Mehmet Sukru Guzel: Statement presented in the 1st International Symposium on Genocides of History: Facts, Realities, Falsifications, 2-3 April 2015/ Baku – Azerbaijan organized by Miras Social Organization in Support of Studying of Cultural Heritage

Mehmet Sukru Guzel

Abstract

On 31.03.2014, Armenian state gave a report to the United Nations Human Rights Council, with the title “Common core document forming part of the reports of States parties”. This report consist of 45 pages and 127 paragraphs.

In paragraph of 11 of his report, Armenia claimed of a genocide made by the Turks against Armenians but did not mention the genocide of more than 500.000 civil Turks by the Armenian non-state armed groups during the period of 1915-1921. This is a racial and religious discrimination and an attempt to legitimize the war crimes of the non-state Armenian armed groups by not mentioning the war crimes of non-state Armenian armed groups.

In fact, the demand of recognition for the so-called Armenian genocide by Armenia is based on racial and religious discrimination. This is a demand based on blaming only one side for what happened in the past. It is a demand from the international community to accept war crime acts of so-called “superior” and “civilized” Armenian non-state armed groups against to Muslims Turks as a natural right. This is the mindset of a holy Christian War against Muslims, as was the case during the Crusades. In such a mindset, no one can blame Armenians for committing genocide against Turks.

This attempt of Armenia in his report should be named as a crime against humanity and a crime of Genocide as trying to legitimize genocide crimes of non-state Armenian Armed groups means ; “direct and public incitement to commit genocide” on racial and religious bases.

In paragraph 14 of Armenian State report. Armenia in his report used the argument that “Nagorno-Karabakh and Nakhichevan, were illegally transferred into the subordination of Azerbaijan SSR” in 1921. This, in fact should be accepted as a threat to international peace and against the spirit of United Nations’ efforts to establish peace in the world.

Armenian State report, demographics of the Nakhichevan district is given according to 1897 Russian Empire census. Armenians were only 34.4% of the total population of Nakhichevan whereas Azerbaijanis numbered 63.7 % of the total population and Armenian State demanded the territory of Nakhichevan as a European colonizer logic of the 19^th century.

This is an argument against the territorial integrity and sovereignty of Azerbaijan which is against many resolutions of United Nations such as: Declaration on Principles of International Law concerning Friendly Relations and Co-Operation among States in accordance with the Charter of the United Nations, 2625, the Definition of Aggression of 3314, Declaration on the Inadmissibility of Intervention in the Domestic Affairs of States and the Protection of Their Independence and Sovereignty 2131.

Key Words; Armenia, United Nations, Genocide, War Crime, Peace

Examining paragraph 11, 13 and 13 of the Armenia`s Report

Paragraph 11

In paragraph 11 of the report, it is written, “Taking advantage of the situation resulting in the First World War, the Young Turks government planned and carried out the genocide of Armenians inhabiting in the territory of the Ottoman Empire. Within the period of 1915-1923, nearly one and a half of more than two millions were killed and the rest were either forcibly converted to Islam or found refuge in different countries of the world. Western Armenia was deprived of its native Armenian population.”

In its report, Armenia claims that genocide was committed against the Ottoman Armenians.

Genocide is accepted as a jus cogens crime.” Jus cogens is a peremptory norm and is a fundamental principle of international law that is accepted by the international community of states as a norm from which no derogation is permitted. There is no clear agreement regarding precisely which norms are jus cogens nor how a norm reaches that status, but it is generally accepted that jus cogens includes the prohibition of genocide, maritime piracy, slaving in general (to include slavery as well as the slave trade), torture, non-refoulement and wars of aggression and territorial aggrandizement.”[2]

In addition, “genocide and crimes against humanity also give rise to obligation of the perpetrating States toward the entire international community, erga omnes doctrine.   Ergo omnes doctrine also includes non-state armed groups’ acts.”[3]

It should be remembered that the “ Genocide Convention did not “create“ the crime of genocide, but it legally defined it as a crime and was intended to strengthen the pre-existing claims of victims of genocide, including the victims of the Holocaust.”[4]

On the other hand, the London Agreement of 8 August 1945 establishing the Nuremberg Tribunal was in fact prepared as the justice to dispense justice in line with wishes the winners of the Second World War. It was prepared in a one-sided manner, and the crimes against humanity of that had been committed by the winning side were not overlooked judged. In both the First and Second World War, the UK, the US, and France were not accused of any war crimes as they were the winners of the wars and they were the ones who prepared the Nuremberg Tribunal.

One of the most dramatic crimes of war in the 20^th century was the food blockade to Germany after the cease-fire agreement. Still in the memories, “the post-armistice food blockade against Germany was applied with particular severity until the end of March 1919 and was then partially raised until 12 July 1919 when it was ended by the Treaty of Versailles. In the months of October and November 1918, famine conditions were prevalent in many cities and industrial regions. From 1914, the blockade had contributed gradually to a reduction of 50 per cent in the supply of food to the population. By the end of October 1918, the reduction in the consumption of protein foods amounted to over 80 per cent. From the end of the armed conflict war, which had claimed three million military lives in Central Europe, to the conclusion of the state of hostilities, the continued food blockade brought about a quarter of a million additional deaths among the civilian population of Germany, within its post-1919 boundaries.” [5]

Around 250.000 German civilians died after the armistice agreement because of the food blockade imposed on Germany.  The intentional starvation of women, children, and the elderly were a war crime.[6]

The war crimes and d genocides of the winners of the wars from the beginning of humanity until today have been conducted with impunity. As an example, the bombing of Dresden by the winners of the Second World War is considered by many as a violation of international law and as a crime against humanity, even though positive rules of international humanitarian law were absent at the time. The Hague Conventions of 1899 and 1907 were among the first formal statements of the laws of war and war crimes in the nascent body of international law. However, these conventions, addressing the codes of wartime conduct on land and at sea, were adopted before the rise of air power. Despite repeated diplomatic attempts, the Hague Rules of Air Warfare (1922/1923) intended to update international humanitarian law to include aerial warfare was not concluded before the outbreak of the Second World War. The absence of positive international humanitarian law does not mean that the laws of war did not cover aerial warfare, but that there was no general agreement on how to interpret those laws. The aerial bombardment of Dresden does not only raise the question as to whether or not it was a war crime committed by the Allied powers, but it also makes a moral appeal to prevent total war against civilian populations.[7]

After the Second World War, the International Court of Justice formulated the “elementary consideration of humanity”.

On 9 April 1949 in the Corfu Channel Case, the International Court of Justice referred indirectly to the customary nature of humanitarian law treaties. The point was that a specific obligation to notify the presence of a minefield is contained in the Hague Convention VIII of 1907. However, Albania — the defendant — was not a party to it. Moreover, this convention applies in time of war, which was not the case. The Court considered nevertheless that:

“The obligations incumbent upon the Albanian authorities consisted in notifying, for the benefit of shipping in general, the existence of a minefield in Albanian territorial waters and in warning the approaching British warships of the imminent danger to which the minefield exposed them. Such obligations are based, not on the Hague Convention of 1907, no. VIII, which is applicable in time of war, but on certain general and well recognized principles, namely: elementary considerations of humanity, even more exacting in peace than in war; the principle of the freedom of maritime communication; and every State’s obligation not to allow knowingly its territory to be used for acts contrary to the rights of other States.”[8]

The Court acknowledged that” the specific provisions of the Hague Convention of 1907 were declaratory of a general principle of international law, and therefore admitted — at least implicitly — the customary nature of the conventional rule expressed in the Convention.”[9]

With the International Court of Justice`s formulation of elementary consideration of humanity, bombing of Dresden and the of atomic bombs are now can be accepted as war crimes. These crimes were not punished after the Second World War, neither in the Nurnberg nor in the Tokyo War Crime Tribunals. These tribunals were organized not for the all war crimes of the Second World War but for only the war crimes of the losers of the War.

In another sense, we can even define Nurnberg and Tokyo War Crime Trials as an act of war crime as the war crimes of the winners were not investigated in Nurnberg and Tokyo War Crime Trials. The fundamental rule of international humanitarian law and human right law were not used to all war crime victims of the war.

Justice of the winners of the wars in the 20th century is against the concept of sovereign equality of nations. Sovereign equality is the concept that every sovereign state possesses the same legal rights as any other sovereign state at international law.   [10]

Article 2(1) of the United Nations Charter is the most famous present codification of sovereign equality: “The Organization is based on the principle of the sovereign equality of all its Members”. When there is sovereign equality of States, then there should be also the sovereign equality for the responsibilities of the acts of the members of the United Nations as well.

After the International Court of Justice’s formulation of the “Elementary Consideration of Humanity”, during the 1974-1977 Diplomatic Conferences in Geneva, the draft documents that would become the Additional Protocols to the Geneva Conventions of 1949 were debated and adopted. [11]

Application of Additional Protocol II relating to non-international armed conflicts was formulated in that the protocol would not apply to “situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence and other acts of a similar nature, as not being armed conflicts. [12]

Certain criteria are required for the application of 1977 Additional Protocol II, namely: a confrontation between the armed forces of the government and opposing “dissident” armed forces that the dissident armed forces are under a responsible command.  They control a part of the territory as to enable them to “carry out sustained and concerted military operations” and to implement the Protocol.[13]

In addition, the International Court of Justice in the 1985 Nicaragua case recognized that certain minimum humanitarian standards apply during internal armed conflict.[14]

On February 26, 2007, the International Court of Justice issued its judgment in the Application of the Convention on the Prevention and Punishment of the Crime of Genocide,  adjudicating claims by Bosnia and Herzegovina that Serbia had breached its obligations under the Convention on the Prevention and Punishment of the Crime of Genocide of 1948 (“Genocide Convention”).  The International Court of Justice found that Serbia, as a state, had neither committed genocide in Bosnia nor been complicit in the crime of genocide. The International Court of Justice did, however, conclude that Serbia -through its continued support of Bosnian Serbs in light of the probability that some of them would commit the crime of genocide- had “violated the obligation to prevent genocide in respect of the genocide that occurred in Srebrenica in July 1995. [15]

We have to remember that Bosnian Serbs were a non-state armed group and they committed the crime of Genocide. On 9 January 1992, the Republic of the Serb People of Bosnia and Herzegovina (subsequently renamed the Republika Srpska on 12 August 1992) was declared with the proviso that the declaration would come into force upon international recognition of the Republic of Bosnia and Herzegovina. On 28 February 1992, the Constitution of the Republic of the Serb People of Bosnia and Herzegovina was adopted. The Republic of the Serb People of Bosnia and Herzegovina (and subsequently the Republika Srpska) was not and has not been recognized internationally as a State; it has however enjoyed some de facto independence. [16]

The Republika Srpska never attained international recognition as a sovereign State, but it had de facto control of substantial territory.[17]

The International Committee of the Red Cross study on customary international humanitarian law rules made a significant contribution to the process of identifying fundamental standards of humanity by clarifying, in particular, international humanitarian law rules applicable in non-international armed conflict. Furthermore, adoption by the Human Rights Committee of general comment 31 on article 2 of the International Covenant Civil and Political Rights, as well as the  International Court of Justice’s Advisory Opinion on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, and its judgment in the Case Concerning Armed Activities on the Territory of the Congo reaffirmed the applicability of international human rights law during armed conflict and addressed the relationship between international humanitarian law and international human rights law.  [18]

A non-international armed conflict consists of at least two groups, there is on the one side a recognized state, and on the other side, a non-state armed group. Non-State actors -like State actors- are increasingly exposed to the threat of accountability and punishment for abuses of human rights. If human rights law has shown itself to be somewhat limited with respect to non-State actors precisely because it is focused on the obligations of the State towards individuals within its jurisdiction, this is not the case when it comes to individual liability for international crimes. The broadening of the scope of the concept of “crimes against humanity” and war crimes in recent years, to include acts committed in time of non-international armed conflict, has been of decisive importance in this respect. As the judges at Nuremberg observed in condemning the Nazi leaders for their atrocities: “crimes against international law are committed by men, not by abstract entities, and only by punishing individuals who commit such crimes can the provisions of international law be enforced. [19]

In the sense of Nurnberg War Crime Tribunals, non-state Armenian armed groups crimes against international law are committed by the Armenian men.

If Armenian is to claim a genocide in a report given to the United Nations, then Armenia should apply to the United Nations for the procedure for Genocide within the concept of the equality of nations. Since both Turkey (31 July 1950) and Armenia (23 June 1993) are States parties to the Genocide Convention, it would be possible to invoke Article IX which provides that “Disputes between the Contracting Parties relating to the interpretation, application or fulfilment of the present Convention, including those relating to the responsibility of a State for genocide or any of the other acts enumerated in Article 3, shall be submitted to the International Court of Justice at the request of any of the parties to the dispute”.

In fact, if the word “genocide” is to be used for the First World War period, Armenia should accept that the first genocide of the First World War was committed by non-state Armenian armed groups [20] in the former territories of the Ottoman Empire of Kars, Ardahan and their environs that were lost during 1877-78 Ottoman-Russian War.

Ottoman sources reported some 30,000 Muslim civilians killed; more recent scholarship has pointed to an even higher number, as many as 45,000 in the Chorokhi valley alone. Traveling the Ardahan-Merdenek road in Ardahan province in early January 1915, an Azeri Duma deputy, Mahmud Yusuf Dzhafarov, witnessed “mass graves of unarmed Muslims on both sides of the road.” Whatever the exact number of victims, the wave of Christian vengeance killings against Caucasian Muslims was serious enough that the long-serving viceroy of the Caucasus, Count I.  Vorontsov-Dashkov, issued a series of decrees forbidding further atrocities while also ordering the deportation of about 10,000 Muslims from sensitive areas near the front lines to the Russian interior. [21]

In Bosnia and Herzegovina v.  Serbia (case 91, judgment of 26 February 2007), the International Court of Justice confirmed that genocide had been committed in Srebenica. If a single massacre satisfies the criterion of Article 2 of the Genocide Convention, certainly the Armenian massacres against the Turks in Russian controlled territory before the relocation – resettlement decision of Armenians in Ottoman Empire would qualify as genocide. Non-state armed Armenian groups committed massacres against Turks at the back of the war frontier in different parts of Anatolia.

In the context of the armed conflict in the former Yugoslavia, the United Nations General Assembly in its resolution No.47/121 of 18 December 1992 found that Bosnian Serbians policy of “ethnic cleansing” constituted “a form of genocide”. This resolution was confirmed in General Assembly Resolution 48/143, 49/295, 50/192, 51/115, etc.  [22]

In the same vein, the “ethnic cleansing by killing” committed by Armenians in Kars, Ardahan and their environs during the First World War also constituted genocide.

Without mentioning the genocide to Turks committed by non-state Armenian armed groups just in the beginning of the First World War till the end of year 1921 and the demand  of recognition for the so-called Armenian genocide by Armenia is in fact can only be explained by racial and religious discrimination. This is a demand based on blaming only one side for what happened in the past. It is a demand from the international community to accept acts of so-called “superior” and “civilized” Armenian non-state armed groups acting against to Muslims Turks. This is the mindset of a holy Christian War against Muslims, as was the case during the Crusades. In such a mindset, no one can blame Armenians for committing genocide against Turks in the Christian world.

The logic of Armenian report is based on superiority of Armenian race in their actions and do not accept any responsibility of the non-state Armenian armed groups war crimes. This is against the equality of the nations.

International law has superior rules by virtue of treaty provisions.

It should be considered that the Charter of the United Nations is based on the principles of the dignity and equality inherent in all human beings. All Member States have pledged themselves to take joint and separate action, in co-operation with the Organization, for the achievement of one of the purposes of the United Nations, which is to promote and encourage universal respect for and observance of human rights and fundamental freedoms for all, without distinction as to race, sex, language or religion.[23]

As written in the Article 3 of Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief, “discrimination between human beings on grounds of religion or belief constitutes an affront to human dignity and a disavowal of the principles of the Charter of the United Nations, and shall be condemned as a violation of the human rights and fundamental freedoms proclaimed in the Universal Declaration of Human Rights and enunciated in detail in the International Covenants on Human Rights, and as an obstacle to friendly and peaceful relations between nations.”[24]

Armenia`s report given to the United Nations is against many decisions and declarations of the United Nations. Armenian state should remember that in the Article 103 of the United Nations Charter.

In the Article 103 of the United Nations Charter, it is written that “in the event of a conflict between the obligations of the Members of the United Nations under the present charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail”.

International law is a legal system. Its rules and principles (i.e. its norms) act in relation to and should be interpreted against the background of other rules and principles. As a legal system, international law is not a random collection of such norms. There are meaningful relationships between them. Norms may thus exist at higher and lower hierarchical levels, their formulation may involve greater or lesser generality and specificity and their validity may date back to earlier or later moments in time. [25]

The most frequently cited examples of jus cogens norms are the prohibition of aggression, slavery and the slave trade, genocide, racial discrimination apartheid and torture, as well as basic rules of international humanitarian law applicable in armed conflict, and the right to self-determination. [26]

In article 53 of the Vienna Convention on the Law of Treaties 1969, it is indicated that treaties conflicting with a peremptory norm of general international law (jus cogens) are void. For the purposes of the present Convention, a peremptory norm of general international law is a norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character.  [27]

Because of this, the demand for recognition of the so-called Armenian genocide is illegal according to Article 103 of United Nations Charter, since Armenia tries to legitimize killing of more than 500.000 Turks by non- state armed Armenian groups. The Armenian government tries to use Christianity to legitimize the acts of the Armenian non-state armed groups’ massacres of the Turks. Since the demand for recognition of the so-called Armenian genocide is based on inequality of the nations and racial and religious discrimination, this demand is illegal according to Article 103 of United Nations Charter; Armenian government tries to use Christianity as a political tool to legitimize the acts of the Armenian bands and their massacres of the Turks.

Thus, the international crime of genocide imposes obligations on the entire international community whether it was or is to be perpetrated by States or non-state armed groups, by Christians or Muslims.

If there is a claim of genocide in a report given to the United Nations by Armenia, should not be based on religious and racial discrimination, and Armenia must accept the procedure of the United Nations to the Right to the Truth principles for the genocide claims. In such a case, Armenia must request the Truth Commission to be based on “the Right to the Truth Concerning Gross Human Rights Violations and for the Dignity of Victims.”

As written in the resolution adopted by the United Nations General Assembly on 18 December 2013, the United Nations welcomes the establishment in several states of specific judicial mechanisms and non-judicial mechanisms, such as truth and reconciliation commissions, that complement the justice system, to investigate violations of human rights and violations of international humanitarian law. In the resolution, the United Nations encourages the States concerned to disseminate, implement and monitor the implementation of the recommendations of non-judicial mechanisms, such as truth and reconciliation commissions, and to provide information regarding compliance with the decisions of judicial mechanisms.

As written in the resolution adopted by the United Nations General Assembly on 18 December 2013[28] the United Nations welcomes the establishment in several states of specific judicial mechanisms and non-judicial mechanisms, such as truth and reconciliation commissions, that complement the justice system, to investigate violations of human rights and violations of international humanitarian law. In addition, in this resolution the United Nations encourages the States concerned to disseminate, implement and monitor the implementation of the recommendations of non-judicial mechanisms, such as truth and reconciliation commissions, and to provide information regarding compliance with the decisions of judicial mechanisms.

In recent years, Latin American countries have sought to come to terms with prior periods of widespread human rights violations, relying increasingly on investigatory commissions. Investigatory efforts have been undertaken by democratically elected governments that replaced military dictatorships, by UN-sponsored commissions as part of an UN-mediated peace process, and by national human rights commissioners. Truth commissions were formed in Chile and El Salvador, an investigatory effort was put forth in Honduras and in Guatemala.

The Truth Commission for El Salvador (Spanish: Comisión de la Verdad para El Salvador) was a truth commission established by the United Nations to investigate and report on human rights abuses during the civil war in El Salvador (1980–1992).

The Commission was established with the 1992 Chapultepec Peace Accords that brought the civil war to an end. Article 2 of the Accords stipulates, “The Commission shall have the task of investigating serious acts of violence that have occurred since 1980 and whose impact on society urgently demands that the public should know the truth.”

The Commission was composed of three international notables selected by the Secretary General of the United Nations in consultation with the parties: Belisario Betancur, former president of Colombia; Reinaldo Figueredo Planchart, former foreign minister of Venezuela; and Thomas Buergenthal, Professor of Law, George Washington University. The Commission was not established as a judicial body. Instead it was given six months under the terms of the Salvadoran peace accords to carry out four main tasks: to clarify the worst human rights abuses of the war by all sides; to study with special care the impunity with which the Salvadoran military and security forces committed abuses; to make legal, political or administrative recommendations to prevent a repeat of past abuses; and, finally, to stimulate national reconciliation. Both the guerrillas and the government committed themselves to carry out the Commission’s recommendations. In seeking, as mandated, the most thorough accounting possible of human rights abuses in the war, this report names the institutions and those individuals whom the Commission found responsible in the cases it studied.

The Commission received direct testimony from 2000 sources relating to 7000 victims and information from secondary sources relating to more than 18,000 victims. Given this amount of testimony, the Commission could only deal with a small portion of the thousands of abuses committed in the war. It chose to select a sample of cases that either reflected the most shocking events of the conflict or formed part of a broader, systematic pattern of abuse.

On March 15, 1993, the commission published its report From Madness to Hope: the 12-year war in El Salvador.

To give another example, Guatemala’s civil war claimed over 200,000 lives. A United Nations sponsored truth commission, the Historical Clarification Commission, was created after the war ended in 1996. The legal basis of the Commission was by the General Peace Agreement of 29 December 1996 between the guerrillas, Unidad Revolucionaria Nacional Guatemalteca (UNRG, Guatemalan National Revolutionary Unit) and the government of Guatemala as part of the peace agreements which had been consolidated and confirmed, which came to be known as the Oslo Agreement.

The mandate of the Commission was essentially threefold;

1 – To clarify with all objectivity, equity and impartiality the human rights violations and acts of violence that have caused the Guatemalan population to suffer, connected with the armed conflict

2 – To prepare a report that will contain the finding of the investigations carried out and provide objective information regarding events during this period covering all factors, internal as well as external.

3 – Formulate specific recommendations to encourage peace and national harmony in Guatemala. The Commission shall recommend in particular, measures to preserve the memory of the victims, to foster a culture of mutual respect and observance of human rights and so strengthen the democratic process.

The United Nations had provided generous support, although the Commission was not a United Nations body.

The Historical Clarification Commission’s report, titled “Memory of Silence”, was formally presented on February 25, 1999. It estimated that over 200,000 people were killed or disappeared as a result of conflict. According to its findings, 93 percent of human rights violations and acts of violence were attributable to actions of the state, while 3 percent were attributable to the guerillas. 85 percent of all registered violations were attributable to the army, with 18 percent to the civil patrols. It also concluded that acts of genocide were committed against Mayan Groups by agents of state of Guatemala between 1981 and 1983. “Memory of Silence” further detailed cases of extrajudicial executions and disappearances, torture, forced displacement, massacres, and rape and sexual violence through the use of witness testimonies, documents and forensic evidence.

In a similar fashion, Armenia must accept the procedure of United Nations for genocide claims; for without the procedure of the United Nations, Armenian claims have no legal ground and thus cannot be described as a legal fact.

Demands for the recognition of the so-called Armenian Genocide around the world have no legal basis and cannot be described as a reality without acceptance of the United Nations procedure.

Paragraph 13

In paragraph 13, it is written that the application of Azerbaijan Democratic Republic to become a member of the League of Nations was dismissed in 1920. The dismissal was based on the fact that Azerbaijan was not a “de jure” recognized State with internationally recognized borders.

Azerbaijan was “de facto” recognized by the Allied Powers (Great Britain, France, Italy and Japan) in January 1920. [29] Contrary to the example of Azerbaijan, de jure recognition was not required for membership to the League of Nations in the case of Columbia.[30]

Just like Azerbaijan, Armenia too was “de facto” recognized by the same Allied power. [31]   Armenia first applied for membership to the League of Nations in 13 May 1920. [32]A second application for membership was made on 25 September 1920.[33] The League of Nations 5th Committee for the new members, however, did not support the membership of Armenia to the League of Nations. [34]

The Armenian Delegation to the Paris Peace Conference indicated that Armenia was one of the Signatory Powers to the Treaty of Serves and claimed that its signing of this Treaty implied its “de jure” recognition by all the other signatories. [35]

In the memorandum of the Republic of Armenia given to the League of Nations for membership, it was written that Armenia had border problems with Georgia and Azerbaijan. The border problems of Armenia with Azerbaijan were in three districts: Karabagh, Zanguezour and Nakhitchevan. [36]

By writing so, Armenia put forth an argument contrary to its claims of “de jure” recognition, since it was written in the report that Armenia did not have internationally recognized borders.

Armenia’s application for membership to the League of Nations was rejected on 16 December 1920. [37]

On the other hand, in the letter of the President of the Peace Delegation of the Republic of Azerbaijan M. Allsoptcasbacheff to the President of the First Assembly of the League of Nations H.E. Paul Hymans, in December 7 1920,  [38] he gave answers to the report of the Fifth Committee for admission of Azerbaijan to the League of Nations that had raised two objections. The objections for the membership of Azerbaijan were first – “That is difficult to determine precisely extent of the territory over which the Government of the State exercises its authority, and the second – “that owing to the disputes with neighboring States, concerning its frontiers [borders], it is not possible to determine precisely the present frontiers of Azerbaijan.”

M. Allsoptcasbacheff wrote in his letter that until the Russian Bolshevik invasion on 28 April 1920, the legal government of Azerbaijan had exercised its authority over the entire territory as indicated in the map submitted to the Secretary General of the League of Nations. For the second objection, M. Allsoptcasbacheff wrote that the Republic of Azerbaijan, in defending the integrity of its territory against all aggressions, was obliged to come into conflict with Armenia over Karabagh and Zomhghezur. These territories had formed part of Azerbaijan and were administered by the Azerbaijani government; since the provinces of Karabagh and Zomghezur were left under administration of Azerbaijan by the decision of a former Allied representative in the Caucasus. M. Allsoptcasbacheff wrote that in any case, the dispute concerned not only Azerbaijan but also the neighboring Armenia since the dispute was caused in part by Armenia.

In truth, the rejection of Azerbaijan’s application for membership to the League of Nations was a result of the Bolshevik invasion. This was written in an internal communication of the League of Nations dated 31 May 1921: Azerbaijan`s request for admission was rejected on the grounds that the applications were made by people who did not represent the government of the country after the invasion. [39]

Paragraph 14

In paragraph 14 of the report, it is written that Nagorno-Karabakh and Nakhichevan, being illegally transferred into the subordination of Azerbaijan SSR, were regularly subject to the policy of ethnic cleansing of Armenians and destruction of Armenian cultural heritage.

Under this paragraph, there is a report of demographics of the Nakhichevan district and the Nakhichevan Autonomous Soviet Socialist Republic. Here it is written that according to 1897 Russian Empire census, Armenians were only 34.4% of the total population of Nakhichevan whereas Azerbaijanis numbered 63.7 % of the total population.

In paragraph 14 of the report, through the wording “being illegally transferred into the subordination of Azerbaijan SSR”, the Armenian report tries to indicate that the transfers of Nagorno-Karabakh and Nakhichevan to Azerbaijan were “ex iniuria ius non oritur”; a non- recognition which was based on the generally accepted Roman law, illegal acts cannot produce legal results or rights.

The Armenian report tries to take, without mentioning, the example of the Soviet annexation in 1940 of Estonia, Latvia and Lithuania that resulted from the secret agreements of the Nazi-Soviet Non-Aggression Pact of 1939. The Soviet annexation of the Baltic States was not recognized by the majority of states. This act of non-recognition was due to the application of the Stimson Doctrine of Non-Recognition. [40]

Like Georgia, Armenia and Azerbaijan; Estonia, Latvia and Lithuania declared their independence and separated from the crumbling Russian Empire in 1918. Peace treaties were signed with Soviet Russia in 1920 and Soviet Russia recognized all sovereign rights over the territories of the Baltic States, which had formerly belonged to the Russian Empire.

All three Baltic States were admitted as members of the League of Nations, as was the USSR.

Acquisition of territory by force was recognized as the legitimate right of the conqueror until the end of the First World War. Efforts were made to limit the acquisition of territory by force through the use of the provisions of the Covenant of the League of Nations in 1919, but this was applicable only amongst the members of the League of Nations. [41]

Not very long thereafter, when Poland had been crushed by Nazi forces, and the Red Army had seized its part of Poland’s territory, Estonia, Latvia and Lithuania were pressured to conclude Pacts of Mutual Assistance with Soviet Union which established Soviet Military bases on Baltic territories, and practically signaled the beginning of the end of sovereignty for the Baltic nations.

After the fall of Paris and the collapse of France, the USSR presented ultimatums to all three Baltic States which resulted in their total occupation by the Red Army. This was followed by a masquerade of elections under dubious conditions and the supposedly voluntary joining of the Baltic States to the USSR. After the cease of the sovereignty of the Baltic States in such a manner, the League of Nations expelled the USSR from membership according to the Article 16 of its Covenant in June 1940.  [42]

The annexation of Baltic States to the USSR was illegal not according the treaties that were signed between the parties, but was illegal mainly to the fact that they were all member of the League of the Nations. Such an annexation was against the Covenant of the League of Nations.

To define as illegal all the treaties mentioned in Paragraph 14, Armenia should have signed bilateral agreements with not only the USSR, but also with Azerbaijan, and it must have been a member of the League of Nations.

When the USSR became a member of the League of Nations on September 18, 1934, the League of Nations and the member states of League of Nations legally recognized the borders of the individual member states that constituted the USSR. International community legally recognized the Republic of Azerbaijan with its legal borders on September 18 1934. The League of Nations recognized Nagorno-Karabakh and Nakhichevan to be within the borders of Azerbaijan.

United Nations also recognized Nagorno-Karabakh and Nakhichevan to be within the borders of Azerbaijan and accepted membership of Azerbaijan to the United Nations with clean slate rule. Therefore, Armenia cannot use the clean slate rule (tabula rasa doctrine) for territorial demand from both Azerbaijan and Turkey. [43]

In the letter dated 14 January 1992 from the President of the Republic of Azerbaijan addressed to the Secretary-General of United Nations, it is written that “Proclaiming in accordance with the will of the Azerbaijan people the restoration of the independence, which had been liquidated in April 1920”.[44] Azerbaijan made application to the membership of United Nations within the clean slate rule and restoration of the first Azerbaijan Republic that was liquidated in 1920. The Committee on the Admission of New Members unanimously decided to recommend to the Security Council that the Republic of Azerbaijan should be admitted to the membership in the United Nations.[45] United Nations Security Council with its decision on 14 February 1992 recommended to the General Assembly that the Azerbaijani Republic be admitted to membership in the United Nations. General Assembly of United Nations decided to admit the Republic of Azerbaijan to the membership on 27 February 1992.[46] Azerbaijan was admitted to the United Nations with the application of clean slate rule.

When Armenia applied for the membership in the United Nations, Levon Ter-Petrosian, on behalf of the Republic of Armenia declared that the Republic of Armenia accepted the obligations contained in the Charter of the United Nations and solemnly undertakes to fulfil them.   [47] As Azerbaijan admitted with its declaration of clean slate rule to the United Nations, Armenia`s obligations to the United Nations as a member prohibits Armenia to use clean slate rule, tabula rasa Doctrine for territorial demand. When Armenia claims that Nagorno-Karabakh and Nakhichevan were illegally transferred into the subordination of Azerbaijan SSR, Armenia rejects the principals of United Nations principles such as General Assembly decision 2625 “Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States”.[48]

Armenia also accuses in paragraph 14 Azerbaijan of a so-called ethnic cleansing in Nagorno-Karabakh and Nakhichevan. Contrary to what Armenia claims however, a confidential report of British Government states that Armenian bands committed massacres against the Turks in Nagorno-Karabakh.  [49]

In the confidential British report, it is written that in the neutral zones – that between Georgia and Armenia with Karabagh and Zanguezour – and the districts which refused to recognize the authority of the Yerevan government as Zangabasar, Sharuar and Nachetchevan – were the subjects of endless intrigue and disputes and were the scenes of fighting and often of massacre by one party or another.

Arnold Toynbee in his letter to the League of Nations, dated 22 April 1922, wrote that “The number of Muslims in the existing territories of the Erivan Republic is much less than I had supposed. They have been expelled and killed.” [50]

Armenian volunteer bands had lost discipline since the revolution and had degenerated into bands of brigands and assassins. Unfortunately, most of these bands were connected with the political party which had seized power in Armenia, and the leaders of such bands wielded such influence in the party organization that ministers were afraid of suppressing them. Certain attempts were made at suppressing such bands, but such attempts only resulted in the murder of the people who made the attempts.

The Armenian soldiers shared the Russian armies’ demoralization as consequence of the revolution. This demoralization spread even to the bands of volunteers who had been guilty of many acts of oppression and massacre against the Kurds and Tatars in conquered Azerbaijani territory.

The Armenian government had to rely heavily on the aforementioned bands for the defense of the country against the advancing Turks and the enemies within the country. However, to place responsibility in the hands of the leaders of these bands meant giving responsibility to people who were not worthy of having it. This led to some of the disasters of the early days caused by the refusal of one band to co-operate with another, and to regrettable and disgraceful attacks on Tatar villages and massacres of the Tatar people. At the same time, Armenians suffered from the actions of these bands of brigands and assassins as well. One of the sources of peoples of Zanguezour and Karabagh’s sense of alienation from the central government in Yerevan – which led to the admission of the Russian forces into these territories – was the exactions and excesses of one of the bands under an unprincipled scoundrel who was at the same time a brave fighter and who along with his band had successfully fought against the Turks. [51]

Conclusion

Armenia`s report to the United Nations rejects equality of nations and equality of states within the United Nations system. In its report Armenia, by not mentioning and ignoring genocide of more than 500.000 civilian Turks, killed by the non-state Armenian armed groups, makes racial and religious discrimination for the legitimization of this crime. As mentioned Genocide is a jus cogens crime. Jus cogens is a peremptory norm and is a fundamental principle of international law that is accepted by the international community of states as a norm from which no derogation is permitted. With this, Armenia’s report is against a fundamental principle of international law and elementary considerations of humanity principle.

Armenian report in fact is a threat to international peace and against the spirit of United Nations’ efforts to establish peace in the world. This is so because the report is against the territorial integrity and sovereignty of Azerbaijan. Azerbaijan was admitted to the United Nations with the application of clean slate rule.

Armenia argument that “Nagorno-Karabakh and Nakhichevan, being illegally transferred into the subordination of Azerbaijan SSR” is invalid and illegal.

Armenians did not formed half of the population of Nakhichevan as written in the report and the demand of Armenian state of Nakhichevan can only be explained with the European colonization logic of the 19^th century. We can easily say that Armenian State report was prepared with the 19^th century logic of Europeans.

The argument of Armenia is against many resolutions of United Nations such as: Declaration on Principles of International Law concerning Friendly Relations and Co-Operation among States in accordance with the Charter of the United Nations, 2625, the Definition of Aggression of 3314, Declaration on the Inadmissibility of Intervention in the Domestic Affairs of States and the Protection of Their Independence and Sovereignty 2131 and Charter of United Nations.

And most important Armenia`s report is against Convention on the Prevention and Punishment of the Crime of Genocide, 9 December 1948 and should be accepted as a crime of genocide as trying to legitimize genocide crimes of non-state Armenian Armed groups means “ direct and public incitement to commit genocide” on racial and religious bases.

Article 3 (c) of Convention on the Prevention and Punishment of the Crime of Genocide accepts direct and public incitement to commit genocide as an act which shall be punishable.

Mehmet Şükrü GÜZEL

Switzerland representative of International Scientific Academy “Vector” Azerbaijan to Switzerland.

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Annex

United Kingdom Foreign Ministry Secret Document on Armenia dated 3^rd January 1921