This lack of political legitimacy also creates discomfort among foreign representatives in Armenia.

Mob Justice

It is in this transitional context that the attention of the “people” has come in favor of the fight against corruption. Finally, all voices can be raised freely that criminal offenses, some of a shocking level of immorality (Manvel Grigoryan), have taken place and now are the subject of investigations.

The detention of Robert Kocharyan has unleashed repressed feelings. Journalists and analysts, some of them usually moderate, have also vented against the second president. There is no doubt that the contempt and humiliation endured by the citizens (see article of March 15, 2018) during 20 years, as well as the events of March 1, 2008, explain this visceral hatred against Kocharyan and his designated successor.

However, there are several areas of concern in Kocharyan’s case.

The first is that of the risk associated with this type of lynch mob. No offense to all the commentators, but all have the right to fair treatment.

The day after the decision to release Kocharyan from detention, Nikol Pashinyan made a vehement statement reminding his audience that the culprits will not escape justice. He questioned the judiciary and magistrates. He even warned those among them who would receive instructions from “other forces.”

Even more striking was questioning the principle of non-retroactivity of penal repressive laws, a fundamental right guaranteed by international legal instruments binding Armenia. This challenge related to the law on illicit enrichment of public officials in the performance of their duties, only applicable to facts subsequent to its adoption, i.e. in July 2017.

The judges of the Court of Appeal, who released Robert Kocharyan, relying on the constitutional provision conferring immunity on the president for acts performed in connection with his office during the period of his term, seem to have taken a reasoned and independent decision. The litigant’s defense team has been able to make the good arguments. If there is any reason to be satisfied with this functioning of justice, it is not excluded that the diplomatic reaction of Russia could have influenced this process.

The Special Investigation Service (SIS), even before having read the judgment, declared the decision as “illegal,” and the Prosecutor vowed to appeal it.

As a result of this decision and official reactions, young protesters came to claim that the judges’ decision was “illegal” and that the magistrates had to be dismissed!

The idea of “revolutionary justice” is unhealthy and dangerous. Robespierre and the post-revolutionary episode of “Terror” in France resulted in large-scale massacres and summary executions (about 200,000 dead). After World War II, liberated France witnessed a shameful purge, associating arbitrary judgments and summary executions (about 10,000 people). The National Committee of Resistance did nothing to stop it initially, but reacted afterwards because it lost control of the situation. Many innocent people fell victim to this hidden episode of French history. Many cowards, even collaborators of the Vichy regime, mainly civil servants, were among the informants and accusers.

The Bolshevik Revolution is another historical example in which justice was diverted in the service of political interests, that of the dictatorship of the single thought and single party doctrine.

If evoking these examples in the light of the present situation in Armenia seems exaggerated, it is nevertheless necessary to contain the precursory signs of a summary justice that would be dictated by the street. Violence and intolerance are omnipresent in social relations; physical aggression against the LGBT community is the latest example. In the same vein, it is appropriate to denounce the unacceptable smear and threatening campaign against Kocharyan’s lawyers. (Ruben Sahakyan, Hayk Alumyan who defend Kocharyan, and also Vahe Grigoryan, who defends the families of the victims of March 1, 2008, are among the personal friends of this author.)

The government must take care of the interest of justice in all circumstances, and its public speech must be controlled in such a way as to not incite to such excesses.

Finally, the deleterious and divisive words have been transported into the diaspora. Whatever one may think of the ARF Dachnaksoutioun’s political posture in Armenia, their willingness to govern is a political choice for which they assume responsibility. But nothing authorizes and justifies the spectators or passive opportunists to become public prosecutors, even less so when they insult the memory and the action of thousands of activists who worked selflessly for decades to build political, cultural, educational, and sports institutions at the service of the Armenian nation. They have also been the pioneers, defenders, even “fighters” for the Armenian cause, and today they defend the interests of the Republic of Armenia and Artsakh.

Former Prime Minister Vasken Manoukian has expressed his fear that Armenia will become the theatre of a single actor without counter powers. The rampage against the “counter-revolutionaries” is part of this fear. The August 17 speech and its staging have unfortunately confirmed this.

The Armenian National Congress (CNA) has also used this divisive language between revolutionaries and counterrevolutionaries to call for the rally.

At the same time, it is worrying but unfortunately common to watch how quickly the administrative system of the previous regime has been aligned with the policy of Armenia’s new strongman. The same police officers, SIS (Special Investigation Service) investigators, NSS officers (National Security Services), prosecutors and judges, operating with the same methods, turned against the very ones they served with zeal.

This is an additional reason for a profound reform of the system, where the service of the State must take precedence over any other consideration.

Maintaining the system is also a matter of concern for the upcoming parliamentary elections. The bureaucratic apparatus of municipalities has always been at the center of fraud and pressure on voters. Who can guarantee that this system will be inoperative in the upcoming parliamentary elections for or against Pashinyan? The Chief of Police has made a personal commitment to ensure genuinely free elections. Will the threat of sanctions be sufficient?

The Need to Identify Priorities

It is essential that the two dramatic events of exceptional gravity throughout Armenia (March 1, 2008 and the killings in the Armenian Parliament in October 1999) be studied truthfully. But it should be noted that if Armenia embarks on such a process, it must be so objectively, a process which will call for introspection and uncovering ugly truths. In the past 27 years, political assassinations, illicit enrichment of ruling clans, electoral fraud, and repression of demonstrators were common markers over the rule of three presidencies.

But is confronting the past a priority, when economic, social and military issues require more immediate attention?

Similarly, if the fight against corruption and against monopolies is laudable and necessary, the method for it must be thought out properly.

Corruption exists everywhere, including in Western democracies, in more sophisticated forms but equally reprehensible, in the private sector as well as in the public sector. It is impossible to eradicate it completely. The best way to effectively fight corruption or economic monopolies is to ensure that ad hoc laws are adopted and that they are fairly applied. That is why the priority of the new governance must be the establishment of a solid rule of law and of an independent judiciary.

The rule of law is also the fundamental guarantee expected by international investors. The case of the Amulsar gold mine, whose rights were transferred to Lydian Armenia, illustrates the tension to be managed by the government between a private company that bought rights and invested in the exploitation, on the one hand, and environmental activists, who impose their will by blocking access to the mine. The resolution of this case will be closely monitored by international investors. An overall strategic reflection is needed beyond this particular case.

Restored justice will make it possible to investigate and prosecute all individuals whose wealth and patrimony have increased abnormally rapidly, whether illegally or through favoritism.

Armenia is heavily indebted and needs to recover capital. On August 9, Deputy Prime Minister Ararat Mirzoyan announced his referral to international institutions to identify capital flight to tax havens. It is likely to be a much more effective and strategic approach to solve the financial equation of state’s debt repayment and strategic investment in the Armenian economy. While the freezing of these assets is easy, the seizure and return of capital is a much more complex and time consuming. It requires specialized skills and transnational cooperation.

Justice will have to discriminate between enrichment that is fraudulent and that which is a simple benefit of entrepreneurship.

Promote National Unity

Armenia is experiencing its second political transition in 27 years: the rejection of the post-Soviet system and the emergence of a new generation more open to Western values. History has taught us that revolutions can take sinister forms when unrestrained hatred is unleashed. The popular vengeance against Robert Kocharyan and Serzh Sargsyan relies on stigmatization and alienation of “Karabakhtsis.”

This element undermines national unity and the attitude toward the resolution of the Nagorno-Karabakh conflict.

The Azerbaijani side can only look favorably at the side-lining of the former Armenian team. On July 25, Elmar Mammadyarov, a permanent and privileged negotiator on the Azerbaijani side, said his new colleague, Zohrab Mnatsakanyan, was a more professional diplomat than Edward Nalbandian. This astute remark (no matter how relevant it is) speaks volumes about their intention to take advantage of internal divisions in the Armenian side.

Need for Creation of a Truth and Justice Commission

Societies in transition, emerging from conflict and seeking to restore the rule of law and the sound administration of justice, favor transitional justice mechanisms. Transitional justice consists of both judicial and non-judicial processes and mechanisms, including prosecution initiatives, facilitating initiatives in respect of the right to truth, delivering reparations, institutional reform and national consultations. Criminal justice comes to supplement those when serious mass crimes have occurred, which is not the case.

The Prime Minister evoked positively the transitional justice mechanism during his speech and he has somehow prepared the population to accept this idea.

To justify his policy of truth, forgiveness and reconciliation, Nelson Mandela stated: “Personal resentment is irrelevant: it is a luxury that South Africa simply cannot afford.”

Prime Minister Pashinyan would be well inspired to reflect on this because the end of his speech revealed unfortunately all his personal resentment against Robert Kocharyan.

Armenia is a small country, where interpersonal relations are deep and strong. Corruption is a phenomenon affecting all layers of society, and it is even less possible to consider punishment as a remedy for the wrongs of the past.

All institutions and administrations should be “cleansed.” Almost all executives have a “file” at the NSS. The responsibility for the failure of these last 30 years is collective.

In the name of the strategic interests of Armenia and Artsakh, this author suggests the creation of a truth and justice commission, much like that in South Africa. In the long run, this scheme may lead to reconciliation. It promotes what is desirable for the future of Armenia, namely the guarantee of non-repetition of wrongs. The judicial recording of wrongs and responsibilities is central to its success.

Facing the past while imagining the future is the challenge of such an approach.

There are many skilled, experienced, and still young executives who have worked or cooperated with the last three administrations, and their exclusion would be detrimental to the future of Armenia.

Armenian society must go through an examination of its collective conscience. All responsibilities must be established, but in a detached and organized way. This approach has worked in countries that have suffered fates worse than Armenia, such as South Africa and Morocco as well as Latin American countries at the end of bloody dictatorships.

Despite the assertions, Armenia and the Diaspora remain largely in a wait-and-see position and the candidates for emigration are still numerous. Imagining and building the future rather than devoting energy to retaliating for the past should take priority. Otherwise, Armenia will face an even more difficult road.

[Philippe Raffi Kalfayan is a Lawyer, Lecturer in International Law and a former Secretary General of FIDH (International Federation of Human Rights). He is a regular columnist for the Mirror-Spectator.]