I think that testifying at the ICC could be one way to reduce that feeling of ethical loneliness that the victims feel in this conflict.
Anoush Baghdassarian is currently based in Yerevan, Armenia, serving as a field researcher for the University Network for Human Rights. Before that, she was the 2022-2023 Harvard International Legal Studies Fellow serving as a Visiting Professional at the International Criminal Court. She has a JD from Harvard Law School, a Master’s in Human Rights Studies from Columbia University, and a Bachelor’s in Psychology and Genocide Studies from Claremont McKenna College. She is Co-founder of the Rerooted Archive.
Interviewed by Lucie Nagy (2023)
Disclaimer : Anoush’s opinions in this interview are her own and do not reflect the views of the ICC.
The interview was conducted in early May 2023 before the Armenian parliament ratified the Rome Statute on October 3rd, hence making another major step forward towards becoming a member of the ICC. 60 deputies voted in favor, whilst 22 rejected the ratification. The interview has been edited post-ratification to reflect the new reality.
Last month Armenia ratified the Rome Statute, the constitutive document of the International Criminal Court. What does that mean?
On October 3, 2023, Armenia’s Parliament ratified the Rome Statute, and on October 13, 2023, Armenia’s President signed the instrument for ratification. Armenia both ratified the Statute and lodged a declaration under Article 12(3) of the Rome Statute. Under that Article, a state which is not party to the Rome Statute may accept the jurisdiction of the ICC with respect to crimes occurring on that state’s territory or perpetrated by that state’s national(s).
This path to jurisdiction has been employed by a number of States including Côte d’Ivoire (2003) and Ukraine (2015). To expand, in 2015, Ukraine lodged a declaration under Article 12(3) accepting the ICC’s jurisdiction with respect to crimes committed in Ukraine since February 14, 2014 and onward. A state may lodge a declaration under Article 12(3) accepting jurisdiction both for crimes that have already happened and for crimes which are yet to occur.
This alone is not enough to trigger an investigation, however; after an Article 12(3) declaration, for the ICC to exercise jurisdiction over a crime, either a State Party must refer the case or the Prosecutor on his own initiative (proprio motu) must initiate the investigation. This would open the way for an investigation of all crimes contained in the Rome Statute, except for the crime of aggression.
In Armenia’s case, it both ratified and issued a 12(3) declaration. Thus, Armenia may refer the case itself, and it needs not rely on the Prosecutor or another state party to do so. Armenia gave the Court jurisdiction for any crime that occurred on its territory from May 10, 2021, until the present. Thus, any crime that took place since then on Armenia’s territory can be prosecuted.
Can you share more about how this ratification might be hopeful for victims and what the process would be like for a case to actually move forward at the ICC for Armenia?
I will first share more about what the case would look like to get to that stage of the case, and then I will go to the first part of your question.
So, let us say that Armenia does ratify the Statute. Then, the Prosecutor’s office will open a preliminary examination situation and in that preliminary examination, what he and the whole office will do is they will look into open-source evidence that exists on the topic, and see if there is something sufficient to at least build the skeletal elements of the crimes that exist.
What is really important, at this stage, is for NGOs, journalists and other people documenting the crimes that are happening in Armenia, to make sure that they are not documenting with too much specificity. Back in the fall, the Prosecutor issued a civil society guide to document atrocities, which identified ways to document the harms so that it is sufficient for the preliminary examination stage but in a way that doesn’t create inconsistencies. For instance, if I interview somebody through an NGO and they say one thing, and then five years later they’re interviewed by the ICC’s office of the prosecutor and they say something else, that inconsistency could be capitalised on by defence attorneys and perhaps disadvantage a witness in a way that they never intended.
The stage we would get to next is the preliminary examination phase, and then from there, if there is sufficient evidence from the open-source evidence, then, the Office of the Prosecutor could decide to open an investigation, and that would be a very meaningful achievement for the victims of this atrocity.
After the Office of the Prosecutor’s assessment of the case in the preliminary examination stage, if there is sufficient evidence from the open source evidence and Article 15 communications sent to the Court by civil society and others, then the Office of the Prosecutor could decide to open an investigation, and that would be a meaningful achievement for the victims of this atrocity.
I have conducted a number of fact-finding missions in the past years with scholars from the University Network for Human Rights, Harvard Law School’s Advocates for Human Rights, and the Yale Loewenstein Project. We went to different villages in Armenia, speaking with individuals who live in border towns with Azerbaijan. For many of these individuals in Armenian border villages, the Azerbaijani soldiers are in their mountains, they can see them, they can hear them. They fear that the Azerbaijanis are coming closer and closer. One of the women we interviewed said “The mountains are moving.
Most of those with whom we spoke want to take advantage of international mechanisms that exist but I don’t know how much hope they had in them because the moment we conducted our interviews was on the heels of the ICJ’s ruling telling Azerbaijan that they must stop the blockade in Nagorno-Karabakh, and for six weeks, at that point, Azerbaijan had not. Therefore, the people with whom we spoke on the ground expressed doubt that international mechanisms and institutions could change anything on the ground, but that doesn’t mean that they weren’t hopeful to at least try them.
This need is even more urgent and heightened after the events of September 2023. For the past three months (September, October, and November 2023) I have been based in Armenia serving as a field researcher for the University Network for Human Rights and I was here for the forced displacement of the Armenians from Nagorno-Karabakh where essentially the entire population of 120,000 Armenians was pushed from the region. That has only heightened the desire for accountability within the community and the meaningfulness for the victims should a case move forward at the ICC.
What do you think the benefit would be for victims if they could share their stories at the ICC?
For the victims of these atrocities, one of the greatest benefits in telling their stories would be that the world knows the truth, that their voices are heard. Those are not my words, this is what people said when I was interviewing them in the villages of Sotk, Jermuk, Vardenis and Goris. Many people whom I spoke to said : “Please, with these interviews you’re doing, make sure the world knows the truth. Please make sure that the world knows what’s happening to us, and that they’re not just hearing Azerbaijani propaganda.” So, one of the greatest benefits would be that they would finally have a platform to share their truth, and at least feel that the world is listening.
There’s a wonderful historian and philosopher whom I love called Jill Stauffer, and she has a book called Ethical Loneliness, a term she coined. In this book, she said that “Ethical loneliness is the experience of being abandoned by humanity, compounded by the injustice of being unheard.”. I think this quote defines so well what I have found as a descendant of Armenian genocide survivors. As an Armenian, ethical loneliness is something we feel so strongly as not only is our history not acknowledged, it’s actively denied. This quote is at the heart of justice, for whatever justice effort it is, whether it is justice through retributive means in a tribunal, whether it’s justice through a truth and reconciliation commission, whether it’s justice through a reparation programme, or a trust fund for victims, at the ICC. I think acknowledgment is at the heart of all justice efforts, and so this feeling of ethical loneliness that Jill Stauffer writes about is perfect because it captures the lack of acknowledgment of so many victims of atrocities, and I think that testifying at the ICC could be one way to reduce that feeling of ethical loneliness that the victims feel in this conflict.
You are part of the Armenian diaspora, which is very vocal all around the world about the plight of their people in Armenia and Artsakh. What has been put into place for victims’ rights by the diaspora?
The Armenian diaspora has been doing what I think is the best thing to do, which is to collaborate with civil society organisations on the ground here in Armenia, and with government agencies, to make sure that they are complementing what is already being done instead of just taking charge of it.
Some of the ways they are doing this is, for example, through submitting reports to the United Nations, to the Special Rapporteurs on Cultural Heritage, the Special Rapporteurs on Xenophobia and Anti-racism, to the Committee on the Convention against torture (CAT). They’ve submitted reports to the Committee for the Convention against the elimination of racial discrimination. They have been working with organisations in Armenia: with churches for the cultural heritage destruction, with victims who have been victims of torture for these CAT complaints. They’ve been working with victims to assess what they want; what kind of justice they want in this sense. And then, they help to write these advocacy reports based on what they found out in Armenia. The Armenian Bar Association has done this, for example, as well as the Center for Truth and Justice, and many others. That is one way the diaspora has helped amplify victims’ voices by using their testimonies to submit reports to the UN. They’ve also been submitting White Papers to the US government, reports to the European Commission, and others. I am sure there are many diaspora organizations doing great work that I don’t know about, and as long as everyone is trying to help in a meaningful way that doesn’t do harm, I think it is great to see such involvement.
About the interviewer: Lucie Nagy recently graduated in International Security from Sciences Po Paris. Her concentrations were Europe and Global Risks. Interested in the geopolitics of the Caucasus, she is very attentive to the conflict between Armenia and Azerbaijan.