Ocampo's report: A lousy "expert" opinion by a man in a hurry Contemplations with Orkhan Amashov/VIDEO

In the latest episode of the Contemplations with Orkhan Amashov, the author critically examines former ICC Chief Prosecutor Luis Moreno Ocampo's report, titled "Expert Opinion: Genocide Against Armenians in 2023", and tries to find an answer to the question as to what has made the Argentine lawyer produce such an ill-conceived piece, full of tenuous arguments. Amashov, upon the examination of the weaknesses of Ocampo's "expert opinion" and certain spells during his career, marred with conflicts of interests, concludes that the explanation lies in the essence of the man's character, a defining feature of which seems to be a lack of integrity.

"Hello everybody, 

Luis Moreno Ocampo's hastily produced report, titled "Expert Opinion: Genocide Against Armenians in 2023", in addition to being replete with factual errors, omissions and misleading arguments, peppered with irrelevant references, is nothing but a lousy compilation by a man in a hurry, commissioned to reach a pre-determined result. 

This is the conclusion I reached upon careful examination of the work of the Argentine lawyer and former Chief Prosecutor of the International Criminal Court (ICC). Firstly, I will explain how I have reached this conclusion. Secondly, I will try to understand why Ocampo has produced such an ill-conceived opinion. Apologies in advance. Today, I will speak a little longer than I normally do. There is much ground to cover. Alas, it can't be helped. 

So, let us crack on. In his opinion, Ocampo purportedly looks into the question as to whether what he calls "the blockade of the Lachin Corridor by the Azerbaijani security forces, impeding access to any food, medical supplies, and other essentials" should be considered a Genocide under Article II (c) of the Convention on Prevention and Punishment of the Crime of Genocide. In other words, the question the author looks at is if some of the measures taken by Azerbaijan regarding the Lachin-Khankandi Road could amount to an act of deliberately inflicting on Karabakh Armenians conditions of life calculated to bring about their physical destruction.

Pre-determinedness 

On 31 July, Ocampo shared a post on Twitter, stating that "at the request of the President of Artsakh, I will produce in seven days a report to stop Armenian genocide in Artsakh". What does this post tell you?

First of all, its terminology indicates that Ocampo, despite being a lawyer, is a man driven by a definite bias, for he refers to Arayik Harutyunyan, who is the head of the illegitimate and unrecognised creation, self-styled as 'NKR’ as the head of "Artsakh", attributing legitimacy to this entity. It also tells you, in the clearest possible way, that the author had already reached his conclusion before considering the subject in its full entirety and being able to acquaint himself with a balanced range of pertinent facts. It is self-evident that Ocampo was not commissioned to produce an objective legal opinion, but that which his client wanted to hear.

There is also an ethical question. Whatever may have been expected of the author by Harutyunyan, and whoever paid for Ocampo's services, the latter was duty-bound to advise faithfully, without pandering to his client's or his own prejudices. A legal opinion must be objective, not subjective, and based on what the relevant law and the application of the law to the facts. 

Spurious facts and distortion of the relevant law 

So, let us now consider the report itself. Ocampo argues that "there is a reasonable basis to believe that a genocide is being committed against Karabakh Armenians in 2023.” In order to establish President Aliyev's "genocidal intent", he refers to three points, which he describes as facts.

Firstly, the Argentine lawyer argues that "President Aliyev deliberately blocked the provision of life's essentials" to Karabakh Armenians. Ocampo further states that, since 12 December 2022, Azerbaijan has been implementing "the blockade of the Lachin Corridor". Without going into the details that the eco-protest on the Lachin-Khankandi Road was a perfectly legitimate civil society act, let us deal with the gist of what the author tries to substantiate.

During the period of the environmental action, from 12 December 2022 to late April 2023, the cars belonging to the so-called Russian “peacekeeping” contingent and the ICRC moved freely in both directions along the Lachin Road, ensuring that the essential needs of Karabakh Armenians were met. After Azerbaijan established a border checkpoint at the entrance to the Lachin Road on 23 April, for almost two months, the route was fully functional, with Armenian residents of Karabakh able to pass, using their private vehicles.

On 15 July, after an Armenian military serviceman fired at Azerbaijani soldiers during a flag-raising ceremony at the Azerbaijani border checkpoint, Baku temporarily suspended movement along the Road, which was resumed imminently to facilitate the transfer of those in need of medical assistance and medical deliveries. Another suspension of movement was enacted on 11 July, when it was revealed by the Azerbaijani Border Service that attempts had been made to smuggle unauthorised goods via vehicles displaying the emblem of the ICRC. It is worth remembering that, at no point, has any temporary suspension of movement along the Lachin Road had any significant bearing on the transfer of Karabakh Armenians for medical purposes. 

Ocampo's examination of the period succeeding 12 December 2022 does not just fail to provide a fair account of how the movement along the route has been conducted, but it also omits the fact that Azerbaijan and Armenia agreed on the principle of complementarity between the Lachin and Aghdam-Khankandi Roads on 15 July, and that Baku has repeatedly offered to send humanitarian trucks via its own territory. 

Ocampo is, of course, conscious of the fact that no-one has been killed amongst the Karabakh Armenians since December 2022. In trying to attribute a genocidal content to the situation and establish material elements of the crime, he opines that denying Karabakh Armenians the elementary means of existence is omnipresent and that Azerbaijan is subjecting them to conditions calculated to bring about their physical destruction, and later the physical destruction itself. A glaring omission from Ocampo's evaluation is that he does not deal with the question as to how reasonable it would be to believe that, whilst doing its level best to ensure safe and unimpeded humanitarian supply deliveries from Aghdam, Baku could be suspected of having the intention of committing genocide. 

Secondly, Ocampo makes a complete pig‘s breakfast of citing the orders of the International Court of Justice (ICJ) and Article 6 of the 10 November 2020 tripartite statement to propound his blockade argument in the vain hope of proving that Baku disobeys the ruling and violates the relevant provisions of the ceasefire declaration.

On 6 July, the ICJ ruled that Azerbaijan should take "all measures at its disposal to ensure unimpeded movement of persons, vehicles and cargo" along the Lachin route "in both directions". There is nothing in the wording of the ICJ order to suggest that the establishment of a border checkpoint by Azerbaijan was illegal, which according to Ocampo, "cemented the blockade". 

What the decision says is that Baku should take "all measures at its disposal" to ensure unimpeded movement, which Baku does, subject to security considerations. The movement therein is as unimpeded as possible. And since Azerbaijan is obligated by Article 6 to provide a security guarantee regarding the Lachin Road, it should also take all measures to ensure that passage is safe. 

Thirdly, Ocampo argues that, despite the ICJ order putting President Aliyev on notice about the "real and imminent risk" to the "health and life" of Karabakh Armenians, the Azerbaijani President has wilfully refused to execute the ICJ's orders. What the author tries to vainly do is to connect some of the expressions entailed in the wording of the order in question with Article II (c) of the Genocide Convention in order to prove that the ICJ confirmed the occurrence of the material elements of the crime. 

Again, Ocampo, in addition to wilfully missing the nitty-gritty and vitally pertinent details related to how the movement along the Lachin Road has been conducted over the past eight months, fails to acknowledge that, by offering a safe and reliable alternative route via Aghdam, Azerbaijan is, in fact, making colossal attempts to remove any danger to the Armenian residents of Karabakh. His reasoning is grounded on finding some out-of-context elements, on a cherry-pricking basis, to mould his own preconceived conclusion. After all, that is what he was asked and paid to do.

The opinion is full of nonsense, designed to establish genocidal intent – which is a subjective element of the crime – by means of attributing non-existing meanings to President Aliyev's statements. Furthermore, Ocampo's grasp of the 10 November 2020 tripartite agreement leaves much to be desired. He mistakenly argues that, by allowing the so-called Russian “peacekeepers” to be temporarily stationed in Karabakh, and in the context of Article 6 of the ceasefire deal, Azerbaijan implicitly recognised "the Nagorno-Karabakh Republic’s factual autonomy". 

First of all, Azerbaijan does not recognise anything called 'NKR”, let alone its autonomy. Secondly, Ocampo should also be reminded that, on 10 November 2020, during the televised speech when the tripartite declaration was signed, Aliyev declared that "the status is gone to hell", effectively proclaiming the conflict's end, for the peace process preceding the war of 2020 had been centred around the status of the former Nagorno-Karabakh Autonomous Oblast, which has now long been consigned to the dustbin of history. 

Ocampo's possible motives: Character definition

Enough of the report. Let us look into the man's motives. We understand he has previously visited Armenia twice and, as an Argentinian, could reasonably be expected to be on cordial terms with the Armenian diaspora in his country and beyond, which, in all probability, paid for his services. There is nothing incriminating here yet. We need to look into the man's character, based on his deeds, to see what could have driven his ill-conceived legal opinion. 

In a tweet, posted on 10 August, Presidential Aide Hikmet Hajiyev, in addition to criticising Ocampo's report for its myriad factual, legal and substantive errors, to which we have earlier referred in detail, questioned the man's integrity. Hajiyev stated that "Ocampo managed companies based in some of the most notorious tax havens whilst serving as Chief Prosecutor at the ICC", adding that the Argentine lawyer "had a client, suspected of war crimes in Libya".

Indeed, all of these are very relevant to understanding Ocampo's predilections. In 2017, the documents obtained by Mediapart and analysed by the European Investigative Collaborations organisation revealed that our hero owned offshore companies registered in two of the most impenetrable tax havens in the world - Panama and the British Virgin Islands. When challenged about this, Ocampo replied with remarkable honesty, stating that his salary at the ICC was not enough". Not a good excuse. Not a legally kosher one. As a prosecutor at the ICC, Ocampo was obligated not to engage in any activity which was likely to interfere with his functions or to affect confidence in his independence. He was also required not to engage in other occupations of a professional nature. It seems clear that the fact of Ocampo's owning offshore businesses in a tax haven was incompatible with his role at the ICC. Indeed, Neil Watson, British Journalist, aptly described him as a “gamekeeper turned poacher’”.

Der SPIEGEL, in collaboration with Mediapart and EIC, on the basis of tens of thousands of hitherto unknown documents, including internal documents for the ICC, contracts, diplomatic dispatches, bank records and emails, gave a character definition of Ocampo as a man who "is compliant, craves attention, accepts conflicts of interests and apparently has a problem with money", despite fancying himself as "a self-avowed champion for transparency". 

What is particularly striking is that Ocampo was to be paid $3 million to advise Hassan Tatanaki, a dubious oil billionaire linked with the Gaddafi regime. The Argentine lawyer also used inside information to protect his client from possible prosecution by the ICC. In 2017, at the height of the scandal, Der SPIEGEL met Ocampo in London and found that the former ICC prosecutor was a man who liked to talk about his projects and successes and was adverse to answering critical questions. 

There is also an internal criticism levied against him from the Hague-based ICC itself. It was said that he had trouble concluding his cases in ways that were legally watertight, relying on anonymous witnesses. German international law expert Hans-Peter Kaul, who served as a judge in The Hague for many years, said that Ocampo presented the court with problematic witnesses who had nothing to contribute, with the prosecutor's legal argumentation being tenuous and his style of running his department being akin to that of “an Argentine land baron". 

He also failed the most important case of his ICC career when, on 26 February 2011, the UNSC assigned him the task of investigating war crimes in Libya. Ocampo "missed an opportunity to conduct an on-site investigation to obtain forensic and documentary evidence". When pressed by his colleagues, he replied that the evidence provided by other third parties - in other words, by journalists and defectors - would suffice. 

Der SPIEGEL concluded that "high-profile appearances on the world stage were apparently more important for him than detailed forensic work and the arduous collection and examination of evidence". 

On a different note, in 2017, during the trial in Madrid concerning a money-laundering case involving the Tambovskaya-Malyshevskaya gang and high-profile Russian public figures, including Vladimir Reznik, an MP from the ruling "United Russia" party, Ocampo was called by the defence as a witness. The striking point is that the former ICC prosecutor, in the capacity of a witness, appeared to know that the Russian authorities had refused to open a criminal investigation against Reznik. The information was not in the public domain and not supposed to be imparted to Ocampo as a witness. But he knew. How?  One does not need the abilities of Sherlock Holmes to reach the right conclusions. 

All of these reveal two critical points about Ocampo, namely, his failure as a lawyer to be attentive to details and conduct proper investigations, avoiding conflicts of interests, on one side, and his love for money impinging upon his integrity, on the other. And this is the man who, in seven days, produced an ill-conceived and slanted legal opinion, titled "Armenian Genocide in 2023". Perhaps, there is nothing surprising here. 

Thank you very much."