Four Years After the Nagorno-Karabakh War: Armenia’s Legal Pursuit for Justice and Accountability

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Since the end of the 2020 Nagorno-Karabakh War, Armenia has made a notable pivot toward leveraging international legal platforms. Historically, Armenia has been more restrained in its engagement with global legal mechanisms, taking a more passive role in international law. In recent years, the country has become increasingly proactive in using international legal institutions to address the aftermath of the conflict with Azerbaijan. 

This newfound assertiveness has seen Armenia turn to the International Court of Justice (ICJ) and the European Court of Human Rights (ECtHR). This shift represents a growing recognition in Armenia of the utility of international legal platforms as a tool for securing its interests on the global stage. As a result, Armenia is transitioning from being a passive actor to a conscious participant in the international legal system. This can help Armenia overcome the skepticism toward international law.

International Court of Justice

The International Court of Justice (ICJ) is the principal judicial organ of the United Nations (UN). The Court’s role is to settle legal disputes submitted by States and give advisory opinions on legal questions referred by authorized UN organs and specialized agencies.

On September 16, 2021, Armenia initiated legal proceedings against Azerbaijan, citing breaches of the Convention on the Elimination of Racial Discrimination (CERD). Armenia alleged widespread racial discrimination by Azerbaijan against ethnic Armenians, particularly in the context of the Nagorno-Karabakh conflict. Armenia claimed that Azerbaijan was violating various articles of CERD through acts that included killing, torture, and destruction of cultural heritage linked to the Armenian identity. Armenia also accused Azerbaijan of actively discriminating against ethnic Armenians living within Azerbaijan’s borders and Nagorno-Karabakh.

In response, on September 23, 2021, Azerbaijan initiated proceedings against Armenia, accusing it of continuing a policy of ethnic cleansing through both direct and indirect means. Azerbaijan further alleged that Armenia was inciting hatred and ethnic violence against Azerbaijanis by engaging in hate speech and spreading racist propaganda.

CERD requires its member states to take active steps to eradicate racial discrimination, promote racial harmony, and prevent and punish discriminatory actions. Article 1 defines racial discrimination and sets out the civil, political, economic, social, and cultural rights that must be protected without racial bias. Articles 2-7 detail the rights and obligations under the Convention, while Article 22 gives the ICJ authority to settle disputes over its interpretation or application if negotiations fail. Adopted in 1965 and in effect since 1969, Armenia and Azerbaijan became parties to CERD in 1993 and 1996, respectively.

In a relatively short time, the ICJ has issued a series of interim measures upon Armenia’s request. These measures serve as crucial judicial tools to deliver swift relief amidst rapidly evolving circumstances. The Court’s provisional measures carry substantial weight, ensuring that ongoing violations are halted to prevent further irreparable harm. The ICJ typically indicates such measures when there is a risk of “irreparable prejudice.”

Provisional Measures: December 7, 2021

In its December 7, 2021, decision, the ICJ ruled on Armenia’s and Azerbaijan’s requests for provisional measures, which are emergency orders intended to prevent irreparable harm while the main legal case is adjudicated. The Court imposed obligations on both parties:

Azerbaijan was ordered to:

1. Protect all individuals captured during the 2020 Nagorno-Karabakh conflict from harm.
2. Take measures to prevent incitement of racial hatred and discrimination against Armenians.
3. Prevent and penalize acts of vandalism against Armenian cultural heritage.

Armenia was ordered to take steps to prevent incitement of racial hatred against Azerbaijanis​. Both parties were also directed to refrain from actions that could aggravate or extend the dispute.

Modification Request: September 19, 2022

On September 19, 2022, Armenia formally requested the ICJ to modify the December 7, 2021 order, arguing that Azerbaijan had failed to comply with the Court’s provisional measures, regarding the protection of Armenian cultural heritage and the incitement of racial hatred against Armenians. Armenia sought stronger measures to ensure compliance and additional protections for Armenians in Nagorno-Karabakh and within Azerbaijan. However, on October 12, 2022, the Court denied Armenia’s request for modification. The ICJ concluded that Armenia had not presented sufficient new circumstances to justify altering the original provisional measures.

Lachin Corridor Blockade 

On December 28, 2022, Armenia requested new provisional measures related to the Lachin Corridor. Armenia accused Azerbaijan of blocking the corridor, thereby cutting off the region’s supply of essential goods, including food, medicine, and fuel. Armenia argued that this blockade constituted racial discrimination under CERD, targeting the ethnic Armenian population of Nagorno-Karabakh by depriving them of basic humanitarian needs.

The Lachin Corridor had been established as the only route for the safe movement of people and goods between Armenia and Nagorno-Karabakh under the 2020 ceasefire agreement mediated by Russia. The blockade was exacerbating the humanitarian crisis in the region and required urgent intervention from the ICJ to restore the free movement of goods and civilians. Armenia argued that Azerbaijan’s blockade was aimed at causing disproportionate harm to the Armenian population, specifically targeting them because of their ethnicity.

The Provisional Measure of February 22, 2023

On February 22, 2023, the ICJ, acknowledging the urgency of the situation, granted Armenia’s request for provisional measures. The Court ordered Azerbaijan to ensure the unimpeded movement of people, vehicles, and cargo along the Lachin Corridor. This provisional measure was intended to provide immediate relief and prevent further irreparable harm to the residents of Nagorno-Karabakh.

In its reasoning, the Court noted that the blockade was causing severe disruptions in the region, risking humanitarian consequences, and that any continued restrictions could result in irreparable damage to the civilian population. This was one of the most critical rulings in the Armenia v. Azerbaijan case, with significant humanitarian and legal implications.

Nonetheless, Azerbaijan effectively disregarded the ICJ’s legally binding order to ensure unimpeded movement along the Lachin Corridor. With Azerbaijan maintaining the blockade, Armenia returned to the ICJ to file a new request for provisional measures to address the ongoing violations and securing justice for the displaced and affected populations. 

Request for Modification: May 15, 2023

On May 15, 2023, Armenia requested that the ICJ modify its February 2023 order, citing Azerbaijan’s inadequate compliance with the Court’s ruling on the Lachin Corridor. However, on July 6, 2023, the ICJ found that the conditions cited by Armenia did not warrant stronger provisional measures​.

Armenia’s Fifth Request for Provisional Measures: September 28, 2023

Following the September 19, 2023, full-scale military offensive launched by Azerbaijan on Nagorno-Karabakh, on September 28, 2023, Armenia submitted its fifth request for provisional measures to the ICJ. Armenia alleged that Azerbaijan was using military force as a tool of ethnic targeting and racial discrimination, continuing a long-standing pattern of violence against Armenians in violation of CERD. Armenia requested the Court to intervene urgently, seeking measures to protect civilians, ensure humanitarian access, and stop further displacement​.

Azerbaijan’s offensive, according to Armenia, involved indiscriminate shelling of civilian areas, resulting in hundreds of deaths and injuries, with over 120,000 ethnic Armenians fleeing the region, seeking refuge in Armenia.

Provisional Measures on November 17, 2023

In its new order, the ICJ again emphasized the need to protect civilian populations and ensure their safety and well-being. The Court indicated that Azerbaijan must: 

1. (i) Ensure that persons who have left Nagorno-Karabakh after September 19, 2023 and who wish to return to Nagorno-Karabakh are able to do so in a safe, unimpeded, and expeditious manner; (ii) ensure that persons who remained in Nagorno-Karabakh after September 19, 2023 and who wish to depart are able to do so in a safe, unimpeded and expeditious manner; (iii) ensure that persons who remained in Nagorno-Karabakh after September 19, 2023 or returned to Nagorno-Karabakh and who wish to stay are free from the use of force or intimidation that may cause them to flee.
2. (i) Protect and preserve registration, identity, and private property documents and records concerning those who left, wish to return, and who remained in Nagorno-Karabakh after  September 19, 2023; and (ii) have due regard to such documents and records in its administrative and legislative practices. 
3. Report to the Court on the steps taken to give effect to the provisional measures indicated and to the undertakings made by the Agent of the Republic of Azerbaijan, on behalf of his Government, at the public hearing that took place on the afternoon of October 12, 2023, within eight weeks.

Moreover, Azerbaijan formally adopted several measures from Armenia’s initial extensive list of requests, seemingly anticipating that the Court might impose those measures regardless. The ICJ clarified that such unilateral commitments create legally binding obligations. This means that once a state undertakes formal measures, even without being explicitly ordered by the Court, the state is bound by international law to comply. 

The ICJ recognized that the exodus of over 100,000 Armenians from Nagorno-Karabakh was forced due to the immediate threats posed by Azerbaijan’s military actions, rejecting Azerbaijan’s claim that Armenian officials triggered the departure.

The Impact of Provisional Measures

In light of the ICJ’s provisional measures, there is a need to refine legal planning to maximize the effectiveness of these rulings. A strategic approach should focus on enforcing the obligations already placed on Azerbaijan as well as ensuring that Armenia is prepared to respond swiftly to any new developments.

To summarize Armenia’s use of the ICJ, it is essential to recognize that provisional measures do not determine the outcome of a case. Their purpose is to prevent irreparable harm while the Court evaluates the merits. Ultimately, the Court may rule in favor of either party or even conclude that it lacks jurisdiction over the dispute altogether.

The European Court of Human Rights 

Another significant avenue Armenia has pursued in the aftermath of the 2020 war is the European Court of Human Rights (ECtHR). Armenia’s engagement with the ECtHR has been a critical step in seeking justice for the rights of those affected by the conflict.

The ECtHR was established in 1959 to enforce the European Convention on Human Rights (ECHR). Its jurisdiction allows individuals, groups, non-governmental organizations, and member states to file complaints against member states alleging breaches of human rights established in the Convention. While most applications to the ECtHR are submitted by individuals, Article 33 of the Convention allows for inter-state applications. Both Armenia and Azerbaijan joined the Council of Europe in 2001, thereby becoming parties to the ECHR and subject to the jurisdiction of the ECtHR. 

Interstate Applications to the ECtHR

On February 1, 2021, Armenia submitted its first interstate application against Azerbaijan. Armenia’s submission addressed fundamental rights violations during the conflict, including the right to life, prohibition of torture, and violations of property and education rights. Armenia has lodged three additional complaints against Azerbaijan, focusing on the rights of Armenian POWs and civilians who were illegally detained and convicted by Azerbaijan, minor violations because of the invasion of the sovereign territory of the Republic of Armenia by Azerbaijan, evacuation of Artsakh’s population, the blockade of the Lachin Corridor.

Armenia also filed a complaint against Turkey on May 9, 2021, for its military support to Azerbaijan during the 2020 war, where Armenia alleges that Turkey assisted the Azerbaijani Armed Forces during the conflict, including the use of mercenaries, which contributed to widespread human rights violations against Armenians.

Azerbaijan filed its applications against Armenia with the ECtHR, the first of which was submitted on January 15, 2021. This application alleged that Armenia had committed human rights violations during both the First Nagorno-Karabakh war and the 2020 war. Azerbaijan’s second application, submitted on August 18, 2022, focused on the resettlement of Azerbaijanis in Nagorno-Karabakh following the 2020 war and the alleged destruction of Azerbaijani property.

Rule 39 of the ECtHR

Interim measures are urgent actions that the ECtHR can issue under Rule 39 of its Rules of Court to prevent imminent harm, particularly when there is a risk to life or a threat of inhumane treatment. These measures are binding on states and are often issued in cases involving imminent deportation, detention, or physical harm. They do not prejudge the admissibility or merits of the applications concerned.

During the 2020 war, Armenia sought immediate protection through interim measures under Rule 39. On September 29, 2020, the Court granted Armenia’s request in Armenia v. Azerbaijan (No. 42521/20), calling on “both Azerbaijan and Armenia to refrain from taking any measures, in particular military action, which might entail breaches of the Convention rights of the civilian population, including putting their life and health at risk, and to comply with their engagements under the Convention, notably in respect of Article 2 (right to life) and Article 3 (prohibition of torture and inhuman or degrading treatment or punishment) of the Convention.”

On October 18, 2020, Armenia lodged an interim measure request against Azerbaijan, alleging violations of international humanitarian law in the treatment of POWs and other individuals captured during the conflict. Armenia argued that Azerbaijan was engaging in unlawful treatment and sought redress under the ECHR.

In response, Azerbaijan, on October 26, 2020, accused Armenia of targeting civilian areas during the conflict, raising concerns about the violations of civilians’ rights and issues related to territorial sovereignty. 

The ECtHR rejected both requests noting that they addressed subject matters that do not fall within the Court’s jurisdiction. In particular, the ECtHR emphasized that its mandate is limited to assessing violations of individual rights under the Convention rather than matters of territorial sovereignty or broader international humanitarian law issues. However, the Court pointed to its earlier interim measures of September 29 and October 6, 2020, which explicitly called on all involved States to respect the rights of civilians and comply with their obligations under the ECHR. 

Interim Measure Against Turkey

On October 4, 2020, the ECtHR received a request for an interim measure, lodged by Armenia against Turkey for its support to Azerbaijan during the conflict in Nagorno-Karabakh. On October 6, 2020, the Court, applying Rule 39 of the Rules of Court for a second time about the conflict between Armenia and Azerbaijan, decided to impose an interim measure against Turkey (Armenia v. Turkey, No. 43517/20) in particular calling on “all States directly or indirectly involved in the conflict, including Turkey, to refrain from actions that would contribute to breaches of the Convention rights of civilians and to respect their obligations under the Convention.” 

On November 17, 2020, the Government of Turkey requested that the Court lift the interim measure. On December 1, 2020, the Court decided, in light of the information provided by the Government of Turkey, to lift the interim measure previously indicated on October 6, 2020.

Armenian POWs and Civilians Detained in Azerbaijan

The ECtHR issued several interim measures related to the protection of Armenian POWs and civilians detained by Azerbaijan. The Court issued interim measures in response to the capture of 249 Armenians during the recent Nagorno-Karabakh conflict. These measures, under Rule 39, aim to ensure that Azerbaijan provides detailed information regarding the conditions of detention, medical treatment, and repatriation efforts for the captives. Azerbaijan’s failure to comply with the Court’s deadlines and provision of limited information led the ECtHR to escalate the issue to the Committee of Ministers. The interim measures will remain in place to ensure Azerbaijan’s accountability until further rulings are made.

Lachin Corridor Blockade

One of the most significant interim measures issued by the ECtHR came on December 21, 2022, when the Court responded to Armenia’s claim regarding Azerbaijan’s blockade of the Lachin Corridor. The Court urged Azerbaijan to ensure the safe passage of civilians, particularly those in need of medical care, and to provide humanitarian access. Azerbaijan failed to comply with the Court’s interim measure. 

Although the Court has been proactive in issuing interim orders, Armenia has faced significant challenges in ensuring Azerbaijan’s compliance. This lack of compliance undermines the effectiveness of the ECtHR’s decisions and hinders Armenia’s efforts to secure justice for the victims of the conflict. Despite these challenges, the ECtHR serves as an important platform for holding states accountable for human rights violations, particularly in conflict situations like between Armenia and Azerbaijan. Despite challenges in securing compliance, the Court’s rulings provide a legal framework for protecting fundamental rights and pursuing justice. 

Anticipating Armenia’s Next Move: The International Criminal Court

Beyond its engagement with the ICJ and ECtHR, Armenia now has the opportunity to utilize another crucial international justice forum: the International Criminal Court (ICC). The ICC is governed by the Rome Statute. The ICC is established to prosecute individuals for grave breaches of international law, including genocide, war crimes, crimes against humanity, and the crime of aggression. On November 14, 2023, Armenia formally ratified the Rome Statute, making Armenia the 124th State Party to the ICC as of February 1, 2024. 

Given the persistent non-compliance by Azerbaijan in adhering to ICJ and ECtHR rulings, Armenia must strategically utilize the ICC to address the serious crimes committed during and after the 2020 Nagorno-Karabakh conflict. One of the most compelling arguments for Armenia to turn to the ICC involves the ethnic cleansing of Armenians from Nagorno-Karabakh, following Azerbaijan’s military offensive. One of the authors has demonstrated that the underlying actions of the ethnic cleansing of Armenians from Nagorno-Karabakh constitute crimes against humanity, specifically forced deportation. Importantly, Azerbaijan’s non-participation in the ICC does not prevent prosecution. Since the crime spilled into Armenia, a state party to the Rome Statute, the ICC has jurisdiction. The forced displacement of over 100,000 ethnic Armenians fits the Rome Statute’s definition of forced deportation, making it prosecutable under the ICC’s framework.

The ICJ’s order from November 17, 2023, indicates that the Court recognized Azerbaijan’s full control over Nagorno-Karabakh only after the exodus of Armenians (para. 56). These statements carry substantial implications for Armenia’s potential case before the ICC. However, this requires political determination from Armenia. Pursuing justice for heinous crimes like forced deportation must not be viewed as conflicting with efforts to secure peace with Azerbaijan. Although some might argue that pushing for accountability could hinder the peace process, we contend that justice should never be sacrificed for the sake of political expediency. The violation of the rights of more than 100,000 individuals and the Armenian community cannot be ignored, and addressing these crimes must be a core goal of Armenia’s engagement with the ICC.

Armenia’s ratification of the Rome Statute must be fully leveraged to pursue justice for the victims of the Nagorno-Karabakh conflict. This is where legal capacity intersects with responsibility and moral obligation on the part of a sovereign state. By ratifying the Rome Statute, Armenia not only acquires the legal capacity to bring cases before the ICC but also assumes the moral obligation to seek justice for the crimes committed during and after the 2020 Nagorno-Karabakh War. This responsibility highlights the critical role of legal tools like the ICC in addressing past violations and preventing future injustices.

The Risk of Throwing the Baby Out with the Bathwater

It has been suggested that Armenia may consider dropping its ongoing international legal cases against Azerbaijan as part of a potential peace deal. However, there are strong arguments against such a move, particularly in separating the peace process from the pursuit of justice. Armenia should not yield to the mala fide use of international law by Azerbaijan, which has a track record of leveraging legal platforms for its strategic interests—often in ways that could be termed lawfare.

The cases Armenia has filed across various international legal forums are a vital means of safeguarding the rights of the state, its people, and the broader Armenian community, particularly concerning the Nagorno-Karabakh conflict. These cases are fundamental in establishing a legal framework that protects Armenians’ collective and individual rights.

Armenia’s active engagement with international legal mechanisms in recent years has demonstrated its development into a strategic user of international law. By leveraging platforms like the ICJ, the ECtHR, and potentially, the ICC, Armenia will position itself as a state that upholds international norms and seeks justice through lawful means. 

In contrast, Azerbaijan has consistently sought to gain leverage over Armenia by exploiting international law. Azerbaijan has initiated cases under various conventions, such as the Energy Charter Treaty, and the Convention on the Conservation of European Wildlife and Natural Habitats (Bern Convention), not necessarily to seek justice, but to use these cases as bargaining chips in negotiations. Therefore, Armenia must not fall into the trap of abandoning its legitimate claims before international courts. 

Withdrawing these cases would not only undermine efforts to seek justice for the ethnic cleansing of Armenians from Nagorno-Karabakh but would also strip Armenia of an essential tool in international justice. These proceedings are indispensable for investigating war crimes, protecting cultural heritage, and ensuring property rights for displaced individuals, among other critical issues. Abandoning them would allow Azerbaijan to avoid accountability for its actions.

Armenia must stay committed to pursuing justice in the ICJ, ECtHR, and other international forums to ensure that international law violations are thoroughly addressed, and accountability is achieved. It is equally important for Armenia to fully engage with the ICC, ensuring that those responsible for crimes against humanity, and other breaches of international law face the consequences of their actions.

Justice and peace are not mutually exclusive goals. While negotiating peace with Azerbaijan is vital, it must not come at the expense of justice. Sustainable peace is only possible when built on accountability and the rule of law.

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