27 Sep Faith No More: Azerbaijan’s Abdication of Duty Towards the Armenians of Nagorno-Karabakh
[Dr Andrew Forde is a Visiting Fellow at the Irish Centre for Human Rights at the University of Galway. Dr Forde worked for more than 10 years with the Council of Europe and the OSCE. Sheila Paylan is an international human rights lawyer and former legal advisor to the United Nations for more than 15 years. She previously served as a pro bono advisor to the Republic of Armenia in the aftermath of the 2020 Nagorno-Karabakh War, including during the submission of Armenia’s first request for provisional measures against Azerbaijan before the International Court of Justice in 2021. The opinions and views expressed in this article are entirely their own.]
On 19 September 2023, Azerbaijan launched an extensive military assault on Nagorno-Karabakh, under the guise of an “anti-terrorist” operation which resulted in the killings of at least 200 people and over 400 wounded. Baku’s aim was to force a new status quo in the conflict-affected region on its own terms and with no apparent regard for the lives or basic human rights of the population of Nagorno-Karabakh. The attack came after Azerbaijan had kept Nagorno-Karabakh under siege for more than nine months, slowly starving its population of 120,000 Armenians and depriving them of the basic necessities for life such as food, fuel and medicine in what has been described by former Prosecutor of the International Criminal Court, Luis Moreno Ocampo, as genocide. After 24 hours of heavy bombardment, the Nagorno-Karabakh authorities surrendered, and thousands of ethnic Armenians began to flee the region for neighboring Armenia soon after Nagorno-Karabakh fell under Azerbaijan’s exclusive control. At the time of writing, a mass exodus of the Armenian population of Nagorno-Karabakh is still underway.
The most recent assault came the day after a reported breakthrough in the critical humanitarian impasse in Nagorno-Karabakh and coincided with the United Nations (UN) General Assembly meeting in New York where the world’s leaders and most international media attention was focussed. Mortars were falling on civilian targets in Nagorno-Karabakh’s capital Stepanakert (known as “Khankendi” to Azerbaijanis) at the same time as Azerbaijan’s Minister for Foreign Affairs was meeting with the Secretary General of the Council of Europe (CoE) at UN Headquarters. Whilst the timing seems particularly cynical, it is Azerbaijan’s actions that are of most concern as they run contrary to international law including the UN Charter, Article 3 of the CoE Statute as well as the Helsinki Final Act. Furthermore, Azerbaijan’s attempt to forcibly reassert exclusive control over Nagorno-Karabakh has eroded the already decaying principle of good faith under international law. In this post we consider the extent to which it can be said that Azerbaijan has abdicated its duties towards the resident population in Nagorno-Karabakh under international human rights law through an observable pattern of behaviour, in particular since December 2022, and what this might mean for the international human rights architecture, particularly in Europe.
A Pattern of Bad Faith
Azerbaijan has been a member of the United Nations since 1992 and the Council of Europe since 2001. In the case of the latter, the peaceful settlement of the Nagorno-Karabakh conflict was an explicit condition of membership. Specifically, Azerbaijan itself committed to “settle international and domestic disputes by peaceful means and according to the principles of international law (an obligation incumbent on all CoE member states), resolutely rejecting any threatened use of force against its neighbours.” Azerbaijan has reneged completely on this commitment. Baku knows, of course, that the CoE Committee of Ministers is unlikely to meaningfully question its actions, let alone initiate any kind of membership sanction process since the Committee failed to do so in 2008 after Russia’s war in Georgia or in 2014 when Russia illegally annexed Crimea from Ukraine. It took an openly genocidal, fully-fledged imperial invasion to trigger a meaningful response against Russia in Strasbourg. The CoE is interested in unity, not further division and Baku knows this.
Azerbaijan’s attack on Nagorno-Karabakh also came just one week shy of the three-year anniversary on which it had launched its previous full-scale military assault on the region, which lasted 44 days and resulted in thousands of deaths. The 44-day war ended with a Russian-brokered ceasefire that brought with it reasonably high hopes of a peaceful resolution of the Nagorno-Karabakh conflict, long-awaited for nearly 30 years after much suffering on all sides and without any effective process of establishing accountability. Several rounds of peace talks between Armenia and Azerbaijan have taken place over the last three years, with mediation offered by Russia, the EU, and the US. In a hugely conciliatory move, Armenia offered to recognize Azerbaijan’s sovereignty over the territory of Nagorno-Karabakh, which is generally recognised by the international community as such, albeit on one red-line condition: that Azerbaijan guarantee the rights and security of Nagorno-Karabakh’s indigenous Armenian population.
Such a request is hardly controversial as it generates no additional human rights obligations on Azerbaijan. There are a large number of legally binding instruments to which Azerbaijan is a party which establish human rights duties on Baku towards all people within its jurisdiction including the ethnic Armenians of Nagorno-Karabakh (which Azerbaijan considers to be its own citizens anyway).
Besides the International Covenant on Civil and Political Rights and International Covenant on Economic Social and Cultural Rights (together the International Bill of Human Rights), Azerbaijan is party to the European Convention on Human Rights (ECHR) as well as the CoE’s Framework Convention for the Protection of National Minorities. Importantly, these treaties apply ipso facto to Nagorno-Karabakh as to any other part of Azerbaijan without any prima facie diminution of responsibility on Azerbaijan, unlike for instance, the European Social Charter which Azerbaijan has declared cannot be implemented pending a resolution to the conflict.
Universality versus Sovereignty
Azerbaijan’s consistent response has been to dismiss calls from the international community to faithfully fulfil its basic human rights duties including allowing access by independent international human rights monitoring mechanisms such as the CoE Commissioner for Human Rights to provide an objective account of the situation on the ground. Indeed, Azerbaijan has refused full and unimpeded access by various CoE delegations and UN agencies, and severely curtailed the work of the International Committee of the Red Cross in flagrant contravention of international law and customary practice.
Whilst consent is a basic sovereign prerogative, refusal of access by human rights and humanitarian organisations strikes at the heart of well-established international human rights practice and undermines their core purpose. There is a strong argument to be made for a presumption of access principle to prevail when it comes to international human rights monitoring, in particular where serious violations of fundamental human rights and dignity such as threats to life, torture, inhuman or degrading treatment are suspected or where there is a denial of basic humanitarian needs. If Azerbaijan is genuinely committed to the rights of its ethnic Armenian population, one must ask why it would be seen to flout international law in such an apparently insidious manner?
The issue of the rights and security of the Armenians of Nagorno-Karabakh is considered by Baku to be an entirely “internal” matter to be dealt with at Azerbaijan’s discretion. The international community wants to be able to trust that Azerbaijan would live up to its international legal obligations – all of them, especially refraining from the threat or use of force. But such trust is no longer tenable since Azerbaijan has so openly abided by the “might is right” principle and repeatedly flouted its obligations vis-à-vis Nagorno-Karabakh, including an order from the International Court of Justice to restore unimpeded movement along the Lachin Corridor in both directions.
In the absence of measures to build trust and provide meaningful human rights guarantees, Azerbaijan’s latest assault on an already a starving population can only be considered an act of compounding bad faith and a blatant breach of pacta sunt servanda under international law. The blockade itself, in place since December 2022, has resembled coercion at best or state-led retribution at worst, itself a violation of international humanitarian law along with the prohibition against collective punishment. Repeated military attacks, deliberate deprivation of food and medicine, and restricting the functioning of humanitarian response also represent a serious violation of Article 3 of the CoE Statute which provides that “[e]very member of the Council of Europe must accept the principles of the rule of law and of the enjoyment by all persons within its jurisdiction of human rights and fundamental freedoms, and collaborate sincerely and effectively in the realisation of the aim of the Council.”
Performative Commitment to Values
When Azerbaijan and Armenia joined the CoE there was cautious optimism that it could help move the dial from conflict to coexistence and sustainable peace. Upon accession, the then President of Azerbaijan even reiterated (see para 11) his country’s commitment to a peaceful settlement of the Nagorno-Karabakh conflict, stressing that Azerbaijan’s accession to the CoE would be a major contribution to the negotiations process and stability in the region. Yet, here we are two decades later facing the mass involuntary displacement of the Armenian population with the prevailing logic centring on seeking justice for legacy violations, framed in the narrowest possible interpretation of the term: i.e. reasserting military control over Nagorno-Karabakh, at almost any cost. Sovereignty is seen as absolute, international law optional, and there is significant frustration in Baku that international human rights organisations would have the temerity to question the legality of its actions.
Azerbaijan is casually flouting basic duties under the UN Charter, the International Bill of Human Rights, the ECHR and the CoE Statute, including ensuring good faith engagement with CoE statutory and other mechanisms. This à-la-carte approach to international law is neither credible nor is it sustainable for any country that considers itself democratic and based on the rule of law.
The international community has observed the developing situation in Nagorno-Karabakh with an equal measure of apathy and helplessness. The CoE Committee of Ministers adopted the Reykjavik Declaration in May 2023 (notably in the absence of Azerbaijani President Aliyev), to much fanfare and hope for a more unified future. It must ask itself now how the ongoing human rights crisis in Nagorno-Karabakh and patterns of bad faith behaviour by a CoE member state can be reconciled with the CoE’s values. Learning from the Russian experience, is the CoE prepared to accept another performative membership and active hostility against rights-holders in the CoE area?
Coming back from the brink?
This crisis is active. There are thousands of people, human rights holders, who were recently starved and bombed, and are now being permanently displaced. One of the major flaws with international law, international human rights law in particular, is that it is weak in addressing active violations. This is because it is rooted in the universal principles of good faith and pacta sunt servanda. Without the good faith of member states, the house of cards begins to fall. This is exacerbated by an ineffective UN Security Council on matters of international peace and security.
Over a prolonged period, one can observe an erosion of the principles of good faith and pacta sund servanda in relation to Nagorno-Karabakh which consequentially is undermining the credibility and integrity of the entire international human rights protection system. The active policy decisions by Azerbaijan in relation to Nagorno-Karabakh have created the conditions for a human rights crisis of such proportions as to lead tens of thousands of Armenians to be forced to leave Nagorno-Karabakh. This eliminates the potential for a peaceful resolution to the conflict, it is unilateral, imposed by force, and it creates an extremely dangerous precedent which will resonate far beyond Nagorno-Karabakh.
The UN and the CoE must recognize the seriousness of the situation unfolding in real time, and move beyond vacuous statements of concern. Maximum support should immediately be offered to alleviate the unimaginable suffering of the Armenians of Nagorno-Karabakh. At the same time, support should also continue to be offered to Azerbaijan to encourage it to pursue a different path, even at this extremely late stage. The international community must relentlessly seek to encourage Azerbaijan onto a path of democracy and rule of law through diplomatic and other channels, and should support it to fulfill its international law obligations. However, there must also be accountability for serious transgressions, particularly when they are overt and carried out in bad faith. To do otherwise could itself be considered an abdication of the shared responsibilities all member states enjoy for the integrity of the international system.