Forced Movement of Civilians in Nagorno-Karabakh?

[Dr Saeed Bagheri is Lecturer (Assistant Professor) in International Law at the University of Reading School of Law. He conducts research in the law on the use of force and international humanitarian law.]

After three decades of being occupied by Armenia, the territories in and around Nagorno-Karabakh (NK), which make up more than 20 per cent of Azerbaijan’s territory were recaptured by Azerbaijan by 1 December 2020. At the end of the second war over NK, which erupted on 27 September 2020, a ceasefire agreement, brokered by Russia after a successful 44-day operation in Azerbaijan, provided for up to 1,960 Russian peacekeepers to be stationed in the region. According to the ceasefire agreement signed between Azerbaijan and Armenia on 10 November 2020, Armenian forces were expected to withdraw permanently from NK, especially the Lachin Corridor as the lone highway connecting NK to Armenia. However, they remained and continued to operate against Azerbaijani forces in the region. The recent military operations taken by Azerbaijani military forces on 19 September 2023 in the NK enclave were the extension of Azerbaijan’s long-standing goals to retake full control of the region. Although local Armenian forces in NK agreed to be disarmed after the intense military operations taken by Azerbaijan, tens of thousands of ethnic Armenians fled NK. The operations, therefore, hampered the claims and allegations of forced movement of thousands of ethnic Armenians from the region. This article asks whether the movement of civilians in NK meets the requirements to be considered an instance of forced movement under the relevant international law.

The Existence of an Armed Conflict and Applicable Law

It has been widely publicised that Azerbaijan has operated against separatists in its recaptured territory which was under Armenian occupation for three decades. Azerbaijan has neither acknowledged the existence of a non-international armed conflict with Armenian separatists nor a conflict of an international character with Armenian or Armenian-backed forces in the NK enclave. Rather, it has classified the operations as local anti-terrorist measures against the illegal Armenian forces that will continue until the end.

The international community has often excused brutality and violence where States have refused to recognise and identify the existence of an armed conflict in their territory, which would require them to apply IHL to the conflict in question. In the case of NK, however, it is entirely possible to consider the hostilities between Azerbaijan and Armenian separatists as a non-international armed conflict. This is simply because the level of armed violence and the status of parties to the conflict satisfies the criteria that must be met for there to be a non-international armed conflict. That is to say, there was an armed conflict between the government forces of Azerbaijan and Armenian separatists who had effective control over NK with a certain level of organization since 1994. It was reported that more than 400 troops and fighters from both sides were killed and over 900 were wounded in the fighting. This appears to support the level of intensity for there to be an armed conflict.

In this context, both parties are bound by Common Article 3 (CA3) of the 1949 Geneva Conventions and customary IHL. CA3 does not provide a clear and unique definition of non-international armed conflict and applies in the case of any conflict of “not an international character”. It provides the minimum standards to be respected and requires humane treatment without adverse distinction of all persons not or no longer taking active parts in hostilities.

The absence of a clear definition of non-international armed conflict in CA3 is another reason that has led territorial states to often deny the existence of an armed conflict in their territory, which would require them to apply the relevant IHL rules and principles. However, it is beyond a reasonable doubt that non-recognition of the conflict and legal status of non-state armed groups and criminalising them instead as terrorists is not an effective barrier in applying IHL to any conflict, not of an international character. This is, specifically, evident from the wording of CA3 as part of the “elementary considerations of humanity” (ICJ Nicaragua case, 1986, para. 218) whereby the parties to a conflict not of an international character shall treat vulnerable and those who do not pose an immediate threat due to sickness, wounds, detention, or any other cause, humanely.

Nonetheless, the obligation to engage with the principle of humanity under CA3 will predominantly depend on whether and how deeply the territorial State (Azerbaijan in this case) as the protector and guardian of the rights of people has a human security agenda beyond its political and sovereignty concerns. As was explicitly reaffirmed by the United Nations Security Council (UNSC) on different occasions, the problem of the denial of the existence of armed conflicts does not erode the imperative need to promote respect for the rules and principles of IHL. That being so, conflict parties have the primary responsibility to take all feasible steps to ensure the protection of civilians and respect and ensure the human rights and security of all individuals within their territory as provided for by relevant international law (see for example, UNSC Resolutions 2573 (2021); 2475 (2019); 2474 (2019); 2417 (2018); 2286 (2016); and 2222 (2015)).

The same is true of the status of Armenian separatists in the NK enclave.  Azerbaijan has already classified them as terrorists and took control of more than sixty military positions during its localized anti-terrorist measures against Armenian separatists. Again, this does not erode the obligation of the Azerbaijani regime as the territorial state under CA3 to engage with the principle of humanity as precisely as possible.

Azerbaijan has previously declared that it will guarantee the rights and security of ethnic Armenians of NK equally as the other ethnic groups of Azerbaijan. Still, every individual is free to leave NK if they are unhappy with Azerbaijan’s proposals. However, it remains extremely doubtful whether Azerbaijan had any intention of protecting the rights of ethnic Armenians. This is especially evident from the high number of ethnic Armenians who fled to Armenia. That being so, uncertainty remains as to whether Azerbaijan could quell the amplified concerns about the humanitarian impacts of its military operations in the region, which led to the high proportion of ethnic Armenians fleeing the NK enclave.

Displacement?

Forced movement of civilian populations is a practice which is prohibited under Article 17 of Additional Protocol II to the 1949 Geneva Conventions. It aimed at clarifying the actions leading to forced movement:

1. The displacement of the civilian population shall not be ordered for reasons related to the conflict unless the security of the civilians involved or imperative military reasons so demand. Should such displacements have to be carried out, all possible measures shall be taken in order that the civilian population may be received under satisfactory conditions of shelter, hygiene, health, safety and nutrition.

2. Civilians shall not be compelled to leave their own territory for reasons connected with the conflict.

Although Azerbaijan is not a party to AP II, it is worth recalling that the prohibition of the forcible displacement of civilians is now a norm of customary international law applicable in international armed conflicts and conflicts not of an international character. Clearly, AP II outlines a customary rule of IHL in relation to when and under what conditions a movement would constitute forced displacement in violation of customary IHL. The forcible movement of civilians is formally recognised as a war crime under Article 8(2)(e) of the Rome Statute of the International Criminal Court (ICC), and a crime against humanity under Article 5 of the Statutes of the International Criminal Tribunals for the Former Yugoslavia (ICTY) and Article 3 of the Statute of the International Criminal Tribunal for Rwanda.

Perhaps the most challenging part of the requirements to meet forced movement is the wording of Article 17(2) as “compelled to leave their own territory for reasons connected with the conflict”. One of the gravest examples and perhaps the best comparison here to clarify the term ‘compelled to leave’ is the displacement of Serbs from Croatia after Operation Storm in 1995 when the Serbs picked up and left voluntarily because they were terrified of what might happen to them at the hands of the Croats. This was especially at issue inter alia in the Gotovina case before the ICTY. It was affirmed by the ICTY that unlawful artillery attacks targeting civilians and civilian objects with the objective of permanent removal of civilians would amount to deportation and forcible transfer. That being so, it is the question of fact as to whether the Azerbaijani regime or its military forces had such a common objective of the permanent removal of ethnic Armenians of NK that might be considered forced displacement within the meaning of Article 17(2) of AP II and customary IHL. This would indeed require international fact-finding to ensure whether there is sufficient satisfaction to believe the Azerbaijani regime violated the positive duty to prevent forced transfer or displacement of ethnic Armenians of NK.

Ethnic Cleansing Allegations

It is worth noting here there is not yet a precise and accurate legal definition of ethnic cleansing under international law. But, in the interest of clarity, it is worth recalling the reports S/25274 (para 55) and S/1994/674 (para 130) of the UN Commission of Experts in relation to IHL violations committed in the territory of the former Yugoslavia. Those reports stated that ethnic cleansing means rendering an area ethnically homogeneous by using force or intimidation to remove persons of given groups from the area. The Commission also confirms its earlier view that ethnic cleansing is “a purposeful policy designed by one ethnic or religious group to remove by violent and terror-inspiring means the civilian population of another ethnic or religious group from certain geographic areas.”

This is doubtful in the case of NK as both Azerbaijan and Armenia issued contradictory statements on how the ethnic Armenians are being treated in the course of the Azerbaijani military operations. However, even if the exact criteria for an act to be considered ethnic cleansing is not met in the case of NK, uncertainty and humanitarian concerns remain following Azerbaijan’s military operations.

The case of NK is not the first and perhaps will not be the last example of internal violence that would eventually lead civilian populations to fear the humanitarian impacts of conflicts between states and non-state armed groups, such as separatists in the case at hand. What is rather clear, is that even voluntary leave of civilians who are terrified of what might happen to them due to unlawful attacks of government forces exercising sovereignty in their newly recaptured occupied territory may per se be construed as an indication of ethnic cleansing within the meaning of the reports S/25274 and S/1994/674.

Bearing these in mind, while there is evidence of media outlets categorising the movement of the ethnic Armenians of NK as ethnic cleansing, it is perhaps best not to expect a quick positive answer where neither the UN nor any UN Member States characterised the situation in NK as forced displacement or ethnic cleansing. This, however, cannot erode Azerbaijan’s obligation to ensure the right to return of those who have been displaced from NK, voluntarily or involuntarily.

Concluding Remarks

While further study is warranted, ensuring the validity of forced displacement allegations requires international fact-finding and confirmed information and evidence from the ground to be logically connected to the legal requirements discussed above.

Moreover, as discussed earlier in this post, no legal or factual justification would erode the customary obligation of Azerbaijan as the territorial state to take feasible measures to protect the rights of every civilian population within the territories under its effective control. This stems from the customary principle of humanity, a military guide that hampers any justification and excuses for unnecessary suffering to civilians and those who do not pose a threat to states involved in armed conflicts.