Armenia is ready to revoke interstate appeals against Azerbaijan if a ‘peace’ treaty is concluded. This was stated by both the Chairman of the Armenian Parliament Alen Simonyan and Prime Minister Nikol Pashinyan. Both officials assert that such a move should be reciprocated and Azerbaijan should do the same. How is this fraught for Armenia in terms of international law and of its own national interests? It would seem that not much since the lawsuits previously settled in Armenia’s favour have also turned out to be of little consequence. However, there are good reasons why it is so important for the terrorist state that the Armenian side renounces this arena of confrontation as well.
International disputes should be resolved peacefully
In contemporary international law, there is a consensus on how to handle international disputes: any disagreement existing between states should be resolved peacefully, i.e., not resorting to any form of coercion in accordance with the principles (peremptory norms[1]) of international law. Peaceful means of resolving international disputes are generally conceived of as negotiation and consultation, good offices and mediation, investigative commissions and conciliation procedures, international arbitration, international court and dispute resolution mechanisms within international organisations.
An unlawful alternative to the peaceful settlement of international disputes is an aggression, i.e. an armed attack of some kind against another state, irrespective of whether or not war has been declared. Aggression is an internationally wrongful act (crime) and those responsible for organising, unleashing, and conducting it are prosecuted under both international and national criminal law.
Aggression is not the only prohibited act in international law; apart from it genocide (any act with intent to destroy, in whole or in part, a national, racial, ethnic, religious group), war crimes (serious violations of the laws or customs of war, such as torture or inhuman treatment of prisoners of war), and crimes against humanity (any form of attack against civilians, such as deportation or forcible displacement of residents) are explicitly prohibited. In particular, it is prohibited to discriminate on the basis of race, nationality, ethnicity, descent for the purpose of, or by reason of, annihilating or impairing their recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other area of public life.
States can litigate against each other
All the above-mentioned norms and principles are reflected in international treaties (conventions, agreements, protocols, etc.), on the basis of which states are entitled to bring substantive claims against the states in violation before international courts. It is plain that in international law, as in international relations in general, there is no sovereign, and hence no compulsory enforcement of judicial acts. Some international treaties provide a procedure for moral and political condemnation of a state that refuses to comply with the demands of an international court, but it is not possible, for example, to compel a state to grant satisfaction (formal apology), to perform restitution (restoration of the prior state of affairs), or to compensate for material damage (payment of reparation).
Individual states or groupings of states resort to unilateral restrictive measures (also known as sanctions) to inflict substantial economic and political damage on the defector, but this is rarely the case. One of the most prominent examples is the Global Magnitsky Act in the United States, which allows the President’s administration to impose restrictions against any foreign persons guilty of human rights violations, corruption and the like. Strictly speaking, the United Nations Security Council has the power to impose collective sanctions if the perpetrating state threatens international peace and security.
The International Court of Justice (UN ICJ) and the European Court of Human Rights (ECHR) are the best established international courts that have jurisdiction over interstate disputes. The former examines complaints about violations of international treaties, bilateral and multilateral, whereas the latter addresses violations of the European Convention for the Protection of Human Rights and Fundamental Freedoms, to which both Armenia and Azerbaijan are signatories.
The essence of Armenia’s demands on Azerbaijan
1. Litigation at the UN International Court of Justice
On 16 September 2021, after the end of the 44-day war and the signing of the so-called Trilateral Ceasefire Statement, Yerevan filed a complaint with the UN ICJ against Baku for alleged violations of the 1965 International Convention on the Elimination of All Forms of Racial Discrimination. According to Armenian argument, Azerbaijan ‘has subjected Armenians to racial discrimination for decades’ and ‘as a result of its state-sponsored policy of Armenophobia, Armenians are subjected to systemic discrimination, mass murder, torture, and other assaults’. These violations are committed against Armenians regardless of nationality, solely on account of their Armenian ethnic and national background.
The proceedings also examined Armenia’s complaints about the blockade of the Lachin (Berdzor) corridor by so-called ‘eco-activists’ and Azerbaijan’s military-police forces, and on 22 February 2023 the UN ICJ ruled against Azerbaijan ‘to take all measures available to ensure the unimpeded movement of citizens, vehicles and goods along the Lachin corridor in both directions’. As late as 17 November 2023, after the expulsion of Armenians from Artsakh, the UN ICJ, on Armenia’s motion, issued a new order requiring Azerbaijan to ‘ensures that people who have left Nagorno-Karabakh after September 19 and wish to return can do so safely, unhindered and expeditiously’ and to ‘protect and preserve registration, identity and private property documents and records’. [Interestingly, one of the judges who voted against these commands reported that the Lachin corridor was de jure and de facto ‘under the control of the peacekeeping troops of the Russian Federation’. Yerevan disregarded this fact, although Azerbaijan’s representative confirmed in a public hearing on 30 January 2023 that there was constant ‘communication with Russian peacekeepers’ on the issue of ‘free’ movement along the corridor.
2. Trials at the European Court of Human Rights
On 27 September 2020, the day the full-scale war started, Armenia filed an inter-state complaint against Azerbaijan with the ECHR and requested interim measures to avoid a deterioration of the situation, namely ‘to stop military attacks on civilian settlements throughout the contact area with the armed forces of Artsakh and Armenia’; ‘to stop indiscriminate attacks’; ‘to discontinue targeted attacks against civilians, civilian objects or settlements’. Two days later, the ECHR issued a ruling in which it obliged both parties to refrain from such actions, in particular clashes, that might endanger the civilian population and thus further violate the European Convention on Human Rights (guarantee of life and treatment with dignity).
As Turkey, a party to the European Convention on Human Rights, among others, was involved in the war, Armenia filed a separate claim against Ankara. Among other things, Turkey is charged with engaging in mercenarism, which is prohibited under international law. On 6 October 2020 the ECHR ruled that the previous claims apply to all states directly or indirectly involved in the war over Nagorno-Karabakh. The fighting continued and on 4 November 2020 the ECHR expanded its definition to include prisoners of war and detainees, as well as any persons whose rights might be violated during the armed conflict. Later, in December 2020, the ECHR’s ruling against Turkey was lifted because the latter was not a party to the Trilateral Ceasefire Statement of 9-10 November.
On 29 June 2021, Armenia filed another inter-state complaint, this time over Azerbaijan’s refusal to release Armenian prisoners of war (detainees) and hand them over to Armenia; a blatant violation of their right to a fair trial; the absence of effective means of legal defence for citizens of Armenian origin detained in Azerbaijan. The court has proceeded to review the complaint, with no judgement on the merits yet.
In August of the same year, Yerevan filed a the third lawsuit against Baku with the ECHR. After the border clashes in Spring-Summer of 2021, part of the territories of Gegharkunik and Syunik regions have fallen under the military occupation of Azerbaijan, so the respective demands from Armenia to stop human rights violations by Azerbaijan were submitted to the ECHR. No further details were released by Armenia’s Special Representative on international legal matters Yeghishe Kirakosyan.
The latest complaint to date was filed by Armenia with the ECHR on 24 March 2022, and is related to the forcible displacement of Artsakh Armenians, the blockade of Artsakh, and the closure of the Lachin (Berdzor) corridor. In Armenia’s assessment, Azerbaijan’s deliberate acts constitute systemic violations of the right to life in Artsakh; the prohibition of torture or inhuman treatment; the right to a fair trial; the right to respect for one’s private and family life. On 21 December 2022, the ECHR, in an interim ruling, obliged Azerbaijan to take all necessary measures to ‘to take all measures that are within their jurisdiction to ensure safe passage through the “Lachin Corridor” of seriously ill persons in need of medical treatment in Armenia and others who were stranded on the road without shelter or means of subsistence.’. The complaint is still pending before the Strasbourg Court.
What happens after Armenia’s renunciation of interstate complaints
As a result of the 44-day war, border clashes, and the expulsion of Armenians from Artsakh, five cases of Armenian complaints are being heard in international courts. We have deliberately left the counterclaims out of our attention, since their rejection depends on the government of Azerbaijan, which has been actively and continuously filing lawsuits against Armenia long before the wars of 2020 and even 2016. Let us note straight away that, according to the statements of the plenipotentiary representatives of Armenia and Azerbaijan, the draft agreement contains mainly declaratory norms referring to the basic principles of international law and existing international treaties: sovereign equality of the parties, bona fide execution of obligations under international law, territorial integrity, respect for the inviolability of state borders on the basis of the Alma-Ata Protocols. If the parties sign and implement (bring into force) a ‘peace’ treaty and it contains a non-complaint clause, this would imply the following.
Firstly, a plea of no complaint leads to the termination of the proceedings and the completion of the proceedings in the concerned court.
In future there would be no retrial regarding the same facts. By the nature of the complaints lodged, it would also constitute Armenia’s acceptance of the existing state policy of Armenophobia, expressed in the armed attack on Artsakh, forced displacement of its indigenous population, mass war crimes and crimes against humanity, denial of rights to fair trial and dignified and equal treatment to Armenians in captivity in Azerbaijan.
Secondly, there is no doubt that any further complaints, both inter-state and individual, on other numerous facts of violations of international law by Azerbaijan and its citizens will be met with active resistance on its part, with references to this provision of the ‘peace’ treaty as an alleged waiver of ‘further claims’. Such a treaty trick is known in international law. For instance, the 1947 peace treaty between the Allies and Italy (Article 77, paragraph 4) contained the latter’s obligation to renounce ‘all claims against Germany and its nationals’. In 2012. The UN ICJ ordered Italy to declare null and void all court judgements that satisfied reparations claims against German property outside the Federal Republic of Germany, even though Italy kept insisting that many of the crimes of Nazism were not in evidence and investigated as of 1947.
Understandably, such questions will lie in the interpretation of an international treaty: the identification of the real intention of the parties; account of the political-historical context in which the treaty was concluded and the purposes of concluding a ‘peace’ treaty. It should be emphasised that such a contractual waiver of any international claims may contravene peremptory norms of international law, which entails its invalidity. This, however, is a matter to be decided only by an international court; a state cannot invalidate an international treaty unilaterally. In other words, Azerbaijani war criminals can avoid responsibility under international law, and the Azerbaijani state itself can legally dismiss any claims from Armenia, its citizens, and legal entities in regards to the criminal acts of Azerbaijan’s armed units and decisions of the public authorities.
However, there is absolutely no certainty that Nikol Pashinyan’s government, as well as any government that replaces it, will defend the interests of Armenia and its citizens in the international law domain. Frankly speaking, even the ongoing international legal proceedings are insufficient: first of all, the Azerbaijani government’s deliberate refusal to peacefully resolve the international dispute over Nagorno-Karabakh and its transition to numerous episodes of aggressive warfare comes to mind. In addition, Armenia refrains from legally qualifying the actions and inactions of the Government of the Russian Federation related to the Tripartite Agreement of 9 November 2020, bilateral treaties, and the Collective Security Treaty with Armenia.
Nothing stands in the way of properly investigating the criminal acts of Azerbaijani armed formations during the 44-day war, the inter-war period and the forced displacement of Artsakh Armenians in 2023, and declaring identified suspects on the international criminal wanted lists under Interpol and the Commonwealth of Independent States. Lastly, Azerbaijan has violated several court rulings that imposed upon it the obligation to ensure the dignified living of Artsakh Armenians in their native land, which may be another ground for bringing Baku to international legal responsibility.
If Nikol Pashinyan, Alen Simonyan or someone else from the ruling faction in Armenia intends to officially renounce all these measures, then no ‘peace’ treaty is needed at all. Evidently, there can be no effective and stable peace on apparently unjust terms. Alas, the ‘pacifists’ do not realise that on such terms there will be no Armenia either. A state that chooses not to protect its citizens has no right to exist, it is simply worthless. Even ‘toothless’ international law does not tolerate such a state, let alone its most bitter enemy.
These views are his own and do not necessarily reflect the views of the ‘Armenian Republic’.
[1] Peremptory norms of international law are those fundamental norms, any deviation from which renders the states’ actions legally null and void. Peremptory norms must be respected and be enforceable in any field of international relations and in relations between all states with no exception.
