Oct 7 2021
The U.N. Must Investigate Nagorno-Karabakh War Crimes
Baku and Yerevan are not members of the International Criminal Court. That means an independent international investigation is needed to ensure accountability for atrocities.
By Sheila Paylan, an international criminal lawyer and human rights expert with more than 15 years of experience advising the United Nations.
OCTOBER 7, 2021, 2:39 PMOn Sept. 16, Armenia initiated its first-ever proceedings before the International Court of Justice (ICJ), the principal judicial organ of the United Nations mandated to settle legal disputes between states. In its case against Azerbaijan, Armenia alleges violations of the International Convention on the Elimination of All Forms of Racial Discrimination, including those committed during last year’s brutal war over Nagorno-Karabakh. Azerbaijan retorted by filing a similar application one week later.
Both claims arose almost one year to the day after Azerbaijan, backed by Turkey, launched a full-scale armed attack to reclaim the Nagorno-Karabakh region. Armenia and Azerbaijan signed a Russian-brokered cease-fire on Nov. 10, 2020, to end six weeks of heavy fighting, leaving Azerbaijan the clear military victor.
Azerbaijan regained the seven territories surrounding Nagorno-Karabakh that it had lost during the first war in the early 1990s and also now occupies approximately one-third of Nagorno-Karabakh itself, including the Hadrut region and the city of Shushi. Yet there is still no peace agreement or definitive resolution to the ongoing conflict.
Rather, Azerbaijan now seems to have set its sights on Armenian sovereign territory with creeping encroachments since May 12 and continues to hold Armenian civilians and prisoners of war hostage as bargaining tools in exchange for minefield maps and territorial concessions. Such acts are illicit under international law and may amount to the crimes of aggression and hostage-taking.
Meanwhile, Armenia has been engulfed in political turmoil from the fallout of last year’s defeat, thereby having had to shift focus away from Nagorno-Karabakh to deal with its own problems. Nagorno-Karabakh (or what’s left of it) is consequently left at the mercy of Russia, on whose peacekeepers it depends almost entirely for its security.
While there are many causes for the lack of lasting peace, one major blind spot has been on the issue of criminal accountability for atrocities committed during the hostilities.
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The charges in the ICJ case are not entirely new. Armenia and Azerbaijan have already filed interstate cases against one another before the European Court of Human Rights (ECHR) to resolve their respective disputes about alleged human rights abuses committed during the 44-day war. Armenia also filed a case against Turkey alleging the latter’s essential role in providing material assistance to Azerbaijan during the conflict, including with the supply of drones and mercenaries. These cases are still pending.
But the ECHR’s jurisdiction is limited to determining whether human rights violations occurred. It has no competence to declare whether the facts underlying such violations also amount to international crimes. Human rights violations are, in important ways, qualitatively different from international crimes, which carry more gravitas and require higher evidentiary standards. Also, neither the ECHR nor the ICJ has the power to prosecute or send any perpetrators of crimes to prison.
There is evidence that civilians were killed on both the Armenian and Azerbaijani sides; if it can be proved that they were deliberately targeted, these killings could amount to war crimes. In addition, cultural and religious treasures were destroyed, such as the 19th-century Ghazanchetsots Cathedral, which was struck in two separate, apparently deliberate, attacks just hours apart. Numerous gruesome videos also circulated widely over the internet last year of executions, live beheadings, torture, and mutilations of civilians and military personnel captured during the war and after the cease-fire.
The most appropriate forum to investigate and prosecute such crimes would be the International Criminal Court (ICC), inaugurated in 2002 to fight impunity for the worst international crimes. However, since neither Armenia nor Azerbaijan is a state party to the Rome Statute, which established the ICC, the court has no jurisdiction over crimes committed by their nationals or by anyone on their territory. Nagorno-Karabakh also never joined the ICC, but since the de facto republic’s statehood remains officially unrecognized (including by Armenia), it couldn’t even if it tried.
Even if they were ICC members, the principle of complementarity demands that the ICC only exercise its jurisdiction when a country is unwilling or genuinely unable to investigate and prosecute suspected perpetrators of such grave crimes. Customary international law, deriving mainly from the 1949 Geneva Conventions, requires that states “must investigate war crimes allegedly committed by their nationals or armed forces, or on their territory, and, if appropriate, prosecute the suspects.”
In February, U.N. human rights experts on torture, enforced disappearances, and extrajudicial killings jointly called on “Armenia and Azerbaijan to carry out thorough, prompt, independent and impartial investigations into allegations of serious human rights violations committed during the conflict and its aftermath in order to hold perpetrators to account and provide redress to the victims.” Human rights NGOs have echoed such calls for investigations by both sides.
Soon after the outbreak of hostilities, Armenia announced that it had started investigating serious violations of international humanitarian law arising from Azerbaijan’s aggression against Nagorno-Karabakh. To date, Armenia has tried and convicted two Syrians for committing war crimes and fighting as mercenaries for Azerbaijan in the 44-day war, sentencing them to life imprisonment. It is unclear how far other investigations or prosecutions of possible war crimes in Armenia have progressed.
Azerbaijan, in turn, announced last December that it had charged and arrested two Azerbaijani service members for defiling Armenian corpses and two others for desecrating Armenian gravestones. There is no further information as to whether these soldiers were ultimately tried or convicted of the charges against them.
In any event, investigating or prosecuting a few low-level perpetrators while letting many more serious offenders go free amounts to tokenism, not justice. Even worse, the perpetrators may have been acting on the instructions of, or under the direction or control of, the Azerbaijani state. It seems hypocritical, after all, for Azerbaijan to charge two soldiers with vandalizing Armenian gravestones when it has destroyed the largest ancient Armenian cemetery in the world, in what has been dubbed “the worst cultural genocide of the 21st century.”
Moreover, in Armenian society, a mindset of victimhood resulting from the 1915 Armenian genocide and exacerbated by the Nagorno-Karabakh war continues to prevail such that Armenians may lack sufficient critical self-reflection to be able to remain completely objective in investigating possible wrongdoing on their part.
The same can be said of Azerbaijani society, which has lived with the burden of roughly 600,000 internally displaced people from the first Nagorno-Karabakh war. However, the situation in Azerbaijan is much more dangerous because there state-sponsored anti-Armenian hatred is known to be extreme, the erasure of Armenian culture is a matter of state policy, and crimes against Armenians are glorified.
In this context, it’s doubtful whether war crimes investigations could be truly independent or impartial if performed exclusively by the warring parties. At the very least, one could expect more effort will go into pursuing perpetrators of opposing sides than one’s own.
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In Armenia, the conversation is shifting toward granting amnesties for crimes of minor or medium gravity (such as desertion) committed during the war. Meanwhile in Azerbaijan, more than 60 Armenians taken hostage during and after the war have been subjected to rushed trials and convictions on charges including “espionage” and “illegal border crossing.”
Armenian and international actors have criticized these charges as fabricated in support of sham trials to pressure Armenia into conceding to Azerbaijan’s demands. Such a reproach is not without merit, as Amnesty International and Freedom House have reported that trials in Azerbaijan are systemically unfair, especially when politically motivated.
Azerbaijan’s rhetoric is also growing more bellicose and disturbing, with President Ilham Aliyev creating an anti-Armenian theme park in April and publicly demonizing Armenians as the “hated enemy” just two months ago. Such brazen and tenacious incitement to hatred—in addition to the presence of several other atrocity risk factors, such as Azerbaijan’s (and Turkey’s) denial of the Armenian genocide and identity-based Armenophobic ideology—is alarming.
Both sides expect a lot from the ECHR and the ICJ in helping to prevent further atrocities, resolve the conflict, and bring restorative justice to the victims thereof. But to ensure criminal accountability, Armenia and Azerbaijan would do well to join the ICC. As Armenia signed the Rome Statute in 1999, it need now only ratify it, and Yerevan appears more receptive to the idea than Azerbaijan, which has done neither and seems far less inclined to expose itself to international scrutiny.
Even if both countries did ratify the statute soon—the odds of which are slim—the principle of nonretroactivity would normally preclude the ICC from exercising jurisdiction over crimes from last year’s war. An alternative, tailor-made accountability mechanism—such as the one created for crimes committed by the Islamic State, called UNITAD—would therefore be more suitable.
Such a mechanism should include independent, impartial international experts and be mandated to collect, preserve, and analyze testimonial, documentary, and forensic evidence of serious violations committed during the Nagorno-Karabakh war to prepare files for criminal proceedings in national, regional, or international courts that have or may in the future have jurisdiction over such crimes, including on the basis of universal jurisdiction.
The UNITAD model is ideal because it works in partnership with the government of the country in which the crimes occurred, thus necessitating the consent and cooperation of Armenia or Azerbaijan (or preferably both as consent by either will be limited to investigations of their own nationals or within their respective territories). Lack of consent or cooperation, however, does not necessarily pose an impediment as the United Nations’ creation of similar accountability mechanisms for Syria and Myanmar shows.
Such a forum could also be brought under the auspices of regional bodies such as the European Union (which created something similar for Georgia in 2008-2009) or the Organization for Security and Cooperation in Europe, whose Minsk Group is still mandated with finding a peaceful resolution to the Nagorno-Karabakh conflict.
Whatever the model or overseeing organization, the most important thing is to end impunity for serious violations of international law. The international community’s heightened involvement in helping Armenia and Azerbaijan to bring perpetrators to justice is therefore paramount to ensuring lasting peace in Nagorno-Karabakh and the wider region.
Sheila Paylan is an international criminal lawyer and human rights expert with more than 15 years of experience advising the United Nations. She regularly consults for a variety of international organizations, NGOs, think tanks, and governments.