It’s no secret that the international community has largely been numb to the pain and suffering of the civilian population in Nagorno-Karabakh/Artsakh. There have been meetings between a number of foreign diplomats and protesters representing the refugees sheltered in Armenia, as well as representatives of state bodies, where the dignitaries allegedly suggested that their governments or international organizations have a certain “lack of mandate” to engage in the territory of the Nagorno Karabakh Republic. This narrative, often heard over the past four weeks, is repetitive enough that it compels to pinpoint some political decisions of the UN Security Council and the OSCE that directly call upon international humanitarian organizations and individual states to provide humanitarian emergency relief to the civilians in Nagorno-Karabakh.
This short essay will list and debunk the claims made by the Azerbaijani Government over the past years and during the ongoing war pertaining to alleged occupation of its territory and ‘territorial integrity’. Two key documents in the conflict resolution process will be referenced, including the notorious UN Security Council resolutions, to eventually demonstrate that humanitarian organizations and foreign governments, if willing, have all the legal and political basis for humanitarian aid provision to Nagorno Karabakh Republic – within the existing conflict resolution framework.
The Azerbaijani Claims
The Azerbaijani government had long maintained, including in professionally narrated reports to the UN Security Council (UNSC) in 2008-2009, that there were no civilians in Nagorno-Karabakh, and that the entire population in the region are viewed as combatants of the “occupying power.”
The Azerbaijani government also frequently refers to four UN Security Council resolutions, adopted in 1993, to cast the Republic of Armenia as an “occupying power” of Nagorno-Karabakh. The latest bid to find grounds for this claim has been made since the summer of 2015 with reference to the Chiragov and others v. Armenia judgment, rendered by the Grand Chamber of the European Court of Human Rights.
Debunking the Azerbaijani Claims on UNSC Resolutions and the Chiragov Case
First, it is true that the four UN Security Council resolutions, adopted in April-November 1993, affirmed the “sovereignty and territorial integrity of Azerbaijan.” It’s not the purpose of this essay to break down the four resolutions, which I’ve long argued are not anti-Armenian. Instead, let us draw parallels with other conflicts to see the meaning of the “territorial integrity” clause in UNSC vocabulary.
For example, the Security Council adopted a dozen resolutions on the conflict in Sudan between 2010-2011, that is – five years after the signing of the Comprehensive Peace Agreement (2005), and throughout the process between the decision to schedule the independence referendum in South Sudan (agreed upon in the 2005 treaty), after the referendum (January 2011) and immediately before South Sudan’s admission to the UN as a full-fledged member (July 2011). In all resolutions, including the one adopted immediately before South Sudan’s membership to the UN, the Security Council reaffirmed the territorial integrity of its Member State – the Republic of the Sudan.
In other words, the UN Security Council always reaffirms the territorial integrity of its Member States as it stands at the moment of the adoption of resolutions, without regard to the ongoing political peace process and its future. The UN Security Council is not a conflict resolution organ. In the context of Nagorno-Karabakh, the CSCE/OSCE and the co-chairmanship of the Minsk Group is the format that has long been recognized to hold such a mandate.
Second, the UN Security Council resolutions of 1993 do not suggest that the Republic of Armenia has occupied any foreign territory. It frames the armed conflict as being between “local Armenian forces” and Azerbaijan, where Armenia is not a warring party. The “withdrawal of the occupying forces,” so loudly argued by Azerbaijan over the past quarter century, refers to regions outside of the former Nagorno Karabakh Autonomous Oblast, not the whole of it. After all, think of the semantics: “withdrawal” presumes a return to the military bases – in this case, on the territory of the self-declared Nagorno-Karabakh Republic, within the Soviet administrative boundaries of the region where independence was proclaimed in 1991. It’s a different conversation as to why those regions outside the NKAO were being seized and the short answer is they were viewed as a necessary buffer for self-defense against Azerbaijani violations of ceasefire regimes in 1993-94. The ongoing war has demonstrated the need for such a security belt.
The UN Security Council, in no shape or form, has made calls to the international community against recognizing the Nagorno Karabakh Republic, in contrast to other cases, e.g. Northern Cyprus or Republika Srpska, where the entities had been created in breach of customary international law.
To conclude on the UNSC, Resolution 874 had pronounced the withdrawal to be “urgent and reciprocal” with the opening of borders and communications in the region, as presented in the “adjusted timetable” prepared by the mediators at the time – something never agreed to by Azerbaijan, hence undermining the calls for withdrawal in the first place.
Turning to the ECtHR, lawyers would know that both in Chiragov (2015) and in a few other cases pertaining to different conflicts, the Court has temporarily established extraterritorial exercise of jurisdiction by relevant Member States for the protection of Conventional rights – without regard to the future status of the regions concerned.
To scratch the surface here, the property complaints brought forward by Chiragov and his family members (who then chose to not return to Azerbaijan once they landed in Europe), were placed under the jurisdiction of Armenia, and not Azerbaijan, given the obvious and special political, social, military connections between Nagorno-Karabakh and Armenia – for the sole purpose of not allowing “black holes” of lawlessness in Europe with regards to European Convention rights. In other words, the Chiragov case was concerned with the extraterritorial exercise of jurisdiction for the purpose of protecting property rights of the Applicants affected by the Nagorno-Karabakh conflict (same in Sargsyan v Azerbaijan case).
And finally, for students of international law, it has to be emphasized that “the concept of ‘effective overall control’ over territory used by the ECtHR has nothing to do with
the ‘effective control’ test of attribution used by the International Court of Justice or the ‘overall control’ test of the International Criminal Tribunal for the former Yugoslavia” – to quote a White Paper prepared for the Government by a prominent group of lawyers in 2017-18.
Hence, neither UNSC Resolutions, nor the Chiragov case name Armenia as an “occupying power” in Nagorno-Karabakh, neither of those documents pre-determine the outcome of the peace process led by the OSCE Minsk Group Co-Chairmanship, where self-determination has long been one of three key principles, at least since 2007.
Supporting Conflict-Affected Civilians in the Nagorno Karabakh Republic
Having reasonably established the groundless nature of allegations by the Azerbaijani government about the purportedly illegal nature of the Republic of Armenia’s role in the conflict, let’s now refer to only two foundational UN Security Council and OSCE documents that directly call upon international organizations and States to provide humanitarian relief to the population in Nagorno Karabakh.
First, the four UN Security Council resolutions of 1993, e.g. the latest one on Nagorno Karabakh, numbered 884, requested the “Secretary-General and relevant international agencies to provide urgent humanitarian assistance to the affected civilian population” both in Nagorno-Karabakh and in the “occupied territories.”
If the UNSC resolutions have any value for the UN Agencies – be that UNESCO, UNICEF or UNHCR – it’s the demand of the provision of “urgent humanitarian assistance to the affected civilian population” that has to be made a priority in the situations of armed conflict. There is a very solid body of other core UNSC resolutions, including the cornerstone 2006 Responsibility to Protect (R2P) resolution 1674, that are all about the protection of civilian populations, not the governments, or “those sitting in their palaces and walking in the halls of power,” as Christiane Amanpour quipped in an interview with Armenia’s Foreign Affairs Minister Zohrab Mnatsakanyan on October 23,
Secondly, the OSCE 1994 Budapest Summit’s outcome document, adopted at end of First Karabakh War, called upon Participating States “to take action, both individually and within relevant international organizations, to provide humanitarian assistance to the people of the region with special emphasis on alleviating the plight of refugees.” To reiterate for better clarity, the call to States to act “both individually and within relevant international organizations” was the consensus agreed to by all Participating States since 1994 that civilians have to be protected and assisted despite the status of the region. Two OSCE states – Armenia and the United States – have done exactly this for the past 25 years.
The whole body of international humanitarian and human rights law can be footnoted above, as well as the UN’s own pledges to “leaving no one behind.” This reminder of UN and OSCE documents is precisely referring to foundational documents about the Nagorno Karabakh conflict, not abstract law.
Of course, the provision of meaningful humanitarian aid largely requires security and safety of personnel, and one way of ensuring this is establishing (and then enforcing) a no-fly zone over Nagorno Karabakh in parallel with the October 10 and October 17 ceasefire arrangement implementation efforts, whenever that happens. This is a necessary element, but not a precondition for the provision of humanitarian aid.
The Republic of Artsakh, or Nagorno Karabakh, is a State – recognized or not. People live there and now they are under danger of alien subjugation and extermination. The humanitarian emergency in this country requires the engagement of humanitarian and donor organizations, without regard to its international recognition, as called upon at the outset of the conflict resolution process.
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