Khojaly is a town in the Nagorno-Karabakh region of the Republic of Azerbaijan with a total area of 0.94 sq.km, which was home to a population of 7,000 before the conflict. Harbouring the only airport in the area, Khojaly was a strategically important center of communication. On the night of February 25-26, Khojaly suffered massive artillery bombardment from the positions occupied by the Armenian forces. Soon after the intensive shelling, the Armenian Armed Forces, including the irregular armed bands and terrorist groups, and with the direct participation of 366th Motorized Infantry Regiment of the former USSR, seized the town. Under heavy conditions of frosty weather, several thousands of civilian residents fled the town in the dark and found refuge in nearby forests and mountain terrains, only to be eventually trapped and ambushed by Armenian forces and militia. As a result, 613 civilians perished, including 106 women and 63 children. 1,275 Khojaly residents were taken hostage, while 150 people to this day remain unaccounted for. In the course of the massacre, 487 inhabitants of Khojaly were severely dismembered, including 76 children. 6 families were completely wiped out, 26 children lost both parents and 130 children lost one of their parents. 56 of those who were killed were murdered with particular cruelty: most were slaughtered, some were burned alive, beheaded, some were mutilated, and others were scalped. The responsibility of the Republic of Armenia, its political and military leadership as well as subordinate local armed groups for the crimes committed in Khojaly is confirmed by numerous facts, including investigative records, testimonies of the eyewitnesses, evidences from international media sources, and reports of intergovernmental and non-governmental organizations. In its judgement of April 22, 2010, the European Court of Human Rights arrived at an important conclusion with respect to the crime committed in Khojaly, qualifying the behaviour of those carrying out the incursion as “acts of particular gravity which may amount to war crimes or crimes against humanity”. The European Court made in this regard the following observation, which leaves no doubt as to the question of qualification of the crime and ensuing responsibility for it: “It appears that the reports available from independent sources indicate that at the time of the capture of Khojaly on the night of 25-26 February 1992 hundreds of civilians of Azerbaijani ethnic origin were reportedly killed, wounded or taken hostage, during their attempt to flee the captured town, by Armenian fighters attacking the town”.
In her letter dated March 24, 1997 addressed to the Minister of Foreign Affairs of Armenia, the Executive Director of the Human Rights Watch/ Helsinki responded as follows to attempts by the Armenian propaganda to obfuscate this human rights organization with its fabrications:
“Our research and that of the Memorial Human Rights Centre found that the retreating militia fled Khojaly along with some of the large groups of fleeing civilians. Our report noted that by remaining armed and in uniform, the Azerbaijani militia may be considered as combatants and thus endangered fleeing civilians, even if their intent had been to protect them. Yet we place direct responsibility for the civilian deaths with Karabakh Armenian forces. Indeed, neither our report nor that of Memorial includes any evidence to support the argument that Azerbaijani forces obstructed the flight of, or fired on Azeri civilians”.
According to the Armenian author Markar Melkonian, who dedicated his book to his brother, the wellknown international terrorist Monte Melkonian, who personally took part in the assault on Khojaly, the town “had been a strategic goal, but it had also been an act of revenge”. Melkonian particularly mentions the role of the fighters of the two Armenian military detachments “Arabo” and “Aramo” and describes in detail how they butchered the peaceful inhabitants of Khojaly. Thus, as he puts it, some inhabitants of the town had almost made it to safety, after fleeing for nearly six miles, when “[Armenian] soldiers had chased them down”. The soldiers, in his words, “unsheathed the knives they had carried on their hips for so long, and began stabbing”. It should be particularly noted that the Khojaly events took place in a period when the incumbent president Serzh Sargsyan of the Republic of Armenia served as the head of the illegal military structures in the occupied Azerbaijani territories and, accordingly, his recollections constitute one of the most important sources of evidence.
The following words by S.Sargsyan leave no doubt as to the question of the perpetrator of the crime in Khojaly: “Before Khojaly, 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]. And that’s what happened.” There are sufficient grounds to conclude that the Government of the Republic of Armenia and subordinate forces, for which it is liable under international law, are responsible for serious violations of international humanitarian and human rights law amounting to crimes under international law. The violations of the rules of war by the Armenian side include, inter alia, indiscriminate attacks, including the killing of civilians, the taking and holding of hostages, and the mistreatment and summary execution of prisoners of war and hostages. The following elements of the crime of genocide, as defined under international law, are present with regard to the attacks on civilians in Khojaly: the actus reus consisting of killing and causing serious bodily or mental harm; the existence of a protected group being targeted by the authors of the criminal conduct; and the specific genocidal intent to annihilate, in whole or in part, a group distinguished on racial, ethnic, national or religious grounds. According to the findings of the investigation, the following requirements are met for the purpose of sustaining the genocidal charges with regard to the crime committed in Khojaly: the clear and convincing proof of the intent to destroy the group in whole or in part; the fact that the destruction that took place in Khojaly was “significant” enough to affect the defined group as a whole; and the crime was committed within a specific geographic locality.
Offences committed during the conflict between Armenia and Azerbaijan entail State responsibility and individual criminal responsibility under international law. The key provisions of international responsibility are laid down in the articles on State responsibility adopted by the United Nations International Law Commission on 9 August 2001 and commended to States by the General Assembly on 12 December 2001. According to article 1, “every internationally wrongful act of a State entails the international responsibility of that State”, while article 2 provides that “there is an internationally wrongful act of a State when conduct consisting of an action or omission (a) is attributable to the State under international law; and (b) constitutes a breach of an international obligation of the State”. Article 4 (1) of the articles on State responsibility addresses the question of the attribution of conduct to a State, and declares that: The conduct of any State organ shall be considered an act of that State under international law, whether the organ exercises legislative, executive, judicial or any other functions, whatever position it holds in the organization of the State, and whatever its character as an organ of the central government or of a territorial unit of the State. This principle, which is one of long standing in international law, was underlined by the International Court of Justice in the LaGrand case, in which the Court declared that “the international responsibility of a State is engaged by the action of the competent organ and authorities acting in that State, whatever they may be” and reiterated in the case concerning the application of the Convention on the Prevention and Punishment of the Crime of Genocide, in which the Court noted that it was: One of the cornerstones of the law of State responsibility, that the conduct of any State organ is to be considered an act of the State under international law, and therefore gives rise to the responsibility of the State if it constitutes a breach of an obligation of the State. Comment 6 to article 4 of the articles on State responsibility underlines the broad nature of this principle and emphasizes that the reference to State organs in this provision: “Is not limited to the organs of central government, to officials at high level or to persons with responsibility for the external relations of the State. It extends to organs of government of whatever kind or classification, exercising whatever functions, and at whatever level in the hierarchy, including those at provincial or even local level”. Similarly, article 5 provides that the conduct of a person or entity which is not an organ of the State under article 4 but which is empowered by the law of that State to exercise elements of governmental authority shall be considered as an act of the State under international law, provided that the person or entity in question was acting in that capacity in the instance in question. Accordingly, activities by armed units of the State, including those empowered so to act, will engage the responsibility of the State. Thus Armenia is responsible internationally for actions (and omissions) of its armed forces in their activities in Azerbaijan. A key element of State responsibility, and one of particular significance for the present purposes, is the rule enshrined in article 8: The conduct of a person or group of persons shall be considered an act of a State under international law if the person or group of persons is in fact acting on the instructions of, or under the direction or control of, that State in carrying out the conduct. This provision essentially covers two situations, first, where persons act directly under the instructions of State authorities and, second, where persons are acting under State “direction or control”. The latter point is critical. It means that States cannot avoid responsibility for the acts of secessionist entities where in truth it is the State that is controlling the activities of the body in question. The difference between the two situations enumerated in article 8 is the level of control exercised. In the former case, the persons concerned are in effect part of the apparatus of the State insofar as the particular situation is concerned. In the latter case, the power of the State is rather more diffuse. Accordingly, the conclusion must be that, due to its initial and continuing aggression against Azerbaijan and persisting occupation of that State’s territory, the Republic of Armenia bears full international responsibility for the breaches of international law. The Republic of Armenia’s international responsibility, which is incurred by its internationally wrongful acts, involves legal consequences manifested in the obligation to cease such acts, to offer appropriate assurances and guarantees that they will not recur and to provide full reparation for injury in the form of restitution, compensation and satisfaction, either singly or in combination. It is essential to note that the crime committed in the town of Khojaly should be seen as a serious breach of obligations under peremptory norms (jus cogens) of general international law. The obligations under such norms arise from those substantive rules of conduct that prohibit what has come to be seen as intolerable because of the threat it presents to the survival of States and their peoples and the most basic human values. Among these prohibitions, it is generally agreed that the prohibitions of aggression, the establishment or maintenance by force of colonial domination, genocide, slavery, racial discrimination, crimes against humanity and torture are to be regarded as peremptory. There can be no doubt that Armenia takes full international responsibility for a violation of a number of such prohibitions, as manifested in particular in the criminal acts committed against the civilians and defenders of the town of Khojaly. Serious breaches of obligations under peremptory norms of general international law give rise to additional consequences affecting not only the State bearing the responsibility, but also all other States. As stated in the International Law Commission commentary to the articles on State responsibility, every State, by virtue of its membership in the international community, has a legal interest in the protection of certain basic rights and the fulfilment of certain essential obligations. A significant role in securing recognition of this principle was played by the International Court of Justice in the Barcelona Traction case, in which the Court identified the existence of a special category of obligations — obligations towards the international community as a whole. According to the Court, “By their very nature the former [the obligations of a State towards the international community as a whole] are the concern of all States. In view of the importance of the rights involved, all States can be held to have a legal interest in their protection; they are obligations erga omnes”. In later cases, the International Court has reaffirmed this idea. In as much as all States have a legal interest, particular consequences of a serious breach of an obligation under peremptory norms of general international law include, inter alia, duties of States to cooperate in order to bring to an end such breaches by lawful means and not to recognize as lawful a situation created by a serious breach, nor render aid or assistance in maintaining that situation. Alongside the Republic of Armenia’s responsibility as a State for internationally wrongful acts, under the customary and treaty norms of international criminal law, certain acts perpetrated in the context of an armed conflict, including those in the town of Khojaly, are viewed as international criminal offences and responsibility for them is borne on an individual basis by those who participated in the said acts, their accomplices and accessories. It is well known that both the present and former presidents of Armenia, Serzh Sargsyan and Robert Kocharian, together with many other high-ranking political and military officials of that State, including current minister of defence, Seyran Oghanyan, and leaders of the separatist regime set up by Armenia in the occupied territory of Azerbaijan, personally participated in seizing Azerbaijani lands and in the reprisals against Azerbaijani civilians and militaries. It is clear that, given the scale and gravity of the offences that they committed, the criminal prosecution of these persons would be an inevitable consequence of their crimes. It is obvious that impunity still enjoyed by the perpetrators of the crimes continues to impede progress in achieving the long-awaited peace and reconciliation between Armenia and Azerbaijan. Therefore, the establishment of truth in respect to gross violations of international humanitarian and human rights law committed during the conflict, the provision of adequate and effective reparations to victims and the need for institutional actions to prevent the repetition of such violations are all necessary adjuncts to true conflict resolution. Consequently, ending impunity is essential not only for the purposes of identifying the responsibility of parties to the conflict and individual perpetrators, the achievement of which is undoubtedly imperative per se, but also for ensuring sustainable peace, truth, reconciliation, the rights and interests of victims and the well-being of society at large.