Report exposing former ICC prosecutor’s biased article circulated as UN document

Report exposing former ICC prosecutor’s biased article circulated as UN document
# 12 September 2023 19:36 (UTC +04:00)

A report developed by British specialist Rodney Dixon exposing the biased opinion "Genocide against Armenians in 2023" by Luis Moreno Ocampo, former prosecutor of the International Criminal Court (ICC), has been circulated as a document of the UN General Assembly and the Security Council, APA reports.

The report says:

“In an opinion dated 7 August 2023, Luis Moreno Ocampo, a former Prosecutor at the International Criminal Court (ICC*), has claimed that a genocide is unfolding in the region of Nagorno-Karabakh within the Republic of Azerbaiian. In what follows, I refer to this document as the "Moreno Ocampo Opinion' or simply the"Opinion".

I have therefore been requested by the Government of Azerbaijan to provide a legal assessment of the Moreno Ocampo Opinion as an independent expert.

The accusation in the Moreno Ocampo Opinion is an extremely grave one with potentially far-reaching consequences. Accordingly, I considered it necessary to make public certain observations on the Opinion on 14 August 2023, while this report was still in preparation. Those were preliminary in nature and I have approached the finalization of the present report with an open mind and due regard to all the material available to me.

Having now completed the present report, I reaffirm my conclusion that the Moreno Ocampo Opinion is a fundamentally flawed, exercise in legal reasoning prepared at the behest of an unlawful and unrecognized regime installed by Armenia in the territories of Azerbaijan when they were occupied in the early 1990s.

There is no basis in the Moreno Ocampo Opinion for the claim that a genocide is currently being perpetrated in Nagorno-Karabakh. This is a plainly groundless allegation, which distracts from the real priorities on the ground. The Opinion should not be permitted to drive an unjustified wedge between the peace-seeking governments of Armenia and Azerbaijan or mislead the wider international community

On 16 August 2023, the Foreign Minister of the Republic of Armenia invoked the Moreno Ocampo Opinion in a meeting of the Security Council of the United Nations to allege that there is already a genocide that is happening in Nagorno-Karabakh and urge the Security Council to act as genocide prevention body. The Permanent Representative of Azerbaijan refuted this reliance on the Opinion, including by reference to my preliminary observations.

It is unfortunate that Armenia has adopted and utilized the Moreno Ocampo Opinion in this way. As set out in greater detail below, the obligation to prevent genocide arises only when States have a proper basis on which to consider that there is a serious risk that genocide will be, or is being, committed. " For the reasons given in this report. the Opinion sets out no such basis. Conversely as explained below. false accusations of genocide may constitute internationally wrongful acts. It is appropriate that the Security Council has chosen not to respond to Armenia's provocative and unsubstantiated allegation.

It is to be hoped that the Moreno Ocampo Opinion will not be used any further to divert attention from constructive initiatives in the region by the parties and the wider international community to cackle post-conflict challenges in order to promote and protect human rights and uphold international law.

I set out below my assessment of the Moreno Ocampo Opinion and its multiple shortcomings.

The Moreno Ocampo Opinion presents a patently incomplete account of the relevant factual and legal context.

Thus, other than a coy reference to its author's experience in the field the Opinion does not refer to Mr Moreno Ocampo's position as a former Prosecutor at the ICC, despite the reality that this is why the Opinion has attracted attention: when the Foreign Minister of Armenia cited the Opinion before the Security Council, for example, he was careful to identify Mr Moreno Ocampo by his position. The Opinion's evasiveness in this respect means that it does not grapple with the inappropriateness of an individual like Mr Moreno Ocampo very publicly asserting that an international crime is being committed by a named individual-the President of Azerbaijan. Even apart from the baselessness of this assertion, which is set out in the present report, such an assertion is itself a flagrant solation of the presumption of innocence safeguarded by, among other international legal instruments, the Rome Statute of the ICC (to which neither Armenia nor Azerbaijan is presently party, despite the Opinion's repeated references to it) and the European Convention on Human Rights, to which both Armenia and Azerbaijan adhere.

The Opinion does not disclose what is evident from posts made by Mr Moreno Ocampo on the X platform (formerly known as Twitter) it was produced at the request of an individual to whom Mr Moreno Ocampo refers as the President of Artsakh. That person heads what is described in the Opinion as a Republic with its own government which rules territory predominantly inhabited by ethnic Armenians. That entity's unilateral declaration of independence from Azerbaijan: the assertion of what the Opinion describes as de facto autonomy within Azerbaijan's former Nagomo-Karabakh Autonomous Oblast (which had been established under Soviet rule and was abolished after Azerbaijan attained its independence from the Soviet Union); and the conquest of all or large parts of the neighbouring Lachin, Kalbajar, Jabrayil. Gubadly. Zangilan. Aghdam, and Fuzuli districts of Azerbaijan were all made possible by the use of force on Azerbaijan's territory for which Armenia is responsible in international law.

As a consequence of those events of the early nineties, hundreds of thousands of Azerbaijanis were displaced, thereby ensuring the demographic dominance by ethnic Armenians to which the Moreno Ocampo Opinion refers: That displacement goes unmentioned in the Opinion.

Also unmentioned is the consistency of the universal non-recognition of the entity by the international community with past condemnations of purported declarations of independence connected with the unlawful use of force and the duty not to recognize situations resulting from violations of international legal obligations erga omnes such as the prohibition of aggression. By contrast, the references to the entity and its head in the Moreno Ocampo Opinion and on the X platform are hardly consistent with that duty.

Relatedly, it is odd that the Moreno Ocampo Opinion dignifies a regime whose 'so-called "presidential and parliamentary elections are denounced as illegitimate" by the international community with the label ‘Republic’.

The Moreno Ocampo Opinion does recognize that Nagorno-Karabakh is Azerbaijan, expressly and also implicitly insofar as it proceeds on the basis that the ICC would not have jurisdiction over the territory in the absence of Azerbaijan's consent or a referral to the ICC by the Security Council. However, it does so in an unfortunately inconsistent manner. It is not correct for example, to refer to disputed territorial claims as it is indisputable that Nagorno-Karabakh is Azerbaijan.”

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