
On October 12, the Parliamentary Assembly of the Council of Europe (PACE) addressed the humanitarian and human rights crisis in Nagorno-Karabakh in response to the Azerbaijani military operation that commenced on September 19, 2023. PACE pointed out that “the factual situation” with the massive exodus of the almost entire Armenian population from Nagorno-Karabakh, led to reasonable suspicion of “ethnic cleansing”. PACE noted that the practice of “ethnic cleansing” may give rise to individual criminal responsibility under international law, in accordance with the Rome Statute of the International Criminal Court (ICC) and general international law.
In no ambiguous words, PACE went on to establish that:
“The factual situation today, with the massive exodus of the almost entire Armenian population from this region, has led to allegations and reasonable suspicion that this can amount to ethnic cleansing. The Assembly notes in this respect that the practice of ethnic cleansing may give rise to individual criminal responsibility under international law, in so far as it has the characteristics of specific war crimes (ordering the displacement of civilian population) or crimes against humanity (deportation or forcible transfer of population and persecution against any identifiable group), in accordance with the Rome Statute of the International Criminal Court and general international law.”
On November 17, 2023, the International Court of Justice (ICJ) issued provisional measures against Azerbaijan concerning the Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Armenia v. Azerbaijan), in a case in which Armenia had formally alleged the forced displacement of individuals of Armenian ethnicity here, para. 14). This order includes crucial pronouncements for the purposes of this article.
Background
The conflict in Nagorno-Karabakh escalated in September 2020 when Azerbaijan launched a major offensive. Amid Azerbaijan’s military advance, Russia brokered a ceasefire agreement on November 9, 2020. This agreement allowed Armenia to use the Lachin corridor to provide essential supplies to the population. In December 2022, Azerbaijani state-backed activists began blocking the Lachin corridor, causing a humanitarian crisis in the region (here, here, here, and here). On September 19, 2023, Azerbaijan launched an “anti-terrorist operation” in Nagorno-Karabakh. Within 24 hours, Armenian separatists agreed to a ceasefire, resulting in the surrender of Nagorno-Karabakh to Azerbaijan. This triggered the exodus of over 100,000 Armenians from the region to Armenia.
The Crime Scene: What Is Ethnic Cleansing?
“Ethnic cleansing” is not specifically defined in international law. In 1993, the United Nations Security Council Resolution 827 established the International Criminal Tribunal for the Former Yugoslavia (ICTY), citing “ethnic cleansing” in the region as a grave threat to international peace and security. In May 1994, the Commission of Experts appointed by the Security Council defined “ethnic cleansing” as “a purposeful policy designed by one ethnic or religious group to remove, through violent and terror-inspiring means, the civilian population of another ethnic or religious group from certain geographic areas.”
Building upon this context and echoing the ICJ Order and the PACE Resolution, this article delves into the exodus of Armenians from Nagorno-Karabakh from an international criminal law standpoint, under the purview of the Rome Statute. This exploration encounters distinct challenges, given that “ethnic cleansing” lacks a specific legal definition in international law.
Nevertheless, the absence of a distinct “ethnic cleansing” crime does not create a legal cul-de-sac. Article 7(1)(d) of the Statute categorizes deportation and forcible population transfer as crimes against humanity, including in “ethnic cleansing” scenarios. Additionally, as indicated by PACE, the war crime of unlawful deportation falls within the purview of Article 8(2)(a)(vii).
This gains particular significance in light of Armenia’s ratification of the Rome Statute and its recognition of the ICC jurisdiction retroactively to May 10, 2021, under Article 12(3).
ICC Jurisdiction
Notwithstanding a UN SC Resolution under Chapter VII, the ICC has the authority to exercise jurisdiction in cases involving genocide, crimes against humanity, or war crimes occurring on or after July 1, 2002, if:
- The crimes were committed by a national of a State Party, within the territory of a State Party, or in a State that has accepted the jurisdiction of the Court.
- The crimes were referred to the ICC Prosecutor by the United Nations Security Council through a resolution adopted under Chapter VII of the UN Charter.
This tentatively poses a jurisdictional challenge to the Court, as the alleged crime was committed by the national(s) of Azerbaijan, a State not Party to the Statute, on its sovereign soil, Nagorno-Karabakh. However, I argue that such a challenge is not insurmountable, as the alleged crime, while initiated on Azerbaijan’s territory, was concluded on Armenian soil – a State Party to the Statue. A comparable scenario unfolded in the context of the forcible deportation of the Rohingya minority, commencing in Myanmar – a State not party to the Statute, and concluding in Bangladesh – a Party to the Statute. In that case, the Prosecutor submitted a Request under Article 19(3) of the Statute, for the reported deportation of the Rohingya from Myanmar to Bangladesh. The Prosecutor argued that under the conduct requirement in Article 12(2)(a), at least one legal element of an Article 5 crime must take place on the territory of a State Party (here, para. 28).
According to the Prosecutor, Article 12(2)(b) and the Elements of Crimes acknowledge that certain offenses, including deportation, could be comprised of “multiple legal elements” (here, para 46). It was sufficient for one element of the crime to occur within the territory of the State (here, para 49). On September 6, 2018, these legal arguments were affirmed by Pre-Trial Chamber I (here, paras 64-70), a body within the ICC responsible for addressing issues before a trial begins. This Chamber comprises three judges from the Pre-Trial Division, one of the three divisions of the ICC (the other two Divisions are the Appeals Division and the Trial Division, each forming its respective Chambers).
The judges emphasized that the inherently transboundary nature of the crime of deportation further confirms this interpretation of Article 12(2)(a) of the Statute, which governs the jurisdiction of the ICC. An element of the crime of deportation is forced displacement across international borders, which means that the conduct related to this crime necessarily takes place on the territories of at least two States, a scope not limited by the drafters of the Statute to States Parties (here, para 71).
Similarly, on July 4, 2019, the Prosecutor requested authorization to commence an investigation for crimes against humanity partially committed in the territory of Bangladesh since October 9, 2016, specifically focusing on deportation under Article 7(1)(d) (here, para. 85), which was granted by Pre-Trial Chamber III on November 14, 2019 (here, paras 40-62).
The same line of argumentation aligns mutatis mutandis with the situation in Nagorno-Karabakh, where at least one element of the crime, specifically the conclusive phase, occurred on Armenian soil. In other words, this pertains to the Armenians of Nagorno-Karabakh ending up in Armenia, and this connection is pivotal to our analysis. Hence, the ICC has prima facie jurisdiction over the alleged acts in Nagorno-Karabakh against individuals of Armenian ethnicity and nationality.
What Is an International Crime?
The notion of an “international crime” presupposes the existence of international criminal law. International criminal law is primarily focused on prohibitions directed at individuals, with breaches subject to penal sanctions imposed by a State. The establishment of international criminal law, holding individuals directly responsible and enforcing penalties through global judicial mechanisms, is a relatively recent development.
International crimes encompass specific and exceptionally grave violations of international law, including genocide, war crimes, crimes against humanity, torture, and enforced disappearances. Moreover, there have been suggestions to include specific crimes like terrorist offenses, drug trafficking, and individual acts of torture within the jurisdiction of the International Criminal Court (ICC), potentially categorizing them as international crimes.
An alternative perspective on defining “international crimes” involves considering State involvement in their commission. For instance, the crime of aggression inherently involves an act of aggression carried out by the State and facilitated by high-level State agents.
Additionally, an “international crime” can be defined as an offense created by international law itself, without the need for intervention by domestic law. In such instances, international law directly assigns criminal responsibility to individuals. The Nuremberg International Military Tribunal encapsulated this concept by asserting that “crimes against international law are committed by men, not by abstract entities, and only by punishing individuals who commit such crimes can the provisions of international law be enforced.”
International criminal law derives its sources from those enumerated in Article 38(1)(a)–(d) of the Statute of the International Court of Justice. These sources include treaty law, customary law, general principles of law, and, as a supplementary means for determining the law, judicial decisions and the writings of the most qualified publicists.
Ultimately, international criminal law focuses on the accountability of individuals, typically regardless of whether they function as agents of a State or not. To secure any conviction for an international crime, it needs to be proven, beyond a reasonable doubt, that a suspect had the requisite mens rea (culpable state of mind) at the time of committing the relevant actus reus or a “guilty act”. This psychological element is necessary for conduct to be considered blameworthy and subject to punishment. For instance, Article 30 of the Rome Statute delineates two mens rea standards: intent and knowledge. Intent encompasses both direct intent, where the individual aims or desires a specific outcome, and indirect intent, where one is aware that a result will likely occur in the ordinary course of events.
War Crimes and Crimes Against Humanity: What Is the Difference?
A war crime is a grave violation of International Humanitarian Law, which gives rise to individual criminal responsibility under international criminal law. The ICC Elements of Crimes require that the conduct be committed “in the context of and associated with” an armed conflict to constitute a war crime.
The Rome Statute comprehensively enumerates 50 offenses classified as war crimes. This includes grave breaches of the Geneva Conventions, serious violations of Common Article 3, and other significant infractions derived from diverse sources.
Crimes against humanity are not a creation of international law; rather, they are a timeless aspect of human history that international law seeks to codify and address. However, the prohibition of crimes against humanity in international law has surfaced in the last century. The earliest notable reference to “crimes against humanity” as a legal concept dates back to a joint declaration by France, Great Britain, and Russia in 1915, prompted by the ongoing genocide of the Armenians by the Ottoman Empire.
Under the Rome Statute, a crime against humanity involves the commission of inhumane acts like murder, torture, or rape, within the context of a widespread or systematic attack targeting a civilian population.
War crimes and crimes against humanity often overlap. For instance, a mass killing of civilians in an armed conflict could be both. However, unlike war crimes, crimes against humanity can occur outside of armed conflicts, require widespread or systematic commission, and protect victims regardless of nationality or affiliation. In contrast, war crimes were initially based on reciprocal promises, focused on “enemy” nationals or affiliates, regulated conduct on the battlefield, and targeted military objectives. Finally, the law governing war crimes extends its jurisdiction to conduct occurring on the battlefield and targeting military objectives, while crimes against humanity law pertains to actions primarily directed against civilian populations.
Determining the Crime
The ICC Elements of Crimes require that the conduct be committed ‘in the context of and associated with’ an armed conflict to constitute a war crime. In the Kunarac judgment, the ICTY Appeals Chamber emphasized that it sufficed for the perpetrator to have acted in support of or under the auspices of the armed conflict (here para. 58). Dragoljub Kunarac, the leader of a Serb reconnaissance unit during the conflict in the Bosnian Foča municipality from April 1992 to February 1993, was found guilty on eleven counts. These included war crimes of torture and rape, as well as crimes against humanity of torture, rape, and enslavement in the campaign to “cleanse” the Foča area of non-Serbs (here, paras 2-9).
Article 8(2)(a)(vii) of the Rome Statute, which prohibits “Unlawful deportation or transfer or unlawful confinement,” primarily addresses occupied territories and is mostly concerned with preventing the forced movement of protected persons within the territory or their forcible expulsion from it (here, p. 388). Hence, this provision is not a suitable legal basis in this context.
Conversely, Article 7(1)(d) addressing the crime against humanity of “Deportation or forcible transfer of population,” excludes any nexus between crimes against humanity and armed conflict. The term “forcibly” is not limited to physical force but also includes the use of threats or coercion, such as the instigation of fear of violence, coercion, detention, psychological oppression, abuse of power, or exploiting a coercive atmosphere against individuals (here, para. 596). PACE underscored the “genuine threat of physical extinction, a long-standing policy of hatred in Azerbaijan towards Armenians, and a lack of trust in their future treatment by the Azerbaijani authorities.” Indeed, Azerbaijan has long practiced systematic dehumanization of Armenians and incitement of hatred against them. In this regard, on December 7, 2021, the ICJ ordered Azerbaijan to “take all necessary measures to prevent the incitement and promotion of racial hatred and discrimination, including by its officials and public institutions, targeted at persons of Armenian national or ethnic origin.” In its November 17, 2023 Order, the ICJ noted that Azerbaijan’s operation in Nagorno-Karabakh occurred amid a longstanding vulnerability of the population (here, para. 55).
The “forcible” nature of a situation arises where the individual has no free or “genuine” choice to remain in the territory (here, para. 543 and here, para. 229). If a group flees to escape deliberate violence and persecution, they would not be exercising a genuine choice (here, para. 530). In light of the persistent threats of further escalations, an atmosphere of increasing tension, instability, and insecurity, the exodus can be unequivocally characterized as anything but a genuine choice (here). Azerbaijan’s allegations that Armenians were voluntarily departing the region failed to convince anyone (here, here, here, and here). The condemnation of the military operation by the EU’s Diplomatic Service underscored that the “military escalation should not be exploited as a pretext to compel the exodus of the local population.” The ICJ left little room for doubt regarding the involuntary and forced nature of the exodus, noting that civilians were compelled to abandon their residences due to the fear of being targeted based on their Armenian ethnicity and nationality (here, para. 58).
Finally, lifting the ten-month-long blockade, which even the ICJ’s order failed to overturn, amid the military assaults, amounted to pointing to the exit door (here, para. 11). Armenia presented this stance before the ICJ when seeking provisional measures to address the humanitarian crisis, characterizing it as “ethnic cleansing” in its submission (here, para. 34).
Contextual Elements of the Crime
There are five contextual elements of crimes against humanity: (i) an attack directed against any civilian population; (ii) a State or organizational policy; (iii) an attack of a widespread or systematic nature; (iv) a nexus between the individual act and the attack; and (v) knowledge of the attack. As the Pre-Trial Chamber in the Situation in the Republic of Côte d’Ivoire has clarified, these elements “derive from a combination of the chapeau of Article 7(1) of the Statute and the definition of ‘attack’ provided by Article 7(2) of the Statute’ (here, paras 28-29).
The expression “course of conduct” under Article 7(2)(a) indicates a “systemic aspect as it describes a series or overall flow of events as opposed to a mere aggregate of random acts.” The Elements of Crimes clarify that this need not involve a military attack (here, para. 1101, and here, p. 156). It can involve any mistreatment of the civilian population (here, para. 416, here, para. 623, here, para. 581, and here, para. 868).
The existence of an attack in Nagorno-Karabakh is evident; the question is whether it was specifically aimed at the civilian population. The term “directed” pertains to the deliberate intention behind the attack, distinct from its physical outcomes. If it is established that the perpetrator’s primary intent was to inflict harm upon a civilian population, they could be deemed culpable of a crime against humanity, even if the attack resulted in both military casualties and civilian victims (here, para. 208, fn. 401). Even if military objectives were more frequently or intensely targeted than civilians and civilian objectives, it does not necessarily exclude the possibility that the underlying intent was to induce the exodus. The “attack” rather than the acts of an individual perpetrator must be “directed against” the civilian population (here, para. 103).
The evaluation of such circumstances is inherently context-dependent. Yet, the ICJ’s notion that it was in the wake of the Armenians’ exodus that Azerbaijan regained full control over Nagorno-Karabakh could be construed as indicative of the primary intention behind the attack (here, para. 56). Furthermore, there is no need to show that the entire population of a geographic entity was targeted by the attack (here, para. 77 and here, para. 644). The toll exceeding 200 casualties and the significant destruction of the civilian infrastructure show that there was also an actual direction of the attack against civilians (here, here, here, and here).
Widespread or systematic
The “widespread or systematic” test is disjunctive. If a Chamber is satisfied that the attack is “widespread”, it need not also consider whether it is “systematic” (here, para. 82).
In Ruto et al., the Pre-Trial Chamber II observed that deportation or forcible transfer of the population is an “open-conduct crime.” In other words, the perpetrator may commit several different conducts which can amount to “expulsion or other coercive acts” (here, para. 244).
“Widespread” refers to the large-scale nature of the attack, as well as the number of victims (here, para. 81, here, paras 394-397, and here, para. 53). The test can also be satisfied by a singular act of exceptional magnitude. However, the assessment is not solely quantitative or geographical; rather, it must be conducted based on individual facts (here, para. 95, and here, para. 691). An attack over a small area that targets a large number of civilians is still considered widespread (here, para. 83, and here, para. 395). Undoubtedly, an attack affecting over 100,000 civilians meets the element of widespread.
The term “systematic” pertains to the organized nature of the acts of violence (here, paras 394-397, and here para. 692). Assessing whether the attack was systematic, the Court should check for a political objective, a policy or plan guiding the attack, or a broadly defined ideology envisioning the destruction, persecution, or weakening of a community, and consider the role of high-level political or military authorities (here, para. 203).
In the context of the humanitarian crisis in Nagorno-Karabakh, PACE astutely observed the combination of acute food and supply shortages for the population over months, followed by a military operation and the opening of the corridor toward Armenia for departures, in such short succession, which could be perceived as being designed to incite the civilian population to leave the country (here, para. 3).
The policy element only serves as an indicator of the “systematicity” of the attack (here para. 216, and here, para. 1113). Such a policy need not be formally adopted, expressly declared, nor even stated precisely (here, para. 653, here, para. 396, here, para. 580, and here, para. 1108). As the Trial Chamber II in Katanga noted, usually there is no smoking gun by way of an explicit plan or pre-established design (here, para. 1109). At any rate, Azerbaijan’s attack on September 19, was planned, officially announced, and pledged to persist “until it reaches its aims,” leaving no room for doubt that the assault was systematic and based on a state-backed policy.
With respect to the accused individual(s), it suffices that they commit a prohibited act, which falls within the broader attack and are aware of this broader context, as indicated in the Elements of Crimes (here, para. 271, here, para. 326, here, para. 88, and here, para. 185). The perpetrator need not be a leader in the organization responsible for the attack or even a member (here, para. 223). The knowledge requirement represents an additional mental element, i.e. a special intent for the specific crime (forced deportation) itself, distinct from the general mens rea requirement outlined in Article 30.
Culminating Perspectives
In culmination, these arguments form a robust foundation for Armenia or any ICC member state to invoke Article 14 of the Rome Statute and present this case before the ICC Prosecutor. Also, under Article 15, the Prosecutor may initiate investigations proprio motu based on information on crimes within the jurisdiction of the Court. The process of gathering evidence is an intricate undertaking. The ICC Office of the Prosecutor will inevitably rely on a complex network of legal and evidentiary assessments, including numerous witness statements. This article contends that even a cursory examination of the events in Nagorno-Karabakh provides a solid basis to assert the existence of a potential case for a crime against humanity of forced deportation under the Rome Statute stemming from Azerbaijan’s attack in September 2023.
Post Scriptum: Law for the Prevention and Punishment of Ethnic Cleansing?
The current provisions within the Rome Statute tackle ethnic cleansing only indirectly, potentially leaving room for gaps between the profound impact of such acts and the Statute’s capacity to comprehensively address them. The need for a specific legal instrument addressing ethnic cleansing arises to establish a clear and comprehensive framework that imposes positive obligations on states and the international community, facilitating the prevention and punishment of the forcible displacement of human populations.
Certainly, this is a protracted and intricate process, entangled with diplomatic deliberations and the imperative for consensus among states. However, undertaking such a substantial effort will certainly pay off.
Ethnic cleansing can be defined as a distinct and standalone crime, occurring both in times of peace and conflict, with the deliberate intention of erasing human populations from a specific territory and carried out with knowledge in the fuller context of this intention.
Defining the act as a distinct crime is just the beginning; the subsequent crucial step is determining a court or tribunal with jurisdiction over this new offense. As the ICC is the only permanent international criminal court, it naturally becomes the primary contender. To establish the act as a distinct crime, an article within the Rome Statute must explicitly define it. Articles 121 and 123 address possible amendments to the Statute.
Crimes must be clearly defined, prevented, and prosecuted for what they are. Take the heinous crime of rape, for instance: in earlier humanitarian law codifications, rape and other forms of sexual violence were not explicitly addressed and had to be classified under broad categories like “inhuman and degrading treatment” or “wilfully causing great suffering or serious injury to body or health,” alongside other non-specific war crimes. However, these general offenses fail to acknowledge, and may even downplay, the specific physical and often severe, long-term psychological, and social damage caused by sexual violence, such as rape.
Today, rape and other forms of sexual violence committed in armed conflicts constitute war crimes and grave breaches of IHL. In addition to Article 7(1)(g) and (2)(f), which recognize sexual violence crimes as crimes against humanity, the ICC can also exercise jurisdiction over such conduct when it is committed as war crimes under Article 8, as an act of genocide under Article 6, and as an underlying act for crimes against humanity like torture, persecution, or other inhumane acts.
This is a path that international law should be embracing in the context of ethnic cleansing.
December on
EVN Report
White Paper
Enhancing Political Accountability Through Academic Responsiveness
This white paper explores how revisionism and manipulation of historical facts have played a role in facilitating recent events in Nagorno-Karabakh. It focuses on academia and argues that promoting scholarly rigor and intercultural exchange is essential to prevent politicized historical revisionism.
Read morePolitics
Beyond India and France: Armenia’s Quest to Diversify Defense
In the past year, especially since the major Azerbaijani incursion into Armenia in September 2022, the Armenian government has made diversification of the country’s security, including arms procurement, a priority. Hovhannes Nazaretyan explains.
Read moreRaw & Unfiltered
What Role Can Armenia Play in the Defense of Minorities in the Near East?
For over a decade, there have been attempts by the conservative and even the extreme right to protect Near Eastern Christians and other Eastern minorities, which all too often does a disservice to the cause of the very populations they claim to defend.
Read moreDiscussing Waste and Trauma
While there is enough food produced in the world to feed everyone, almost one third of all food produced globally is lost or wasted. With an almost 30% poverty rate, the issue of food waste in Armenia should become part of the public discourse.
Read moreBut Now I Dance
As the lights dim on the stage of the Opera, it’s not difficult to imagine that 136 pieces of shrapnel and bullets have been removed from the bodies of the boys on stage. As they dance, all one sees is their passion to keep living.
Read moreArts & Culture
Law & Society
The Bread Dilemma: Choosing Between Wheat Imports and Domestic Cultivation
Wheat production and import are critical security issues for Armenia. Lilit Avagyan delves into the measures taken to ensure Armenia's food security, focusing on increasing wheat self-sufficiency and maintaining ongoing wheat imports.
Read moreEt Cetera
The Now of Literature, After the War
How does war shape the collective narrative? How have Armenian writers since the 1990s approached the impact of multiple wars? Mariam Aloyan looks at Armenian “war literature” spanning generations and decades.
Read moreThe Russian “Gift of Civilization” to Armenia: “Relocant” Edition
The unprecedented influx of Russian citizens due to the Russia-Ukraine war into states that were under Moscow’s rule for centuries, is often locally perceived as endangering the identity and undermining the independence of these states. Maria Gunko explains.
Read moreAlso see
Part I
Can the International Community Reverse the Ethnic Cleansing of Armenians of Nagorno-Karabakh? Part 1
The collapse of Artsakh is the failure of preventive diplomacy, the end of the human-rights-based liberal world governance system and can embolden other autocratic states to use force against small entities claiming self-determination to subjugate or eliminate them in other parts of the world.
Read morePart II
Can the International Community Reverse the Ethnic Cleansing of Armenians of Nagorno-Karabakh? Part 2
In the absence of political will to exert pressure on Baku to accept necessary preconditions for the security and fundamental rights of Nagorno-Karabakh Armenians, any calls for their return will only serve to legitimize and whitewash the ethnic cleansing that Azerbaijan carried out.
Read moreBy the Same Author
Part I
Part II
Part III