Written by: Sharmagh Mardi
Introduction
The doctrine of command responsibility under international humanitarian law (“IHL”) provides that commanders and other superiors shall be held criminally responsible for war crimes committed by their subordinates pursuant to their orders[1] or if they fail to prevent, repress or report such crimes[2]. The rules of command responsibility (152[3], 153[4]) are norms of customary international law applying to both international and non-international armed conflicts. Moreover, Article 87 of Additional Protocol I also refers to “Duty of Commanders” to prevent the commission of IHL violations by their subordinates and to punish the ones who do not act in compliance with IHL rules.[5] According to Article 9 of the Constitution of the Republic of Azerbaijan, “The President of the Azerbaijan Republic is the Supreme Commander-in-Chief of Military Forces of the Azerbaijan Republic.”[6] Moreover, Article 92, 104, and 117 of the Constitution of the Republic of Turkey make the president of Turkey Commander-in-Chief on behalf of the Grand National Assembly and the president is vested with the authority to decide on the use of the Turkish Armed Forces.[7] The link between war crimes and command responsibility leads to understanding certain behavior that commanders and other superiors are required to conduct with respect to war crimes. In this case, the connection of those concepts will guide the discussion of the responsibility of the head of Azerbaijan and Turkey and other military commanders and/or superiors in terms of war crimes committed by the forces of Azerbaijan during its military aggression in 2016 and 2020 in Nagorno-Karabakh (also referred to as Artsakh).
CHAPTER 1
THE PROSECUTOR v. JEAN-PIERRE BEMBA GOMBO: CASE ANALYSIS
Considering the fact that the International Criminal Court (“ICC”) is the international instrument that is responsible for prosecuting individuals for war crimes, it is crucial to analyze the case-law of the ICC to understand the reasoning and rationale behind the judgment.
The Prosecutor v. Jean-Pierre Bemba Gombo is the first ICC case that refers to command responsibility.[8] Jean-Pierre Bemba Gombo was a president and Commander-in-chief of the Mouvement de libération du Congo who was charged with crimes against humanity and war crimes allegedly committed in 2002 and 2003 in the Central African Republic (“CAF”).[9] In 2016, the Trial Chamber of the ICC held that Bemba was guilty of committing crimes against humanity and war crimes during the period of 2002-2003 in CAF due to the action of his troops.[10]
In the process of finding out whether Bemba should be held responsible for the crimes, the Pre-Trial Chamber and the Chamber emphasized the following elements, which led them to hold Bemba responsible for the war crimes and crimes against humanity committed by his subordinates.
The accused must have been either a military commander or a person effectively acting as a military commander
To figure out the line between superiority and subordination, it is necessary to refer to both de jure and de facto superiors. In other words, the formal designation and status as a commander should not be considered as a precondition for applying command responsibility.[11] Furthermore, dividing Article 28(a) of the Rome Statute implicitly refers to de jure and de facto superiors by stating “military commanders” and “persons effectively acting as military commanders. Individuals under the category of the latter are not formal military commanders, but they effectively act as military commanders over the offenders.[12] This means that de jure superior is not the only relationship between superiority and subordination; de facto superior shall also bear responsibility for the crimes committed by his subordinates if the superior exercises effective control over them.” A “superior” is a person who exercises effective control over his subordinates.”[13] Moreover, Article 28 (a) does not solely include immediate commanders over the offenders, but it also refers to superiors at every level, including political.[14]
The accused must have had effective command and control, or effective authority and control, over the forces who committed the crimes
The concept of “effective control” refers to a superior’s material ability to prevent or repress the commission of the crimes, or to refer to competent authorities.[15] In the Rome Statute, the concepts of de jure and de facto superiors are reflected in the following parts: “A military commander or a person effectively acting as a military commander…” and “With respect to superior and subordinate relationships not described in paragraph (a), a superior…under his or her effective authority and control….”[16] It is important to mention that the Rome Statute also establishes that effective control is necessary in cases of both de jure and de facto superiors. The Chamber also noted that international criminal jurisprudence recognizes the possibility that multiple superiors can be held responsible simultaneously.[17] Furthermore, the Chamber continued that the legal or formal appointment to a position of military command or authority is not required with respect to the “effective control” element stipulated by Article 28 (a).[18]
Knowledge that the forces were committing or about to commit such crimes
With respect to actual knowledge, the Chamber stated that it should be established through direct or indirect evidence.[19] Direct evidence covers, for instance, the statement of the accused that they may have had knowledge about the criminal activity.[20] Furthermore, to prove the state of mind of an accused by inference, the inference should be the only reasonable conclusion that is based on the evidence.[21] The inference should directly refer to the accused.[22] Relevant factors that may point out “knowledge” include orders to commit crimes, or the fact that the accused was personally informed that his subordinates were involved in crimes.[23] In addition, other indicators of “knowledge” are number, nature, scope, location, and timing of illegal acts, the notoriety of illegal acts, for example, where illegal acts were reported in the media and the accused was aware of, etc.[24]
The commander failed to take all necessary and reasonable measures within his power
Relying on the jurisprudence of the ad hoc tribunals, the Chamber in Bemba stated, “necessary” measures are those when the commander shows that they genuinely tried to prevent or punish crimes, and “reasonable” measures are those under the material power of the superior.[25]
Article 28 (a)(ii) sets out three obligations on commanders:(i) preventing the commission of crimes; (ii) repressing the commission of crimes; or (iii) submitting the matter to the competent authorities for investigation and prosecution.[26] In the case of the Nagorno-Karabakh conflict in 2016 and 2020, none of these provisions were met, at least publicly. It is important to note that in case of a failure to prevent the crimes, it cannot be remedied through the punishment of the perpetrators.[27]
Within the scope of failure to prevent the commission of crimes, it is necessary to understand the meaning of the word prevent, which is to “keep someone from doing something,”[28] or “hinder or impede.”[29] According to the Chamber, the violation of a commander’s duty to prevent occurs when they fail to take measures to stop crimes that are about to be committed or crimes that are being committed.[30] The commander’s duty to prevent starts before the commission of the crimes[31] and continues to crimes that are in progress and crimes which carry ongoing elements.[32] There are essential measures that refer to a commander’s duty to prevent: (i) ensuring adequate IHL training of the forces, (ii) securing reports that military actions are in compliance with international law, (iii) issuing orders to bring the relevant practices in compliance with the rules of war, and (iv) taking disciplinary measures to prevent the commission of crimes.[33]
Moreover, under Article 28 (a)(ii), there are other additional measures that commanders should take into account: (i) issuing orders specifically meant to prevent the crimes, as opposed to merely issuing routine orders; (ii) protesting against or criticising criminal conduct; (iii) insisting before a superior authority that immediate action be taken; (iv) postponing military operations; (v) suspending, excluding, or redeploying violent subordinates; and (vi) conducting military operations in such a way as to lower the risk of specific crimes or to remove opportunities for their commission.[34]
Besides the duty to prevent the commission of crimes, a commander also has an obligation under Article 28 (a)(ii) to “repress” the crimes.[35] The concept of “repress” refers to “put down,” “subdue,” “restrain,” and “keep or hold back.”[36] Taking into account the “minimum standards” to punish stipulated by ad hoc tribunals, the Trial Chamber should look through the steps that were taken in order to ensure adequate investigation, which may potentially result in the criminal prosecution of the offenders.[37] Thus, the obligation to punish the offenders includes the investigation of the alleged crimes.[38] The commander is obliged to initiate “important steps in the disciplinary process.”[39] In case when the commander does not have any power to punish the offenders, they should submit the matter to competent authorities.[40] The Chamber concluded that the submission of the matter to competent authorities aims to bring the offenders before justice and prevent crimes in the future.[41]
The Appeals Chamber in Bemba reversed the decision of the Trial Chamber and acquitted Bemba from the charges of war crimes and crimes against humanity. According to the Appeals Chamber, during the 2002-2003 CAR Operation, Bemba initiated all necessary and reasonable measures to repress or prevent the crimes by his subordinates. The Appeals Chamber stated that as a remote commander, Bemba had difficulties in prosecuting and investigating crimes of his troops which were in a foreign country.[42]
CHAPTER 2
Being one of the gravest breaches of IHL, war crimes should be strictly punished, and the head of the states and/or other superiors should bear the responsibility if those crimes are attributable to them under the doctrine of command responsibility. Furthermore, the punishment of war crimes is an essential and effective factor in the prevention of those crimes. Thus, in order to condemn war crimes and initiate a step to somehow prevent such crimes in the future, it is important to find out whether the war crimes committed by the Azerbaijani-Turkish army and the mercenaries engaged in combat actions on behalf of Azerbaijan and Turkey during the military aggression against Nagorno-Karabakh in 2016 and 2020 are attributable to the head of the States and/or other superiors under the doctrine of command responsibility․
Now, it is possible to apply the reasoning of the ICC and ICTY/ICTR to the war crimes by the Azerbaijani-Turkish army and mercenaries and their commanders and superiors. First, it is necessary to discuss the war crimes during the military aggression against Nagorno-Karabakh in 2016 and 2020, as well as other factors relevant to war crimes. Afterward, the reasoning of the ICC in Bemba in respect to Command Responsibility, relying on the case-law of ICTY/ICTR, is applied to the war crimes committed in Nagorno-Karabakh. The process of figuring out the compatibility of the doctrine of command responsibility with the case of the heads and/or other superiors of Azerbaijan and Turkey will act as a power-engine to recover justice by punishing the perpetrators and decreasing the probability of facing war crimes throughout the world.
War Crimes in 2016
In 2016, various war crimes were committed by the Azerbaijani Armed Forces during the four days of the conflict. Based on specific examples, it is possible to conclude that the war crimes committed by the Armed Forces were not only left unpunished, but the offenders were praised, awarded, and promoted in ranks by Azerbaijan. For instance, Ramil Safarov’s case serves as evidence of the continual policy of hate speech against Armenians.[43]
Another cruel example from 2016 is the decapitation of three soldiers of the Artsakh Defense Army, Kyaram Sloyan, Hayk Taroyan, and Hrant Gharibyan.[44] Ilham Aliyev awarded the one who decapitated Sloyan and made the person a hero in the military aggression against the Nagorno-Karabakh.[45] The head of Sloyan was demonstrated to the soldiers and civilians of Azerbaijan through social media.[46] In fact, during decapitation, Hayk Taroyan was still alive.[47] The prosecutors of Nagorno-Karabakh reported that after being killed by the forces of Azerbaijan, the ears of 15 soldiers were cut off.[48] In 2016, the violent and cruel killing of three members of a family in Talish also occurred, who were murdered in their home by Azerbaijani commandos.[49]
Schools, kindergartens, and churches were also targeted by the Azerbaijani forces. It is essential to mention that schools were targeted at the time when the children would arrive to school.[50] Artillery projectiles exploded in the schoolyard, causing the injuries of Gor and Gevorg Grigoryan, Vardan Andreasyan and, Gor Harutyunyan.[51] Three armed saboteurs who crossed the Armenian border wounded Karine Davtyan and killed 17-year-old Smbat Tsakanyan and Sargis Abrahamyan.[52]
War Crimes in 2020
Unfortunately, the violation of the rules of war and the number of barbaric crimes of the Azerbaijani-Turkish army and mercenaries was even more widespread during the Nagorno-Karabakh war in 2020.
The inhumane and degrading treatment, as well as torture towards prisoners of wars (“POW”), are one of the preponderant types of war crimes that have been continuously committed by the Azerbaijani-Turkish army. The videos presenting the brutal treatment of the Armed Forces of Azerbaijan towards Armenian POWs were being regularly spread throughout social media, emphasized the systematic and large-scale nature of the war crimes.
Under Article 8 (a)(i) of the Rome Statute, willful killings of protected persons stipulated by the Geneva Convention is a war crime.[53] One of the videos published by Azerbaijanis on socia media platforms shows soldiers of the Armed Forces of Azerbaijan putting the head of an Armenian civilian on a dead body of a pig, where one of the soldiers tells others to bring petrol and fuel.[54] The brutish behavior of the Armed Forces of Azerbaijan goes even further when in the same video, one of the soldiers puts his foot on the chest of the beheaded Armenian in order to squeeze blood.[55] Moreover, taking pictures with the dead bodies of the Artsakh Defense Army servicemen was also a widespread practice.[56] In another video, the forces of Azerbaijan undressed a wounded member of the Artsakh Defense Army and celebrated their “victory” over him and screamed, “Karabakh is Azerbaijan.”[57] The soldier was still alive; however, he was not provided with medical assistance.[58] In the video, it is also possible to hear the gunshots and applause of the Armed Forces of Azerbaijan.[59] Another video shows how an Azerbaijani serviceman is humiliating and killing two Armenian POWs, an elderly man and a former combatant, in a violent way.[60] The Defense Ministry of Azerbaijan denies the connection of Azerbaijan to the video, regardless of the fact that a leading Azerbaijani telegram page was the primary source of the video.[61] Furthermore, another example of a grave breach of IHL in the form of decapitation is presented in a video where one of the Azerbaijani soldiers cut the throat of Armenian civilian while he was alive.[62]
During an interview with Human Rights Watch, four former Armenian POWs thoroughly described ill-treatment towards them and other POWs. All of them addressed the repeated beatings and recalled being burned with a cigarette lighter, being prodded with a sharp metal rod, and being subjected to electric shocks.[63] It is also reported that the Azerbaijani commanders told their subordinates not to treat the POWs inhumanly; however, whenever they left, the inhumane treatment against the POWs continued.[64]
Another example of war crimes during the Nagorno-Karabakh war in 2020 is the deliberate attacks against civilians, schools, churches, hospitals and other vital civil infrastructures. For instance, Azerbaijan deliberately attacked the Holy Savior Ghazanchetsots Cathedral located in Shushi and severely injured journalists who were wearing distinctive protective emblems.[65] The attack was intentional as Azerbaijan hit the Cathedral two times using drones.[66]
Because of the deliberate attacks by Azerbaijan, the central electricity station and local stations of towns and villages, as well as a huge number of electricity networks, natural gas pipelines, were destroyed.[67] The road, phone and communication networks, and hydro-power stations were also targeted.[68] Furthermore, Human Rights Watch reported that Azerbaijan used cluster munitions in areas where no military targets were identified, a violation of the rules of war.[69]
While trying to understand whether war crimes are attributable to military commanders and/or other superiors, other factors may contribute to the analysis as well. In this respect, it is relevant to discuss the case of Makuchyan and Minasyan v. Azerbaijan and Hungary. This case concerns the presidential pardon of the Azerbaijani military officer named Ramil Safarov, who axed Armenian officer Gurgen Margaryan in Hungary.[70] After the killing, the Ombudsman of Azerbaijan, Elmira Suleymanova, stated, “R. Safarov must become an example of patriotism for the Azerbaijani youth.”[71] In addition, based on the statement of Agshin Mehdiyev, Ambassador, Permanent Representative of Azerbaijan to the Council of Europe, he “does not advise Armenians to sleep safely until Karabakh conflict is settled.”[72] Here, it is worth mentioning that in the judgment, the European Court of Human Rights confirmed that Azerbaijan has a racist regime towards ethnic Armenians.[73]
The Engagement of Turkey in the Nagorno-Karabakh war in 2020
When it comes to war crimes committed in 2020, the responsibility of Turkey, its president, and commanders should not be left unnoticed. In alliance with Azerbaijan, approximately 3,000-4,000 Syrian mercenaries took part in the war for $1,500-2,000 USD.[74] For the purpose of understanding the role of Turkey in the 2020 Nagorno-Karabakh war, it is also necessary to touch upon the transfer of mercenaries from Syria to Turkey and later to Azerbaijan. One of the deployed mercenaries confessed that in Turkey, chartered flights were scheduled to transport mercenaries to Azerbaijan. It was also stated that the checkpoint of the Syria-Turkey border was guarded by Turkish soldiers and other people with civilian clothes.[75] The fighters crossed the borders without any examination of documents.[76] Under the Turkish flag, the fighters were transferred from one civilian airport to the other, and then they were changed to another aircraft, which was flying under the Azerbaijani.[77] In Azerbaijan, Turkish and Azerbaijani soldiers took the mercenaries to a military base where both Azerbaijani and Turkish soldiers were present.[78] In his testimony, the mercenary said, “We could differentiate the Turkish soldiers from the flags on their uniforms.” In fact, Turkish and Azeri troops conducted the training of mercenaries.[79] The mercenary also stated that their commander, Sheikh Ibrahim ordered them to slaughter every Armenian civilian and soldier.[80] Moreover, Abu Hamsha and other Turkish and Azerbaijani servicemen promised an extra $100 USD for every beheaded Armenian.[81]
Charges are brought against several mercenaries based on the Criminal Code of the Republic of Armenia. The mercenaries are accused of violating Article 217, Part 3, Clause 1 (terrorism committed by an organized group), Article 389 (international terrorism), Article 390, Part 1, Clause 1 (serious breach of international humanitarian law during armed conflicts; murder), Article 390, Part 3, Clause 1 (attacks against the civilian population or individual civilians), and Article 395, Part 3 (participation of a mercenary in armed conflicts or military actions).[82] In fact, two of the mercenaries are sentenced to life imprisonment based on the charges mentioned above.[83]
However, the participation of Turkey in the 2020 Nagorno-Karabakh war extends to the possible usage of Turkish Air Force F-16 fighter jets, the willingness of Turkey to hold a peacekeeper position to the presence of Turkey during the victory military parade of Azerbaijan, etc. In July 2020, F-16 fighters of the 151st and 152nd Squadron of the Turkish Air Force arrived in Azerbaijan, which were intended to suppress the air defense of the adversary.[84] Colonel Gokhan Gurakar, the “operations commander” responsible for the planning of operations, also came to Azerbaijan with the planes.[85] Moreover, in 2017, under the scope of a joint military exercise, the 162nd Squadron of the Turkish Air Force arrived in Azerbaijan.[86] After the start of the 44-day war, jets remained at the Ganja Airport.[87]
In fact, 200 Turkish military advisors and three Turkish Generals with specific duties also participated in the 2020 Nagorno-Karabakh. The first Turkish military leader in Azerbaijan was Sheref Ongay, the commander of the Turkish Third Army, who was in control of the war.[88] The second leader was Major General Bahtiyar Ersay, who was in Baku during the war and he was in charge of operations.[89] Moreover, he was also responsible for mercenaries, and military equipment that Turkey provided to Azerbaijan.[90] It is worth mentioning that the Armed Forces of Azerbaijan had an obligation to obey the Turkish commanders.[91] Finally, the third Turkish military was Major General Goksel Kahya, who was responsible for managing drones during the war.[92]
After the Turkish-Azerbaijani joint military exercises in July to August, 2020, a huge number of Turkish military units stayed in Azerbaijan aimed to lead the operations.[93] It is reported that approximately 600 servicemen, 90 military advisors in Baku, 50 commanders in the 4th Army Corps, 50 commanders in Nakhichevan, 50 commanders at Yevlakh airport, and other military units were engaged in the 2020 Nagorno-Karabakh war.[94] From September 28 to 30, 2020 the intense period of the war , Hulusi Akar, Defense Minister of Turkey and Ümit Dündar, commander of the Turkish Land Forces, arrived in Azerbaijan.[95] According to the sources of Kommersant, they were under the responsibility of general command of operations.[96]
ANALYSIS
While analyzing whether Azeri and Turkish military commanders and/or other superiors should bear responsibility for war crimes committed by their subordinates, it is necessary to have a clear understanding of “superiority.” With respect to war crimes committed by the Azerbaijani-Turkish army in alliance with mercenaries deployed by Turkey and welcomed by Azerbaijan during the 2020 Nagorno-Karabakh war, it is necessary to emphasis the effective control and material ability that Azerbaijani and/or Turkish superiors exercise over their subordinates.
As there is no limitation on the rank of the superiors that can be held responsible for the crimes committed by their subordinates under command responsibility, the doctrine can be applied to a wide range of superiors and even extends to the heads of states. Being a de jure or de facto superior is not sufficient to attribute command responsibility. Thus, to analyze responsibility, it is necessary to start with the question of the superior’s effective control towards their subordinates. In the case of war crimes during the 2020 Nagorno-Karabakh war, the responsibility of Erdoğan can be considered. Thus, as a first step, there is a requirement to prove that he had effective control and material ability over his subordinates regardless of the fact that he was not in the zone where the hostilities took place. The importance of Erdoğan’s location during the war is triggered based on the judgment of the Appeals Chamber in the case of Bemba, The Trial Chamber concluded that Bemba did not take all necessary and reasonable measures because whatever measure he took was motivated to protect the image of MLC, and he actually did not have an intention to genuinely prevent or punish crimes by his troops. The Appeals Chamber did not agree with the reasoning of the Trial Chamber with respect to Bemba’s motivation and put the emphasis on the fact that he took certain actions and acquitted him.
Now, through applying the case of Bemba to Erdoğan, it is important to pay attention to the fact that with respect to war crimes in 2020, Erdoğan did not take any measures to prevent or punish such crimes, and the war crimes continuously had been committed throughout the whole period of the war. Here, it is important to note that the above-mentioned examples of war crimes related to Erdoğan’s name, for example, in Syria, Libya, and Iraq, once again prove that the commission of war crimes is a common practice for the president of Turkey. It is not solely Armenians that blame Turkey for the commission of war crimes and the recruitment of mercenaries; the evidence shows that other countries have become the victims of Turkish crimes as well.
The disagreement between the Chambers of the ICC on the matter of motivation when it comes to preventing and punishing war crimes, which is a decisive and debatable factor, will not be present in the case of Erdoğan. Furthermore, the Appeals Chamber also highlighted that Bemba was in a foreign country during the armed conflict, and the physical absence created some difficulties in preventing crimes although he exercised effective control over his subordinates and was aware of their conduct. As such, it was concluded that because he was a remote commander, Bemba had difficulties taking measures and investigating crimes committed by his subordinates.
Through analyzing the reasoning of the court in Bemba related to his acquittal and the status of remote commander, some relevant factors should be considered. Because Erdoğan was in Turkey during the 2020 Nagorno-Karabakh war, it seems that the ICC will most probably apply the same approach of the remote commander and the problem of having material ability over his subordinates. However, going beyond the surface of the issue, the hypothesis that Turkey took part in the war and Erdoğan actually exercised material ability over his subordinates becomes evident considering the presence of the advisors, generals, and the Minister of the Defense of Turkey in Azerbaijan. Those factors imply Erdoğan’s full control over the events in the war. Moreover, the statements of Erdoğan, for example, that “They will make every effort to ensure the territorial integrity of Azerbaijan,”[97] also imply the participation of Turkey in the war and the high possibility of having control over the events taking part in the conflict. Thus, having this much control over his subordinates, the physical absence of Erdoğan in the conflict zone would not qualify as a ground to acquit him from the charges under command responsibility. It is also important to make a clear distinction between the duty to prevent, repress, or submit the matter to the competent bodies for investigation and prosecution. Erdoğan or/and other Turkish commanders, in Azerbaijan, had an obligation to keep their subordinates from committing war crimes before they were committed or whenever they were ongoing. Also, it is not expected from Erdoğan or other Turkish commanders or other superiors, to start an investigation in a foreign country, but they had a duty to submit the matter to the competent authorities.
Based on the testimony of a mercenary, orders by Azerbaijani and Turkish commanders to kill every single Armenian and the promised $100 for every beheaded Armenian clearly shows the intent of the commanders. The order to kill everyone acts as direct evidence resulting in the commanders’ knowledge of the criminal activity. In other words, giving orders to commit such crimes proves that the commanders had actual knowledge that such crimes were about to be committed. The fact that a huge number of videos and photos full of hatred and war crimes against Armenian soldiers and civilians both in 2016 and 2020, that were circulating throughout social media, leads to the possible conclusion that military commanders and other superiors, including Erdoğan, had reason to know about the continuous war crimes. Thus, they had a duty to take measures within their power and capacity to prevent or punish the perpetrators. For the prevention of war crimes, the Turkish and Azerbaijani military commanders and other superiors should have taken measures such as criticizing criminal activity, redeploying violent subordinates, etc. In his testimony, a former Armenia POW mentioned that the commanders told the subordinates not to hit the POWs. However, the commanders and/or other superiors should take reasonable and necessary steps to prevent the commission of war crimes. In other words, just telling the subordinates not to hit the POWs will not be considered as a proper measure to stop such crimes. Within the scope of “necessary” measures, giving an order not to hit the POWs may not lead to the conclusion that the commander genuinely tried to prevent the crime. In this case, the inhuman treatment by the subordinates continued, and the commander, already knowing of the conduct of the subordinates, should have been more careful on that matter and should have taken other measures to stop the crimes respectively and also punish the offenders to prevent such crimes. Moreover, based on the testimony of a repatriated POW, collected by the Center for Truth and Justice, a high-ranking officer had witnessed the mistreatment towards Armenian POWs and did nothing. Identifying the Azerbaijani commanders responsible for the mistreatment poses a challenge. This problem is due to the repatriated POW’s difficulty in remembering the names, ranks, and other identifying information of those responsible for their mistreatment.
Indeed, it is not possible to always attribute the criminal responsibility of the subordinates to their superiors because not in every single case are they aware that their subordinates are about to commit war crimes, or they are in the process of committing such crimes. This is not the case of the commanders of Turkey and Azerbaijan as they had effective control over their subordinates, and often, war crimes were committed based on the direct orders of commanders. Here, under the effective control of Turkey and its commanders, it is essential to mention that based on the mercenary’s testimony, the Armed Forces of Azerbaijan were obliged to obey the orders of the Turkish commanders. Furthermore, if the commanders/superiors did not manage to prevent war crimes because of valid grounds, whenever they were informed about the criminal activity, they should have taken measures to prosecute the offenders. And, if the superiors do not have the power to start an investigation, which is the case of commanders, as well as the heads of Turkey and Azerbaijan, at least, they had a duty to submit the matter to the competent authorities to punish the offenders and to stop war crimes. However, Turkish and Azerbaijani superiors neither prevented nor punished the perpetrators.
In the case of Turkish and Azerbaijani commanders and superiors, after failing to prevent war crimes, of which they had knowledge of, even the punishment of such crimes is not a way to acquit them from the charges under command responsibility. For instance, in the judgement of Orić, it is mentioned that the superiors do not have permission to choose whether to prevent or to punish crimes. Thus, superiors have consecutive obligations. This means that, first, they have a duty to intervene whenever they become aware that crimes are about to be committed, while the duty to punish will serve as a substitute step only in the cases when the superior become aware of such crimes after the commission. The logic behind this provision is that the military commanders or/and superiors shall not let their subordinates commit war crimes and then punish them because the primary duty is to prevent the commission of such crimes. This provision can serve as a guarantee that military commanders and/or other superiors will not let their subordinates commit war crimes because they themselves do not oppose such actions and then punish the offenders just to show that they act in compliance with IHL rules. In fact, the practice of Azerbaijan shows that the head of the country not only failed to prevent war crimes but instead, for example, in the case of Sloyan, the perpetrator was awarded. Again, this kind of example, combined with other factors related to hatred towards Armenians, makes the preventing or punishing war crimes committed in 2016 and 2020 is far away from reality.
The deliberate attacks against civilian settlements, civilian infrastructure in 2016 and 2020, and the Holy Savior Ghazanchetsots Cathedral in 2020, as well as the use of prohibited weapons by Azerbaijan, also leads to the discussion of the responsibility of the head of the country for the war crimes.
CONCLUSION
It is not an easy process to hold military commanders and/or other superiors responsible under command responsibility. Indeed, the process requires specific attribution of war crimes to commanders and/or other superiors.
Many of the war crimes listed under Article 8 of the Rome Statute have been committed during the 2016 and 2020 Nagorno-Karabakh conflict. The evidence shows that commanders had effective command and control, or effective authority and control over their subordinates, and they knew or should have known that their subordinates were committing war crimes, or that they were about to commit such crimes. However, they failed to take all necessary measures within their power to prevent, repress or submit the matter to the competent authorities for investigation and prosecution. Turkish and Azerbaijani military leaders and/or other superiors can be held criminally responsible for war crimes committed by their subordinates.
To sum up, to prevent core international crimes, it is essential to punish such crimes and show the world that every single perpetrator shall bear criminal responsibility for their inhuman actions. Whenever the “human” cruelty crosses every possible line that refers to respect for human rights, the strict punishments shall come into play. Indeed, under the doctrine of command responsibility, the emphasis is put on the responsibility of the commanders and/or other superiors.
[1] Customary IHL, Rule 152. Command Responsibility for Orders to Commit War Crimes, available at https://ihl-databases.icrc.org/customary-ihl/eng/docs/v1_rul_rule152 (last visited Feb 15, 2021)
[2] Customary IHL, Rule 153. Command Responsibility for Failure to Prevent, Repress or Report War Crimes, available at https://ihl-databases.icrc.org/customary-ihl/eng/docs/v1_rul_rule153
[3] Ibid. 18
[4] Ibid. 19
[5] Customary IHL, Practice Relating to Rule 153. Command Responsibility for Failure to Prevent, Punish or Report War Crimes, available at https://ihl-databases.icrc.org/customary-ihl/eng/docs/v2_cha_chapter43_rule153
[6] -The Azerbaijan Republic, Const. art. 9.
[7] -The Republic of Turkey, Const. art 92, 104, 117.
[8] Coalition for the International Criminal Court, Bemba: First ICC command responsibility trial concludes, available at https://www.coalitionfortheicc.org/news/20141125/bemba-first-icc-command-responsibility-trial-concludes (last visited March 7, 2021)
[9] Case Information Sheet, The Prosecutor v. Jean-Pierre Bemba Gombo, ICC-01/05-01/08 (2019), available at https://www.icc-cpi.int/CaseInformationSheets/bembaEng.pdf
[10] THE PROSECUTOR v. JEAN-PIERRE BEMBA GOMBO, TRIAL CHAMBER III, No. ICC-01/05-01/08 A, available at https://www.icc-cpi.int/courtrecords/cr2016_02238.pdf
[11] ICTY, Delalić Appeal Judgment, pars 205-206; ICTY, Krnojelac Trial Judgment, para. 93.
[12] ICTR, Kajelijeli Appeal Judgment, para. 85; ICTR, Gacumbitsi Appeal Judgment, para. 143; and ICTY, Aleksovski Trial Judgment, para. 76
[13] Blaškić Trial Judgment, para 335.
[14] ICTY, Delalić et al. Appeal Judgment, paras 252 and 303; ICTY, Strugar Trial Judgment, paras 362 to 363; and ICTY, Kunarac et al. Trial Judgment, para. 398.
[15] Confirmation Decision, para. 415; ICTY, Delalić et al. Appeal Judgment, paras 190 to 198 and 256; and ICTR, Bagilishema Appeal Judgment, para. 51.
[16] Rome Statute of the International Criminal Court (last amended 2010), Article 28, 17 July 1998, ISBN No. 92-9227-227-6, https://www.icc-cpi.int/resourcelibrary/official-journal/rome-statute.aspx
[17] Defence Closing Brief, paras 626 and 675, citing SCSL, Taylor Trial Judgment, para. 6984; ICTY, Kunarac et al. Trial Judgment, paras 399 and 626 to 628; ICTY, Hadžihasanović and Kubura, Decision on Interlocutory Appeal Challenging Jurisdiction in Relation to Command Responsibility, para. 51; and ICTY, Hadžihasanović and Kubura Trial Judgment, para. 1485.
[18] ICTY, Delalić et al. Appeal Judgment, paras 188 to 192 and 197; ICTR, Gacumbitsi Appeal Judgment, para. 143; ICTR, Kajelijeli Appeal Judgment, para. 85; ICTY, Hadžihasanović and Kubura Trial Judgment, para. 78; ICTY, Blaškić Trial Judgment, para. 302; and ICTY, Delalić et al. Trial Judgment, paras 354, 370, 646, and 736
[19] Confirmation Decision, para. 430, citing ICTY, Kordić and Čerkez Trial Judgment, para. 427; and ICTY, Hadžihasanović and Kubura Trial Judgment, para. 94. See also ICTY, Galić Appeal Judgment, paras 171 and 180 to 182.
[20] ICTR, Kamuhanda Appeal Judgment, paras 81 to 82
[21] ICC-02/05-01/09-73, para. 33. See also ICTY, Vasiljević Appeal Judgment, para. 120; ICTY, Delalić et al. Appeal Judgment, para. 458; ICTY, Krnojelac Appeal Judgment, paras 177 to 179; ICTY, Kordić and Čerkez Trial Judgment, para. 427; ICTY, Delalić et al. Trial Judgment, para. 386; and ICTY, Blaškić Trial Judgment, para. 307.
[22] ICTY, Delalić et al. Trial Judgment, paras 385- 386.
[23] ICTY, Galić Trial Judgment, paras 700-705
[24] Confirmation Decision, para. 431. See also Final Report of the Commission of Experts Established Pursuant to Security Council Resolution 780 (1992), UN Doc. S/1994/674, 27 May 1994, pages 16 to 17; ICTY, Delalić et al. Trial Judgment, para. 386; ICTY, Blaškić Trial Judgment, para. 307; ICTY, Strugar Trial Judgment, para. 368; ICTR, Bagosora et al. Trial Judgment, para. 2014; SCSL, Sesay et al. Trial Judgment, paras 309 and 368; ICTY, Limaj et al. Trial Judgment, para. 524; ICTY, Halilović Trial Judgment, para. 66; ICTY, Blagojević and Jokić Trial Judgment, para. 792; ICTY, Stakić Trial Judgment, para. 460; ICTY, Kordić and Čerkez Trial Judgment, para. 427; ICTY, Naletilić and Martinović Trial Judgment, para. 72; and ICTY, Galić Trial Judgment, paras 700 to 705.
[25] ICTY, Orić Appeal Judgment, para. 177; ICTY, Halilović Appeal Judgment, para. 63; ICTY, Blaškić Appeal Judgment, paras 72, 417, and 419; and ICTR, Bagilishema Appeal Judgment, para. 35.
[26] Rome Statute of the International Criminal Court (last amended 2010), Article 28, 17 July 1998, ISBN No. 92-9227-227-6, https://www.icc-cpi.int/resourcelibrary/official-journal/rome-statute.aspx
[27] Confirmation Decision, para. 436; ICTY, Blaškić Appeal Judgment, para. 83; and ICTY, Orić Trial Judgment, para. 326.
[28] See Collins English Dictionary (9th edition, 2007).
[29] See Black’s Law Dictionary (9th edition, 2005).
[30] The Prosecutor v. Jean-Pierre Bemba Gombo, Trial Judgment, ICC-01/05-01/08-3343 21-03-2016 92/364 NM T, para 202.
[31] Confirmation Decision, para. 437. See also ICTR, Ndahimana Appeal Judgment, para. 79
[32] ICTR, Nahimana et al. Appeal Judgment, para. 721, stating that these include the so-called continuous and enduring crimes.
[33] Confirmation Decision, para. 438, citing ICTY, Hadžihasanović and Kubura Trial Judgment, para. 153; and ICTY, Strugar Trial Judgment, para. 374
[34] ICTY, Hadžihasanović and Kubura Trial Judgment, para. 153; ICTY, Strugar Trial Judgment, para. 374 and footnote 1094, citing United States of America et al. v. Araki Sadao et al. (Tokyo) Judgment; and ICTY, Hadžihasanović and Kubura Appeal Judgment, para. 153. See also United States of America v. von Leeb et al. (High Command Case) Judgment, page 623.
[35] Rome Statute of the International Criminal Court (last amended 2010), Article 28, 17 July 1998, ISBN No. 92-9227-227-6, https://www.icc-cpi.int/resourcelibrary/official-journal/rome-statute.aspx
[36] The Oxford English Dictionary, Vol. XII (2nd edition, 1989)
[37] ICTY, Popović et al. Appeal Judgment, para. 1932
[38] ICTY, Popović et al. Appeal Judgment, para. 1932; ICTY, Halilović Appeal Judgment, para. 182; ICTY, Boškoski and Tarčulovski Trial Judgment, para. 418; ICTY, Mrkšić et al. Trial Judgment, para. 568; and ICTY, Strugar Trial Judgment, paras 376 to 378
[39] ICTY, Kvočka et al. Trial Judgment, para. 316.
[40] ICTY, Halilović Appeal Judgment, para. 182, affirming ICTY, Halilović Trial Judgment, para. 97; and ICTY, Halilović Trial Judgment, para. 100; Blaškić Appeal Judgment, para. 69; ICTY, Hadžihasanović and Kubura Appeal Judgment, para. 154.
[41] ICTY, Delalić et al. Trial Judgment, paras 399 and 400.
[42] THE PROSECUTOR v. JEAN-PIERRE BEMBA GOMBO, THE APPEALS CHAMBER, No. ICC-01/05-01/08 A, available at https://www.icc-cpi.int/courtrecords/cr2018_02984.pdf
[43] Makuchyan and Minsayan v. Azerbaijan and Hungary, no. 17247/13 (2020)
[44] OSCE Human Dimension Implementation Meeting, Statement on the cases of torture inflicted by Azerbaijani on the soldiers and civilians of Armenia and Nagorno Karabagh, (2017)
[45] Transparency International, Report on Xenophobia in Azerbaijan, (2021)
[46] Ibid.
[47] Ibid. 77
[48] Ibid. 77
[49] Ibid. 77
[50] Ibid. 77
[51] Ibid. 77
[52] Ibid. 77
[53] Ibid.3
[54] The Human Rights Defender of Armenia, The Human Rights Ombudsman of Artsakh, Fifth Ad Hoc Report on Torture and Inhumane Treatment of Members of Artsakh Defense Forces (From November 19-December 2, 2020)
[55] Ibid.
[56] Ibid. 89
[57] Human Rights Ombudsman of the Republic of Artsakh, Ad Hoc Report on Inhumane Treatment of Members of Artsakh Defense Army and Civilians by Azerbaijani Armed Forces, (2020)
[58] Ibid.
[59] Ibid. 92
[60] Ibid. 92
[61] Ibid. 92
[62] The Human Rights Defender of Armenia, The Human Rights Ombudsman of Artsakh, Sixth Ad Hoc Report on Torture and Inhuman Treatment of Members of Artsakh Defense Army and Captured Armenians by Azerbaijani Armed Forces, (2020)
[63] Azerbaijan: Armenian POWs Abused in Custody, available at https://www.hrw.org/news/2021/03/19/azerbaijan-armenian-pows-abused-custody?fbclid=IwAR3wvO81WPrZ2zzxHa7TTpdZ2IXNgKxqNiZfYhtrkrlQ4uUfHnsyoBJ2X_A (last visited March 7, 2021)
[64] Ibid.
[65] Ibid. 13
[66] Ibid. 13
[67] Ibid. 13
[68] Ibid. 13
[69] Human Rights Watch, Azerbaijan: Cluster Munitions Used in Nagorno-Karabakh, available at https://www.hrw.org/news/2020/10/23/azerbaijan-cluster-munitions-used-nagorno-karabakh (last visited March 29, 2021)
[70] Makuchyan and Minsayan v. Azerbaijan and Hungary, no. 17247/13 (2020)
[71] Ibid. 78
[72] Ibid. 78
[73] Ibid. 106
[74] Ibid. 13
[75]Armenpress, ‘We were ordered to slaughter every Armenian in the village’, captured Syrian mercenary says, available at https://armenpress.am/eng/news/1033852/E28098we-were-ordered-to-slaughter-every-armenian-in-the-villageE28099-captured-syrian-mercenary-says.html%20 (last visited April 3, 2020)
[76] Ibid.
[77] Ibid. 111
[78] Ibid. 111
[79] Ibid. 111
[80] Ibid. 111
[81] Ibid. 111
[82] Armenpress, Սիրիացի վարձկան ահաբեկիչները դատապարտվեցին ցմահ ազատազրկման, available at https://armenpress.am/arm/news/1051252.html
[83] Ibid.
[84] ՌԱԶՄ․info, Թուրքիայի մասնակցությունը պատերազմին. Մաս Ա. F-16-եր, available at https://razm.info/147915 (last visited March 29, 2021)
[85] Ibid.
[86] Ibid. 120
[87] Ibid. 120
[88] Asbarez, Turkish Generals Led War on Artsakh: This was a Turkish, not Azeri, Victory, available at https://asbarez.com/199540/turkish-generals-led-war-on-artsakh-this-was-a-turkish-not-azeri-victory/?fbclid=IwAR3sv3_zUFHwQip40-fBAmhF_C-ESWv_Nz0nla73A35pVlH7gXTFcAlxYzs (last visited March 29, 2021)
[89] Ibid.
[90] Ibid. 124
[91] Ibid. 124
[92] Ibid. 124
[93] Armenpress, Turkish Defense Minister personally controlled Azerbaijani attack against Artsakh – Kommersant, available at https://armenpress.am/eng/news/1031841.html (last visited April 9, 2021)
[94] Ibid.
[95] Ibid. 129
[96] Ibid. 129
[97] Ministry of Foreign Affairs of the Republic of Armenia, Answers by the MFA Spokesperson to questions regarding the statements of the Presidents of Azerbaijan and Turkey made at the Session of the Turkic Council, available at https://www.mfa.am/en/interviews-articles-and-comments/2019/10/16/spokesperson_araratnews/9897
