War Crimes and Possible Ways to Achieve Justice

Over the 44 days of the conflict in Artsakh, the forces of Azerbaijan have committed numerous systematic violations of international humanitarian law and international human rights law, many of which amount to crimes against humanity and war crimes. These acts include systematic indiscriminate shelling of civilian settlements with cluster-warhead missiles, targeting civilian objects with both artillery and high-precision drone strikes, inhumane treatment, torture and killings of captured civilians and prisoners of war, and precision strikes against cultural objects.

Altogether, the repeated and widespread nature of the violations committed by Azerbaijan makes it evident that they constitute parts of a purposeful policy to remove, by violent and terror-inspiring means, the civilian population of Artsakh Armenians from their homeland.[1]

While violations against prisoners of war and kidnapped civilians continue one month into the ceasefire, and efforts to ensure their return are still under way, it is important to reflect upon the legal actions that could and should be taken in relation to the outrageous violations committed and which are continuing to be committed.

To this end, several legal avenues are available, some of which have been already pursued to a certain extent by the Armenian authorities and families of the victims.

In the very first days of the war, the Representative of Armenia before the European Court of Human Rights (ECtHR) filed applications requesting interim measures against Azerbaijan and then Turkey, in view of the risk of serious violations of the European Convention on Human Rights (ECHR). These interim measures were granted by the Court. Particularly, the Court called upon the Parties involved to refrain from taking any measures, in particular military action, which might entail breaches of the rights of the civilian population under the ECHR.

The requests for interim measures do not themselves result in any further proceedings by the Court. According to the procedural rules, these requests shall be followed by inter-state applications by Armenia. If the applications are admitted by the Court (which is very likely), the Court will consider the alleged violations of the ECHR and may adopt decisions recognizing violations and potentially also requiring payments of compensation. The violations in question will most likely relate to the right to life, prohibition against torture or to inhuman or degrading treatment or punishment, property rights, the right to liberty and security of person, and the right to respect for private and family life.

Subsequently, interim measures were requested by Armenia and families of victims in relation to the detention of prisoners of war, which too may be followed by applications to the Court. According to the information collected by the human rights defenders of Artsakh and Armenia, as well as international human rights NGOs and media, not only has the right to liberty and security of person been violated (particularly in relation to kidnapped civilians), but also the right to life, the prohibition against torture and against inhuman or degrading treatment or punishment have been committed even after the ceasefire came into effect.

In addition to applications to the ECtHR, the victims also have the right to file communications concerning human rights violations before the Human Rights Committee based on the Optional Protocol to the International Covenant on Civil and Political Rights. The Protocol allows the Human Rights Committee to examine violations of human rights under the Covenant. In essence both the rights concerned and the content of the decisions that can be expected from the Committee are similar to what can be expected from the ECtHR.

While the legal avenues mentioned above are important, and should be fully utilized, it is arguably much more important to pursue the avenues available to Armenia under the International Convention on the Elimination of All Forms of Racial Discrimination (CERD), and possibly also the International Convention for the Suppression of the Financing of Terrorism (Terrorism Financing Convention). Both Conventions allow States to refer disputes concerning their application to the International Court of Justice (ICJ).

In regard to the CERD, Armenia has already taken the first step necessary for initiating proceedings. Namely, on November 13, the Ministry of Foreign Affairs of the Republic of Armenia addressed a letter to the Republic of Azerbaijan in relation to the latter’s actions and policies adopted during the last decades, which are in violation of the CERD. The actions and policies in question include, among others, dissemination of anti-Armenian sentiment and propaganda, inciting racial discrimination with respect to Armenians, and outright ethnic cleansing against Armenians. This letter shall be followed by negotiations between the parties. If the negotiations fail (which is essentially a certainty in this case), Armenia will then be able to refer the dispute to the ICJ. Arguably the most important outcome of the dispute would be the recognition by the Court of the extensive anti-Armenian state policies in Azerbaijan. Such recognition would be a powerful attestation of the fact that it is all but impossible for Armenians to live under the control of Azerbaijan. This fact has been generally addressed by the ECtHR in a recent decision in the case Makuchyan and Minasyan v. Azerbaijan and Hungary (which is more commonly known as the Safarov case), but the ECtHR’s decision did not focus on it extensively, and mostly limited its analysis to the specific circumstances of the case. To this end, a decision on this matter by the International Court of Justice would be expected to address the issue in a much more detailed and comprehensive matter. It would also necessarily address the question of Azerbaijan’s breach of the fundamental prohibition against racial discrimination. The importance of this stems from the fact that the prohibition is recognized as a peremptory norm of international law. As a consequence, the recognition by the Court of such breach by Azerbaijan would form an important legal argument against any claims by Azerbaijan to establish its control over Artsakh. In other words, it could seal the question of the status of Artsakh.

The Terrorism Financing Convention expressly prohibits willfully funding acts intended to cause death or serious bodily injury to a civilian, or to any other person not taking an active part in the hostilities in a situation of armed conflict, when the purpose of such act, by its nature or context, is to intimidate a population, or to compel a government to do any act. Evidence is mounting of the fact that Azerbaijan and Turkey extensively deployed jihadist fighters in the war against Artsakh, who were paid not only to conduct attacks (at least some of which targeted civilians), but were specifically rewarded for decapitating ethnic Armenians. The very nature of such activities clearly implies the purpose of intimidation and compelling the Artsakh and Armenian government to make concessions. Hence, there are substantial grounds to claim both Turkey and Azerbaijan have violated the Terrorism Financing Convention. As with CERD, it is possible to bring a claim in this regard before the ICJ (also after first initiating negotiations, and then also an attempt to arbitrate the dispute). In view of the emerging reports that the same jihadist fighters are currently being settled in the territories of Artsakh captured by Azerbaijan, the possible judgement against Azerbaijan and Turkey will not only be important in regard to the breaches already committed, but could also be used to push for sanctions against them for continuing the violations, and more generally to mount international pressure against Azerbaijan’s continuing occupation of parts of Artsakh.

Finally, the question most often asked by non-lawyers is whether it is possible to ensure criminal responsibility of the perpetrators of the international crimes against Armenians. Unfortunately, the only realistic mechanism in this regard is initiating criminal investigations at the local level (i.e. in Armenia), which is already being done, and then closely monitoring the movements of the alleged perpetrators to use every possibility to obtain their extradition from third states where they may travel, or else ensure their prosecution in such third states (as an increasing number of states now allows for prosecution for international crimes as long as the suspect is present in their territory). It is important to note that such efforts cannot be effective against presidents and other top government officials, as they benefit from immunity under international law even from prosecution for international crimes. The possible prosecution before the International Criminal Court (ICC) is not entirely impossible; however, since neither Armenia nor Azerbaijan have ratified the Statute of the International Criminal Court, it can only happen based on a referral by the UN Security Council (i.e. a decision by the Security Council to request a prosecution). In practical terms, it is extremely unlikely that the votes necessary for such a decision can be achieved, let alone the fact that several of the five permanent members of the Security Council (USA, UK, Russia, China and France) is very likely to exercise its veto to block the decision.

 

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1- UN Security Council, Report of the Commission of Experts Established Pursuant to United Nations Security Council Resolution 780 (1992), 27 May 1994, s/1994/674, available at: https://www.refworld.org/docid/582060704.html, paras. 129-150