international crimes are now known: (i) specialized tribunals (for Rwanda, the former Yugoslavia, Sierra Leone); (ii) the International Criminal Court, which has jurisdiction only over crimes committed after the entry into force of the Rome Statute, which assigns responsibility for the prosecution of those responsible for those crimes to national criminal justice authorities; and (iii) the principle of universal jurisdiction, requiring states to prosecute those suspected of committing the most serious international crimes or take actions to issue them.

International treaties obligate states to enact the legislation necessary to provide effective criminal penalties for persons who have committed or ordered the commission of certain serious crimes and to search for them. At the same time, accused persons are guaranteed due process of law, the right to a defense, and it is noted that principles in accordance with generally accepted rules of international law apply to avoid any doubt as to the prosecution and trial of these persons.

The European Court of Human Rights acts as a guarantor of due process in the administration of justice in the states-parties to the Convention whose decisions form a common European legal space and impose obligations on the states: they are guided by the judicial and legislative bodies, which generally affect the democratic capacity of the judiciary. The Court accepts complaints both from states and from individuals and non-governmental organizations. Note that these effective legal instruments were absent at the origin of the conflicts and prior to the admission of the states concerned to the Council of Europe.

Despite the collapse of the USSR as a result of the profound political events of the late 1980s-early 1990s, the birthmarks of a totalitarian regime based on the suppression of individual rights, far from recognizing the priority and significance of human rights and freedoms, still haunt the newly independent states. With the integration of the latter into the International and European legal space, a slow but irreversible process of overcoming the vestiges of the totalitarian past in their legal system has started. In view of this progressive trend, implementation of the norms and principles of international humanitarian law, cooperation of states in investigations, impartial trials and punishment of perpetrators of atrocities against peace and international security assume greater significance.

 Azerbaijan is in a unique position in this sense - under the leadership of President Ilham Aliyev and by participating in changing old formats, using the platforms of the UN, the Non-Aligned Movement, the Organization of Islamic Cooperation and even the Shanghai Cooperation Organization, we are skillfully setting a new humanist agenda. 

It was this effective, judicious and highly maneuverable work during the 44 days of the Great Patriotic War that guaranteed the political and military victory over Armenian fascism.

I would like to believe that the same results will be in the legal, legal field, because in order to achieve these goals, this truly multifaceted work is consistently carried by the new leadership of the Prosecutor's Office.

Allah səhidlərimizə rəhmət etsin!