“Who, after all, speaks today of the annihilation of the Armenians?”
Adolf Hitler, 22 August 1939
December 9th is the International Day of Commemoration and Dignity of the Victims of the Crime of Genocide and of the Prevention of this Crime. The focus should of course be on the victims, but as it has a special day devoted to it, the focus should also be on the Convention for the Prevention and Punishment of Genocide. Article II of that Convention defines the crime of genocide as “the intent to destroy, in whole or in part, a national, ethnical, racial, or religious group”. Defining it has not prevented any genocides since 1948.
The lesson of the day, and the real dignity that can be afforded to victims, is the realisation that the international treaty Article that matters for current victims of genocidal projects in Europe (Armenia and Ukraine) is Article 5 of NATO membership – “each member state to consider an armed attack against one member state…to be an armed attack against them all” and not the international law Article II[1] of the Genocide Convention.
When Hitler evoked the memory of the Turkish “atrocities” against the Armenians in his 1939 speech (the word genocide was not coined until 1944), he was highlighting that these mass killings in time of war could be committed with impunity and the perpetrators would escape justice. Recognising this, Raphael Lempkin helped create the Genocide Convention to remove that impunity and so prevent acts of genocide. After some hopeful developments at the turn of the 21st century, this legal project to end genocide has almost entirely failed. The only thing that prevents genocide is collective security and the defeat of dictators.
The international human rights industry will celebrate the elaborate legal processes that have grown up since 1948. There will rightly be much debate about the Hamas attack on Israel and if it was or was not part of an overall genocidal project: the annihilation of the state of Israel and the Jewish people that live from “the River to the Sea”. Short answer: it is and should be treated as such, but non-state actors are not covered by the Convention. There will be even more focus on if Israel’s response constitutes a programme of genocide against the Palestinian people of Gaza. Short answer: it doesn’t but the IDF is inevitably committing crimes against humanity and war crimes in the manner of its operations given the density of population and the way Hamas is embedded in civilian infrastructure, as Hamas always intended.
There will be much less discussion or debate about the clearest and most blatant genocidal acts committed over the last two years. The full-scale invasion of Ukraine and the many crimes that occurred as a consequence, including the forced transferring of up to 20,000 Ukrainian Children to Russia from Ukraine. The destruction, as the convention says, “in whole or in part” of the Armenian population of Nagorno-Karabakh by the Azerbaijani state. As Juliette McIntrye and Dominque Fraser recently argued about the application of the Convention to the Russian invasion:
“The Convention is silent on what states should do to prevent genocide. The ICJ has stated that the obligation “is one of conduct and not of result”, insofar as states must “employ all means reasonably available to them” to prevent genocide “as far as possible”. A state can be held responsible where it manifestly fails to take measures within its power that might contribute to preventing genocide. It is, in effect, a due diligence standard. States must do what they can.”
Given the Crime of Aggression perpetrated in the original 2014 invasion, repeated in February 2022, actions of multiple units during and since the full-scale invasion, the abduction of children, the use of rape as a weapon of war, and the propaganda in which all these crimes are wrapped, states that are party to the convention have clearly not done what they can to defend Ukraine from Russian genocide as it has unfolded over nine years. Moreover, these acts have been accompanied by actions that fully meet the 5 Ds framework of incitement to acts of genocide: – dehumanization, demonization, delegitimization, disinformation, and the denial of past atrocities perpetrated against the target.
A similar case can be made for Nagorno-Karabakh. It has been a project that has taken place in stages, with military dimensions, cultural dimensions and finally the ethnic cleansing of 120,000 Armenians from their homes in September 2023. It is a war against the Armenian people in revenge for Armenia’s original seizure of contested territory from Azerbaijan. There is much to debate on both sides on the origin of the conflict. There is little to debate about the actions of Azerbaijan in the war of 2020, the campaign of the destruction of Christian sites and the ethnic cleansing of 2023. Together they constitute genocide. The speeches of Aliyev and surrounding propaganda also meet the test of the 5 Ds. The Second Nagorno-Karabakh War saw Azerbaijani President Ilham Aliyev employing a potent mix of humiliation, shame, and pride in his speeches. According to the analysis by Kösen and Erdoğan, Aliyev used these emotions strategically to rally public support and justify military actions. He transformed the historical shame and humiliation felt by Azerbaijanis into a driving force for war and genocide.
It is a testament to the long term and persistent failure of the Convention on the Prevention and Punishment of Genocide that the President and Dictator of Azerbaijan has acted and will continue to act with impunity (the Azeris still want to occupy another eight villages and have begun destroying Christian sites in the newly occupied areas). Despite the case being opened against him, Putin, of course, continues to act with impunity.
I have been writing about the failure of the Convention for the last fifteen years. In 2008, on the 60th Anniversary of the Convention I wrote in the Guardian that the main problem with the convention is that:
“It does not work. The clearest evidence for this comes from Darfur. Since 2004, a genocide has taken place there that has been fully reported in the world’s media and not prevented. The international crisis group is currently warning that there may be a return to mass killing in the Sudan, this time in the southern Kordofan. Sudan has been just one of the frequent recurrences of mass murder since 1948. The convention has not prevented a single instance of genocide.”
I would now say the clearest evidence comes from Ukraine and Nagorno-Karabakh. It will be confirmed as Ukraine pursues the ICC case against Putin or even achieves an international criminal tribunal. The case against Putin has been filed with the ICC and the campaign for a special tribunal has considerable international support. Neither will touch his impunity or deter his brutal actions.
Armenia’s ratification of the Rome Statute and its subsequent deposit of the instrument of ratification mark its formal commitment to adhere to the principles and jurisdiction of the ICC and will make Armenia the 124th State Party and the 19th State from the Eastern European group. Armenia has also decided to accept the ICC’s jurisdiction retroactively from 10 May 2021. This allows for the investigation of events that occurred even before Armenia formally became a State Party to the Rome Statute. Such a declaration, made under Article 12(3) of the Rome Statute, is a significant step in addressing past alleged crimes and seeking justice. With Armenia’s accession to the ICC, the Court has jurisdiction over crimes such as genocide, crimes against humanity, war crimes, and the crime of aggression that may have occurred on Armenian territory or involving its nationals since the retroactive date. If the situation in Armenia meets the criteria for ICC intervention, the Court can initiate investigations and potentially prosecutions. The ICC operates on the principle of complementarity, meaning it only intervenes when national jurisdictions are unable or unwilling to prosecute serious crimes. The effectiveness of the ICC in this context will depend on the cooperation of the Armenian government and the robustness of the evidence gathered. Armenia’s intention is clearly to make a referral of Azerbaijan to the ICC. It involves complex international legal processes and diplomatic considerations, especially given that Azerbaijan is not a State Party to the Rome Statute. The ICC and the Convention on Genocide having done nothing to prevent Aliyev or Putin, the purpose must now be punishment. The chances of punishment are less than zero. The most that might be achieved is that judgment will provide some kind of justice.
The question of justice for Armenian and Ukraine has two distinct dimensions. Both the perpetrating states must be found guilty of the Crime of Aggression (for stating wars) and the Crimes of Genocide (for Acts a-e under Article II and the 5Ds) so that the international legal judgment is unambiguously clear on the perpetrating state. Judgment matters to history but also shapes that which is possible in terms of collective and individual redress, supports the enactment of the ICC files already open and provides ballast to international political support for judicial processes. It is not therefore irrelevant.
The potential prosecution of high-ranking officials before a hybrid court within Armenia’s or Ukraine’s judicial framework, will face several legal challenges. Principal among these is the protection accorded to sitting heads of state under the principles of the International Court of Justice’s judgment in the Congo v. Belgium case.
Given these challenges, the more feasible alternative would be to institute a distinct international tribunal, reminiscent of the mechanisms employed post-World War II in Nuremberg or during the Balkan conflict with the International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR). However, the pathway to establishing such a tribunal via the United Nations Security Council (UNSC) could be blocked by the veto powers possessed by permanent members’ veto wielding power notably Russia and China. That raises the interesting question of if Russia’s reproachment with Azerbaijan on energy supplies, which resulted in a de facto withdrawal of security guarantees to Armenia, is sufficient for it to use its veto if the case against Aliyev ever gets that far. While General Assembly (GA) resolutions have also be used they are non-binding. Azerbaijan could mobilise many votes against using its energy diplomacy and the two nations one state marriage to Turkey. For Russia the anticipated opposition from a significant number of states across the Global South compounds the complexity of this strategy. The viability of regional entities such as the European Union or the Council of Europe spearheading the creation of such a tribunal remains uncertain but there have been encouraging noises from both against Putin but very little concrete action against Aliyev. Thus, securing the support of a substantial number of geopolitically significant states for an ad hoc tribunal seems improbable in both cases.
Furthermore, the actual extradition or surrender of key figures for trial is impossible whilst they remain in power. The shortcomings of in absentia proceedings are starkly highlighted by the experience of the Special Tribunal for Lebanon, summed up by one critic: “From the outset the STL was, by design, not serving or enhancing justice, peace, security for Lebanon, but was beholden to regional and global geopolitics and motivated by an almost colonial thirst in its production of such voluminous proceedings.” Additionally, the substantial financial outlays, as observed with the Extraordinary Chambers in the Courts of Cambodia (ECCC), can be met with donor reservations as time passes after the crimes themselves.
There are therefore several problems with the role of the ICC in post-war Ukrainian politics. Firstly, the speed of judicial processes can be extremely exasperating for survivors. Secondly, the scope and breath of ICC and other international cases can be narrowed significantly as the international political environment shifts over time. The problems for Armenia are compounded by the fact that the war is in effect over. Azerbaijan may still seize the remaining eight villages it is has targeted but that will not reignite any interest in the West. Moreover, the record of these Tribunals, even when they exist, is at best mixed.
The International Military Tribunal (IMT) at Nuremberg, operational from 1945-1946, was established to prosecute major war criminals of the European Axis. While its primary focus was on the crime of initiating a war of aggression rather than Genocide, it laid a crucial foundation for future international trials. Following the IMT, the United Nations Security Council set up the International Criminal Tribunal for the former Yugoslavia (ICTY) in 1993, and the International Criminal Tribunal for Rwanda (ICTR) in 1994. The ICTY, active until 2017, indicted 161 individuals for serious crimes during the Yugoslav Wars, including notable figures like Slobodan Milošević, Ratko Mladić, and Radovan Karadžić. The Mechanism for International Criminal Tribunals (MICT) later took over some of ICTY’s responsibilities.
The ICTR, focusing on the Rwandan genocide, indicted 93 individuals, and made significant legal contributions, particularly in defining and prosecuting rape as a weapon of war and genocide component. It ceased operations in 2015, with the MICT continuing its functions. Another significant tribunal, the Special Court for Sierra Leone (SCSL), a hybrid of international and domestic law, operated from 2002-2013. Established by the Sierra Leone Government and the UN, it dealt with violations during Sierra Leone’s civil war, convicting Charles Taylor, the former Liberian President.
The Extraordinary Chambers in the Courts of Cambodia (ECCC), another hybrid court founded in 2006, was tasked with prosecuting senior leaders of the Khmer Rouge regime. Its unique blend of Cambodian and international law led to significant convictions, including senior Khmer Rouge leaders Nuon Chea and Khieu Samphan. In contrast to these ad hoc tribunals, the International Criminal Court (ICC) was established in 2002 as a permanent body under the Rome Statute to prosecute individuals for genocide, crimes against humanity, war crimes, and the crime of aggression. The ICC, capable of ordering reparations to victims, has several convictions including Thomas Lubanga Dyilo, Germain Katanga, Bosco Ntaganda, and Ahmad Al Faqi Al Mahdi. However, it has also faced criticisms and challenges, such as accusations of bias towards African countries and jurisdictional and cooperation limitations.
Despite these issues, the ICC continues to investigate various allegations in countries like Ukraine, the DRC, Uganda, Darfur (Sudan), and others, and plays a significant role in reparative justice through its Trust Fund for Victims. Its principle of “complementarity” has influenced national prosecutions as well. Most recently, in March 2022, the ICC initiated an investigation into war crimes in Ukraine, despite Ukraine not being a member, following a referral by 39 ICC member states. Since then, there have been five indictments, including against figures such as Gamlet Guchmazov, Mikhail Mindzaev, David Sanakoev, Maria Lvova-Belova, and Vladimir Putin. Armenia now having signed the Statute could refer Aliyev and he could one day also be indicted. In both cases that is where it will end.
The recurrence of Genocide since 1948, with ever greater regularity, shows that the reality is that the Convention on the Prevention on Genocide does not prevent Genocide. The record of prosecution by courts and tribunals shows that it will not punish any sitting Head of State, though it might facilitate them being judged, and it will only ever bring to justice a fraction of the perpetrators who escape state level judicial processes. The only thing that can prevent Genocide is collective security. The only guarantee of collective security in Europe is full NATO membership. The only thing that can punish Heads of State that perpetrate wars of aggression accompanied by acts of Genocide, is defeat.
[1] The full text of Article II is unambiguous:
Article II: In the present Convention, genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial, or religious group, as such:
- Killing members of the group;
- “Causing serious bodily or mental harm to members of the group;” (“United Nations Office on Genocide Prevention and the Responsibility to …”)
- Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;
- Imposing measures intended to prevent births within the group;
- Forcibly transferring children of the group to another group.
The Charlwood Review Books 