Azerbaijan v. Armenia before the European Court of Human Rights: Revisiting the Effective Control Test after the “44-Day War”

Azerbaijan v. Armenia before the European Court of Human Rights: Revisiting the Effective Control Test after the “44-Day War”

[Nurlan Mustafayev is a counsel on international legal affairs at the State Oil Company of the Republic of Azerbaijan, an instructor on public international law, and a pro bono advisor to Azerbaijani refugees on claims before the European Court of Human Rights.]


Unlike Russia’s ongoing direct invasion of Ukraine, many cases of military invasions were a mixture of direct and indirect or hybrid nature, such as Armenia’s partial occupation of Azerbaijan from 1992 to 2020.  International courts establish extra-territorial jurisdiction and state responsibility in such cases through the effective control test, intended to identify the military presence (boots on the ground) or other forms of control by an occupying State.  However, the so-called ‘44-Day War’ in late 2020 between Armenia and Azerbaijan revealed the inadequacy of the traditional effective control test in the new digital age by shedding significant light upon the actual extent of Armenia’s military occupation underappreciated in the previous judgments of the European Court of Human Rights (Court).  The article explores the growing importance of open-source digital tools in judicial practice and argues that there is a need for revisiting the Court’s effective control test and evidentiary standards to keep up with the changing character of military aggression and occupation under the European Convention on Human Rights.    


The “44-Day War” was not an insular event but a continuation of the tragic armed conflict in 1991-1994 triggered by Armenia’s territorial claim to Upper Karabakh (Nagorno-Karabakh), Azerbaijan’s province populated by a majority of ethnic Armenians.  A devastating war in the early 1990s resulted in Armenia’s military victory and occupation of Upper Karabakh and adjacent seven districts, home to almost 750,000 Azerbaijanis who were forced to flee (‘Occupied Territories’).  The subsequent three-decade-long Armenia’s military occupation from 1992 to 2020  witnessed a systematic and widespread violation of human rights of almost a million IDPs, particularly the right to property in the Occupied Territories.  The UN estimated the total economic damage to Azerbaijan arising from Armenia’s occupation at approximately $53.5 billion (p. 52). 

Against this background, the Azerbaijan v. Armenia inter-State case before the Court deals with the legacies of Armenia’s occupation and alleged systematic violations of human rights, which will raise significant legal questions regarding state responsibility and reparations.

The Chiragov Test: Assessing Hybrid Military Occupation

As part of its admissibility decision, the Court applies the effective control test to assess whether a European Convention member state exercises jurisdiction outside of its territory (e.g., military occupation) and has positive or negative obligations to secure human rights undertakings therein.  In this respect, the Court’s jurisprudence on the Armenia-Azerbaijan conflict has mainly been consistent.  For instance, in the landmark case of Chiragov and Others v. Armenia concerning the displacement and violation of human rights of six Azerbaijani-Kurdish families and other subsequent cases, the Court established Armenia’s extra-territorial jurisdiction in the Occupied Territories by virtue of its effective control.  In addition to ‘military support,’ effective control expressed itself in the ‘high integration’ of Armenia’s military, economic, political, and legal spheres and a local administration installed in the Occupied Territories (§ 186). 

The Chiragov test (or the ‘high integration’ test) consolidates the key principles of the ‘effective control’ test applied by the ICJ in the landmark cases of Nicaragua and Genocide, the ‘physical control’ test in the Namibia case, and the ‘overall control’ test by the ICTY in Tadic.  The Chiragov test has evolved international law significantly by creating the legal criteria to assess an act of hybrid military occupation and extra-territorial jurisdiction arising from it.  In the light of factual uncertainties in determining the boots on the ground, the Chiragov test evaluates the political, economic, financial, military, and legal ‘integration’ between an occupying State and a local administration installed in occupied territories.  For the Court, the high degree of integration between these two entities is sufficient to establish the occupying State’s effective control and ‘overall’ state responsibility under the European Convention and international law.  

However, the recent conflict revealed new facts highlighting the extent of Armenia’s boots on the ground in the Occupied Territories undervalued in the Court’s Chiragov decision, which will challenge the Court’s traditional effective control test and its evidentiary frameworks in the ongoing inter-State case. 

Boots on the Ground: Information Asymmetry and Evidentiary Standards  

Notably, the Chiragov test was also an outcome of the Court’s inability or doctrinal rigidity to assess the composition of the ‘physical control’ of Armenia’s armed forces in the Occupied Territories.  While the Court held that the ‘intervention and presence of Armenia’s forces’ was an established fact, it stated that it does not have ‘conclusive evidence’ about the specifics of the composition of the armed forces that occupied and secured control of Azerbaijan’s Nagorno-Karabakh region and the seven surrounding districts (§173)Since the assessment of effective control is a ‘factual matter,’ the Court filled the gap by developing the Chiragov test:  

“The Court need not solve this issue [composition of Armenia’s forces] as, based on the numerous reports and statements presented above, it finds it established that Armenia, through its military presence and the provision of military equipment and expertise, has been significantly involved in the Nagorno-Karabakh conflict from an early date.  This military support has been – and continues to be – decisive for the conquest of and continued control over the territories in issue, and the evidence, not least the [Military Cooperation] Agreement, convincingly shows that the Armenian armed forces and the “NKR” are highly integrated.” (§ 180)

The Court’s standard of proof in assessing the ‘composition’ of occupying forces was ‘conclusive evidence’ in Chiragov – the highest evidentiary standard, which should come under strict scrutiny in the inter-State case.  In this context, the Court failed to answer the foundational question: is it reasonable to require the victim state to provide ‘conclusive evidence’ that is physically located under the exclusive military control of the occupying State?  Should the Court apply the lesser evidentiary standards regarding the boots on the ground when the information asymmetry stems from the very actions of an occupying State? 

Establishing the composition of an occupying force is a mammoth task shrouded by factual uncertainties and information asymmetry.  In practice, to avoid international responsibility occupying States use hybrid warfare techniques  (e.g., hiding their military presence, use of irregular non-state actors, declaring “republics” in occupied territories) to create a semblance of legal separation between themselves and the military administration installed in occupied territories.  For instance, Russia’s hybrid warfare actions in the Donbas and Luhansk regions of Ukraine before the current war, Georgia, Moldova, Armenia’s control of the Occupied Territories, and foreign interventions in the Syrian and Libya civil wars provide an example of hybrid occupation cases in modern history. 

Thus, establishing the legal fact of occupation in such a situation is extremely difficult mainly because it is beyond the capacity of a victim state to present ‘conclusive evidence’ about an occupying State’s military divisions and personnel, which is under the latter’s exclusive territorial control.  In this context, the ICJ’s highly relevant but largely forgotten part of the decision in the Corfu Channel case (p. 18) is highly instructive regarding the impossibility of direct proof of facts in such situations:  

“the exclusive control exercised by a State within its frontiers might make it impossible to furnish direct proof of facts incurring its international responsibility.  The State, which is the victim, must, in that case, be allowed a more liberal recourse to inferences of fact and circumstantial evidence; such indirect evidence must be regarded as of especial weight when based on a series of facts, linked together and leading logically to a single conclusion.” 

In such exceptional cases, the ICJ’s standards of proof would allow a more lenient approach.  Relying on Corfu Channel, there is a solid case to argue that the Court should apply lenient evidence rules (e.g., indirect and circumstantial evidence, preponderance of the evidence, sufficient evidence) in assessing the boots on the ground in this inter-State case considering that the critical pieces of evidence remained under Armenia’s exclusive territorial control in the past twenty-six years.  

Evidentiary Value of Open-Source Information 

The “44-Day War” was covered extensively on social media, which provided a tremendous amount of public-source information in the form of a large number of videos, photographs, satellite imagery, and OSINT analysis spread across Telegram, Youtube, and Whatsapp in real-time.  The information sheds light not only on the ongoing military operations but also on the composition of Armenia’s occupation force, its positions, military bases, command-control structure, used weapons, and strikes, which are critical for assessing its effective control in the Occupied Territories.

The increasing application of new digital tools, such as open-source intelligence (OSINT) in modern warfare provides a new avenue for collecting and presenting evidence to establish military occupation in the new digital age.  For instance, according to the Berkley Protocol, open-source information includes the data from a vast array of publicly available satellite imagery, mapping technology, videos, and photographs, including material uploaded to the Internet from smartphones and posts to social media platforms.  While policymaking increasingly uses public-source information, international courts have a more conservative approach to it as a source of evidence, except in a limited number of criminal and human rights cases, which needs to change.  

In the recent conflict, open-source information revealed the significant facts and the extent of Armenia’s military occupation, unavailable for the Court’s assessment in Chiragov.  For instance, Washington Post, Wall Street Journal, Forbes, and Military-affairs blog Oryx, which documents losses by photographic or video evidence, reported Armenia’s extensive number of military hardware, air defense systems, and heavily fortified positions in the Occupied Territories.  In addition, open-source information also revealed significant Armenia’s military personnel in the area.  For instance, the acknowledged number of troops of over 25,000 soldiers and other troop data indicated that Armenia had from eighty-five to ninety percent (85-90%) of its overall armed forces in the Occupied Territories unaccounted for in the Court’s previous decisions. 

The recent conflict was also unique because the parties’ senior political and military leaders made unprecedented statements and public speeches underlying the past and present policies in the conflict, which were unavailable for the Court’s review in ChiragovMilitary mobilization in both states, regular addresses to the nation by Armenia’s PM and Azerbaijan’s President, political leaders’ policies, orders and acknowledgments, public commentary, statements by senior military leaders, daily reporting by the ministries of defenses also indicated the actual extent of Armenia’s involvement in the Occupied Territories. 

These significant facts revealed the situation on the ground cardinally different from that of the Court’s assessment in Chiragov. Thus, this inter-state case will likely challenge the Court’s previous approaches in two critical ways.  Firstly, the traditional sources of evidence are necessary but no longer sufficient to assess the ‘boots on the ground’ in hybrid military occupation.  Secondly, integrating new digital tools in assessing severe breaches of international law requires adopting a more lenient evidentiary framework.

Integrating Effective Control and State Responsibility  

After the recent conflict, the field reports by New York Times, Wall Street Journal, BBC, and Euronews reveal the desolate Karabakh region – about the size of Northern Ireland – stripped of all infrastructure and cultural heritage, which now hinders the return of almost a million Azerbaijani IDPs.  In Chiragov, the Court’s evaluation standards focused on establishing Armenia’s ‘overall’ responsibility for such human rights violations without thoroughly assessing the details of its occupation policies (e.g., population settlements, eradication of pre-existing cultural heritage, looting and transfer of private and public properties, de facto annexation, etc.).  While the Court’s recent decision in Georgia v. Russia (II) made incremental progress by evaluating the ‘occupation phase’ after Russia invaded Georgia (§145-222), it failed to assess its occupation policies comprehensively. 

One of the key reasons for this gap is that, unlike the ICJ’s effective control test, the Court’s test is not equivalent to direct state responsibility under the European Convention.  This doctrinal limitation, coupled with the higher evidentiary standards, creates room for evading legal responsibility for the consequences of hybrid or an indirect military occupation in the Court’s jurisprudence.   Considering such risks, the Court needs to approach hybrid military occupation as a sui generis issue, different from other cases of extra-territorial jurisdiction.  If the fact of military occupation is established, it should dispense with the attribution test and result in full (rather than “overall”) state responsibility under the European Convention.  In this respect, the Chiragov test, coupled with more lenient evidentiary rules incorporating open-source information, can bring these two doctrines closer to a convergence point, closing the critical gaps in the Court’s jurisprudence. 


The military aggression, whether direct or hybrid, is not just a violation of international law; it is a complete negation of it.  Thus, in such a case, rigid legal interpretation of the fact of occupation is likely to make the European Convention not just ineffective, but also counter-productive.  If international courts take a rigid interpretation of the law and evidentiary standards in such cases, a wrongdoing state negating international law will likely avoid legal consequences and defeat the object and purpose of the European Convention and international law. 

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