False Equivalences in the Nagorno-Karabakh Conflict – International Humanitarian and Criminal Law Perspectives

False Equivalences in the Nagorno-Karabakh Conflict – International Humanitarian and Criminal Law Perspectives

[Sabina Garahan is a doctoral candidate at the Human Rights Centre at the University of Essex.] 

The announcement of a peace deal in the Nagorno-Karabakh conflict on the night of 9-10 November 2020 marked the end of 28 years of hostilities between Azerbaijan and Armenia. Although, in 1993, the UN Security Council had adopted four resolutions demanding the immediate withdrawal of all occupying Armenian forces from all occupied territories in Azerbaijan, these were never enforced. The main responsibility for attaining peace was vested in the OSCE Minsk Group, set up in 1994 and co-chaired by France, Russia and the United States. Their work was based on the Basic Principles (Madrid Principles), which similarly demanded the “return of the territories surrounding Nagorno-Karabakh to Azerbaijani control”. However, over 26 years of discussions, this failed to materialise.

The purpose of the current article is to fill two key gaps – thus rectifying resultant false equivalences – within the discourse on the Nagorno-Karabakh conflict. First, from the perspective of international humanitarian law (IHL), no distinction has been made between attacks on the occupied territories and other (non-occupied) cities in Azerbaijan. Second, from the perspective of international criminal law (ICL), the 1992 Khojaly massacre (recognised by some states as a genocide) of Azerbaijanis is frequently compared to the Sumgait pogroms which killed 26 Armenians, despite the latter atrocity having been fully addressed under domestic law in the absence of state complicity.

In the light of further territorial claims made by the Armenian government on Georgia and Turkey, filling in these gaps is key.

IHL distinctions in occupied and non-occupied territories

The applicability of IHL rules necessarily differs between zones of hostilities, which contain lawful military targets, and those carried out in other areas, which do not. The launching of attacks causing civilian loss of life is proscribed where this would be disproportionate to the military advantage anticipated, or where such attacks are indiscriminate. Feasible precautions to avoid, or at the very least minimise, civilian deaths must be taken. Azerbaijan’s military actions in Nagorno-Karabakh must therefore be judged in accordance with these strict standards, in particular since, as noted by Amnesty International, the regional capital of Stepanakert “contains military and dual-purpose infrastructure in the midst of densely populated civilian residential buildings, civilian infrastructure and businesses”.

Since indiscriminate attacks are never permissible, attacks outside of the conflict zone – which contain no military targets – are assessed differently, with no possible regard to proportionality. Acts the primary purpose of which is to spread terror among civilian populations are also prohibited under IHL, as are attacks against civilians by way of reprisals. As confirmed by Human Rights Watch, Armenian military forces repeatedly carried out unlawfully indiscriminate rocket and missile strikes on numerous cities in Azerbaijan, including those with no military targets. For instance, an attack on a cemetery in the city of Tartar killed four civilians and injured four others attending a funeral. Solely residential dwellings in Ganja – an Azerbaijani city 97 kilometres from the conflict zone – were repeatedly targeted in overnight attacks, thereby increasing the number of civilian deaths. A recent Amnesty International report similarly confirmed that strikes carried out by Armenian forces killed and harmed civilians “not directly participating in hostilities and not in the vicinity of military objectives”.

The 44-day war resulted in the deaths of 50 Armenian civilians and 92 Azerbaijani civilians. There were therefore more civilian casualties outside of the conflict zone than within it. Considering the IHL provisions outlined above, this raises inevitable questions – quite separate but no less important than those that must be answered by Azerbaijan with regards to proportionality – especially within the context of Armenia’s former Defence Minister, Davit Tonoyan, setting out Armenia’s new foreign policy in 2019 as “a new war for new territories”. In his statement, he also outlined his plans to “add the units” which would “shift the military actions to the territory of the enemy”. Since the Armenian government considers Nagorno-Karabakh to be part of Armenia, “territory of the enemy” refers to further civilian zones in Azerbaijan.

These early warnings amounting to a rejection of the Madrid Principles should have been identified by, and drawn an appropriate response from, the Minsk Group’s co-chairs and the wider international community from the outset. The “troubling expansion” of the conflict into cities without military targets and the failure of the international community to identify this allowed attacks on civilians to spread unabated into other cities in Azerbaijan. This included attacks on Terter and Barda, where some of the over one million Azerbaijanis displaced by the first war had sought refuge.

Ongoing claims under international criminal law

False equivalences within the context of ICL are also invoked. To this day, no-one has faced responsibility for the mass ethnic cleansing of Azerbaijanis from Nagorno-Karabakh and the surrounding regions. However, the greatest accountability gap arguably lies in the Armenian response to the Khojaly massacre. This refers to the largest massacre of civilians during the war, perpetrated against Azerbaijanis, which continues to be staunchly denied by the Armenian government and diaspora groups alike.

As chronicled in a Human Rights Watch/Helsinki report, before the attack, the Azerbaijani town of Khojaly had been home to some 6,000 people, including those who had fled there previously from other parts of Nagorno-Karabakh after Armenian forces had invaded their villages in the winter of 1991-92. On the night of 25-26 February 1992, Armenian forces seized Khojaly. As residents fled, Armenian forces fired on them. After the massacre, more than 300 bodies showing evidence of a violent death were submitted for forensic examination, of which many had been scalped, had body parts removed, or been otherwise mutilated. Following the Armenian government’s denial of involvement in the massacre (recognised as a genocide by several states), the Executive Director of Human Rights Watch/Helsinki issued a follow-up statement confirming that direct responsibility for the events lay with Armenian forces, and decrying the Armenian government’s attempt to misuse the organisation’s report in order to deflect blame.

The Armenian government commonly denies the Khojaly massacre and refers to the 1988 Sumgait pogrom, in which thirty-two Armenians and six Azerbaijanis died as a result of a mob attack. A report made six months after the attacks noted that “[o]utside Sumgait itself, that night has become the stuff of legend. Armenians in Yerevan, Moscow and the United States insist that hundreds of Armenians were slaughtered, and that a cover-up took place. If so, no one has come forth with evidence to prove it”. Human Rights Watch/Helsinki similarly criticised the Armenian government’s misrepresentation of the number of deaths caused by the atrocities.

More than eighty people faced criminal charges, with one riot leader sentenced to death. The chief of police, mayor and party leader were dismissed and expelled from the party for dereliction of duty, and raided apartments were repaired. There was no evidence of state complicity in the riots, and the perpetrators were fully dealt with under domestic law. The riot therefore cannot serve as a point of comparison with Khojaly within the international criminal law context. It is also worth noting that while Sumgait is often erroneously identified as the starting point of the conflict, tensions leading to the 1991-94 war had begun in 1987 with the violent expulsion of 200,000 Azerbaijanis from the Armenian region of Kafan, which resulted in dozens of deaths.

Within the context of the 2020 war, claims of an impending second Armenian genocide were also invoked by the Armenian government. While these have now thankfully been put to rest with the safe return of thousands of Armenians to Nagorno-Karabakh, the unfortunate conflation of Turkey and Azerbaijan when referring to the 1915 Armenian genocide (which Azerbaijan had no role in) have played into age-old narratives developed by nationalist Armenian terrorist groups, which have “intermittently held an important position in the cause of Armenian nationalism for nearly 100 years”.

One of the main groups, the Armenian Revolutionary Federation (ARF), founded in 1890 (before the Armenian genocide) was created with the aim of establishing an “Armenian homeland”. The group – also known as Dashnaktsutiun or Dashnaks – bears especial relevance to the Nagorno-Karabakh conflict since it was in its early form that it began agitating for Armenian control of Azerbaijani territories. A statement of 22 May 1919 delivered by Lenin and Anastas Mikoyan (an Armenian Bolshevik) confirms that, although the Dashnaks had pursued the goal of joining Nagorno-Karabakh to Armenia, this was impossible since the residents of Nagorno-Karabakh had never had any form of connection to Armenia. ARF made territorial claims on both Azerbaijan and Georgia (which persist to this day) and perpetrated mass killings of Azerbaijanis, including Azerbaijani Jews.

A 1983 CIA report noted that “Armenian terrorists are the most savage in the world and cracking down on them is a top priority for the CIA”. Other Armenian terrorist groups referred to included ASALA (Armenian Secret Army for the Liberation of Armenia), which announced its creation in Beirut in 1975, and JCAG (Justice Commandos of the Armenian Genocide) which began its campaign of assassinations and bombings against Turkish diplomats in the same year.

Although their chief victims were over sixty Turkish ambassadors and their children, their staff and other family members were also killed. In addition, while some terror groups focused their attacks on Turkish targets, others also killed those in countries deemed to be interfering with their territorial intentions. As such, bombings were perpetrated in New York, Sydney, London, Vienna, Paris, Brussels, Rome, Geneva and Madrid, among many others. The offices of British Airways, Swissair, Lufthansa, Turkish Airlines and Aeroflot were bombed, as was the World Council of Churches office in Beirut; bombings of convention centres, car bombs and killings and takings of hostages constituted other forms of attack. 

Monte Melkonian, ASALA’s leader, has been memorialised as a national hero in Armenia; as for JCAG, “[d]espite the unreality of its aspiration for a homeland, [it] never had any difficulty in gaining support for its terrorist schemes”. As noted by historian Andrew Mango, Armenian terrorist groups were able to continue killing civilians with impunity because of the “tolerant attitude of French and other foreign authorities … Western press comments explaining the murder of innocent people in terms of an inter-communal conflict that had taken place 70 years earlier sought excuses for what was inexcusable”.

France’s contentious role in the Minsk Group co-chairmanship

While the Minsk Group and Madrid Principles have largely become redundant, it is nonetheless worth reflecting on the suitability of France’s ongoing co-chair status, in light of its historical approach towards Armenian terrorist groups. A damning 1986 CIA report indicates that French officials deliberately misled the international press about the true perpetrators of a series of bombings carried out by Armenian terrorists in Paris. Although the perpetrators were members of ASALA, French officials convinced the press that another individual had been responsible. After the bombings, in January 1982, the French government made a secret deal with ASALA in which it granted the release of the group’s leader (Monte Melkonian) and lenient sentences to four other ASALA terrorists in exchange for their cessation of terrorist acts against French targets.

The following year, members of ASALA went on to bomb Orly Airport outside Paris, killing eight people and injuring sixty. According to a CIA report later declassified under the Nazi War Crimes Disclosure Act 2000, rather than addressing these atrocities, the trial of three perpetrators, Armenians from Turkey and Syria,  “[provided] a forum for airing once again Armenian grievances against Turkey”.

Melkonian was, again, released immediately. Shortly thereafter, he travelled to Nagorno-Karabakh where he played a key role in the invasion of Azerbaijan and was instrumental in the ethnic cleansing of Azerbaijanis from the region. Both the bombing of Orly airport and the war crimes committed in Nagorno-Karabakh starkly demonstrate the consequences of France’s misguided efforts to appease terrorists in order to protect French citizens from attack.

Another CIA report highlights that JCAG was operational in Los Angeles, with parts of the Armenian community in California having been radicalised into funding terrorists. In spite of its close knowledge of Armenian terror groups and their territorial aims, the US nonetheless passed Section 907 of the Freedom Support Act 1992 which excluded only Azerbaijan – the country under occupation – from the aid package aimed at providing assistance to post-Soviet states.

Section 907 was the result of the powerful Armenian lobby’s fierce promotion of anti-Azerbaijani policies. Armenian-Americans sought to link the Nagorno-Karabakh war to the Armenian genocide; Armenian lobbyists have commented that “[m]ost American congressmen are generally aware of the Turkish genocide … so that was a good way to present the issue”. They have also strived to paint Azerbaijan as the aggressor by frequent references to “Azeri aggression” – as per Thomas Ambrosio, “a peculiar phrase, as it was Azerbaijan that was the target of Armenian territorial designs”. Nonetheless, the US based its responses to the conflict solely on submissions put forth by Armenian lobby groups. This, again, made it an unusual choice of Minsk Group co-chair.

Distressingly, a 1984 CIA report noted that Armenian terror groups continued to wield the 1915 genocide as “powerful emotional leverage” over the Armenian diaspora in order to draw them to their cause. The report concludes that “[t]he ethnic cohesiveness of the Armenian community and its inherent distrust of non-Armenians provide a distinct advantage for Armenian terrorists”. While each claim of genocide must necessarily be carefully examined, references to the Armenian genocide within the context of the unrelated Nagorno-Karabakh conflict must attract especially close scrutiny. The cynical weaponisation of human tragedy in the pursuit of territorial goals, especially when this has been previously detected, should not be permitted to flourish.

Yet, unsurprisingly, the false narrative of religious discord and a Christian battle against a Muslim (though secular) enemy has been enthusiastically adopted by right-wing groups in France. Republican French senator Valerie Boyer justified her proposal urging recognition of Nagorno-Karabakh on the basis that “[t]o oppose the advance of Azerbaijan in Nagorno-Karabakh is also to oppose the expansion of Turkish Islam across Europe”. Republican Senator Bruno Retailleu echoed that “[o]nly independence can durably guarantee the rights and freedoms of the populations of Nagorno-Karabakh in the face of Turkish Islamist expansionism”.

This exercise in crude Islamophobia, reminiscent of the anti-Muslim remarks issued by members of Parliament prior to France’s passing of the burqa ban, however unsurprisingly succeeded, with the resolution throwing France’s role in the OSCE Minsk Group into further jeopardy. The resolution unfortunately calls for the restoration of Armenia’s territorial gains at the conclusion of the 1994 war, which were achieved through mass ethnic cleansing and massacres of Azerbaijanis. For this reason, it falls in violation of the 2008 General Assembly resolution which reaffirms that “no State should recognize as lawful the situation resulting from the occupation of Azerbaijan’s territories, or render assistance in maintaining that situation”. In the continued spirit of Islamophobia, the French Senate resolution also refers to “jihadist mercenaries” aiding the Azerbaijani army, despite the controversy surrounding these claims, and in spite of consensus amongst military experts that Azerbaijan’s military successes resulted from its use of advanced drones that were able to target Armenian military objects with precision. At the same time, Armenia’s admitted use of foreign fighters from Lebanon, the United States and Argentina, and deployment of mercenaries from Syria and France, is not mentioned.

Conclusion

As the appetite for war burns on in Armenia, and territorial claims on other countries endure, international observers would do well to spot false equivalences where they arise. As the Nagorno-Karabakh conflict has shown, it is all too easy to adopt the nationalist rhetoric of governments, lobbyists and even terrorist groups, and to thereby lose focus of the underlying international law issues; ultimately, it is civilians who suffer the neglect.

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Featured, General, International Criminal Law, International Humanitarian Law, Public International Law, Use of Force
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