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Samson Martirosyan

Human Rights Lawyer: International Systems Will Not Solve the Karabakh Conflict

The International Court of Justice (ICJ) recently ordered Azerbaijan to allow unrestricted movement of people, vehicles, and goods through the Lachin Corridor. However, one month has passed since the ruling, and Azerbaijan has not complied with this legal obligation. Consequently, the population of Nagorno-Karabakh remains under blockade. Despite accusations that the road is blocked, officials in Baku have denied this and cited that vehicles from the Red Cross and Russian peacekeepers are permitted to pass through and that the eco-activists protesting illegal mining have a right to do so.

Hetq talked with Gabriel Armas-Cardona, who is a human rights lawyer from the United States. He has worked at the Human Rights Ombudsman's Office of the Republic of Armenia and for various Armenian NGOs as an independent consultant. He has been closely following the conflict between Armenia and Azerbaijan since the Second Nagorno-Karabakh War.

Does Azerbaijan’s non-compliance undermine ICJ and its relevance as an institution of international legal order? I have noticed that the general public in Armenia is inclined to think the ICJ’s ruling was senseless since Azerbaijan simply ignored it.

Azerbaijan’s non-compliance both does and doesn’t undermine the ICJ; it all depends on who you ask. From a lawyer’s perspective, the ICJ has done everything it can, so it’s not the institution that’s undermined but the international legal order in general. But this distinction is cold comfort for anyone trapped in Stepanakert. From the average person’s perspective, yes, the lack of enforcement does make the whole system—ICJ included—look bad. What is important, and valid, is for everyone to recognize that international systems will not solve the conflict. Their presence helps by giving an outsider’s perspective, but only politics and negotiation can actually bring about lasting peace.

Azerbaijanis make a comparison between the ICJ provisional measure and the four UN Security Council resolutions regarding Armenia and the conflict (Resolutions 822, 853, 874 and 884). To be clear, there are important differences in law and content, but from a layman’s perspective, there is a parallel. Both ICJ orders and UN Security Council resolutions are binding. Those four resolutions called for the withdraw of forces, i.e., Armenian forces, from Kelbadjar, Agdam and Zangelan districts. As is known, that never happened. From the Azerbaijani’s perspective, the lack of enforcement of those four UN Security Council resolutions undermined the international legal order, and now Armenians are experiencing something similar with the lack of enforcement of the provisional measure to unblock the Lachin Corridor.

Last week the Representative of Armenia on international legal matters Yeghishe Kirakosyan announced that Armenia intends to refer Azerbaijan’s non-compliance to the UN Security Council. This raises questions about the process of engaging the UNSC, how Armenia can exercise its right to do so, and what scenarios could play out if it does? What benefits can Armenia obtain from this action in legal terms?

The UN Charter grants Armenia the option to raise this issue to the UN Security Council. If a state does not comply with an ICJ order, Article 94 of the UN Charter allows the other state to bring the issue to the Council. However, the article doesn’t impose anything on the Security Council; the Council may make recommendations or decide measures “if it deems necessary” to do so.

At this stage, we’re leaving international law and entering geopolitics. It’s unclear what each member of the Security Council will do, but there are some hints as to how this can develop. The Lachin Corridor blockade already came before the Security Council, in December 2022, but this time is different. Not only has the humanitarian situation gotten worse over the last few months, but now the blockade is also a question of upholding the international legal order. The West has been hammering the drum of upholding the international legal order since Russia’s invasion of Ukraine in February 2022.

It’s more likely the Security Council will act now than in December, but there’s still no guarantee anything will happen. France and the US were already in favor of the Security Council acting in December, and it’s unlikely for their positions to change. The United Kingdom often supports Azerbaijan, but now it will be torn as to whether to support Azerbaijan or stay aligned with its Western allies. The big variable is Russia. Russia has little interest in upholding what it considers a Western perspective of international law, so what motivates the West won’t motivate Moscow. Ultimately, it’s likely that Russia will act in whatever way directly benefits it the most. As the status quo isn’t bad for Russia, Russia is in no rush to put itself on one side or the other of the dispute. If Russia is able to leverage its veto for a lucrative deal with Azerbaijan, it’ll probably veto any Western-supported resolution.

Currently, the ICJ is reviewing two significant cases - one was filed by Armenia in September 2022 following Azerbaijan's attack on Armenia, and the other was filed by Azerbaijan. What are these cases about? How long is the process and when can we expect a ruling? Apart from the interim ruling mentioned earlier, have there been any updates on these cases?

The Convention on the Elimination of Racial Discrimination is a human rights treaty that both Armenia and Azerbaijan ratified. That means that the treaty imposes human rights obligations on each country. I wrote about this more extensively in an article for EVN Report, but the short version is that each country is suing for violations of that treaty. Both cases cover actions done as far back as the 90s.

Unfortunately, the process at the ICJ takes years, and it’s only been a year and a half so far. The only deadlines that have been established are the memorial and counter-memorial submission deadlines. These are the main legal briefs of the case; the first from the applicant lays out the claims and the second from the respondent attempts to refute those claims. In the case Armenia brought, the deadline for the memorial was January 2023, but the counter-memorial isn’t due until January 2024.

Armenia's Constitutional Court recently declared that the obligations outlined in the Rome Statute of the International Criminal Court are constitutional. Although Armenia signed the treaty in 1999, it has not yet ratified it. The court's decision means that Armenia could join the ICC if its parliament ratifies the Rome Statute. The ruling government believes that joining the ICC would enable Armenia to bring war crimes charges against Azerbaijani servicemen and President Aliyev. This raises questions about what ICC membership could mean for Armenia and how feasible the government's argument is.

The ICC provides an alternative and complimentary way to prosecute individuals that commit some of the worst crimes in international criminal law, like war crimes, crimes against humanity and genocide. When states ratify the Rome Statute, they’re accepting the jurisdiction of the Court to potentially investigate any crime that occurs in their territory. Thus, if Armenia ratifies the Rome Statute, the ICC Prosecutor could investigate any war crimes occurring on the territory of Armenia, regardless of the nationality of the perpetrator.

The strategy of Armenia ratifying the Rome Statute as a way to restrict Azerbaijan is similar to why Palestine ratified the Rome Statute. As Israel controls parts of what is internationally recognized as Palestinian territory, then Israeli forces operating in those territories could be investigated by the ICC. We’ve seen an even more dramatic example of this by Ukraine. Ukraine did not ratify the Rome Statute, but in 2015, it gave the ICC jurisdiction for crimes committed on Ukrainian territory. Thus, after Russia’s invasion of Ukraine, the ICC had the legal authority to open an investigation and subsequently issue an arrest warrant for Vladimir Putin. Currently, Azerbaijani forces are occupying approximately 41 square kilometers of Armenian territory. If Armenia ratifies the Rome Statute and if those Azerbaijani forces commit a war crime while on that territory, then the crime could fall within the ICC’s jurisdiction. But realistically, the ICC Prosecutor would need to begin an investigation before any prosecution is possible. An investigation in Palestine began in March 2021, seven years after Palestine became a member and in Ukraine in March 2022, also seven years after the ICC had jurisdiction.

Comments (1)

Armenouhi T.
Thank you for this valuable discussion of the ICJ decision against Azerbaijan. Of course, it is embarrassingly obvious that the blockade of Artsakh is in reality a Russian blockade, just as the 2020 war was allowed by Russia, and the current Azeri occupation of parts of southeast Armenia by Azerbaijan is also being allowed by Russia. This has all come about because Russia dislikes Pashinyan and wants to subjugate Armenia 100% to Russian rule. Thus, Russia uses Azeri threats and military actions against Armenia so that the latter becomes alarmed and turns to Russia for help and even becomes a Russian Union state, like Belarus. Why has this situation come about? Because Russia is worried about losing Armenia. Armenia is Russia's only foothold in the Caucasus, given that Georgia and Azerbaijan have little regard for Russia. Some Armenians know this, but they usually do not want to publicly blame Russia and get Putin even angrier. Not that Armenia and Pashinyan do not have their own faults. We Armenians need to stop lying to ourselves about Russia's intentions, and also about NATO's own goals to dominate the Caucasus and Caspian, and even Central Asia. Armenians and their leaders in Armenia and the Diaspora must speak and write forthrightly about what is really going on. Let's stop lying to our own people.

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