Dear Luis Moreno Ocampo,
being a researcher who has published a number of books and articles about the Nagorno-Karabakh issue, I am daring to come up with some comments on the Expert Opinion on the subject which you have published on August 7.
Unfortunately, some of the claims that you are make in voicing your strong support of Armenian interests are at least ambiguous if not outright misleading.
Your statement that “Nagorno-Karabakh, known as Artsakh by Armenians, is predominantly inhabited by ethnic Armenians, living there for more than 20 Centuries” (p. 6) might be interpreted by those unfamiliar with the historical background as indicating that a region referred to as “Artsakh” had been inhabitated by ethnic Armenians for more than 20 centuries. It is true that your formulation, due to its equivocal wording, might also give rise to other interpretations. For instance, it might amount to saying that Armenians have lived there for 20 centuries but not necessarly predominanty. I would love to see such ambiguity of formulation removed. As one of the world´s leading jurists, you know how important it can be to suppress ambiguity in crucial matters.
As to the factual substance, it is doubtful whether the designation “Artsakh” (which does not have any Armenian etymology whatsoever) can really be attested within the chronological horizon that you delineate. Armenian claims that the toponym “Orchistena” mentioned by Strabo (ca. 23 BC-63; see the Armenian author Vardges Mikaeljan referred to in Mamedova 1995: 110) could be identified with “Artsakh” are only speculative. According to my information, the toponym “Artsakh”, which has no connection to the Armenian language, did not become widespread before the 5th century A.D. Of course, we do not have precise demographical statistics, neither for the time around the begin of the Common Era nor for later premodern periods including the time from the 5th century onward. This means that the one interpretation of your statement according to which the region in question had been “predominantly inhabited” by Armenians is also merely speculative.
In this connection, let me also remind you that the term “Nagorno-Karabakh” only emerged from 1918 onward, and that the term “Artsakh” does not seem to have been used as an official political or administrative term at least from 1045 until 1921. As for the first uses of the term “Nagorno-Karabakh”, they were probably made during the First Congress of the Armenians of Karabakh, held from July 22 to 26 in Shusha, Azerbaijan (for details, see Mikaeljan et al. 1992: 13; Avakian 2021 : 5; cf. Vәliyev/ Şirinov 2016: 66). That “Artsakh”, which in your version of the history seems to be a term that is supposed to have been uniterruptedly used for centuries until the present, was not universally used even by the Armenians themselves until at least 1921 is suggested, for instance, by a declaration of the Armenian SSR´s Soviet of People´s Commissioners (in Russian, Sovet narodnych komissarov) issued in the Armenian SSR´s capital on June 12, 1921. This declaration exists in two versions, one in Russian, one in Armenian. In the Armenian-language one, the Russian term “Nagorno-Karabakh” (attested in the Russian one) is translated by the Armenian expression arm.Լեռնային Ղարաբաղ Lēṙnayin Łarabaƚ “Mountainous Karabakh” (see Mikaeljan et al. 1992: 636), which is made up of the Armenian word for “mountainous” plus an Armenian-language transcription of the historically and etymologically Azerbaijani toponym “Karabakh”. However, there is no trace of “Artsakh” in this document. The use “Artsakh” as a replacement of the traditional, Azerbaijani, name of Karabakh only began to spread subsequently as a result of Armenian separatist, chauvinist, and anti-Azerbaijani propaganda, both within the Soviet Union and abroad. Meanwhile, the region´s traditional name “Karabakh” had been used for centuries in various administrative and political documents and continues to be used to this day (on the topic cf. Heß 2020). If, as you seem to suggest, “Artsakh” was such an important administrative-political or even historical toponym, why should members of one of the Armenian SSR´s leading political bodies should have used the Azerbaijani word in 1921? As for my reference to the year 1045, this was the last year in which the province of Artsakh, which really existed in the Antique and Medieval period, can be said to have been part of an Armenian state (Kalpakian 1993: 112). The Bagratid Kingdom, to which the province belonged until then, came under Byzantine rule in 1045 (Asenbauer 1993: 21; Krikorian 1993: 71, 74) and under Seljuqid rule in 1064 (Vryonis 1971: 89; Asenbauer 1993: 21; Krikorian 1993: 71, 74), and its territory, which was in part coextensive with the Soviet Nagorno-Karabakh Autonomous Region (NKAO), never returned to any kind of Armenian political rule afterwards. On this subject, the only (non-expert, journalistic) reference you quote (Light and Fulconbridge), claims that “Armenians, who are Christians, claim a long historical dominance in the area, dating back to several centuries before Christ”. However, as the alleged “dominance” in the area (Karabakh) was obviously interrupted after 1045, it cannot be said to “date back” (speaking from today). Regrettably, the only reference which seems to form the basis for your interpretation of Karabakh´s history, is manifestly based on a distortion.
At this point, allow me to draw your attention another error in Light and Fulconbridge´s sumary. They say that “Over the centuries, the enclave has come under the sway of Persians, Turks, Russians, Ottomans and Soviets.” This is a fictitious statement, as no part of Karabakh, including Nagorno-Karabakh, has ever been an enclave. Generally, Light and Fulconbridge can obviously not be considered to be a reliable source, let alone reliable historians, and their extremely short journalistic contribution is a stub, lacking almost any reference to the background that brought about the Armenian-Azerbaijani conflict. It should not be used as the sole basis for constructing an image of Karabakh´s history.
By obliterating the distinction between the antique designation “Artsakh” and its modern re-introduction by Armenian nationalists in the 20th century, your contribution actually propagates a nationalistic Armenian discourse which wants to suggests an Armenian toponymical, demographic, political and historical continuity from the beginnings of our era. However, such a continuity does not exist.
The rest of your historical summary contains some factual historical errors, too. By beginning your subchapter (a) with the February 20 1988 declaration, you are suppressing the fact that this declaration was the result of a systematic nationalistic and in parts chauvinistic, aggressive Armenian separatist movement that had been started already in 1987, if not earlier. Your assertion that “Nagorno-Karabach adopted a resolution requesting to be transferred to Armenia” is also only partly correct, as the wording of the resolution (taken only by some of the members of the oblast soviet, its Azerbaijani members having left before) cautiously avoids directly requestion the separation of Nagorno-Karabakh from Azerbaijan. Consider my following translation of the Russian original of the resolution text:
“To ask, in compliance with the wishes of the working population of the NKAO, the Supreme Soviet of the Azerbaijani SSR and the Supreme Soviet of the Armenian SSR to show a feeling of deep understanding for the expectations of the Armenian population of Nagorno Karabakh and solve the problem of transferring the NKAO from the Azerbaijani SSR to the Armenian SSR, and simultaneously to intercede with the Supreme Soviet of the USSR as regards an affirmative decision of the question of the transfer of the NKAO from the Azerbaijani SSR to the Armenian SSR.”
After reading your expert opinion, my impression is that it is based on a one-sidedly pro-Armenian interpretation of both the historical background and the actual situation. In support of the theory that Azerbaijan is about to commit a “Genocide”, to which you adhere, you quote a statement made by the Russian Federation, the issuing of which you deem “remarkable” (p. 8). This statement holds that the so-called Russian peacekeepers in the region are supposed to “prevent the mass death of the civilian population of Nagorno-Karabakh”. With all due respect, how credible can such a statement made by a murderous government, which has unchained the most horrible war in Europe since 1945, has committed countless murders and horrible war crimes, is famous for lying, and, most importantly, is one of the principle powers responsible for the Armenian-Azerbaijani conflict since at least 118 years and has participated (also militarily) in war crimes and crimes against humanity committed by the Armenians in Nagorno-Karabakh, be? Quoting such a statement without critically contexualizing or relativizing it by historical or political facts only serves the interests of Russian and Armenian propaganda and legitimizes terrorism but does not contribute to creating a factual image of reality.
In conclusion, let me state that I do not consider your arguments that a “Genocide by starvation” is allegedly taking place in Karabakh to be fully convincing. On page 13 of your article, you refer to an observation on Genocide that was made by France in the connection with the formulation of Article II(c) of the Genocide Convention. France´s text says that “[i]f any group were [sic – M. R. H.] placed on rations so short as to make its extinction inevitable, merely because it belonged to a certain nationality, race, or religion, the fact would also come under the category of genodical crime”. Do you really believe that a community of allegedly 120 000 people (this is the number claimed by Armenia) in a fertile region such as the mountainous region of Karabakh, where subsistence economy and animal husbandry is possible and has a long and highly developed tradition, which was particularly developed in Soviet times (I refer you to Khlevniuk 2018 on the subject of the importance of subsistence economy in the Soviet Union), and where natural water ressources exist in sufficient quantity, can be starved to death in mid-summertime? Your article lacks any proof or indication that starvation (as defined on p. 15 of your text) is really likely to threaten the Armenians of Nagorno-Karabakh as a group.
Not being a jurist, I am not able to measure the degree of conformity between the IJC´s preliminary decision (p. 15) and the reality on the ground. However, as a non-jurist, it would seem that even the IJC does not speak of a “Genocide” in the Armenian-occupied parts of Karabakh as a fact but only as “plausible” (p. 15). As to the alleged blockade, the IJC says, in your quote on p. 16, that it “may entail irreparable consequences” to certain vital rights (my emphasis). This would mean that those consequences are only a possibility, but not an established fact.
Outside the purely juridical sphere, which is naturally the main focus of your text, I am not convinced by your claim that the establishment of the Azerbaijani border check point at the Lachin Corridor could be interpreted as a means to prepare a genocide. Many countries, including the USA and EU countries with outside borders, have similar checkpoints to prevent the smuggling of humans and goods but are not accused of preparing a genocide as a consequence.
I see another point of contradiction in your analysis of the smuggling incident mentioned by President Aliyev (p. 20). On one hand, you write: “The ICRC clarified the incident.” On the other hand, you write, on the same page: “The smuggling cases should be properly investigated …” Saying that an incident has been clarified but should be investigated at the same time does not seem to be coherent, at least in my eyes. If investigations are still to be carried out, this means that everything has not been clarified.
Let me repeat that I am neither a jurist nor an expert on Genocide. Still, accusing a person or a state of commiting a genocide to me seems on of the strongest accusations possible. Consequently, such an accusation should only be made if all doubts concerning its validity have safely been removed. Frankly, the flaws and inaccuracies in the historical background narrative which you have chosen to include in your text together with the contradictions that appear in it to my mind might indicate that the verdict could not be as safe and clear as one should require it.
Dr. Michael Reinhard Heß
 The translationis based on the original text in Anonymous 1988: 36: russ.Idja navstreču poželanijam trudjaščichsja NKAO, prosit´ Verchovnyj Sovet Azerbajdžanskoj SSR i Verchovnyj Sovet Armjanskoj SSR projavit´ čuvstvo glubokogo ponimanija čajanij Armjanskogo naselenija Nagornogo Karabacha i rešit´ vopros peredači NKAO iz sostava Azerbajdžanskoj SSR v sostav Armjanskoj SSR, odnovremenno chodatajstvovat´ pered Verchovnym Sovetom Sojuza SSR o položitel´nom rešenii voprosa peredači NKAO iz sostava Azerbajdžanskoj SSR v sostav Armjanskoj SSR.
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