22 Sep Armenia as the 124th Member to the Rome Statute
[Dr. Gurgen Petrossian, LL.M. is a lecturer at the Friedrich-Alexander Erlangen-Nürnberg University and Chairman of German-Armenian Lawyers’ Association]
On 29 December 2022, the Republic of Armenia’s government took a significant step by announcing its decision to recognize the jurisdiction of the International Criminal Court (ICC) and initiate the process of ratifying the Rome Statute. This move underscores Armenia’s strong commitment to international criminal justice. The decision followed extensive negotiations and discussions among various stakeholders within Armenia, emphasizing the ICC’s importance. Already during the second Nagorno-Karabakh War, informal discussions had taken place regarding whether joining the ICC could offer legal protection against international crimes.
Armenia initially signed the Rome Statute in 1998. However, in 2004, the Constitutional Court ruled that the Rome Statute conflicted with the Constitution of the Republic of Armenia, specifically in two significant aspects: first, the question of the ICC’s complementarity in relation to the national criminal jurisdiction of the Republic of Armenia, and second, the matter of utilizing domestic processes for granting pardons and amnesty to convicted individuals in relation to the Article 105 of the Rome Statute. Subsequently, the Armenian Constitution has been modified twice, first in 2005 and later in 2015. Nevertheless, the articles within the Constitution that the Court had identified as conflicting with the Rome Statute remained unchanged. On 24 March 2023, the Constitutional Court of Armenia determined that there was no longer any constitutional conflict regarding ICC membership.
The Decision of the Constitutional Court from 2023
In light of the Court’s prior ruling, the Constitutional Court conducted an assessment of the constitutionality of two issues: the principle of complementarity and Article 105 of the Rome Statute.
Regarding the first issue, the Court, in reference to its earlier decision stating that the ICC cannot be regarded as an entity administering criminal justice in Armenia and lacks the capacity to supplement the national criminal jurisdiction, scrutinized the purpose behind adopting the Constitution and the Statute. It assessed the shared values they aim to protect by comparing the preambles of both documents and highlighting that the Armenian People embraced the Constitution, among other aspirations and principles, with the objective of “ensuring allegiance to universal values,” which is considered in regard to the fight against grave crimes and impunity that threaten the peace of the world and is illustrated in the preamble of the Rome Statute (Nr. 6.2-6.6). In light of this, the Court concluded that the inability of Armenia’s criminal jurisdiction to effectively investigate and prosecute cases that ensure global peace and well-being represents an unconstitutional condition. Furthermore, the Court determined that the ICC’s exercise of complementary jurisdiction with the goal of restoring Armenia’s adherence to its constitutional obligations cannot be deemed an unconstitutional interference with Armenia’s sovereign criminal jurisdiction (Nr. 6.9).
Regarding the second issue, the Court deemed it necessary to delve into the nature of the obligations outlined in Article 105 of the Statute. It determined that a State’s obligation, under Article 105 of the Statute, to enforce the ICC’s sentences for individuals sentenced to imprisonment does not automatically arise through ratification of the Statute. Instead, it is a voluntary commitment undertaken by a State that is a Party to the Statute. As a result of this analysis, the Court concluded that the obligations stemming from Article 105 of the Statute come into effect upon the ratification of the Statute and solely through the binding force of an international treaty between Armenia and the ICC, which is not within the scope of the current application (Nr. 7.2.-7.7).
Following this evaluation, the Court, with three dissenting opinions, concluded that the obligations arising from the Rome Statute and through the declaration on retroactive recognition of the jurisdiction are consistent with the Constitution.
Declaration of the Republic of Armenia and Crimes at Stake
The Republic of Armenia’s declaration encompasses the acceptance of jurisdiction as per Article 12(3) of the Rome Statute, commencing from 00:00 on May 10, 2021. Consequently, it implies that the Second Nagorno-Karabakh war that occurred in 2020 will not fall entirely within the jurisdiction of the ICC and will probably require another declaration according to the Article 12(3) of the Rome Statute.
The selected date in the declaration is associated with the beginning of the first notable military escalation since the trilateral statement on 9 November 2020, which signaled the end of the Second Nagorno-Karabakh war between Armenia and Azerbaijan. Following this, tensions heightened along the Armenia-Azerbaijan border, resulting in the occupation of portions of recognized Armenian territories and leading to another military escalation in September 2022. During this period, a multitude of war crimes were documented, including the execution of prisoners of war, acts of mutilation and desecration of Armenian female soldiers.
Although numerous crimes, including beheading of the civilians, torture of the prisoners of war, executions, mutilations (see e.g. here and here) were perpetrated in Nagorno-Karabakh, it’s important to note that the territory of Nagorno-Karabakh will not come under the jurisdiction of the mentioned declaration. Consequently, this situation necessitates exploring alternative legal mechanisms for holding those responsible for international crimes accountable, such as through the application of universal jurisdiction instruments (see e.g. the criminal complaint in Germany and here) or other relevant international legal avenues.
However, it is crucial to keep in mind the continuing crimes connected to Nagorno-Karabakh, particularly those individuals who were compelled to leave their homes under coercion and have no means of returning to Nagorno-Karabakh from Armenia (as seen in Prosecutor v. Ruto, Sang § 244). Around 30.000 civilians from cities in Nagorno-Karabakh, currently under Azerbaijani control, face insurmountable barriers preventing them from returning to their homes, where they were lawfully present before the second Nagorno-Karabakh war. Therefore, one of the primary objectives for the Prosecutor would be to evaluate the situation surrounding the Nagorno-Karabakh conflict in a manner similar to the approach taken in the case of Myanmar/Bangladesh (see here: §§ 70-73, § 76), where the transboundary nature of the crime of deportation was confirmed. The evaluation should take into consideration the victims of deportation who were compelled to abandon their homes in Nagorno-Karabakh and seek refuge in Armenia passing the international borders due to the imminent threat of harm based on their ethnic or national identity. This situation parallels the fate of numerous civilians who opted to remain in Nagorno-Karabakh and subsequently faced lethal consequences at the hands of Azerbaijani soldiers. This evaluation of deportation and persecution as crimes against humanity under Article 7 (1) (d) and (h) of the Rome Statute should be considered in the framework of already established jurisprudence (Makuchyan & Minasyan v. Azerbaijan and Hungary, § 216) and findings by CERD in 2022 and ECRI in 2023, as well as in connection with the ongoing proceedings before the International Court of Justice based on the International Convention on the Elimination of All Forms of Racial Discrimination (Armenia v. Azerbaijan).
Political Tensions with Russia
As per the trilateral statement, Russian peacekeepers in Nagorno-Karabakh are slated to remain until 2025, with the potential for an extension of their mission. However, given Russia’s repeated shortcomings in preventing escalations in the Nagorno-Karabakh conflict, the Republic of Armenia does not find itself assured of legal security against the commission of international crimes. The process of Armenia seeking membership in the ICC coincided with the issuance of an Arrest Warrant against Vladimir Putin and the children’s commissioner (see here). This development sparked criticism within Armenia, with some arguing that joining the ICC might be seen as an attempt to exploit Armenia’s position against Russia, rather than addressing the pressing issues that Armenia is currently grappling with. Armenia’s response to this situation remains unclear, particularly given the recent Azerbaijani offensive on 19 September 2023 against Nagorno-Karabakh under the Russian agreement and the changing circumstances. However, it is imperative that like-minded states extend their support to Armenia during these challenging times as part of the shared mission.
The decision of Armenia to pursue ICC membership is evidently overdue. As evidenced by the Constitutional Court’s decision, when the Armenian people adopted the Constitution, they expressed their commitment to upholding universal values, which is intrinsically linked to their history of confronting numerous international crimes as well as Armenian Genocide. Consequently, actively engaging in the shared mission to combat impunity for these international crimes should have been a paramount objective for the Republic of Armenia long ago. The current political circumstances add complexity to the situation, necessitating a courageous decision to join the international community in the collective effort to combat international crimes, as exemplified by the Nuremberg Principles.