Mon Jul 30 2018 · 16 min read
Autocratic Arrogance: Kocharyan’s Arrest, His Apologists and Accountability
By Nerses Kopalyan
There is a false association between immunity and infallibility; for an autocrat, however, this falsity is irrelevant. Accustomed to a false privilege of immunity, he considers the law as his weapon, order as his will, and the social structure his domain: he can do no wrong, for it is he who determines its constitution. Thus, the privilege of immunity breeds a false sense of infallibility - the autocrat is simply incapable of being wrong. The infallible, then, cannot be asked to be accountable: accountability is degrading to his person. This is the ethos of autocratic arrogance. Not so much an ethos, though, but a virus, a pathogen that has for long sickened Armenia’s political realm, and one that most viciously crystalized under the regime of Robert Kocharyan (1998-2008).
Kocharyan’s autocratic arrogance is his political culture: He believes immunity is his privilege, and the mere demand of accountability an affront to his self-perception of being infallible in the political realm. And so while much of the Armenian world condemns him for the horrors of March 1, 2008, he is insulted by the mere insinuation that he did anything wrong. And as he is finally being held accountable to the law with his most recent arrest, he is displaying outrage at the audacity of the new government to question the autocratic arrogance of his previous regime. With the March 1 events, Kocharyan carved into the flesh of Armenian society, opening a wound that has festered for ten years, yet in his autocratic arrogance, he blames the wound for festering, not the perversity of his blade that bled the Armenian people. And so an entire people wept, while Kocharyan smirked. And his apologists? They did their utmost to justify this smirking.
Well, the man that once smirked is now frowning; distressed and frustrated, he is calling his apologists to arms, trying everything from fear-mongering to questioning the legitimacy of the country’s legal institutions. In this context, there appears to be, in general, an obnoxious predisposition by many commentators to oversimplify the current developments concerning the arrest of Robert Kocharyan by reducing these developments to two analytical scopes: the arrest is politically motivated, and the basis of the arrest lacks cogent and substantive legal foundations. The first argument is indicative of lack of intellectual honesty by such pundits, who resort to unfounded rumors or conspiratorial assumptions without any evidence or substantiation. Simply put, by falsely connecting unconnected developments, they presume to claim that tenable basis exist to contend that Kocharyan’s arrest is politically, as opposed to being legally, justified. The second argument displays inherent misunderstanding of the legal code under which Kocharyan is being charged, and furthermore, without sufficiently understanding the legal code, interpretations are being formulated to demonstrate incommensurability.
Is Kocharyan’s Arrest Politically Motivated?
The overarching conceptual setup indicates a tacit endeavor to plant seeds of doubt upon the legitimacy of the government’s case against Kocharyan.[1] By reducing the legal basis of the case to one of political persecution, the merits of the case, in of itself, become moot and negated. Without having had any access to the evidence being developed, the facts of the case, the list of witnesses, and other pertinent and relevant content, assumptions are being proliferated as if the outcome of the case, due to its presumed political nature, is a foregone conclusion. This immature attempt at diagnosing a self-fulfilling prophecy is indicative of the rationale of the apologists of the Kocharyan Administration. By preempting, they are attempting to cast doubt upon the legitimacy of the outcome of the case, under the assumption that the evidence is going to be insurmountable and detrimental for Kocharyan. As such, by throwing a blanket critique over the case as being politically motivated, the nuances, facts, evidence, and the collective basis that could demonstrate Kocharyan’s guilt can be waived off as immaterial.
There is a fundamental difference between the notion of political will and the notion of violating the separation of powers doctrine between the governmental branches. Namely, in the last ten years, the political will of the government was nonexistent when it came to legally addressing the death and mayhem of the March 1, 2008 events.
The apologists are concocting the following argument: the decision has been made, Kocharyan is going to be persecuted for political reasons, as such, there can be no legal legitimacy to his conviction. Thus, any evidence demonstrating Kocharyan’s guilt will be framed within the context of the conspiratorial - it is all a setup by the Pashinyan Government!
The problem with these forms of arguments are not simply limited to the lack of quality that comprises much of the political commentary concerning Armenia’s domestic developments, but also the prevailing assumption that the way the current administration operates is no different than the way previous administrations operated. That is, extra-legally with very little regard or respect to the independence of the judicial branch. Interestingly, while this modality of thinking is justified and further documented within the previous administrations, there remains no basis to make such assumptions with respect to the current administration. The contention being made here is that unless evidence is divulged that displays the Pashinyan Administration’s interference into the decision-making of the courts, commentators must refrain from making nonsensical assumptions that rely on the conspiratorial logic of the past. Furthermore, we must note a very important distinction that escapes the attention of most pundits: there is a fundamental difference between the notion of political will and the notion of violating the separation of powers doctrine between the governmental branches. Namely, in the last ten years, the political will of the government was nonexistent when it came to legally addressing the death and mayhem of the March 1, 2008 events. That the Pashinyan government has displayed a robust political will to unravel the March 1 events is beyond question: this was actually an important part of Pashinyan’s platform. This political will, however, in no way presupposes that the executive branch will usurp the constitutional separation-of-powers and enforce such a will upon the judicial branch to ascertain a specified outcome. To conflate these two notions and collapse them into a singular and oversimplified assessment of “Pashinyan going after Kocharyan” reeks of analytical incompetence.
We do not know what the nature of the evidence is against Kocharyan, what the strength of the government’s case is against Kocharyan, and if this, indeed, is politically motivated, then the government, in essence, has no case. So why attack the institutional integrity of Armenia’s legal system?
As an extension of the executive’s responsibility, Pashinyan instructed the Special Investigative Services (SIS), the governmental body that investigates public officials, to undertake an investigation into the March 1 events. This has been the extent of the Prime Minister’s involvement, which, legally, falls within the purview of the chief executive. The determination of the courts, however, to rule in favor of the SIS and thus approve a warrant for Kocharyan’s arrest remains inherently disconnected with the executives initial request of an investigation. There remains absolutely no basis to presume that the court decision was influenced or coerced by the Prime Minister’s office: such an assumption presupposes extra-legal and illegal activity by the Prime Minister himself.
Forthwith, unless this is substantiated (and if so, then Pashinyan should be held accountable before the law), pundits must refrain from presuming that because Pashinyan had directed the SIS, then he must, by the prevailing logic that defined the operational methods of the previous governments, also direct the courts to rule in accordance to his will, as opposed to the law. The fact that the courts, for example, scrutinized, in nearly a 24-hour marathon, the SIS’ request to arrest and hold Kocharyan in two month pre-trial detention clearly negates such contentions. If, as Kocharyan's apologists contend, the Prime Minister’s office has violated the independence of the judiciary and directed orders upon the court’s decision-making, then why would the court require such an extraordinarily long time to consider the SIS’ request?
Contextually, this is actually a rarity in Armenia’s judicial-legal realm: we have not been privy to such an instance where a court undertook such an extensive period to consider the evidence and the request of a governmental body to formulate its decision. This procedural development, in of itself, is both unusual and a positive development for the independence of the judiciary.
These arguments, of course, purposefully and willfully ignore the very events over which the case against Kocharyan has been initiated. The fact remains that ten Armenian citizens were killed. The fact remains that a “state of emergency” was declared, and under this purview, the army was instructed to intervene into domestic affairs. The fact remains that orders were given where force was used against Armenian citizens; brute force that violated the constitutional rights of citizens. These facts, without any needless qualification, require and demand accountability. The Armenian people have and are still demanding answers. Kocharyan’s apologists, however, are not simply attacking the legal process before it has even began, but further, they are displaying their inherent autocratic arrogance by thumbing their noses at those who have the audacity to demand accountability. Who are the Armenian people to demand answers? This arrogance, of course, is not so much arrogance, but rather, concealed fear: they know that in the court of public opinion, Kocharyan has already been found guilty by the Armenian people. However, in the court of law, his innocence is presumed, but Kocharyan’s apologists are indifferent to this presumption of innocence, for they carry the undeniable fear that when held accountable to the law, the insurmountable evidence will relinquish such a presumption. All this being said, however, we still remain with one obvious consideration: we do not know what the nature of the evidence is against Kocharyan, what the strength of the government’s case is against Kocharyan, and if this, indeed, is politically motivated, then the government, in essence, has no case. So why attack the institutional integrity of Armenia’s legal system? Why make assumptions when no evidence or information has yet been publicized? Why presume this way or that way when no cogent basis exist to make such presumptions? Simply put, why deny and attack, when you don’t know what you are denying and who you are attacking? Without being privy to the merits of the case, Kocharyan’s apologists are attacking the case for its merits. This behavior, by its very predisposition, subscribes to autocratic arrogance.
The Legal Basis for Kocharyan's Incarceration
The second scope of analysis put forth by commentators revolves around the legal statute under which Kocharyan is being charged and the extent to which statutory interpretation remains consistent with the merits of the case. While interpretive assessments are quite important and necessary in the realm of legal analysis, the problem here, however, is that misinterpretation has given way to accusations of politicization. Much of the punditry discourse has displayed a degree of dismay on why the government is charging Kocharyan under Article 300.1, Usurping State Power. Many commentators, of course, have displayed such dismay as an extension of honest discourse: due to their interpretation of the statute, they do not understand why the government would select such a legal course. Other commentators, falling within the apologist camp, have attacked the application of the statute to the charges as being legally incommensurate and inapplicable. The contention put forth here is that we can and we should have a genuine and honest discourse on the legal interpretation of the statute (and we will); but to immediately take the legal discourse and reduce it to conspiratorial and politicized conclusions is intellectually dishonest. For interpretive consistency, let us engage Article 300.1:
Various groups of actors, through the years, have gone their own separate ways, but what links them all together are the skeletons of March 1, and so the question is no longer about loyalty to Kocharyan, but rather, the fear that the role each of them played, whether instituting the violence, covering up for it, or justifying it, has come back to haunt them.
“Usurping state power, i.e. seizure of state power, in violation of the Constitution of the Republic of Armenia, or keeping it with violence, as well as, actions aimed at the overthrowing of constitutional order of the Republic of Armenia, or the violent breach of territorial integrity of the Republic of Armenia, is punished with imprisonment for the term of 10 to 15 years.”[2]
The statute has three stipulations, each of which is demarcated by the term “or,” thus noting that each one of the three stipulations, independently, qualify as usurpation of power, the overarching statutory code. The first stipulation of the statute asserts “seizure of power, in violation of the Constitution of the Republic of Armenia.” The second stipulation asserts “keeping it with violence, as well as, actions aimed at the overthrowing of constitutional order of the Republic of Armenia.” And the third stipulation asserts “the violent breach of territorial integrity of the Republic of Armenia.” The statute also notes punitive terms: “imprisonment for the term of 10 to 15 years.” The first stipulation, seizure of power, is clearly not applicable to the charges against Kocharyan. The third stipulation, violent breach of territorial integrity, is also not applicable to the charges against Kocharyan. The second stipulation, however, is fully applicable and commensurate with the charges leveled against Kocharyan. Within this context, Kocharyan is being charged with “usurpation of power” for having kept power with violence, a modality of action that overthrew the constitutional order. The charges against Kocharyan, then, stem from the use of violent force in the March 1 events, and as interpreted by the statute, Kocharyan ordered the use of such violent force in order to keep state power. The burden for government, then, is going to be their ability to prove, beyond the presumed reasonable doubt, that Kocharyan in fact ordered the use of violence in order to be able to keep state power. Further, in conjunction with the second part of this second stipulation, “keeping it [state power] with violence” is a form of “action(s) aimed at the overthrowing of the constitutional order.” Thus, Kocharyan is being charged with “overthrowing the constitutional order” because he used violence to keep state power, which, according to Article 300.1, constitutes an overthrow of the constitutional order, and as such, an act of usurping state power.
The legal interpretation, from a statutory and constitutional perspective, does not, in any way, indicate any inapplicability or incommensurability. The deeper discourse, however, is whether Kocharyan gave the order, or not, for the use of violent force; and further, even if he did, can the government demonstrate that he did so, in his capacity as President, in order to keep state power? These questions may only be answered at the trial. The discourse at this point, however, cannot be beyond the statutory interpretation: we can only interpret the consistency of the law. In this light, the statutory interpretation, itself, is consistent and applicable to the merits of the case: violent force was used against citizens of the Republic, justification of which was stipulated under a “state of emergency” in response to citizen protests over the electoral outcome. Namely, because the nature of the event was political, because the objective of the event was to question the legitimacy of those holding state power, then the utilization of violent force against citizens during this event was directly connected to the preservation of state power. Whether the government will be able to prove this at the trial or not, at this stage, is beyond the scope of analysis: we do not know because we have not seen the evidence and a trial has not taken place. But to question the applicability of the law, independent of what the pending trial will produce, is tantamount to either legal ignorance, or willful and dishonest politicization.
Kocharyan’s Apologists and the Skeletons of March 1
When the discourse somehow delves into the ignorant or the dishonest, by virtue of being what they are, the Republican Party of Armenia (RPA) cannot help itself by partaking in the absurd. Lamenting the arrest of Kocharyan as a form of political vendetta that lacks any legal foundations, they further articulate their penchant for hypocrisy by declaring, “We consider the existing situation to be a threat to Armenia’s democratic development and a blow to efforts to build a full-fledged rule-of-law state.”[3] Most cannot refrain from laughing when the RPA speaks of democratic development or rule-of-law: the party of corruption and autocratic arrogance now has the audacity to be sanctimonious. This clearly is connected to Kocharyan’s desperate attempt at fear-mongering, as he attempted to tie-in a broad range of disconnected issues of Armenian society to his arrest, and the potential harm that this may bring to the country: his arrest is equivalent to placing a bomb under the fabric of the nation, of the security apparatus, and as a result, harming the nation and pleasing the Azerbaijanis.[4] Dovetailing the claims of the RPA, the autocrat and his apologists are desperately seeking to mobilize sympathizers and collaborators. But what do we mean by collaborators?
Purporting to be advocates of democratization and supporters of the Velvet Revolution, many of these same individuals were actually apologists for the very regime that consolidated Serzh Sargsyan’s transition to power. That they now supported Sargsyan’s overthrow does not change the fact that they, in the first place, secured and justified his transition to power.
The March 1 events did not take place in a vacuum, as there was a well-orchestrated endeavor beginning with Kocharyan’s resolute posture of not succumbing to the protests, the role of the security apparatus (whether under his orders or not) to curtail the movement on the streets, the political allies of Kocharyan to give him cover (especially in the Diaspora), and the bureaucratic apparatus of the Foreign Ministry to justify the death and mayhem to the international community. These various groups of actors, through the years, have gone their own separate ways, but what links them all together are the skeletons of March 1, and so the question is no longer about loyalty to Kocharyan, but rather, the fear that the role each of them played, whether instituting the violence, covering up for it, or justifying it, has come back to haunt them. These various actors are not so much concerned about justice for Kocharyan, but rather, the fear of their own responsibility. As such, we have seen either collective condemnation by such actors of Kocharyan’s arrest, or thundering silence.
An example of the former remains the ARF, as the Dashnaktsutyun asserted their deep concern over what they interpret as being a case of political persecution, with consequences that could harm both “national unity” and “faith in the Armenian army.”[5] By virtue of the last two statements, it is apparent that the ARF, in their internal hysteria over how their collaboration with Kocharyan may play out, are engaging in the nonsensical, making extreme claims that have no basis in reality. What the ARF, the RPA, and Kocharyan fail to realize is that they, in reality, have no standing with the Armenian people. Armenian society neither cares for what they say, nor do they believe what they argue: the perpetrators of March 1 do not have the moral, legal, or political authority, in the eyes of Armenian society, to lecture anyone on justice.
An example of the latter is comprised of former Kocharyan loyalists who operated under the wing of foreign minister Vartan Oskanian, and while many of these actors transitioned to civic society during the years of the Sargsyan Administration, thus attempting to bolster their democratic credentials, they also remain haunted by the skeletons of March 1. Purporting to be advocates of democratization and supporters of the Velvet Revolution, many of these same individuals were actually apologists for the very regime that consolidated Serzh Sargsyan’s transition to power. That they now supported Sargsyan’s overthrow does not change the fact that they, in the first place, secured and justified his transition to power. Concomitantly, when the events of March 1 shocked the global Armenian community and garnered the attention of the international community, these individuals eloquently defended the brutality of the Kocharyan regime. And while many of these individuals may be in civic society, journalism, or even directing institutes in the Diaspora, their thundering silence, in essence, speaks volumes of their role in justifying the suppression of their own people.
Russia’s Concern and America’s Indifference
This matter, of course, cannot simply be confined to the domestic realm, as we have seen a degree of friction manifest itself in relation to Russia, as the Kremlin, through indirect channels, has displayed its displeasure at these developments. Hardly surprising, considering Russia’s traditional embrace of strong-man rule and their overarching distrust of Pashinyan’s War on corruption.[6] Russia’s response, at the same time, has been surprisingly measured: they have not condemned nor critically commented on the arrest of Kocharyan, but rather, have critiqued the Armenian Foreign Ministry for their perceived lack of “professionalism” regarding the arrest of General Yuri Khachaturov, a former Karabakh War commander and current head of the Russian-led CSTO (Collective Security Treaty Organization). This criticism is more related to a procedural breakdown on behalf of the Foreign Ministry, considering the fact that Armenia is arresting the current Secretary of the CSTO. Russia’s stated compunction is that Armenia’s request of the CSTO to replace Khachaturov is inconsistent with CSTO’s procedures.[7] Pundits, of course, have interpreted this criticism to be an extension of the Kremlin’s broader concerns with developments in Armenia. Be that as it may, but Yerevan has become accustomed to absorbing the Kremlin’s displeasure without allowing it to create any serious complications. In this context, criticism and indirect pressure aside, Russia is not going to alter or complicate its relations with Yerevan over this Kocharyan affair.
The position of the United States, similarly, has been rather measured, or to choose the more correct term, generic. The State Department put forward a blanket statement encouraging the Armenian authorities to undertake a transparent, independent, and credible investigation that is consistent with internationally recognized standards.[8] Considering the U.S. government’s severe condemnation of the March 1 events,[9] and its suspension of aid to Armenia under the Millennial Challenge Account (MCA), there’s really no love lost between Washington and Kocharyan. The only underlying concern the U.S. appears to suggest, and again, this is merely an insinuation, is that the legal proceedings should be different than the way previous administrations have handled such important investigations. America’s concern, then, is purely of a procedural nature: the proper and consistent application of the law.
Armenian society cannot succumb to a dictatorship of sentiments; the emotional must be supplanted with the rational. But the autocratic arrogance of Kocharyan and his apologists are feeding into this anger. Between the self-righteous hypocrisy of Kocharyan’s cronies and the anger of the Armenian people stands the law.
Pashinyan’s Burden
Anger is neither a legal doctrine nor a precept of public policy; but it is a force in of itself, and one that shapes a society that has been desensitized by decades of subjugation, injustice, and political abuse. The only antidote to the problem of collective anger is accountability, accountability that is attained legally, transparently, and most important of all, ethically. Armenian society cannot succumb to a dictatorship of sentiments; the emotional must be supplanted with the rational. But the autocratic arrogance of Kocharyan and his apologists are feeding into this anger. Between the self-righteous hypocrisy of Kocharyan’s cronies and the anger of the Armenian people stands the law. The most important responsibility of the Pashinyan government, then, is to preserve the purity of the legal process. If the injustices of the past are to be remedied, if the wounds of a society are to heal, and if the souls of the deceased are to rest, then the integrity of this entire endeavor of holding the culprits accountable must be unequivocally upheld.
