International Humanitarian Law: The Case of Nagorno-Karabakh
November 2023 | Mary Giandjian (Staff Writer & Editor)
On September 19th, 2023, Azerbaijan launched an "anti-terrorist operation" in the Nagorno-Karabakh Republic (NKR), a mountainous enclave in the South Caucasus. Though located in Azerbaijan’s borders, Nagorno-Karabakh is a de facto state predominantly populated by ethnic Armenians. The September 2023 Azerbaijani operation resulted in over two hundred casualties, including civilians, [1] as well as the cession of NKR to Azerbaijan proper beginning January of 2024. Ten days after the launch of the "anti-terrorist operation," Armenia submitted a request to the International Court of Justice for an “indication of provisional measures, ‘to preserve and protect rights enshrined in the International Convention on the Elimination of All Forms of Racial Discrimination (‘CERD’).” [2] In reference to 1993 United Nations Resolutions, the Geneva Conventions, and the pending ICJ court decision, this article will look at applications of international humanitarian law.
The present matter of Nagorno-Karabakh has enduring foundations from the Soviet-era that brought forth various international legal issues. When the Nagorno-Karabakh Autonomous Oblast attempted to secede from Azerbaijan in 1988, the de facto state’s name changed to the “Nagorno-Karabakh Republic,” then to the “Republic of Artsakh” two decades later. The inter-ethnic fighting became an international armed conflict following the Soviet Union’s collapse in 1991. [3] In a referendum vote, 99.9% of Nagorno-Karabakh declared independence from Azerbaijan on the 6th of January 1992, despite the Azerbaijani minority boycotting the separation. [4] By the spring of 1993, Armenia and Azerbaijan engaged in a full-scale war over the NKR, concluded with the territorial acquisition by Armenia’s armed forces.
Previous clashes of the two parties resulted in UN Resolutions that should be acknowledged for their precedential applications. The United Nations Security Council (UNSC), in observation of the intensifying hostilities, adopted four resolutions in 1993. Resolution 822, adopted on April 30th 1993, demanded the cessation of “all hostilities and hostile acts with a view to establishing a durable cease-fire,” as well as the withdrawal of all “occupying forces.” [5] The resolution urged all parties involved to resume resolution negotiations within the framework of the Conference for Security and Cooperation in Europe, known today as the Organization for Security and Cooperation in Europe (OSCE) or the “Minsk Group.” Resolution 822 further called for the “unimpeded access for international humanitarian relief efforts” in the region, reaffirming that all parties are obligated to principles of international humanitarian law. [6] Resolution 822 was followed by three additional resolutions that reaffirmed concern over civilian displacement in the “humanitarian emergency.” [7]
In the decades-long duration of the Nagorno-Karabakh conflict, the treatment of the civilian population remains a foregoing concern. Today, a fundamental issue of the September 19th “anti-terrorist” operation by Azerbaijan’s armed forces addresses the conduct and use of force by Azerbaijan against Armenians of Nagorno-Karabakh. The circumstances today of the Nagorno-Karabakh Republic are not standalone events, and therefore, the legal implications cannot be evaluated in a single conclusion. Past United Nations decisions, as well as its current involvements significantly affect the developments and will be analyzed as such.
At the core of international humanitarian law are the 1949 Geneva Conventions, of which Armenia and Azerbaijan have been parties since 1993. As state parties, Armenia and Azerbaijani are held accountable to compliance with the 1949 Geneva Conventions itself, as well as Protocols I–III. These conventions established a widely accepted definition of armed conflict that future determinations cite. Per the International Committee of the Red Cross, Common Article 2 of the Geneva Conventions, armed conflict is “declared war or of any other armed conflict which may arise between two or more [States], even if the state of war is not recognized by one of them.” [8] Following the establishment of armed conflict in Common Article 2, Common Article 3 institutes that during times of armed conflict not international in nature, each party must oblige by the following:
“Persons taking no active part in the hostilities, including members of armed forces who
have laid down their arms and those placed hors de combat by sickness, wounds,
detention, or any other cause, shall in all circumstances be treated humanely, without any
adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any
other similar criteria.” [9]
The humanitarian crisis in the Nagorno-Karabakh Republic resulted from recurring violations of humanitarian standards by the Azerbaijani government, and must be addressed as such. The September 9th offensive in which Azerbaijani armed forces took control of Nagorno-Karabakh occurred in addition to a blockade that prevented necessities from reaching these populations nine months prior to the “anti-terrorist operation.” In early December 2022, Azerbaijan closed the Lachin Corridor, a stretch of land into the de facto state where resources were delivered to residents. In the absence of electricity, food, water, and medicines, Azerbaijan attacked a population facing severe deprivation by September 2023. Such conduct raises questions about the 1949 Geneva Conventions Article 3, protecting noncombatants in armed conflict not of international standing.
Until recently, international institutions have generally done little to address potential violations of humanitarian law in Nagorno-Karabakh. Following September’s developments, the Republic of Armenia filed its fifth request with the United Nations’ International Court of Justice (ICJ) to hear the Application of the International Convention on the Elimination of All Forms of Racial Discrimination in Armenia v. Azerbaijan (2021). Armenia stated Azerbaijan orchestrated a “full-scale military assault on the 120,000 ethnic Armenians of Nagorno-Karabakh,” killing and wounding hundreds, including civilians, in addition to forcibly displacing tens of thousands of ethnic Armenians from the NKR to Armenia. [10] The referent UN convention, The International Convention on the Elimination of All Forms of Racial Discrimination (ICERD), was adopted in 1965 and enacted in 1969. The convention commits its Parties to the elimination of racial discrimination, establishing the Committee on the Elimination of Racial Discrimination (CERD) to oversee member compliance.
In the fifth request, submitted September 28th, 2023, Armenia asked the ICJ to indicate ten provisional measures, some of those being Azerbaijan refraining from breaching obligations under the CERD and refraining from taking action that displaces the remaining ethnic Armenains of NK or preventing their safe return to Armenia. Of these provisional measures, Armenia includes the humanitarian safeguarding of civilians, asking that Azerbaijan restore utilities such as gas and electricity and refrain from any future disruption and for Azerbaijan to refrain from hindering the ability of the International Committee of the Red Cross to provide humanitarian aid to the ethnic Armenians of Nagorno-Karabakh. The International Court of Justice cannot establish breaches under the jurisdiction of the Committee on the Elimination of Racial Discrimination, but it can approve provisional measures in the case that irreparable prejudice “could be caused to rights which are the subject of judicial proceedings or when the alleged disregard of such rights may entail irreparable consequences.” [11]
Azerbaijan contended that Armenia had not established a correlation between the rights it sought to protect in the request for provisional measures. Further, Azerbaijan maintained that Armenia provided no evidence of an intentional deprivation of public utilities, or the detention of political representatives for their national or ethnic origin as described in Armenia’s submission to the ICJ. The Court’s decision, however, refutes this and considers a link between civilian rights and the prevention of displacement for the remaining individuals of Armenian origin. Azerbaijan held that there was no direct threat to the civilian population of Karabakh, and that the blockade referenced above is now open for humanitarian deliveries and civilian movement.
The Court, however, in observation of the population’s long-standing exposure to a “situation of vulnerability and social precariousness,” [12] concluded that conditions for the indication of provisional measures are satisfied. As such, the Court will now provide measures to be taken in order to protect the rights Armenia claimed in its request. In accordance with the obligations under CERD, Azerbaijan must ensure that individuals having left Nagorno-Karabakh after September 29th and wish to return, as well as individuals having remained in Nagorno-Karabakh after September 29th and now wish to depart, can do so in a “safe, unimpeded and expeditious manner,” and that all individuals of Nagorno-Karabakh are free from the “use of force or intimidation” that may result in their departure. [13]
The United Nations’ role in the Nagorno-Karabakh conflict has varied. During the 1993 Nagorno-Karabakh war, the United Nations issued four resolutions that urged for the end of hostilities, mediated peace negotiations, and access for international humanitarian relief efforts. The November 17th decision delivered by the United Nations’ International Court of Justice acknowledges the civilian conditions discussed previously, specifically the forced exodus and deprivation, that are now reaffirmed in legal obligations of Azerbaijan. Prior to the International Court of Justice Application of the International Convention on the Elimination of All Forms of Racial Discrimination Armenia v. Azerbaijan (2021) decision delivered November 17th, international institutions left the offensive largely unaddressed. While the Court decision did not address the cession of Nagorno-Karabakh to the Republic of Azerbaijan beginning January of 2024, the obligations to be fulfilled nonetheless remain as decided. In the “anti-terrorist” offensive of September 9th, as well as the blockade that led up to it, Azerbaijan raised considerable international legal concerns of humanitarian assistance. These concerns specifically targeted the noncombatants of Nagorno-Karabakh, of which the Geneva Conventions Common Article 3 details Parties’ obligations.
The circumstances of 2023 have been unlike those of previous years. The cession of the Nagorno-Karabakh Republic to the Republic of Azerbaijan raises questions of how the provisional measures will be enforced. Civilian conditions and the differentiation of noncombatants and combatants remain fundamental issues to international humanitarian law, codified in the 1949 Geneva Conventions, the respective 1993 United Nations Resolutions, as well as the International Court of Justice decision.
Sources
Roy, Diana. “In Photos: The Nagorno-Karabakh Exodus.” Council on Foreign Relations, October 6, 2023.
Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Armenia v. Azerbaijan) Press Release. International Court of Justice. 29 September 2023.
Schmitt, Michael N., and Kevin S. Coble. “The Evolving Nagorno-Karabakh Conflict - an International Law Perspective - Part I.” Lieber Institute West Point, September 27, 2023.
Ruys, Tom, and Felipe Rodríguez Silvestre. “Military Action to Recover Occupied Land : Lawful Self-Defense or Prohibited Use of Force? The 2020 Nagorno-Karabakh Conflict Revisited.” International Law Studies. 97 (1). 2021. 669
UN Security Council, Security Council Resolution 822 (1993) [Armenia-Azerbaijan], 30 April 1993, S/RES/822 (1993).
Ibid.
Ibid.
The Geneva Conventions. International Committee of the Red Cross. 1949.
Ibid.
Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Armenia v. Azerbaijan), Request for the Indication of Provisional Measures, I.C.J. Reports 2023.
Ibid.
Ibid.
Ibid.