сен 29, 2023

POSITION OF THE "ARMENIA" FACTION OF THE NATIONAL ASSEMBLY OF ARMENIA ON THE RATIFICATION OF THE ROMAN STATUTE OF THE INTERNATIONAL CRIMINAL COURT

The Rome Statute of the International Criminal Court is submitted to the National Assembly for ratification.

Having studied the available package on this issue, we declare

On the legality of ratification of the Rome Statute by the National Assembly

Despite the fact that the Constitutional Court on 24.03.23 gave a positive opinion on the compliance of the Rome Statute of the International Criminal Court with the Constitution, we believe that the CC has exceeded its constitutional powers. According to the Constitution and the Constitutional Law "On the Constitutional Court", the CC could not discuss this issue. In other words, the Constitutional Court did not have the right to make the subject of consideration an international treaty in which the obligations stipulated by the Constitutional Court had already been recognized as contradicting the Constitution, without appropriate constitutional amendments. According to the CC ruling SDO-502 of August 13, 2004, the obligations enshrined in the Rome Statute, according to which the International Criminal Court complements the domestic criminal jurisdiction of the Republic of Armenia, as well as the fact that the implementation of the right of pardon and the possibility of amnesty of convicted persons in the domestic order is excluded, do not comply with the Constitution of the Republic of Armenia. In addition, by this decision the CC also recorded that, based on international law enforcement practice, it considers it possible to amend or supplement the Constitution of the Republic of Armenia in a way that would recognize the obligations stipulated by the statute of the International Criminal Court or the jurisdiction of this Court as a body complementary to the national judicial system (for example, France, Ireland and Brazil have explicitly established the jurisdiction of the ICC or the possibility of joining the Charter in their constitutions).

The decision of the Constitutional Court is not subject to change, it is final and from the moment of its publication it is binding. Meanwhile, on 24.03.2023 the CC, with fictitious justifications and reasons, adopted a decision, which in essence contradicts the current decision of the CDS-502, and decided on the conformity of the Rome Statute with the Constitution. Meanwhile, the Constitutional Court could have dealt with this issue in case of discussion of the draft of the relevant amendments to the Constitution. Which would imply, on the one hand, the consent of at least 2/3 majority of the National Assembly, and on the other hand, in case of a complete change, the need for a referendum. Consequently, the decision is unconstitutional, so it is unacceptable and inadmissible to give the National Assembly the right that belongs to the people, namely the right to make a decision through referendum.

At the same time, even if the possibility of accession to the Rome Statute by amending the Constitution is granted, the following questions about the appropriateness of this measure become relevant.

On the Statute as an effective measure to combat genocide, crimes against humanity and war crimes, as well as to prevent and deter Azerbaijani aggression.
1. Despite the fact that the justification mentions the ICC as an effective instrument for combating genocide, crimes against humanity and war crimes, neither the justification nor our research has recorded a single case in which the person or state that committed these crimes has been punished.

This begs the question: are there examples where the ICC has achieved its statutory objectives, whether heads of state who have committed crimes have been punished, or whether a state's aggression has been deterred

1. Why was it decided to accede to the Statute not by recognizing the jurisdiction of the ICC (limited targeted implementation) but by fully ratifying it, assuming a disproportionate number of obligations? Is the desire to ratify the RS a new lever of pressure from Armenia on Azerbaijan to reach a so-called peace agreement (on pain of being held internationally criminally responsible) or a mechanism to secure the territory remaining under the control of the Armenian authorities from new aggressions by Azerbaijan? Can it be understood in such a way that the Armenian authorities, with Azerbaijan's active militarization, see international legal mechanisms and institutions as a possible means of confronting its aggressive policy? To what extent is this an adequate and rational approach to the challenges posed?
1. If this is a means to hold Azerbaijan accountable, why does the Armenian side not initiate an appeal through the UN Security Council to the ICC to investigate crimes of genocide or against humanity in the case of the blockade-siege of Artsakh, as it was done in relation to Sudan, having in hand the opinion of a former ICC prosecutor? Such a mechanism exists and for its realization it is not necessary that Armenia is a party to the RS. Has Armenia applied to other countries and organizations that have established responsibility for genocide, crimes against humanity and war crimes with a request to bring to justice or impose other sanctions against representatives of the Azerbaijani authorities or other persons suspected of committing these crimes?
2. Is there confidence that the ICC's practice so far is a guarantee that the leadership of Azerbaijan will ever be held accountable through the ICC mechanisms? This is taking into account that Azerbaijan and Turkey are not parties to the ICC and are not going to be, and in case of a possible negative decision of the ICC against the leaders of Azerbaijan, they will quietly reside in the territories of these and other Muslim states, as it happened in the case of the former president of Sudan. Why there is no simultaneous accession of Azerbaijan and Turkey to the statute, are they not concerned about their absence? Is there an understanding of what will happen if Azerbaijan does not fulfill the decision of this court, just like the previous ones on the Lachin corridor?

1. When is it planned to appeal to the court and how can the course of consideration affect the peace negotiations? Shall we wait for the court verdict, its execution or sign a treaty with the aggressor? After the signing of the peace treaty, will Armenia continue to insist on the ICC investigation of Azerbaijan's actions and at the same time engage in dialogue and cooperation with it on the implementation of the peace treaty as if nothing had happened? What will Armenia do in case of a hypothetical positive decision of the ICC in favor of Armenia - will it seek its implementation, or will it be satisfied with moral satisfaction and continue "close and mutually beneficial cooperation" with Azerbaijan?
2. Is there a possibility that Azerbaijan may take countermeasures to protect its rights in international courts, e.g. multibillion-dollar arbitration claims?

1. What are the guarantees that ratification of the statute will not create the possibility of prosecution under the ICC of Armenian military, political and other persons who participated in the liberation struggle of Artsakh (e.g. in the April Four Day War) ?

1. Isn't this process accidentally a guarantee to the contrary, i.e. a new additional confirmation of Armenia's readiness to give up any territorial claims to Azerbaijan and Turkey and the lack of desire to be a guarantor of security for the Armenian people in Artsakh in case of ethnic cleansing and military operations, taking into account that the appeal to the CC by the Government followed after the famous Prague statements on recognizing the territorial integrity of Azerbaijan with Karabakh as part of it? Otherwise it would have been possible to launch this process in May 2021 after the first large-scale aggression of Azerbaijan and occupation of Armenian territory? In other words, is not this process an additional guarantee on the part of Armenia about non-interference in the situation with Karabakh, even in case of ethnic cleansing and a new war? Put differently. will it limit the right of future generations to live in their homeland or lead to the final solution of the Artsakh issue to the detriment of the Armenian people?

1. Is there an understanding that after the ratification of the RS, the Russian President's trips to Armenia will be problematic in terms of the already issued warrant, how will this affect the quality of the work of the CSTO, EAEU and CIS? Is there any assessment of the impact of such a decision on the prospects of our bilateral and regional relations, because unlike us, President Putin will be able to freely visit Turkey and Azerbaijan? How logical and reasonable is it to take a step that will sharply limit our interaction with the leader of a state whose military base is in the Republic of Armenia, whose border guards protect your external borders, whose peacekeepers are in Karabakh, from where billions of dollars of transfers come, which operates your operating nuclear power plant and is the main supplier of gas, whose market is the main one for selling your products, whose citizens are the main tourists for our country? Is there an understanding of how seriously this could affect the development of our relations with the BRICS+ countries, especially after the expansion of this organization, which also includes China, India and Iran?
1. Is it possible to assume that the Armenian authorities have certain guarantees that by joining the ICC the level of security and inviolability of the country's territorial integrity will be ensured without Russia's effective participation? Isn't this a geopolitical adventure or a Scenario with maximum risks of loss of statehood and destruction and practically zero possibility of ensuring security? If we add to this the fact that, according to the latest announcement, the ICC is opening its largest office in Ukraine, it turns out that in the upcoming events it will be fully involved in the conflict between the West and Russia, dragging Armenia into a new war. Thus, given the risks presented in the previous paragraphs, by acceding to the Rome Statute Armenia faces objective risks of damage and loss in exchange for acquiring some theoretical possibilities in the future.
2. What experience does Georgia, which is a party to the ICC, have in defending its own national interests, state sovereignty and territorial integrity since the August 2008 war? Why has Georgia so far not recorded any notable success for itself through the existing ICC mechanisms?
1. Why has Serbia, being a European country, aspiring to be a member of the EU, not yet become a party to the ICC? Did the Kosovo factor and the desire to protect Kosovo Serbs without being constrained by additional international obligations, however ineffective, influence its decision?

Thus, the "Armenia" faction of the National Assembly considers the ratification of the Rome Statute by the presented procedure unconstitutional and believes that it cannot be the subject of discussion at this stage (including the inclusion of the issue of its ratification in the agenda of the National Assembly and voting is illegal). And in case of implementation of the mechanism of accession to the Rome Statute with amendments to the Constitution, it can be implemented only if the above-mentioned risks are fully identified, their negative consequences for Armenia and Artsakh are neutralized or at least minimized.