06 Nov Forced Displacement of Armenians from Nagorno-Karabakh: A Response
[Agnieszka Klonowiecka-Milart is a Polish judge and former member of the United Nations Dispute Tribunal (2016-2023). She also previously served as an international judge of the Supreme Court Chamber of the Extraordinary Chambers in the Courts of Cambodia (ECCC) (2010-2016) as well as the Supreme Court of Kosovo (2000-2008).
Sheila Paylan (@SheilaPaylan) is an international human rights lawyer and former legal advisor to the United Nations for more than 15 years, including at the ICTR, ICTY, IRMCT and ECCC. She has also previously served as a pro bono advisor to the Republic of Armenia in the aftermath of the 2020 Nagorno-Karabakh War.]
The views expressed in this article are entirely the authors’ own.
On 20 October 2023, Opinio Juris published a piece by Dr Saeed Bagheri entitled “Forced Movement of Civilians in Nagorno-Karabakh?” In it, the author asks “whether the movement of civilians in [Nagorno-Karabakh] meets the requirements to be considered an instance of forced movement under the relevant international law”. However, he does little to engage with the question, instead focusing most of his discussion on qualifying the latest phase of the Nagorno-Karabakh conflict as of a non-international armed character. In the limited space that he does deal with whether the “movement” of Armenians from Nagorno-Karabakh was forced, he rather cursorily suggests that it was not. This article fills key gaps in this otherwise very important analysis.
There is no dispute that, in the final days of September 2023, more than 100,000 ethnic Armenians fled the de facto republic of Nagorno-Karabakh and poured into neighboring Armenia. As widely reported, the mass exodus took place after Azerbaijan held the Armenians of Nagorno-Karabakh under blockade inducing starvation for nearly ten months and then subjected them to 24 hours of heavy bombardment, leading the authorities of Nagorno-Karabakh to surrender. The Nagorno-Karabakh region had a continual presence of indigenous Armenians for millennia prior to the takeover. The United Nations now estimates that as few as 50 Armenians are left.
Azerbaijani officials have been quick to reject claims of ethnic cleansing or that the mass displacement was in any way forced, asserting instead that the rights and safety of the Armenians of Nagorno-Karabakh would have been guaranteed if they had stayed and that their departure was therefore completely voluntary. Human Rights Watch has responded that “such assertions are difficult to accept at face value after the months of severe hardships, decades of conflict, impunity for alleged crimes, in particular during hostilities, and the Azerbaijani government’s overall deteriorating human rights record”. Several experts have echoed the sentiment that Azerbaijan’s sudden avowals of goodwill are not trustworthy (see inter alia here, here, here, and here, here). On 5 October 2023, the European Parliament adopted (491 in favor, 9 against) a resolution declaring, among other things, that the “forced exodus” of the Armenians from Nagorno-Karabakh “amounts to ethnic cleansing”. The Azerbaijani narrative that the entire Armenian population willingly fled Nagorno-Karabakh in a matter of days under the circumstances is therefore neither believed nor believable.
Dr Bagheri nevertheless parrots Azerbaijan’s stance by stating in his article that “every individual is free to leave [Nagorno-Karabakh] if they are unhappy with Azerbaijan’s proposals”, adding that “the exact criteria for an act to be considered ethnic cleansing is not met in the case of [Nagorno-Karabakh]”. On this, he stands largely, if not completely, alone among international legal experts, several of whom have expressed the view that the displacement of the Armenians from Nagorno-Karabakh was criminally forced. The President of the International Association of Genocide Scholars Dr Melanie O’Brien and international lawyer Priya Pillai have opined that a “coercive environment” was created in Nagorno-Karabakh before the offensive by Azerbaijan’s obstruction of essential supplies, and that the exodus would thus meet the conditions for the war crime of deportation or forcible transfer, or even a crime against humanity. Professor Hans Gutbrod has qualified the Armenian exodus from Nagorno-Karabakh as a forced displacement “at the very least”. Former U.S. Ambassador-at-Large for War Crimes David J. Scheffer has similarly confirmed that the Armenians of Nagorno-Karabakh experienced “ethnic cleansing at warp speed”, comparing it to “the forcible deportation (ethnic cleansing) of the Rohingya minority” from Myanmar into Bangladesh.
This is especially relevant in the light of Armenia’s recent ratification of the Rome Statute of the International Criminal Court (ICC) with an Article 12(3) declaration accepting retroactivity to 10 May 2021. Thus, the ICC will have jurisdiction over the displacement of the Armenians the same way that it does over that of the Rohingya for acts of deportation “by expulsion or other coercive acts” under Articles 7(1)(d) and 7(2)(d) by virtue of victims crossing the border from a State not Party to a State Party to the Rome Statute (see here, para. 73). To the extent that such deportation targeted the Armenians of Nagorno-Karabakh as the Rohingya on impermissible grounds (e.g. ethnic, religious, political, or other), such acts could also amount to persecution under Article 7(1)(h) (see here, para. 76).
Deportation presumes transfer beyond State borders whereas forced transfer entails displacements within a State. The ICC Elements of Crimes specify that the terms “deported or forcibly transferred” are interchangeable with “forcibly displaced” (see footnote 14), and that “[t]he term ‘forcibly’ is not restricted to physical force, but may include threat of force or coercion, such as that caused by fear of violence, duress, detention, psychological oppression, or abuse of power against such person or persons or another person, or by taking advantage of a coercive environment” (see footnote 13). In this respect, the ICC’s definition has retained the long-standing broad interpretation reached by the International Criminal Tribunal for the former Yugoslavia (ICTY) and its successor tribunal (see e.g. Mladic Appeal Judgment, para. 356, and references cited therein).
The jurisprudence of the ICC has further relied on the ICTY’s extensive case law to clarify what is needed to establish the forced character of displacement: “[I]t must be demonstrated that there was a genuine lack of choice on the part of the individuals transferred. […] While individuals may agree, or even request, to be removed from an area, ‘consent must be real in the sense that it is given voluntarily and as a result of the individual’s free will’. Therefore, when assessing whether the persons who were transferred had a genuine choice to remain or leave and thus whether the resultant displacement was unlawful, the Chamber will take into account the prevailing situation and atmosphere, as well as all other relevant circumstances, including in particular the victims’ vulnerability.” See Ntaganda Trial Judgment, para. 1056, referring to Stakic Appeal Judgment, para. 279, Krnojelac Appeal Judgment, para. 229, Djordjevic Trial Judgment, para. 1605, and Blagojevic Appeal Judgment, para. 596.
Dr Bagheri thus completely overlooks a plethora of the most relevant international law, and on the sole occasion that he does refer to jurisprudence, he chooses a fringe ICTY case and misrepresents it. In particular, he relies on the Gotovina case to suggest that “[o]ne 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” (emphasis added). The Gotovina case, however, hinged entirely on whether it could be determined beyond a reasonable doubt that there existed a joint criminal enterprise whose common purpose involved the permanent removal of the Serb population from Krajina. In reversing the Trial Chamber’s finding that the evidence was sufficient to support the existence of such a JCE, the Gotovina Appeals Chamber did not in any way ever pronounce or even suggest that the Serbs fled Krajina voluntarily.
A more appropriate comparison with the Armenian exodus from Nagorno-Karabakh would have been the more recent Seselj case, in which the Appeals Chamber determined (overturning the Trial Chamber) that no reasonable trier of fact could have found that Croatians genuinely consented to leave the village of Hrtkovci after Vojislav Seselj’s inflammatory anti-Croatian speeches. In reaching its conclusion, the Appeals Chamber considered the context of coercion, harassment, and intimidation in which the Croatians left, as well as evidence of regular threats and violence against Croatians, the inaction of the local authorities, and pressured housing exchanges with Serbian refugees. See Seselj Appeal Judgment, paras. 138-150.
Dr Bagheri fails to consider, in fact never even once mentions, the context of the ten-month long blockade imposed by Azerbaijan before launching its so-called “anti-terrorist” blitzkrieg. The starvation induced by the blockade has been deemed genocidal by, among others, former ICC Prosecutor Luis Moreno Ocampo and former UN Special Advisor on the Prevention of Genocide Juan Mendez. It is also the subject of a standing and reaffirmed order by the International Court of Justice against Azerbaijan to end the blockade, which Azerbaijan has refused to comply with.
Nor does Dr Bagheri take into account the widely reported background of long-standing Azerbaijani state-sponsored incitement of hatred against Armenians when Nagorno-Karabakh fell under Azerbaijan’s exclusive control (see e.g. ECRI Reports 2002, 2006, 2011, 2016, 2023; CERD Committee 2022, para. 4(d)). Live witness testimony during the mass exodus further confirms the Armenians’ experience of having left Nagorno-Karabakh against their will. To ignore these crucial factors when purporting to analyze whether the Armenians’ sudden departure was forced under the applicable law is careless, if not disingenuous.
Dr Bagheri does, however, rightly point out that nothing can erode “Azerbaijan’s obligation to ensure the right to return of those who have been displaced from [Nagorno-Karabakh], voluntarily or involuntarily”, and that further study is warranted by way of international fact-finding. We would add by way of judicial decision-making as well, especially when the Rome Statute enters into force in respect of Armenia. Any eventual judgments on the nature of the displacement of the Armenians of Nagorno-Karabakh will of course depend on a complex myriad of evidentiary and legal findings. But any serious discourse on the subject cannot ignore the abundance of facts in the public domain indicating that the exodus was forced.