04 Aug ‘Small Hiroshima’: Addressing Systemic Cultural Heritage Erasure in Formerly Armenia-Occupied Territories
[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.]
Following the so-called “44-Day War” in 2020, Azerbaijan and Armenia continue several legal battles before the International Court of Justice (ICJ) and the European Court of Human Rights (ECtHR), alleging various international law violations. After Azerbaijan liberated its territories under Armenia’s three-decade-long occupation, the emergent scale of cultural heritage erasure in such territories shocked the international community, making it a subject matter of the ongoing litigations. There are qualitative and quantitative legal differences between Azerbaijan’s and Armenia’s cases regarding the cultural property under CERD and European Convention on Human Rights, which will stretch the interpretation of these treaties under new circumstances. Given the jurisdictional limitations of both judicial forums on cultural property issues, UNESCO shall reverse its current passive role and establish a fact-finding mission to the previously occupied territories and report its findings to the UN Security Council and the General Assembly for further actions, including the creation of a Compensation Commission and the referral of this case to the International Criminal Court (ICC).
“Hiroshima of the Caucasus”
A devastating war in the early 1990s resulted in Armenia’s military victory and the subsequent occupation of Azerbaijan’s Upper Karabakh region (Nagorno-Karabakh) and adjacent seven districts, home to almost 750,000 Azerbaijanis who were forced to flee (“Occupied Territories”).
The “44-Day War” saw Azerbaijan liberate a significant part of its Occupied Territories, revealing widespread and systematic international law violations on the ground. For instance, the field reports by New York Times, Wall Street Journal, BBC, and Euronews revealed a completely desolate region, about the size of Northern Ireland, stripped of all cultural heritage, private properties, and civilian infrastructure during Armenia’s occupation. In 2000, the UN estimated the total economic damage to Azerbaijan due to Armenia’s occupation at $53.5 billion ($88 billion adjusted for inflation), a staggering sum for a small nation of Azerbaijan (p. 52). The scale of the damages in the Armenia-occupied territories indicates the most extensive cultural heritage erasure in modern history after the Second World War.
Among such ruins stands the remains of the city of Agdam and its famous Juma mosque – partially damaged and converted into an animal farm during Armenia’s occupation. A well-known expert on the conflict, Thomas de Waal, who witnessed the ruins of Agdam in 2000, called it a ‘small Hiroshima,’ testimony to the massive scale of the ruins. US diplomat Carey Cavanaugh visited the city in 2001 and called it the ‘largest Home Depo on the planet,’ as all the buildings were stripped clean by the occupation forces for supplies. Agdam, now better known as ‘Hiroshima of the Caucasus,’ epitomizes a massive cultural heritage erasure concerning tens of Azerbaijani towns and hundreds of villages that now stand at the center of the ongoing inter-State legal cases.
In the post-occupation phase, the new emergent facts on the ground reveal that the damage to Azerbaijan’s cultural heritage has been immense and irreversible. According to the well-documented reports by international organizations, governments, agencies, US State Department (p. 25-27), independent groups, think tanks, scholars, research institutes, archeologists, diplomats, photographers, satellite imagery, such tangible cultural property erasure include, among others, 67 registered mosques, 1 Orthodox church, 700 historical and cultural monuments (15 universally valued), 927 libraries (with 4.6 million books, including many rare manuscripts), 808 cultural centers, 85 music and art schools, 22 museums (with over 100,000 artifacts), four art galleries, four theatres, two concert halls, hundreds of ancient mausoleums, unregistered mosques, archaeological monuments and 26 fortresses, 58 archeological sites. Notably, the occupation irreversibly eliminated the intangible cultural heritage in the Occupied Territories such as the local folklore, peculiar form of Karabakh music – mugam, art of Karabakh carpets, ashiq (ozan) music and poetry, Karabakh horse breeding and riding culture, nomadic culture, cuisine, local customs and traditions accumulated over hundreds of years.
For instance, the US State Department’s 2021 Freedom of Religion Report on Armenia revealed, among others, Armenia’s severe violations of international law in the Occupied Territories:
most mosques, shrines, and cemeteries used by the region’s ethnic Azerbaijani communities – approximately 400,000 people – were looted, vandalized, desecrated, and/or destroyed while under Armenian control.
The Council of Europe’s recent report “Humanitarian Consequences of the Conflict between Armenia and Azerbaijan” and the EU Parliament’s resolution recognized these grave violations by reaffirming that the war led to ‘Azerbaijani cultural heritage being damaged or destroyed, including cultural and religious sites by being used as cattle sheds, modified to remove cultural traces, or disassembled for building materials.’ It also emphasized, ‘irreversible destruction of Azerbaijan’s cultural heritage in the former conflict areas returned by Armenia to Azerbaijan, in particular the almost total destruction and looting of Aghdam and Fuzuli’(§ M, N).
The other Azerbaijani cities under occupation – Shusha, Jabrayil, Zengilan, Fuzuli, Gubadli, Lachin, Kalbajar, and hundreds of villages, suffered similar damage. In 2005 and 2010, the Organization for Security and Cooperation in Europe’s (OSCE) fact-finding missions to the Occupied Territories reported that ‘towns and villages under occupation were almost entirely in ruins.’ In 2008, the UN General Assembly adopted a special resolution on the “Situation in the occupied territories of Azerbaijan,” reaffirming the OSCE’s findings. Since 2008, Armenia allowed no further independent fact-finding missions to the Occupied Territories, which kept international organizations uninformed of what was happening on the ground until 2020.
In summary, since Karabakh has been central to Azerbaijan’s identity and a primary driver of its cultural development, the region’s cultural heritage erasure has had an immense impact on Azerbaijan’s overall cultural currency and vitality.
Cultural Property and Obligations of Occupying Power
Together with the Geneva Conventions, UNESCO’s four major conventions, in particular, the Convention for the Protection of Cultural Property in the Event of Armed Conflict 1954 (the ‘Hague Convention’), constitute a general legal framework for the protection of cultural heritage in peacetime and wartime. The UNESCO framework envisages extensive negative and positive obligations on an occupying State (e.g. Armenia) not to destroy and preserve the cultural property in the territories under its control. The Hague Convention recognizes that all cultural property in the territory of Azerbaijan, including in Karabakh, belong to the State of Azerbaijan regardless of its ethnic origin.
While there is overlapping and confusing terminology regarding the concepts of cultural heritage, cultural property, and cultural goods between various conventions, the Hague Convention defines `cultural property’ as ‘movable or immovable property of great importance to the cultural heritage of every people.’ It includes monuments of architecture, art, or history; museums, large libraries; movable cultural property, and centers containing a large amount of cultural property (Article 1). Both Armenia and Azerbaijan are parties to both conventions.
Articles 4 and 5 of the Hague Convention are of particular importance, obliging the occupying State to refrain from any act of hostility against cultural property and all forms of theft, pillage, misappropriation, confiscation, or vandalism to preserve the cultural property in occupied territories. The First Protocol of the Hague Convention additionally prohibits the “exportation” of cultural property from a territory occupied by it during an armed conflict (Article 1).
According to a prominent expert in cultural property, Professor Roger O’Keefe (p.443), these rules are also part of customary international law:
The undertaking in Article 4… to prohibit, prevent, and, if necessary, put a stop to all forms of theft, pillage, misappropriation, confiscation, or vandalism of cultural property is not limited to the commission of such acts by a party’s own armed forces but extends to commission by the local populace and by remnants of the opposing armed forces. This explains why the first limb of the provision is formulated as an obligation to prohibit, prevent, and, if necessary, put a stop to the relevant conduct, instead of merely an obligation to refrain from it.
Additional Protocol I to the Geneva Conventions also contains concrete obligations on the occupying State not to commit any acts of hostility directed against the historic monuments, works of art, or places of worship, use such objects in support of the military effort to make such objects the object of reprisals (Article 53), a similar provision to the Hague Convention.
According to prominent experts on humanitarian law, J Henckaerts and L Doswald-Beck’s Customary International Humanitarian Law, the rules envisaged in the Geneva Conventions on the cultural property are also part of customary international law. In particular, Rules 40 and 41 include the strict prohibition of all seizure of or destruction or willful damage done to institutions dedicated to religion, charity, education, the arts and sciences, historical monuments, and works of art and an obligation on the occupying power to prevent the illicit export of cultural property from occupied territory and must return the illicitly exported property to the competent authorities of the occupied territory.
Aside from the customary law, the ECtHR landmark decision in Ahunbay v. Turkey recognized that there was a common European and international view that indigenous people have a right of access to their cultural heritage and to conserve, control, and protect it under the European Convention on Human Rights. Thus, within the ambit of the Council of Europe members, the failure of occupying State to protect cultural property or deliberate destruction would violate international humanitarian law and the European Convention on Human Rights.
In light of the massive and systematic scale of indigenous cultural heritage erasure in the Occupied Territories, it is reasonable to argue that Armenia materially breached its obligations under the Hague and Geneva Conventions and European Convention on Human Rights. Armenia’s state responsibility would be incurred even if there was no “government-sponsored wipe” – a key argument used by Armenia’s government and scholars. As a matter of state responsibility, international law exposes Armenia to full compensation for the damages, repatriation of such cultural properties, and opening criminal and civil suits against Armenian persons engaged in such illegal activities. However, none of these steps have been undertaken by Armenia so far.
Transformative Occupation and Cultural Heritage Erasure
There are qualitative and quantitative legal differences between Azerbaijan’s and Armenia’s claims on cultural property under CERD. While Azerbaijan accuses Armenia of violating CERD and the European Convention e.g., by systematically destroying its cultural heritage in the Occupied Territories from 1992 to 2020, Armenia’s claim is mainly forward-looking; it essentially claims that there is a risk that Azerbaijan might erase ethnic Armenian cultural heritage in Karabakh even all such property belongs to the State of Azerbaijan. In sum, these claims relate to the past violations (Azerbaijan’s argument) versus future potential violations (Armenia’s argument), which will require a reinterpretation of both CERD and the European Convention under a new light.
Azerbaijan’s fundamental position is based on the legal status of Armenia as the occupying State and its respective obligations to protect Azerbaijan’s cultural property in the Occupied Territories. In fact, Armenia’s status as the occupying State was unequivocally established by the resolutions of the UN’s Security Council and the General Assembly, the Council of Europe, the European Parliament, and other international organizations. In addition, the European Court of Human Rights (ECtHR) landmark judgment in Chiragov and Others v. Armenia and the subsequent cases reaffirmed Armenia’s effective control over the Occupied Territories and its positive and negative obligations under the European Convention.
However, the existing legal framework for determining state responsibility is inadequate when assessing ‘cultural erasure’ in occupied territories. In fact, occupying States are usually engaged in what the International Red Cross (IRC) calls ‘transformative occupation’ intended to overhaul occupied territory in line with their ethnic and political preferences. For instance, Russia’s occupation of and cultural erasure activities in Ukraine’s Crimea, Donbas, Luhansk, and Kherson regions have brought more international attention to ‘transformative occupation.’ Major international organizations set up a number of task forces to investigate and record war crimes in Russia-controlled territories. Likewise, Armenia’s occupation is an earlier example of transformative occupation that witnessed the erasure of indigenous cultural heritage on a massive and systemic basis in line with its long-term policies.
Recently, the ECtHR made incremental and limited progress in the Georgia v. Russia (II) case by evaluating the ‘occupation phase’ after Russia invaded Georgia in 2008 (§145-222); however, it fell short of fully assessing Russia’s occupation policies. In the context of the Azerbaijan-Armenia case, these legal frameworks require assessing the “intent and purpose” of Armenia’s occupation policies in Karabakh and adjacent districts. These measures included a complete ethnic cleansing of about a million Azerbaijanis from the area (HRW report, p. 99), extensive population settlements mainly from the Middle East, changing the historical and official toponyms of the Azerbaijani districts, and de facto annexation measures in the financial, economic, banking, trade and security spheres to integrate these territories into Armenia proper. In summary, these facts indicate that the erasure of the indigenous cultural heritage on the ground was not “sporadic and accidental” but Armenia’s long-term policy to annex the Occupied Territories.
In the post-occupation phase, the reality on the ground now is that the previously Armenia-occupied territories have been stripped of significant private properties and extensive civilian infrastructure, let alone any tangible cultural property. However, unlike in the Ukraine-Russia conflict, there is no legal and institutional mechanism for enforcing Armenia’s state responsibility unless it agrees to reparations in a treaty or accepts the compulsory jurisdiction of the ICJ, ICC, or the UN mandates a compensation commission, similar to the Iraq-Kuwait Compensation Commission. As of now, none of these measures appears to be in the making, leaving such grave international law violations unaddressed.
Five Things International Community Should Do
Armenia’s three-decade-long impunity for a systemic cultural heritage erasure in the Occupied Territories has left international legal policy in limbo, paving the way for the repetition of similar acts in the Russia-Georgia and Russia-Ukraine conflicts. Thus, it is an opportunity for the ICJ and the ECtHR to assess a massive cultural heritage erasure in a large context of human rights and ‘transformative occupation’ in these cases. Addressing these wrongdoings in this case requires Armenia, as the former occupying State, to undertake several immediate measures, e.g., repatriation of the remaining Azerbaijani cultural properties in its museums and private possessions, opening investigations against the persons implicated in such activities, and reparations for the damages.
Considering the jurisdiction limitations of the ICJ and the ECtHR, a final peace treaty between Armenia and Azerbaijan should envisage the parties’ mutual consent for the creation of a UN Compensation Commission, similar to the Iraq-Kuwait Compensation Commission, with broad powers to examine property issues, including cultural property, and award requisite compensation.
Since such consent is not in the making yet, UNESCO should reverse its passive role and conduct an independent mission in the Occupied Territories to draw an inventory of destroyed and damaged tangible and intangible cultural properties. Such serious violations of international law need to be discussed in the UN General Assembly and the Security Council, including referral of this case to the ICC. The key global powers – the US and EU member states – should take a strong stance and designate, including asset freeze, the relevant state organs and individual policymakers who were implicated in the three-decade-long cultural heritage erasure and theft in the previously Occupied Territories.