Nagorno Karabakh – A Stark Reminder of the Council of Europe’s Operational ‘Grey Zones’

[Andrew Forde  just passed his PhD viva at the Irish Centre for Human Rights focussed on The Application of the ECHR in Contested European Territories, with extensive professional experience in post-conflict regions in south eastern Europe and the south Caucasus principally with the Council of Europe.]

Throughout the brutal six-week war in and around Nagorno-Karabakh which began on 27 September 2020, the former Human Rights Ombudsman of Nagorno-Karabakh, Artak Beglaryan, challenged the international community “not to be blind” to the egregious human rights violations actively occurring in the region. His calls were all the more poignant given that he openly admitted that he was blinded by the remnants of war in the 1990s.

Despite repeated pleas for engagement throughout the war, which saw some 5,000 military personnel and several hundred civilians killed or missing, the international community appear to have had limited influence over the conduct of the conflict or the ceasefire negotiations. The Council of Europe’s cautious response to the recent conflict serves as a reminder of the systemic problem of operational ‘grey zones’ in the CoE area.

What are human rights ‘grey zones’?

The Parliamentary Assembly of the Council of Europe (PACE) described ‘grey zones’ as areas where monitoring mechanisms cannot function freely or effectively. Nagorno-Karabakh is one of several  such regions in Europe. This heterogeneous group of territories includes legacy post-conflict regions such as Transnistria, non-member de facto states including Kosovo and Abkhazia, and other contested territories like Crimea. In all cases a political conflict brings the status of each territory into dispute which has serious implications for the effectiveness of international human rights systems.

Blind spots of any kind create space for impunity and heighten the risk of human rights violations occurring without effective and independent review, or access to effective remedies. Hence, from a normative perspective, ‘grey zones’ are arguably less about the status of the region per se (although status is critical in establishing jurisdiction) and more about the ability of the CoE to protect the integrity of the Statute and European Convention of Human Rights (ECHR) throughout Europe. Yet, rather than being seen as a critical threat to the integrity and long-term future of the Convention System, these regions have in effect become a normalised exception in the ECHR area.

The Council of Europe’s response to the conflict

The eventual ceasefire in Nagorno-Karabakh was not brokered by the OSCE Minsk Group, the group mandated to help negotiate a peaceful resolution between Azerbaijan and Armenia. Rather, it was a product of regional engagement, principally by the Russian Federation, which now exercises a peace-keeping mandate, negotiated trilaterally and outside the UN Security Council framework. The failure to secure a multilateral resolution has perhaps contributed to a perception that the international community including the CoE was unwilling or unable to address the suffering of the civilian populations.

This is not an entirely fair assessment of the CoE’s position, though from the outside it is difficult to know the full extent of diplomatic and other efforts pursued. Confidentiality is fundamental to human rights diplomacy, and it can be a strength, creating the space for dialogue and building trust amongst parties. However, it must be balanced by transparency in the public interest. What is known is that several statutory and non-statutory bodies of the CoE roundly, repeatedly and robustly condemned the violence. On 27 September, the Secretary General (SG) expressed grave concern about the escalation of the conflict. She noted that conflict-resolution is not principally a matter for the CoE – a narrative which warrants greater scrutiny — and stressed support for the OSCE Minsk group in their work. Two days later the Court applied Rule 39 of the Rules of Court to issue the first of a series of Interim Measures in favour of Armenia calling on both Azerbaijan and Armenia to refrain from military or other action which might breach ECHR rights, in particular Articles 2 and 3. The Commissioner for Human Rights (CommHR) and members of the Parliamentary Assembly of the CoE (PACE) also voiced concern.

The Court issued a further Interim Measure on 6 October calling on all States “directly or indirectly” involved in the conflict including Turkey to refrain from violating the Convention. While these Interim Measures were formally important, they seem to have been of little practical value. The Court has long since been seized of this conflict, one of a growing number of instances over the past two decades which have given rise to extraterritorial jurisdiction. The Leading Grand Chamber judgments of Chiragov and Others v. Armenia (no. 13216/05) and Sargsyan v. Azerbaijan (no. 40167/06) from 2015 which concern the 1992 Nagorno-Karabakh conflict remain under enhanced supervision by the Committee of Ministers, classified as a “Complex Problem” due to the unresolved political conflict. It was therefore inconceivable that the Interim Measures could have succeeded where the Grand Chamber and the Committee of Ministers had hitherto failed. In practice, the Interim Measures merely served to elevate the political and military conflict to the judicial arena.

It is notable that the Committee of Ministers made no public statement on the matter. Instead, the Chairmanship presided over an in-camera debate on the CoE’s role in response to conflicts and crises in Europe on the 70^th anniversary of ECHR conference in Athens. The “Athens Declaration”, signed on that auspicious anniversary, noted that Member States “remain concerned by confrontations and unresolved conflicts” and resolved to “work together for reconciliation and political solutions in conformity with the norms and principles of international law.” The Declaration’s authority was diminished by the fact that it was neither supported by Azerbaijan nor Turkey (or Hungary for that matter), and the Russian Federation supported it only conditionally.

This highlights the critical challenge facing the CoE; how to translate the principle of “shared responsibility” stemming from the Interlaken Process, to one that ensures rights are practical and effective, not theoretical and illusory throughout Europe.

The cost of non-engagement

A point-in-time assessment of the response of the CoE during this conflict does not lend itself to a comprehensive understanding of what is a systemic problem. Instead, one should consider the costs of protracted non-engagement with contested territories in general.

In its simplest form, non-engagement or “under-engagement” eliminates the possibility to build relationships of trust with functional authorities and civil society actors in situ, which are prerequisites for broader normative cooperation. Membership of the CoE alone is not in itself a reliable indicator of the level of human rights compliance in any given jurisdiction; what matters more is the strength of the legislative and institutional frameworks, the maturity of the political system, the capacity and resources of duty-bearers, and the checks and balances at all levels. The CoE can influence these elements through engagement and developing such relationships can enable more fluid or rapid responses in times of crisis.

What more could the CoE do?

When it comes to ‘grey zones’, the CoE often seeks to defer to other international organisations such as the OSCE or the UN, which have an explicit conflict resolution mandate despite  the Council of Europe itself as an intergovernmental human rights organisation borne out of the embers of World War II, fundamentally being a peace-building project. Human rights, rule of law and democracy standards are central, not incidental, to achieving sustainable peace. The CoE’s unique arsenal of standards and tools can contribute to all stages of peacebuilding, as it has done on many occasions in the past. The challenge is to ensure its mandate is executed in a complementary not duplicative manner.

European ordre public requires that are no vacuums of human rights protection. As the guardian of the Statute, the SG has an ordre public duty to ensure that vacuums are promptly addressed in the most judicious, politically objective manner possible guided by the rule of law. The minimum is to be open to engagement and to seek to ensure monitoring mechanisms can function as routinely as possible. The Court, which has delivered what has been asked of it in the current conflict for the time being, has repeatedly stressed that the ECHR should be normally applicable throughout the CoE area. Moreover, its case-law has comprehensively clarified that exercising effective control does not eliminate human rights responsibilities. On the contrary, even the illegitimate assumption of public powers brings accompanying human rights responsibilities. Where Committee of Ministers (CM) action may be necessarily limited due to legitimate sovereignty or realpolitik considerations, other actors such as the SG or the CommHR have significantly more scope to engage.

The organisation has a rich experience of supporting rights protection efforts during and following conflicts in South East Europe and the Caucasus in the 1990s/2000s including in many grey zones. The CoE must be commended for these efforts and encouraged by all proponents of an effective ECHR system to build on this experience. In the case of Kosovo for example, the CoE systematically delivers human rights and rule of law programmes, and monitoring mechanisms operate in an “as-if” fashion despite Kosovo not being party to CoE treaties. This practice might have a sui generis veneerdue to the existence of UNSCR 1244, but there is no convincing reason such practices cannot be replicated in other areas based on SG prerogatives. In Abkhazia, the Confidence Building Measures (CBM) programme is drawing on CoE standards to foster trust and engagement. In Transnistria, monitoring mechanisms such as CommHR and the Committee for the Prevention of Torture have sought to maximise engagement and have had engagement over the years. In Crimea, the SG appointed a rapporteur to report on human rights in the peninsula. These efforts have sometimes been misrepresented for ulterior purposes, but this serves only to reinforce the need for a systematic, objective and judicious approach to engagement, with the support of like-minded Member States.

The primary and exclusive interest must always be standards rather than status.

Asserting “Normative Will”

Once a territory comes within the scope of the ECHR, the CoE has an ordre public responsibility to the rights holders in that territory. Its unique set of complementary mechanisms can help improve human rights protection by functional authorities and can empower independent institutions and civil society actors to carry out advocacy or monitoring. Raising the profile of the ECHR, and the Court’s jurisprudence amongst judges, lawyers and police such as through the HELP Programme can help to empower them and improve public confidence in these critical rule of law actors. These initiatives can be pursued within the prerogatives of the SG.

Under the leadership of the SG, the CoE can move beyond a rhetorical approach to grey zones, to a more systemic, normatively sound and predictable form of engagement, but this requires the support of the maximum number of Member States possible. It is an issue of systemic concern which deserves the attention of all statutory actors and would be ideally suited to a future CM Chairmanship priority but in the meantime, the SG, CommHR, monitoring mechanisms and PACE must step up their focus on grey zones, given that it is a matter of fundamental importance to the integrity of the ECHR system.

Conclusion

Paradoxically, despite commendable efforts in various contexts, the CoE has a more extensive framework of cooperation with non-member states than it has with most grey zones. The time has come to recognise that normative engagement with grey zones on the basis of CoE standards is not a political act and must never been represented as such. Engagement, through monitoring and cooperation activities should be the norm, not the exception, and any attempt to politicise such efforts should be firmly rejected. The SG’s major challenge is striking the balance between acting in a politically sensitive, strategically responsible manner which does not undermine relationships with Member States and exercising the “normative will” which she has been empowered to exercise.

In resolving conflicts, human rights must not be left sequentially to follow political solutions; human rights, democracy and the rule of law should form part of the path to achieving those solutions.

The tragedy of Nagorno-Karabakh is a stark reminder of the urgent need for the Council of Europe to open its eyes to these operational grey zones which are hiding in plain sight.