Transboundary Elements of Crime

On 12 October, the Parliamentary Assembly of the Council of Europe (PACE) addressed the humanitarian and human rights crisis in Nagorno-Karabakh in response to the Azerbaijani military operation that commenced on 19 September 2023. The Assembly pointed out that ‘the factual situation’, with the massive exodus of the almost entire Armenian population from Nagorno-Karabakh, led to reasonable suspicion of ‘ethnic cleansing.’ The Assembly noted that the practice of ‘ethnic cleansing’ may give rise to individual criminal responsibility under international law, in accordance with the Rome Statute of the International Criminal Court and general international law.

On 17 November 2023, the ICJ issued provisional measures against Azerbaijan concerning the Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Armenia v. Azerbaijan), in a case in which Armenia had formally alleged the forced displacement of individuals of Armenian ethnicity (see here, para. 14). This order includes crucial pronouncements for the purposes of this article.

Building upon this context, this article delves into the exodus of Armenians from Nagorno-Karabakh from an international criminal law standpoint, under the purview of the Rome Statute.

Background

Hostilities in Nagorno-Karabakh escalated in September 2020 when Azerbaijan launched a major attack. In light of Azerbaijan’s military advance, a ceasefire agreement was brokered by Russia on 9 November 2020. This agreement allowed Armenia to use the Lachin corridor to provide essential supplies to the population. In December 2022, Azerbaijani state-backed activists began blocking the Lachin corridor, causing a humanitarian crisis in the region (see here, here, here, and here). On 19 September 2023, Azerbaijan launched an “anti-terrorist operation” in Nagorno-Karabakh. Within 24 hours, Armenian separatists agreed to a ceasefire, resulting in the surrender of Nagorno-Karabakh to Azerbaijan. This triggered the exodus of over 100,000 Armenians from the region to Armenia.

‘Ethnic cleansing’ lacks a specific legal definition in international law. The absence of a distinct ‘ethnic cleansing’ crime does however not create a legal cul-de-sac. Article 7(1)(d) of the Rome Statute categorizes deportation and forcible population transfer as crimes against humanity, including in ‘ethnic cleansing’ scenarios. Additionally, as indicated by PACE, the war crime of unlawful deportation falls within the purview of Article 8(2)(a)(vii).

This gains particular significance in light of Armenia’s ratification of the Rome Statute and its recognition of the ICC jurisdiction retroactively to 10 May 2021, under Article 12(3).

ICC Jurisdiction

Notwithstanding a UNSC Resolution under Chapter VII, the ICC has the authority to exercise jurisdiction if: the crimes were committed by a national of a State Party, within the territory of a State Party, or in a State that has accepted the jurisdiction of the Court.

This tentatively poses a jurisdictional challenge to the Court, as the alleged crime was committed by the national(s) of Azerbaijan, a State not Party to the Statute, on its sovereign soil, Nagorno-Karabakh. However, I argue that such a challenge is not insurmountable, as the alleged crime, while initiated on Azerbaijan’s territory, was concluded on Armenian soil – a State Party to the Statue. A comparable scenario unfolded in the context of the forcible deportation of the Rohingya minority, commencing in Myanmar – a State not party to the Statute, – and concluding in Bangladesh – a Party to the Statute.  In that case, the Prosecutor submitted a Request under Article 19(3) of the Statute, for the reported deportation of Rohingya people from Myanmar to Bangladesh. The Prosecutor argued that under the conduct requirement in Article 12(2)(a), at least one legal element of an Article 5 crime must take place on the territory of a State Party (see here, para. 28).

According to the Prosecutor, Article 12(2)(b) and the Elements of Crimes acknowledge that certain offenses, including deportation, could be comprised of ‘multiple legal elements’ (see here, para 46). It was sufficient for one element of the crime to occur within the territory of the State (see here, para 49). On 6 September 2018, Pre-Trial Chamber I affirmed these arguments (see here, paras 64-70), emphasizing that the inherently transboundary nature of the crime of deportation further confirms this interpretation of Article 12(2)(a) of the Statute. An element of the crime of deportation is forced displacement across international borders, which means that the conduct related to this crime necessarily takes place on the territories of at least two States, a scope not limited by the drafters of the Statute to States Parties (see here, para 71).

Similarly, on 4 July 2019, the Prosecutor requested authorization to commence an investigation for crimes against humanity partially committed in the territory of Bangladesh since 9 October 2016, specifically focusing on deportation under Article 7(1)(d) (see here, para. 85), which was granted by Pre-Trial Chamber III on 14 November 2019 (see here, paras 40-62).

The same line of argumentation aligns mutatis mutandis with the situation in Nagorno-Karabakh, where at least one element of the crime, specifically the conclusive part, occurred on Armenian soil. Hence, the ICC has prima facie jurisdiction over the alleged acts in Nagorno-Karabakh against individuals of Armenian ethnicity and nationality.

A War Crime or a Crime Against Humanity?

The ICC Elements of Crimes require that the conduct be committed ‘in the context of and associated with’ an armed conflict to constitute a war crime. In the Kunarac judgment, the ICTY Appeals Chamber emphasized that it sufficed for the perpetrator to have acted in support of or under the auspices of the armed conflict (see here para. 58).

Article 8(2)(a)(vii) of the Rome Statute, which prohibits ‘Unlawful deportation or transfer or unlawful confinement,’ primarily addresses occupied territories and is mostly concerned with preventing the forced movement of protected persons within the territory or their forcible expulsion from it (see here, p. 388). Hence, this provision is not a suitable legal basis in this context.

Conversely, Article 7(1)(d) addressing the crime against humanity of ‘Deportation or forcible transfer of population,’ excludes any nexus between crimes against humanity and armed conflict. The term ‘forcibly’ is not limited to physical force but also includes the use of threats or coercion, such as the instigation of fear of violence, coercion, detention, psychological oppression, abuse of power, or exploiting a coercive atmosphere against individuals (see here, para. 596). PACE underscored the ‘genuine threat of physical extinction, a long-standing policy of hatred in Azerbaijan towards Armenians, and a lack of trust in their future treatment by the Azerbaijani authorities.’ Indeed, Azerbaijan has long practiced dehumanization of Armenians and incitement of hatred against them. In this regard, on 7 December 2021, the ICJ ordered Azerbaijan to ‘take all necessary measures to prevent the incitement and promotion of racial hatred and discrimination, including by its officials and public institutions, targeted at persons of Armenian national or ethnic origin.’ In its 17 November 2023 Order, the ICJ noted that Azerbaijan’s operation in Nagorno-Karabakh occurred amid a longstanding vulnerability of the population (see here, para. 55).

The ‘forcible’ nature of a situation arises where the individual has no free or ‘genuine’ choice to remain in the territory (see here, para. 543 and here, para. 229). If a group flees to escape deliberate violence and persecution, they would not be exercising a genuine choice (see here, para. 530). In light of the persistent threats of further escalations, an atmosphere of increasing tension, instability, and insecurity, the exodus can be unequivocally characterized as anything but a genuine choice (see here). Azerbaijan’s allegations that Armenians were voluntarily departing the region failed to convince anyone (see here, here, here, and here). The condemnation of the military operation by the EU’s Diplomatic Service underscored that the ‘military escalation should not be exploited as a pretext to compel the exodus of the local population.’ The ICJ left little room for doubt regarding the involuntary and forced nature of the exodus, noting that civilians were compelled to abandon their residences due to the fear of being targeted based on their Armenian ethnicity and nationality (see here, para. 58).

Finally, lifting the ten-month-long blockade, which even the ICJ’s order failed to overturn, amidst the military assaults, amounted to pointing to the exit door (see here, para. 11). Armenia presented this stance before the ICJ when seeking provisional measures to address the humanitarian crisis, characterizing it as ‘ethnic cleansing’ in its submission (see here, para. 34).

Contextual Elements

There are five ‘contextual elements’ of crimes against humanity: (i) an attack directed against any civilian population; (ii) a State or organizational policy; (iii) an attack of a widespread or systematic nature; (iv) a nexus between the individual act and the attack; and (v) knowledge of the attack (see here, paras 28-29).

The expression ‘course of conduct’ under Article 7(2)(a) indicates a ‘systemic aspect as it describes a series or overall flow of events as opposed to a mere aggregate of random acts.’ The Elements of Crimes clarify that this need not involve a ‘military attack’(see here, para. 1101, and here, p. 156). It can involve any mistreatment of the civilian population (see here, para. 416, here, para. 623, here, para. 581, and here, para. 868).

The existence of an attack in Nagorno-Karabakh is evident; the critical question revolves around whether it was specifically aimed at the civilian population. The term ‘directed’ pertains to the deliberate intention behind the attack, distinct from its physical outcomes. If it is established that the perpetrator’s primary intent was to inflict harm upon a civilian population, they could be deemed culpable of a crime against humanity, even if the attack resulted in both military casualties and civilian victims (see here, para. 208, fn. 401). Even if military objectives were more frequently or intensely targeted than civilians and civilian objectives, it does not necessarily exclude the possibility that the underlying intent was to induce the exodus. The ‘attack’ rather than the acts of an individual perpetrator must be ‘directed against’ the civilian population (see here, para. 103).

The evaluation of such circumstances is inherently context-dependent. Yet, the ICJ’s notion that it was in the wake of the Armenians’ exodus that Azerbaijan regained full control over Nagorno-Karabakh could be construed as indicative of the primary intention behind the attack (see here, para. 56).

Furthermore, there is no need to show that the entire population of a geographic entity was targeted by the attack (see here, para. 77 and here, para. 644). The toll exceeding 200 casualties and the significant destruction of the civilian infrastructure show that there was also an actual direction of the attack against civilians (see here, here, here, and here).

Widespread or Systematic

The ‘widespread or systematic’ test is disjunctive. If a Chamber is satisfied that the attack is ‘widespread’, it need not also consider whether it is ‘systematic’ (see here, para. 82).

‘Widespread’ refers to the large-scale nature of the attack, as well as the number of victims (see here, para. 81, and here para. 53). The assessment is not solely quantitative or geographical. (see here, para. 95, and here, para. 83). Undoubtedly, an attack affecting over 100,000 civilians meets the element of widespread.

The term ‘systematic’ pertains to the organized nature of the acts of violence (see here, paras 394-397, and here para. 692). Assessing whether the attack was systematic, the Court should check for a political objective,  a policy or plan guiding the attack, or a broadly defined ideology envisioning the destruction, persecution, or weakening of a community, and consider the role of high-level political or military authorities (see here, para. 203).

As PACE astutely noted, the combination of acute food and supply shortages for the population over a period of months, followed by a military operation and the opening of the corridor towards Armenia for departures, in such short succession, could be perceived as being designed to incite the civilian population to leave the country (see here, para. 3).

Importantly, the policy element is not a legal element of the crime but only serves as an indicator of the ‘systematicity’ of the attack (see here para. 216, and here, para. 1113). Such a policy need not be formally adopted, expressly declared, nor even stated precisely (see here, para. 653, here, para. 396, here, para. 580, and here, para. 1108). As the Trial Chamber II in Katanga noted, usually there is no smoking gun by way of an explicit plan or pre-established design (see here, para. 1109). At any rate, Azerbaijan’s attack on 19 September, was planned, officially announced, and pledged to persist ‘until it reaches its aims,’ leaving no room for doubt that the assault was systematic and based on a state-backed policy.

With respect to the accused individual(s), it suffices that they commit a prohibited act, which falls within the broader attack and are aware of this broader context, as indicated in the Elements of Crimes (see here, para. 271, here, para. 326, here, para. 88, and here, para. 185). The perpetrator need not be a leader in the organization responsible for the attack or even a member (see here, para. 223). The knowledge requirement represents an additional mental element, distinct from the general mens rea requirement outlined in Article 30.

Culminating Perspectives

In culmination, these arguments form a robust foundation for Armenia or any ICC member state to invoke Article 14 of the Rome Statute and present this case before the ICC Prosecutor. Also, under Article 15, the Prosecutor may initiate investigations proprio motu based on information on crimes within the jurisdiction of the Court. The process of gathering evidence is a complex undertaking, far exceeding the confines of any blog article. The Office of the Prosecutor will inevitably rely on a complex network of legal and evidentiary assessments, including numerous witness statements. This article contends that even a cursory examination of the events in Nagorno-Karabakh provides a solid basis to assert the existence of a potential case for a crime against humanity of forced deportation under the Rome Statute stemming from Azerbaijan’s attack in September 2023.