Skylar Yoder
The limited prospect that Azerbaijani officials will be held responsible for the ethnic cleansing of Armenians from the disputed Nagorno-Karabakh region raises questions about the ability of the current international order to uphold human rights in the South Caucasus and the rest of the world.
Within a month of Azerbaijan’s 19 September offensive in Nagorno-Karabakh and the ensuing exodus of more than 100,000 ethnic Armenians, international media coverage has dwindled, moving on to other war-torn parts of the world. However, important questions remain and there are concrete steps to be taken in order to compel the international community to hold Azerbaijan accountable for its alleged war crimes.
The most likely venue for prosecution is the International Criminal Court (ICC) and the Armenian government is expected to request it investigate the alleged war crimes by Azerbaijani forces during the 19 September offensive.
To contextualize the events of 19 September, we must go back to at least 2020, when cross-border skirmishes led to the outbreak of a full-scale conflict between Armenia and Azerbaijan. After six weeks of fighting, a ceasefire was reached with Azerbaijan taking back control of the territories around Karabakh. This left the region completely isolated except for the Lachin Corridor, a stretch of land that provided access to Armenia, which Russian peacekeepers were deployed to monitor.
In December 2022, government-affiliated Azerbaijanis claiming to be environmental activists blocked the Lachin Corridor. Five months later, Azerbaijan installed a military checkpoint, further restricting the movement of the population and humanitarian organizations. Despite calls from the European Union (EU), United States, the International Court of Justice (ICJ) and others to end the blockade, the people of Nagorno-Karabakh were sealed off from the world for nine months and struggled to access food, water, medicine, fuel, and other essentials.
Most recently – in a major escalation, Azerbaijani forces bombarded the region with heavy artillery for roughly 24 hours. On 20 September, Baku achieved its goal of forcing the government of Karabakh and its defense forces to disband, thus taking control of the region. The residents of Nagorno-Karabakh immediately gathered what they could and fled, fearing life under Azerbaijani rule following decades of indirect and direct physical threats. Now, the land is near-totally depopulated of ethnic Armenians.
Too Many Observers, Too Little Action
Historically relying on Russia as a key security partner, neither the peacekeepers nor the Moscow-led Collective Security Treaty Organization (CSTO), of which Armenia is a member, provided much recourse for the people of Nagorno-Karabakh. With relations between Armenia and Russia gradually deteriorating and the alliance between Moscow and Baku strengthening, the likelihood of Russian support or even neutrality regarding the future of Nagorno-Karabakh is meager.
The early October visits of a United Nations Observations Mission to Nagorno-Karabakh have also been criticized considering the tightly controlled trip took place after the mass exodus of the region’s population. This tracks with the relative inaction of the European Union Common Security and Defense Policy (CSDP) Mission, made up of unarmed observers, which has been based in the nearby Vayots Dzor province since February of this year.
It appears that the Responsibility to Protect, a measure implemented following the atrocities in Rwanda and the Balkans to prevent international inaction in the face of grave human rights violations, did little to spur action on behalf of the people of Nagorno-Karabakh. Furthermore, remedial secession has not been allowed for the enclave like it was for Kosovo and South Sudan, cases in which the international community put human rights and the principle of self-determination above that of territorial integrity, the main justification used by Azerbaijan for their aggression in the region.
At the end of the day, peacekeepers, observation missions, and public statements were not sufficient to induce Azerbaijan to abandon its strategically-executed policy of ethnic cleansing in Nagorno-Karabakh.
Words Matter
In discussing this long-standing conflict, precise terminology is important not only for the legal ramifications, but also for historical accuracy. While many media outlets and humanitarian organizations have acknowledged that Azerbaijan’s blockade and military offensive constitute ethnic cleansing or “rendering an area ethnically homogeneous by using force or intimidation to remove persons of given groups from the area”, Advisor to the Council for Truth and Justice Gassia Apkarian says that what took place is “unequivocally genocide”. According to the Convention on the Prevention and Punishment of the Crime of Genocide, genocide is a number of different acts “committed to with intent to destroy, in whole or in part, a national, ethnical, racial or religious group”. Key information including first-hand testimonies, video documentation, and other evidence suggests a variety of war crimes have been committed by Azerbaijan. So, what can be done to rectify this humanitarian catastrophe that purported human rights advocates and supporters of democracy have allowed to transpire?
Prospects for Accountability
If the past is an indicator, the likelihood of Azerbaijan facing legally-binding consequences for its actions in Nagorno-Karabakh is minimal. Because the region is internationally recognized as Azerbaijan, there is almost no chance for prosecution through their domestic courts.
As such, it will be up to international bodies like the International Criminal Court (ICC) to hold perpetrators accountable. On paper, the ICC has the jurisdiction to prosecute four types of crime, including genocide, crimes against humanity, grave breaches of the Geneva Convention, and the crime of aggression. A similar but separate mechanism, the ICJ, has relevant authority under the Convention on the Elimination of All Forms of Racial Discrimination, but does not have the power to prosecute.
In reality, the efficacy of each is questionable. In February 2023, the ICJ issued an order that both sides should allow the unimpeded movement of vehicles, people, and cargo. Despite this, the Azerbaijani blockade continued unabated for seven more months. Similarly, in 2021 the ICJ provisionally ordered Azerbaijan to protect prisoners of war detained during the 2020 conflict from violence, as well as take all necessary measures to prevent the incitement of racial hatred and the desecration of Armenian cultural heritage in Nagorno-Karabakh. However, evidence of these types of crimes continued to surface before, during, and after the most recent military aggression.
This time is not likely to be different, despite the Republic of Armenia’s ratification of the Rome Statute in October, which will make them officially a state party to the ICC. The ICC’s response to the alleged war crimes in the region will largely depend on political will, noted Apkarian, especially in light of the ongoing wars in Ukraine and the Middle East which could divert their attention.
Another legal mechanism, the European Court of Human Rights (ECHR) has issued numerous, binding judgments against Azerbaijan over the years, but their inability to enforce their findings renders them unable to hold perpetrators responsible. One of its most prominent cases was the murder of an Armenian military officer by Azerbaijani military officer Ramil Safarov in Hungary in 2004. Although Safarov was convicted in Hungarian courts, he was later extradited to Azerbaijan to serve the rest of his sentence. Instead, he received a presidential pardon, a promotion, and eight years of back pay. When this situation was brought to the ECHR, it found several violations by Azerbaijan whose punishment was a payment of approximately $18,000.
One alternative is the possible invocation of universal jurisdiction, a legal principle that allows states or international organizations to claim criminal jurisdiction over an accused person regardless of where the alleged crime was committed, by one of Armenia’s more outspoken supporters such as France. However, members of the EU have been reluctant to take a strong approach to Azerbaijan given their partial reliance on the country’s oil, in lieu of that from Russia following the federation’s invasion of Ukraine in February 2022.
With few concrete actions taken by the international community so far beyond providing symbolic words of condemnation and post-conflict humanitarian aid, the question of whether there is any hope for a better response to future human rights violations in the region is front of mind.
What Can Be Done?
The most immediate priority, beyond providing humanitarian aid for those forcibly displaced, should be the documentation of human rights violations and war crimes for both the historical record and potential prosecutorial use. One nonprofit organization, The Center for Truth and Justice, is doing just that. Established following the 2020 Nagorno-Karabakh war, they have since been conducting in-depth interviews to record critical testimonies. They have also trained hundreds of Armenian law students and young lawyers to properly document evidence of war crimes to ensure that it can be used for legal action.
Given the lack of an international presence in Nagorno-Karabakh in the months leading up to Azerbaijan’s 19 September military offensive, it is more imperative than ever that the stories and evidence of war crimes be documented properly and quickly if there is to be any reasonable chance that charges are to be brought against offenders moving forward.
