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“Stop quarantine, start war”

The legality of the use of force in Nagorno-Karabakh

06.08.2020

National clashes between Armenians and Azerbaijanis have recently taken over media headlines again. In the ECHR’s Chamber judgment on the Makuchyan and Minasyan v. Azerbaijan and Hungary case of 25 May, the Court found a procedural violation of Article 2 (right to life) and 14 (prohibition of discrimination) of the Convention by Azerbaijan after it released and promoted an extradited officer who had murdered an Armenian soldier during training. In July, the media reported on the exchanges of fire between the two countries in the Tovuz and Tavush districts. This is a tragic course of events especially for civilians living on the borderline. At the same time, this use of force represents an interest to international law scholars and practitioners especially given the recent UNSC Resolution 2532 calling for a global ceasefire during the fight against the COVID-19 pandemic. Both countries are fighting with the virus, yet not very successfully. Armenia is among the top countries in terms of infections per one million people, while Azerbaijan experiences new records almost every day starting from July. This short piece attempts to analyze the current situation and threats of attacks under IHL and to discuss ius contra bellum in light of the above-mentioned resolution.

What has been happening?

The Nagorno-Karabakh conflict started almost 30 years ago at a time of extreme vulnerability for the former Soviet republics. The Nagorno-Karabakh Autonomous Region, established by the Soviet authorities in the 1920s within the territory of Azerbaijan, declared independence in 1991. This act was perceived negatively by Azerbaijan. Since Nagorno-Karabakh is mostly populated by ethnic Armenians, Armenia supported the ambitious self-determining territory. The dispute which consequently erupted between Armenia and Azerbaijan caused thousands of deaths. In two years of fighting, Armenia took control over Nagorno-Karabakh, as well as 20 percent of the surrounding Azerbaijani territory. In 1994, with the help of the international community, the two countries stopped active hostilities. While the standstill was generally observed up until today, there are periodic breakouts of violence like the ones that happened in July.

On 31 May 2020, Azerbaijan’s Defense Ministry said in a statement that the country reserves the right to use military force on their occupied lands: “Azerbaijani soldiers will certainly achieve this [push Armenia to leave the Azerbaijani occupied territory] by the power of weapon.” Violence broke out on July 11. It remains unclear who initiated the fighting. As of July 21, Azerbaijan had claimed the loss of twelve soldiers and one civilian as a result of hostilities, while Armenia had reported the death of four servicemen and one wounded civilian. The violence also triggered protests in the Azerbaijani capital, where thousands of people called on state authorities to deploy troops and retake the occupied territories. Despite an active ban on mass gatherings amid the pandemic, demonstrators marched through Baku shouting “Stop quarantine, start war,” “Death to Armenians,” and “Order us to go to war.” On July 16, the Azerbaijani Defense Ministry said that Baku has all capacities and the necessary equipment to carry out an airstrike on the Armenian-based Metsamor nuclear power plant.

Various states including Russia and the US, the co-chairs of the Minsk group of the OSCE that attempted to broker a peace agreement, called for immediate ceasefire and de-escalation of the situation. The Turkish government, however, confirmed its unconditional support to Azerbaijan saying that it would back its Caspian ally “in its struggle to protect its territorial integrity.” The UN Secretary-General also urged the parties to end the fighting and to “refrain from provocative rhetoric.” Interestingly enough, no international actor referred to Resolution 2532.

Nogorno-Karabakh and ius in bello

Although the Nagorno-Karabakh Republic (NKR) proclaimed its independence following a referendum held in 1992, no state has recognized its sovereignty. Furthermore, the fact that Armenia equips, finances, trains the NKR troops, and operationally supports, coordinates, and plans their military and paramilitary activities proves that Armenia exercises authority over the republic. Therefore, there are little doubts that the NKR is in a situation of occupation by proxy forces (Article 42 of the 1907 Hague Regulations). This was also confirmed on several occasions by the UN in its resolutions that referred to the NKR as “occupied territories.” However, the question of whether there is indeed an Armenian occupation and whether it is lawful is not central to this analysis.

The early June statement of the Azerbaijani authorities on their intentions to exercise their right to use force to liberate occupied territories poses some questions on whether the Caspian state indeed has this right. The Additional Protocol I to the Geneva Conventions of 1949 (AP I) embraces national liberation wars as an essential right of occupied people everywhere in the world.  However, AP I does not regulate the ius ad bellum and does not in itself license the use of force by a liberation army. Furthermore, given that Azerbaijan has not acceded to the Protocol, the lawfulness of its conduct would have to be analyzed under customary international law. The Azerbaijani government admitted that inhabitants of Nagorno-Karabakh are entitled to the right to self-determination within the boundaries of Azerbaijan. However, this does not confer an international right to secession. Baku also says that the actions of the Armenian government amount to unlawful support of secessionist activities and violate the fundamental norm of respect for the territorial integrity of states.

Regarding the threats voiced by the Ministry of Defense of Azerbaijan to launch missile attacks on the nuclear power plant, the illegality of this potential attack is less ambiguous. IHL says: “Works or installations containing dangerous forces, namely […] nuclear electrical generating stations, shall not be made the object of attack, even where these objects are military objectives, if such attack may cause the release of dangerous forces and consequent severe losses among the civilian population.” (Additional Protocol I Article 56 and Customary IHL Rule 7 and 42.) The UNGA also addressed the issue of any threat to attack and destroy nuclear facilities in numerous resolutions and said that  it “constitutes a violation of the Charter of the United Nations.” As mentioned, Azerbaijan is not a party to the AP I. Nonetheless, its domestic criminal code confirms that attacks on installations which may cause severe damage or losses would violate IHL norms (Article 116.12).

Nagorno-Karabakh and ius contra bellum

The breach of the ceasefire in the Nagorno-Karabakh region poses some concerns in light of UNSC Resolution 2532 that called for an immediate 90-day global ceasefire starting from July 1, 2020. The SC “called upon” all conflicting parties to pause their fighting to enable and sustain the delivery of humanitarian aid which was hardened by the pandemic. But how can this Resolution prevent the escalation of violence in the Caucasus?

Article 25 of the UN Charter obliges all members “to accept and carry out the decisions of the Security Council in accordance with the present Charter.” Yet neither international law scholars nor international courts agree on the binding force of decisions taken outside Chapter VII. Some experts say that the said obligation exists only for decisions taken (explicitly or implicitly) under Chapter VII. In its Namibia Advisory Opinion, the ICJ stated that a resolution’s binding effects depend first of all on the utilized language, independently of a reference to Chapter VII. Resolution 2532 can be qualified as binding under both lines of arguments because it contains verbs like request and demand and also refers to threats to peace (which can be read as a reference to Article 39). However, it is worth noting that Erin Pobjie utilizes a distinct analysis and argues that the preamble of Resolution 2532 is attached to Article 34 which is outside of Chapter VII and thus, it is debatable whether the resolution is legally binding. The current analysis will nevertheless stick to the arguments brought above and argue that the fighting in the NKR violates the binding UNSC resolution.

Concluding remarks

The recent violent episodes in the Caucasus show once again that the UNSC has not enough leverage to influence warfare. Although it has the power to impose sanctions on both states, this scenario is highly unlikely. Even in cases of clear violations of international law by belligerents, the global peace guardian seems to be powerless, even during today’s global health crisis. In fact, the Security Council’s input into conflict resolution is compounded when a P5 member (in the given case – Russia) has its interests in conflict regions. This might be one of the reasons why no state that urged the Armenia and Azerbaijan to stop fighting has referred to Resolution 2532. Moreover, it has been found that the UN’s call for a global ceasefire, supported by more than 170 states, have not resulted in the end of hostilities anywhere.

The problem of noncompliance with binding resolutions may lie in the fact that monitoring of compliance is often conducted by the organ itself. Thus, the process lacks independence. Also, the SC’s reactions to noncompliance with its decision are very inconsistent (there is no coherent logic in the decision-making on when the organ sanctions a State or resorts to mere naming and shaming), which again highlights its dependence on the political will of its members. Besides, the absence of any recommendations on how to proceed with the global ceasefire in Resolution 2532 shows that even with binding laws and resolutions, their enforcement sometimes seems surreal. The organ has to take a strong and clear stance on maintaining peace in the world, especially in such desperate times, and when not possible by strict means like sanctions or peacekeeping missions, it has to make better efforts to mediate and support regional conflict resolution instruments.

 

Julia Emtseva is a Research Fellow at the Max Planck Institute for Comparative Public Law and International Law (Heidelberg).

 

Cite as: Julia Emtseva, “‘Stop quarantine, start war’. The legality of the use of force in Nagorno-Karabakh”, Völkerrechtsblog, 6 August 2020.

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