On importance of establishing the International Tribunal on Khojaly tragedy

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The 26th of February is a bloody day in the history of Azerbaijani people. On the night from 25th to 26th the Armenian armed forces supported by the 366th Motor Rifle Regiment of the former Soviet Union attacked the city of Khojaly in Nagorno-Karabakh, Azerbaijan. During the was aforethought and deliberated attack, the city population became subject to an unprecedented ethnic violence within a few hours: 613 people, including 106 women, 63 children, 70 seniors were killed, 8 families were completely annihilated, 25 children lost both parents, 130 children lost one parent, 1,000 civilians of different ages with became disabled, 1,275 people were taken prisoner, the fate of 150 prisoners is still unknown. Khojaly was completely destroyed and wiped off the face of the earth.
Out of Khojali victims, 56 people were murdered mercilessly and brutally: they were burned alive, their heads cut off, the abdomens of pregnant women notched out with bayonets, corpses humiliated.
It is worth noting that the Armenian-Azerbaijani conflict over Nagorno-Karabakh, as well as the Khojali massacre, has historical and geopolitical roots. This conflict was founded as a ticking bomb long before 1988, more precisely, in the beginning of 19th century. In late 18th – early 19th century Tsarist Russia annexed South Caucasus. The occupation of Azerbaijani territories was formalized by the 1813 Gulustan and 1828 Turkmenchay treaties between Russia and Persia. Thereby, Azerbaijani lands and people were divided. From that period up to the beginning of XX century over a million Armenians were moved to South Caucasus and settled in the strategically important territories of Nakhchivan, Erivan and Karabakh khanates, surroundings of Lake Goycha. In his 1911 book “New threats to Russia in South Caucasus: selling Mugan to alien”, the Russian researcher Nikolay Shavrov stated that out of 1.3 million Armenian living in South Caucasus, 1 million people were not aboriginals as they had been resettled by the Russian authorities to mountainous part of  Yelizavetpol governorate and the shores of Lake Goycha.
The massive relocation of the Armenians to South Caucasus, including mountainous Karabakh drastically changed demographic situation in the region and set basis for future territorial claims and separatism by Armenians, as well as ethnic conflicts.
As a result of the policy of Tsarist Russia and the USSR, the Azerbaijanis have been driven out of their historical lands over the past 200 years. Only in the 20th century, the Azerbaijanis were subjected to persecution and deportation and driven out of their ancestral lands at least five times. In 1905-1907, the Armenians carried out large-scale bloody operations against Azerbaijanis both in Azerbaijan and Azerbaijani-inhabited settlements in present-day Armenia, razed to the ground hundreds of settlements, brutally massacred thousands of people. Then, 200 Azerbaijani villages were destroyed only in the territory of the former Erivan khanate from December 1917 until June 1918. Under the struggle against counter-revolutionary elements, the armed forces led by Stepan Shaumyan launched massacre of the Azerbaijanis in Baku governorate in March 1918; the region was devastated within a short time. The genocide operations were especially cruel in Baku, Shamakhi, Guba, Karabakh, Zangezur, Nakhchivan, Lankaran and other regions. The Azerbaijani civilians were massively murdered for ethnic reasons, settlements burned, cultural monuments, schools, hospitals, mosques and other buildings destroyed. Over 100,000 ethnic Azerbaijanis were massacred by the Armenian forces in South Caucasus at that time.
Having declared its independence on May 28, 1918, Azerbaijan faced territorial claims by Armenians. Given the historical and political situation, the Azerbaijani side made a decision to cede Yerevan to Armenian in 1918 to stop the territorial claims and assaults of Armenians against Azerbaijanis. Thus, the Armenian state with Yerevan as capital was established in historical Azerbaijanis lands; bloody crimes against Azerbaijanis became the main attribute of the state policy of Armenia. The Armenian side did not give up its territorial claims though and continued violent deportation of Azerbaijanis from their historical lands. Finally, as a result of the military aggression Armenia invaded Zangezur and obtained the border with Iran. The newly established Armenian state covered 9,000 sq.km; 575,000 Azerbaijanis living in Armenia made up one-third of the population. During the Soviet time, the area of Armenia was increase to 29,700 sq.km. at the expense of Azerbaijan, the territory of which was reduced from 114,000 sq.km to 86,600 sq.km. Ethnic cleansing against the Azerbaijani population was carried out privately and publicly under various pretexts in Armenia.
Over the past two centuries the Armenian criminals have been consistently committed inhuman crimes, such as terrorism, mass murder, deportation and ethnic cleansing against Azerbaijani people in historical Azerbaijani lands. In order to assess the scale of the Armenian crimes, it should be noted that they covered Azerbaijani-inhabited settlements; over 2 million Azerbaijanis have been either killed or displaced during the last one hundred years.
The next bloody phase of the Armenian state and people began in the second half of the 1980s. More than 250,000 Azerbaijanis were deported from their historical lands of present-day Armenia within a few months in 1988-1989. As a result of Armenia`s consistent policy of ethnic cleansing, no single Azerbaijani has been left in the territory of Armenia. This mass expulsion was accompanied by massacres and tortures of Azerbaijanis. As a result of the ethnic cleansing, 216 Azerbaijanis, mainly consisting of women, children and the old, were killed: 49 people got frozen in the mountains, 41 beaten to death, 35 tortured to death, 11 burnt alive, 16 shot, 10 killed not resisting tortures, 2 murdered by doctors at hospital, 2 beheaded, others killed by inhumane methods such as drowning, hanging and electricity.
To continue its policy of annexing more territories through violence, Armenia launched hostilities against Azerbaijan. As a result of invasion of the armed forces of Armenia, illegal armed groups of Armenian separatists in Nagorno-Karabakh and international terrorist groups, which had committed crimes in many countries, the Nagorno-Karabakh region and 7 adjacent rayons of Azerbaijan were occupied.
One of the most horrible tragedies of Armenian invasion was committed in Khojali, which can be compared to the tragedies of Babiy Yar, Khatyn, Lidice and Song-mi. It became the bloodiest page of the Armenian policy of ethnic cleansing and genocide against Azerbaijanis for nearly two hundred years. By committing this unprecedented massacre, the perpetrators intended to occupy Azerbaijani lands, breach the will of the Azerbaijanis. Although the tragedy affected and morally wounded our people, it failed to break our will.
To imagine the scale and level of severity of the crimes committed in Khojaly, below are the important writings by several foreign journalists, who witnessed the tragedy on March 2, 1992.
French reporter Jean-Yves Junet, who had eyewitnessed and recorded the bloody events wrote later: “We witnessed the Khojaly tragedy. We saw hundreds of dead bodies that belonged to women, elderly, children and defenders of Khojali. A helicopter was given to our disposal. From the sky we recorded everything we saw – Khojali and its surroundings. The Armenian armed forces fired at our helicopter, forcing us to stop recording and fly back. I have heard a lot about the war, Nazi brutality. But the way the Armenians murdered civilians, especially children, is unparalleled. We saw a lot of wounded people in hospitals, wagons, even kindergartens and schools.”
V.Bellakh described the events on Izvestia: “The corpses were brought to Agdam from time to time. The history has seen no such thing. The eyes, ears or heads of corpses were cut off. The tortures had no bounds.”
According to Izvestia edition dated March 4, 1992, “the video camera showed the children with cut ears. Half of one woman`s face of one was also cut. Some men were scalped.”
Major Leonid Kravets described what he saw on Izvestia edition dated March 13, 1992: “I personally saw about hundred corpses on the hill. One boy was decapitated. There were women, children and elderly killed with special cruelty.”
Paris-based Le Monde wrote on March 14, 1992: “The foreign reporters in Agdam saw 3 people with removed scalps and nails among the murdered women and children. It is truth, not Azerbaijani propoganda.”
The Khojali tragedy was part of Armenia`s military aggression against Azerbaijan; it was a crime of international scale. Therefore, the Armenian state holds a legal responsibility both before Azerbaijan and world community. By murdering, taking prisoners, torturing, humiliating, injuring and brutally treating civilians, the Armenian military forces committed war crimes and violated international norms reflected in following documents: the 1907 Hague Convention respecting the Laws and Customs of War on Land (Convention IV), the 1949 Fourth Geneva Convention relative to the Protection of Civilian Persons in Time of War, the 1949 Geneva Convention relative to the Treatment of Prisoners of War, the Protocol I (1977) relating to the Protection of Victims of International Armed Conflicts. Murdering people with cruelty, burning them alive, cutting off their heads, removing their skins and eyes, gutstabbing pregnant women with bayonets are crimes against mankind, and the Armenian state is responsible for these crimes.
The Khojaly genocide was a planned and purposeful campaign aimed at full or partial destruction of Azerbaijani-inhabited Khojali. Armenia started implementing the plans on occupying Khojali already in 1989. It had a strategically important geographical location. Occupying Khojali airport would also allow the Armenian side to take control of air space over Nagorno-Karabakh. As Khojaly was besieged in October 1991, its land and air links with the mainland was cut off. The very last helicopter flew to Khojali in January 1992. The population was unarmed, while the self-defense groups possessed several guns and hunting rifles.
Crimes against the unarmed residents of Khojaly were perpetrated by the fully armed Armenian regular army, illegal armed gangs of separatist Armenians in Nagorno-Karabakh, Armenian terrorist groups from different countries, as well as the Khankendi-based 366th motor rifle regiment of the former Soviet Union. The 366th motor rifle regiment`s 2nd battalion led by Major Seyran Ohanyan (current Defense Minister of Armenia), 3rd battalion led by Yevgeni Nabokikhin, as well as the chief of staff of the 1st battalion Valery Chitchyan and over 50 Armenian officers were among the perpetrators of the inhumane crimes in Khojali.
The systematic destruction of the Khojali population was confirmed by the then commander of Armenian forces Serzh Sargsyan (Armenin president since 2008) in his interview with British journalist Thomas de Waal. According to Thomas de Waal,  Serzh Sargsyan spoke more accurately and severely about the occupation of Khojali: “Before Khojali, the Azerbaijanis thought that they were joking with us, they thought that the Armenians were people who could not raise their hand against the civilian population. We were able to break that [stereotype].”
It should be noted that the killings in Khojali was based on ethnic principles; the main target of the Armenian armed forces was complete or partial destruction of the city’s population of Azerbaijani origin. It confirms genocidal character of the crimes. There are many evidences proving planned massacre of civilians during the Khojali tragedy.
On February 25, before the main offensive, cannons and heavy armor began shelling Khojali. By 5 am the city was all in fire. Surrounded by the Armenians, nearly 2,500 residents were forced to leave the city for nearby Agdam. However, they failed to reach Agdam. The fleeing people fell into ambushes and were ruthlessly massacred by Armenians. Their corpses were also humiliated, skins peeled, noses cut off. These facts were also confirmed by the report of Russia-based Memorial Human Rights Centre. According to Memorial, the bodies of 200 Azerbaijanis killed in Khojali were brought, humiliation facts discovered in dozens of corpses. 181 corpses (130 men, 51 women, including 13 children) were sent to forensic medical examination in Agdam.  The examination determined that 151 people died of bullet wounds, 20 died of shrapnel wounds, 10 people were killed with blunt instruments. Those days Memorial” reported: “…The refugees fell into Armenian ambushes and were shot. A part of refugees still managed to make it to Agdam, the rest, which was consisting of mainly women and children (their number cannot be specified) lost their way in mountains and got frozen… some of prisoners were shot… Nearly 200 dead bodies were brought to Agdam in four days. There were  obvious signs of violence on dozens of corpses. Agdam doctors noticed four corpses with removed scalps, while another body was beheaded… They also noted scalping had been done on an alive person…”
All these facts prove the intention of the Armenians to fully or partially massacre the Khojali population based on ethnic factor. As known, having special intention is the necessary condition for genocide and aimed at full or partial destruction of national, ethnic, religious and racial groups according to the Convention on the Prevention and Punishmen of Crime of Genocide.
It should be noted that that the armed aggression against Azerbaijan was committed by Armenia`s armed forces, illheal armed gangs of Armenian separatists of Nagorno-Karabakh, several groups of Armenian terrorists from different countries. The activities of all these forces were coordinated and managed from one center, Defense Ministry of Armenia.
For example, international terrorist Monte Melkonian arrived in Armenia in 1990, having been released from prison in France. He had been trained in terrorist camp in Lebanon, taken part in various terrorist acts against Israel, including the sabotage operations in Sidon in 1981. He was one of the leaders of ASALA terrorist organization.
As Markar Melkonyan notes in his book “My brother’s way”, together with his 17-member military team Monte Melkonyan was dispatched to Nagorno-Karabakh on February 4, 1992. He directly led the bloody tions against civilian Azerbaijani population. Under his command the Armenian warriors conducted a cleansing operation in the village of Garadagli populated by 1,200 Azerbaijanis. Monte Melkonyan`s brother Markar writes that the group of patriots, including Arabo and Aramo, led by Monte pushed 38 local prisoners, including women into a ditch. The Armenian militants fired at the prisoners and finished their job with knives. They poured gasoline on several wounded soldiers and burned them. The village itself was destroyed and burnt. Led by Melkonyan, the group of Armenian patriots repeatedly attacked Khojaly in mid-February. According to Markar Melkonyan, his brother personally participated in developing plans of annihilating Khojali and occupying Shusha. It is worth noting that Monte Melkonyan and his group were sent to Nagorno-Karabakh by Armenian Ministry of Defense. The Minister of Defense V. Sargsyan appointed Monte Melkonyan chief of staff, later commander of Armenian forces on Martuni (Khodjavand) district.
Armenia`s armed aggression against Azerbaijan and occupation of Azerbaijani territories by Armenia are proved by numerous facts. One of them is the report “Seven Years of Conflict in Nagorno-Karabakh”, which is the result of visits of Human Rights Watch / Helsinki delegations to the region, including the battle zones in 1994. Based on their own observations and interviews with the soldiers of Armenian armed forces, the authors of the report clearly emphasize that the existence of Armenian armed forces on Azerbaijani territories make Armenia a conflict party in from legal point of view, therefore, the conflict is classified as an international armed conflict between Armenia and Azerbaijan.
In addition, it should be noted that the Supreme Soviet of Armenia adopted Armenia SSR adopted a resolution on the unification of the Armenian SSR and Nagorno-Karabakh on December 1, 1989, and a resolution on sovereignty of Armenia on August 23, 1990. The documents, which have not been cancelled yet, proclaimed Nagorno-Karabakh an integral part of Armenia.
Moreover, the PACE Rapporteur on Nagorno-Karabakh conflict D. Atkinson stresses in his report that “the Armenians from Armenia took part in battles for Nagorno-Karabakh along with local Armenians. At present, the Armenian soldiers are stationed in Nagorno-Karabakh and surrounding rayons. The people in the region possess Armenian passport. The Armenian government sends a significant amount of budget funds to the region.”
The International Crisis Group had similar results in its 2005 report, which indicates that the well-trained and equipped Nagorno-Karabakh defense army  is land troops supplied by Armenia.” According to the International Crisis Group, the Armenian military presence in the occupied territories of Azerbaijan is secured by 10,000 citizens of Armenia. On the contrary of Armenian claims, the soldiers from Armenia are forced to serve in the occupied territories. According to the International Crisis Group, “there is a high level of integration of the armed forces of Armenia and Nagorno-Karabakh”. The Armenian government admits that it dispatches a significant number of weapons and supplies. The Nagorno-Karabakh government acknowledges that the officers from Armenia help to prepare the Nagorno-Karabakh military forces.”
By paying attention to Armenia`s attempt to cover its participation in Nagorno Karabakh conflict, Svante Cornell noted in his researches that 80% of Nagorno Karabakh’s budget is provided by Armenia, and the Nagorno-Karabakh Armenians, which are citizens of Azerbaijan are appointed to high positions in Armenia. In fact, the Nagorno-Karabakh Armenians, who have committed serious crimes against the Azerbaijanis, make up the majority in Armenian parliament, while the commanders of illegal armed groups were subsequently promoted to higher offices in Armenia. R.Kocharyan and S.Sargsyan became the presidents of Armenia, S.Ohanyan was appointed defense minister.
This information is also confirmed by the report of the International Crisis Group. The report indicates that NKR economy is closely linked to the economy of Armenia and highly dependent on Armenia`s finances. According to the International Crisis Group, Armenia`s funds which have been provided since 1993, composed 67.3% of NKR budget in 2001, 56.9% in 2004. However, the NKR has not repaid any loan. In addition, “all transactions are conducted through Armenia, while Nagorno-Karabakh-manufactured goods are often labeled “Made in Armenia”.
Thus, the evidence shows that 20% of Azerbaijan`s territories was occupied by Armenia, and Armenia`s policy in the occupied territories is no different from the policies of other occupying countries. In practice, some countries are known for attempts to justify their involvement in military conflicts. Those countries tend to prove that the involvement of their armed forces in military operations are not armed occupation and different from the concept of occupation in accordance with the 1907 Hague Convention respecting the Laws and Customs of War on Land and 1949 Geneva Convention relative to the Protection of Civilian Persons in Time of War.
Adam Roberts, an Oxford University professor, who focuses on these issues, notes that the occupying countries try to cover their roles in occupation by installing pseudo-independent and/or quasi-independent puppet regimes in the occupied territories. This is an attempt to legitimize their actions. By cooperating with specific elements (separatist Armenians in Nagorno-Karabakh case) in occupied territories, those countries also try to create an image of independence. However, it is clear that the puppet regimes are virtually always dependent on the will of the occupying state. In some cases, it is also attempted to present the puppet regimes as decent and democratic governments.
Thus, the occupation of Azerbaijani territories by Armenia is a clear fact. In this connection, Armenia bears an international legal responsibiliy for military aggression against Azerbaijan and occupation of Azerbaijani territories. Article 5 of UN General Assembly resolution 3314 (XXIX) with the Definition of Aggression adopted on December 14, 1974, stipulates that “a war of aggression is a crime against international peace. Aggression gives rise to international responsibility.”
Act of aggression, genocide, racial discrimination, ethnic cleansing, apartheid, other humanitarian disasters violate the UN Charter and other international instruments and are defined by world community as international crimes. For this reason, crime of aggression, crime of genocide, war war crimes and crimes against humanity are under jurisdiction of the International Criminal Court accordin to Article 5 of the Rome Statute.
It should be noted that not committing international crimes is among the obligations of special category before the world community. Violating these obligations means violating the common interests of the world community. Therefore, all of them are international obligations, and the country that breaches them can be prosecuted by the world countries.
The Armenian armed forces committed various crimes, including armed aggression, war crimes, crimes against humanity and genocide against Azerbaijanis in Khojali. Committing those crimes raised international legal responsibility of Armenia not only before Azerbaijan, but before international community as well.
Of course, the recognition of the Khojaly tragedy by the international community as a crime of genocide is of particular importance to prevent similar tragedies in the future. In this connection, the Azerbaijani government and public make efforts to achieve adoption of decisions and resolutions by international organizations and foreign parliaments on Khojali tragedy; concrete results have already been achieved. Such documents are important to restore the historical truth, present the real image of Armenian criminals to the international community, pass the truth to future generations; they also hold moral importance.
However, the documents adopted by international organizations and foreign parliaments on Khojali tragedy hold political assessment. Therefore, such documents, although important, are not sufficient to summon Armenia to international legal responsibility. Because those documents do not push the criminals; thus, the crimes do not receive their international legal evaluation.
On the other hand, classifying the Khojaly crimes as genocide can be attributed to the competence of relevant jurisdiction of the international court. There is a practice to institute international tribunals to investigate Holocaust, as well as genocidal crimes in Yugoslavia and Rwanda and to make appropriate decisions. Therefore, it should be one of priority tasks for Azerbaijani government and society to achieve instituting an international tribunal on Nagorno-Karabakh war crimes, including Khojaly tragedy, to summon various criminals involved in those crimes to court of justice. It is possible to achieve legal recognition of the Khojaly tragedy as genocide only within legal framework. The witnesses and participants of this tragedy are still alive, so the Azerbaijani side ought to hurry up to achieve instituting international tribunal and punishing the criminals.
Ramiz Sevdimaliyev, Doctor of Political Sciences
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