The Khojaly massacre started on the night of February 25, 1992. With the support of the 366th Motorized Regiment, mostly Armenians, in Khankendi, the Armenian armed forces attacked the civilian Azerbaijani population in Khojaly. In the face of the city’s weak defence of the civilian volunteer units, devoid of heavy weapons, the Armenian units started the massacre without encountering any difficulties. 613 people were killed, including 63 children, 106 women, and 70 elderly people. Eight families were completely destroyed. As a result of the attacks, 487 people were disabled and 1275 people were detained. Some of the detainees were released, but no news was received from an important part of them. When the corpses of the people killed in the attack were examined, it was understood that most of the corpses were burned, their eyes were gouged out, and various organs were cut off.
The following countries recognized Khojaly as genocide: Estonia, Turkey, Paraguay, Djibouti, Guatemala, Honduras, Pakistan, and Peru. As a massacre was recognized by: the Czech Republic, Bosnia and Herzegovina, Colombia, Mexico, Panama, Slovenia, Sudan and such international organizations – as Human Rights Watch, the Organization of Islamic Organization, Turkic Council.
The definition of the crime of genocide, which became an independent crime with the Convention on the Prevention and Punishment of Genocide, adopted by the UN General Assembly on 09.12.1948, was made in Article 2. However, the preamble and article 1 of the Convention on the Prevention and Punishment of Genocide form the basis of this definition. In the preamble of the Convention, it is stated that genocide is contrary to the spirit and purposes of the UN, is condemned by the civilized world, has caused great losses to humanity in every period of history, constitutes a crime in terms of international law, and international cooperation is necessary to save humanity from this heinous crime. In this context, the task of prevention and punishment is regulated by Article 1. According to Article 1 of the Convention, the states party to the Convention have confirmed that genocide, which they have undertaken to prevent in both war and peacetime, is a crime under international law.
When the preamble and article 1 of the Convention are evaluated, it is seen that genocide is considered a crime according to international law. Not only states but also real persons can be held responsible for the crime of genocide. Apart from this, the responsibility of states is not only limited to the punishment of genocide but also covers the prevention of genocide. In other words, states are under the obligation to prevent and punish crime. In addition, committing the crime of genocide includes not only the time of war but also the period of peace. Article 2, which defines the crime of genocide, is titled “Acts Constituting Genocide”. According to article 2, each of the following acts, which are committed with the aim of destroying a national, ethnic, racial or religious group, in whole or in part, and specified in five subparagraphs, constitute the crime of genocide:
- The murder of group members,
- Causing serious bodily and mental harm to members of the group,
- Intentionally changing living conditions in order to partially or completely destroy the physical existence of the group,
- Imposing measures to prevent births within the group,
- Do not forcibly transfer children belonging to one group to another group.
The first issue to be addressed in Article 2 is the groups referred to in the article. The essence of the crime of genocide is based on the intent to destroy a group. The nature of the group, which is the basis of the social relations that created the group, constitutes the essence of this crime, and the genocide directly targets this relationship. The identity of the victims, regulated in the Convention on the Prevention and Punishment of Genocide, constitutes one of the main features of the crime of genocide.
Material Element:
The acts committed in Khojaly comply with the first three of the acts listed in five paragraphs in Article 2 of the Convention on the Prevention and Punishment of Genocide. The first of these is the act of “killing group members” in clause an of article 2. In light of the data and evidence mentioned above regarding the Khojaly massacre, it is known that 613 people were killed. It is understood that the act of killing, which is the clearest and most obvious form of the crime of genocide, was carried out knowingly and willingly because killing this number of people by negligence is not suitable for the ordinary course of life. The act of “causing serious bodily and mental harm to the members of the group” regulated in subparagraph b of Article 2 of the Convention was also committed in Khojaly. In the attacks, 487 people were disabled and 1275 people were detained. In addition, the inhabitants of Khojaly were subjected to torture, physical and mental abuse, rape and many inhumane treatments. Serious bodily damage occurred in those who were disabled and those who were subjected to physical intervention. In the ordinary course of life, a serious mental breakdown should be considered normal for those who have been released from detained persons and those who have been subjected to psychological abuse and rape. Many of the acts committed caused both bodily and spiritual harm. On the other hand, the fate of some of the detainees
The fact that it is still uncertain after more than 20 years has a nature that will seriously affect the psychological state of the residents of Azerbaijan and in general.
The last point that complies with the actions specified in the Convention on the Prevention and Punishment of Genocide regarding the acts that took place in Khojaly, is “deliberately changing the living conditions of the group in order to partially or completely destroy the physical existence of the group” specified in paragraph c of Article 2. Starting about five months before the Khojaly massacre took place, the inhabitants of Khojaly were exposed to different practices of the Armenian troops. In Khojaly, which has been under an armed blockade since October 1991, transportation was restricted until 25-26 February 1992, when the massacre took place; food, fuel, etc. the supply of basic necessities was prevented; In addition, heavy bombardments were carried out every day during this period. With these actions, the living conditions for the inhabitants of Khojaly were aggravated, and systematic action was taken to destroy them indirectly, as well as directly. There has been a radical change in living conditions and even making it impossible.
The key role in the realization of the crime of genocide, which is regulated in the Convention on the Prevention and Punishment of Genocide, constitutes the moral element of the crime. As discussed above, in order for the crime of genocide to be accepted, the acts specified in the Convention must be committed with the intention of destroying, in whole or in part, a national, ethnic, religious or racial group. Actions against members of this group should result from the victim’s belonging to one of the relevant groups, not from the personality of the group members. In addition, the intent to destroy must be aimed at eliminating the existence/identity of the group. Therefore, it will not be possible to accept that the crime of genocide has been committed if this special intent with the listed characteristics does not exist or cannot be proven.
When looking at the victims of the acts committed in Khojaly, first of all, it should be examined whether the victims are members of one of the groups specified in the Convention on the Prevention and Punishment of Genocide. It is seen that those who are exposed to these acts are Azerbaijanis. Therefore, the attacks of the Armenians were carried out against an ethnic and national group. The second issue to be considered is whether the victims meet the criterion of being partially or completely destroyed. In this context, the first issue to be considered is whether the victims of the aforementioned acts live within the borders of Khojaly. The measure of partial or complete destruction will be determined by taking into account the people living within the official borders of Khojaly. From this point of view, it is understood that all of the victims were residents of Khojaly and the actions took place within the borders of Khojaly. Another issue is whether the inhabitants of Khojaly were partially or completely destroyed. Not all people living in Khojaly were destroyed. However, considering that Khojaly was besieged for a long time, living conditions were worsened, and survival was gradually made impossible, it is understood that the actions aimed at “total destruction” sought in the Convention on the Prevention and Punishment of Genocide took place. On the other hand, considering the “partial destruction” criterion specified in the contract, those killed in Khojaly; of the disabled; those who were detained and abducted; The number of those who are subjected to torture, psychological and physical abuse and similar acts specified in the contract will be decisive. The number of victims of these acts committed in Khojaly corresponds to the overwhelming majority of the population of Khojaly, which leads to the opinion that the condition of partial or complete extermination has been fulfilled. Because the population of Khojaly at that time was 11,356, but after the start of the Armenian attacks, the Azerbaijanis living in the region gradually left Khojaly. The population of Azerbaijanis living in Khojaly on the night of the incident was about 3,000. The actions carried out in Khojaly for a period of about five months suggest that there is a purpose to erasing Khojaly from the map.
Conclusion:
Considering the reasons stated above, Azerbaijan should bring the Khojaly genocide to international courts. According to the regulations of the United Nations Organization and according to the 9th article of the genocide agreement, Azerbaijan should bring the issue to the agenda and Armenia should be brought to court. There is another legal solution to the issue. It is also possible to establish a specially authorized International Murder Tribunal (ad hoc) under the tutelage of the competent organs of Azerbaijan, for the crimes against peace and humanity perpetrated by Armenia or their aggressor forces and soldiers against Azerbaijanis, such as the Khojaly genocide. For this, it is necessary for Azerbaijan’s authorized bodies to convey the issue to the Security Council of the BMT.
Literature:
- Necibe Mustafayeva, The International Legal Bases of Khojaly Genocide, Fırat Üniversitesi Orta Doğu Araştırmaları Dergisi Cilt: IX, Sayı:2, Elazığ, 2013.
- Suleyman Atakishiyev, Xocalı faciəsi beynəlxalq hüquqa əsasən soyqırımı cinayətidir, 26.02.2020.
- Vusal Gurbanov, Individual Criminal Responsibilty for Crime Genocide, Fırat Üniversitesi Orta Doğu Araştırmaları Dergisi Cilt: IX, Sayı:2, Elazığ, 2013.
- Bahadir Bumin, Khojaly Massacre in Terms of the Convention on the Prevention and Punishment of the Crime of Genocide, Özarslan / Hacettepe HFD, 4(1) 2014, 187–214.
- Khojaly genocide as an international crime, https://supremecourt.gov.az/en/static/view/175.
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