Following the military defeat of the Armenian armed forces in 2020-2023, dozens of Armenian citizens, including residents of Artsakh, ended up in captivity. Azerbaijan detains them for malicious criminal prosecution and to exert pressure on the government of Nikol Pashinyan and the Armenian public. Baku officially denies the prisoners of war (POWs) status to the imprisoned, thus depriving them of repatriation[1] and dignified treatment, whilst Yerevan authorities’ discourse virtually ignores this issue. In Armenia and Spyurk (comminities abroad), awareness campaigns emphasising the life and merits of selected Baku captives (herein after referred to as ‘POWs’) such as Ruben Vardanyan are occasionally organised, with no visible effect.
In this article we shall examine the status of imprisoned Armenians from the international humanitarian law standpoint and outline remedies that the Armenian state must pursue to ensure their immediate release. Let us point out that we have already presented a political evaluation of the prior activities of the former military and political leadership of Artsakh in our earlier contributions.
Who is deemed a combatant?
Before turning to an analysis of such individuals’ status as POWs from the standpoint of international law, one must determine whether they were combatants or, in other words, whether they had the right to engage in hostilities and were thus subject to the POW regime.
International law holds that all disputes should be resolved peacefully, but states very frequently disregard negotiations or arbitration in favour of aggression. While proscribed in international law, given the political realities, the conduct of hostilities is still closely regulated in order to identify violations and prevent the causing of unnecessary suffering to both combatants and civilian populations.
International humanitarian law is primarily concerned with the notion of combatant, which includes all armed forces, as well as militias, volunteer and guerrilla groups and units, as well as members of resistance movements. While the former are qualified as such by having a military organisational structure and internal disciplinary system, the latter are legal combatants if they fulfil each of the following conditions: (a) are under a command responsible for the conduct of its subordinates; (b) have a fixed distinctive sign recognisable at a distance; (c) carry arms openly; (d) conduct their operations in accordance with the laws and customs of war. Only combatants may cause death to a hostile power’s representative, as long as international law is complied with; non-combatants (medical and religious personnel) may only use weapons for self-defence. As we have observed, the regime of military captivity only applies to combatants, while captured non-combatants are not deemed prisoners of war because they have no right to engage in hostilities.
Let us emphasise that international law distinguishes between members of a resistance movement (national movement) and terrorists. The former are fighting against the colonial regime with the aim of achieving the right of the nation to self-determination, one of the tenets of international law. In this case, the legal assessment must address the historical and political setting of the outbreak of the armed conflict. Their actions pursue the objective of liberating territory from alien control or restoring a state of order that is consistent with the principles of international law. Terrorists, on the other hand, have intimidation of civilians and political destabilisation as their principal goal. In other words, terrorists are not in pursuit of military objectives; they are driven by a determination to compel the state authorities to adopt measures that are in the terrorists’ self-interest, such as ransom payments for kidnapped persons. Terrorists are deliberately endangering the lives, health, and property of civilians, rather than those of combatants.
Since international law strongly condemns terrorist activities, terrorists are not considered combatants and are required to be transferred to law enforcement authorities for further trial upon apprehension. If this is the only way to prevent further offences and if the terrorist still constitutes a proportionate threat to others, they may be deprived of their life. In any case, the requirements of dignified treatment (not to be subjected to torture or other degrading treatment, entitlement to legal aid and judicial defence, etc.) apply to terrorists.
Combatants in captivity
The military captivity regime is further defined in international law by the following. A party to an armed conflict that has captured a combatant is under an obligation to respect and fulfil the rights of the prisoner of war. Importantly, it is not an individual soldier or military unit, but the entire warring party that captures a combatant, which makes that party liable for its personnel’s mistreatment of POWs. The latter are entitled to familiarise themselves with the acts pertaining to their situation. Prisoners of war may not be subjected to acts of violence or intimidation, insults, public curiosity, etc. The state is required to provide the necessary medical and religious ministration to the POWs. Civil legal capacity may only be reduced to the extent necessitated by the conditions of captivity. In particular, scientific, educational, and human rights advocacy activities shall be permitted in a prisoner-of-war camp. Prisoners of war may not be discriminated against on the basis of race, nation, ethnicity, religion, political opinions, etc. Upon cessation of hostilities, prisoners of war must be handed over to their home state within the shortest possible time. It should be emphasised that the law of Geneva considers unjustifiable delay in the repatriation as equivalent to detention of hostages (Art. 72 of the 1977 Additional Protocol I to the Geneva Conventions of 1949, Art. 118 of the Geneva Convention III of 1949).
Prisoners of war can be criminally prosecuted provided that the procedural guarantees (equality between prosecution and defence; the right to participate in investigative actions and court proceedings personally; the right to legal assistance; the right to substantial appeal, etc.) are respected.
The status of the former military and political leaders of Artsakh
According to the former head of the Armenian Investigative Committee, Argishti Kyaramyan, based on official statements by Azerbaijan, 23 ethnic Armenians at various stages of so-called criminal prosecution are being detained in the ‘correctional institutions’ of Azerbaijan. The fate of more than 80 remaining Armenians, who had previously been taken into Azerbaijani captivity, is unknown. Eight of these twenty-three individuals were connected with the state machinery of the Nagorno-Karabakh Republic; they were imprisoned between September and October 2023. It should be noted that only a few of them were directly related to the Artsakh self-defence forces at the moment of annexation of Artsakh. We do not know for certain whether they fulfilled the first three previously mentioned criteria for being recognised as combatants at the time of their capture; for instance, Azerbaijani state propaganda disseminated footage of Artsakh’s ex-president Arayik Harutyunyan being taken to a detention cell not wearing a military uniform and, of course, not carrying a weapon. As for the fourth criterion, respect for international humanitarian law, this should be determined by a fair international trial in which all guarantees for suspects and defendants are provided, and not by an Azerbaijani sham one.
Therefore, we can deduce that the former leaders of Artsakh have to be treated as civilians. Doing so does not in any way diminish their level of protection under international humanitarian law. The term civilian population refers to civilians who do not belong to any category of armed conflict participants and who do not directly engage in hostilities. The principle of maximum protection of civilians applies to all international and non-international conflicts without discriminating on any grounds, even if, in violation of international law, one of the parties to the conflict does not admit a state of war.
Civilians may not be subjected to any coercive measures to extract valuable information, nor may they be tortured, terrorised, plundered, or taken hostage. Special mention should be made of the fact that even under conditions of military occupation[2], when the opposing party has established a permanent military and civilian administration in the occupied territory, international humanitarian law does not cease to operate. The occupying authority is under an obligation to take all measures within its power to respect the honour, dignity, and family rights of the civilian population, as well as the religious beliefs and practices existing in the occupied territory. Terrorist practices are strictly prohibited.
Accordingly, the detained Artsakh public servants are civilians kept hostage.
Hostage-taking is recognised by international humanitarian law as one of the gravest offences, as it infringes on the life, health, personal integrity of a citizen. The arbitrariness in choosing those Artsakh Armenians who were not allowed to cross the so-called Lachin corridor[3] should be emphasised: for example, Samvel Shahramanyan, the last president of Artsakh who signed the decree on the so-called ‘dissolution’ of Armenian statehood in Nagorno-Karabakh, freely passed into the territory of the Republic of Armenia.
How to protect the rights of Artsakh’s former military and political leaders
The state-centric approach is to hold that it is conceivable in principle to achieve a universally accepted objective through the instruments of international politics, including those of international law. The opposite would imply that there is no point in any struggle at all, and Nikol Pashinyan’s capitulatory inaction is the only feasible strategy. Given the complexity of the position of the Baku hostages due to the accusations of ‘separatist terrorism’, the stance of the Armenian state towards their expeditious release should be summarised in the following.
First, it must be conclusively demonstrated that separatism, which involves the aspiration of an ethnic group or nation to secede from a state and establish its own, per se does not constitute[4] an offence of international law.
As an extension of freedom of speech and information dissemination, separatism entails a political struggle to achieve or maintain statehood in circumstances where all the other means of defending one’s right to self-determination are outright prohibited or emasculated.
The mere calls and proposals for the creation of autonomy and, accordingly, fundamental changes in the constitutional order do not necessarily imply an imminent assault on the national security of a state, as the European Court of Human Rights holds (Stankov and the United Organisation of Macedonia ‘ILINDEN’ v. Bulgaria (applications nos. 29221/95 and 29225/95, judgment on 2 October 2001), para. 97). Furthermore, contrary to Nikol Pashinyan’s beliefs, there is no proscription on declarations of independence under international law (see the Advisory Opinion of the UN International Court of Justice of 22.07.2010 on Kosovo’s independence).
Let us recall that the Karabakh movement (‘Miatsum’ – ‘Reunification’) originated as a peaceful political demand to the authorities of the Soviet Azerbaijan and the Soviet Union for the return of the territory of the former Nagorno-Karabakh Autonomous Oblast to the Soviet Armenian Republic. The reactionary national socialist government of Azerbaijani presidents Mutalibov and Elchibey renounced the political process, abolished national autonomy for Armenians in Artsakh, attempted to rename Stepanakert as ‘Khankendi’ and launched a full-scale punitive operation, thus marking the outbreak of the First Karabakh War.
International law, while urging the peaceful resolution of international disputes, provides self-defence guarantees to a nation seeking to liberate itself from colonial rule.
This drastically differentiates the current circumstances from the terrorist activities described previously. Due to the state-sponsored Armenophobia documented at the international level, there are no tenable conditions nor state and legal guarantees for the peaceful and safe coexistence of Armenians and Azerbaijanis in the present-day Azerbaijani society, as there were, for example, for Serbs, Bosniaks, and Croats in Bosnia and Herzegovina. Hence, the resort to separatism is a commensurate method of pursuing political struggle to preserve the Armenian ethnos in its homelands and its sovereignty over them from Baku’s encroachments.
Secondly, the judicial and legal system of Azerbaijan does not provide the Armenian hostages with the opportunity to fulfil their due procedural guarantees for ensuring the proper administration of justice[5]. Criticised at the Council of Europe level, it appears to be designed to promote the state myth of the ‘genocide of Azerbaijanis’ and does not pursue the goal of determining the unbiased facts of a specific matter, as seen from the show trial of Vagif Khachatryan, one of the groundlessly prosecuted residents of Artsakh. Therefore, any convictions against Armenian citizens held hostage should be recognised as deliberately unlawful and null and void from the moment of their inception.
Third, since, as we have mentioned earlier, taking civilians hostage constitutes an international criminal offence as such,
Armenia is under the obligation to use treaty-based legal mechanisms to bring prosecution against Azerbaijani citizens, including Ilham Aliyev himself, for the continued detention of Armenians in Baku.
Yerevan has at its disposal the International Criminal Court (ICC), whose statute recognises hostage-taking as a war crime (subparagraph viii of para. 1 (a) of Article 8 of the Rome Statute). Not that long ago, the ICC approved the issuance of a warrant for the enforced transfer and arrest of Mohammed Deif, one of the leaders of the political-military group Hamas which organised and carried out the October 2023 attack on Israeli civilians, on hostage-taking charges. Additionally, the continued refusal to repatriate Artsakh Armenians, their detention as hostages and unlawful criminal prosecution for so-called ‘separatism’ may constitute violations of the 1984 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, as well as the 1965 International Convention on the Elimination of All Forms of Racial Discrimination. Disputes regarding obligations under both acts may be referred to the International Court of Justice (ICJ). Armenia has already filed legal proceedings for alleged violations of the Convention on the Elimination of All Forms of Discrimination with the United Nations ICJ, which issued a provisional measure for the safe return of Armenians to Nagorno-Karabakh in November 2023. Nothing prevents Yerevan from spreading its international dispute with Azerbaijan in the field of international jurisprudence in this direction as well.
Finally, we must emphasise that international law offers quite effective measures to deal with the perpetrator state even in view of its birth trauma – the absence of a sovereign in international politics. We are convinced that the main enemy of Artsakh Armenians, including Artsakh’s former military-political leadership, and coincidentally, the accomplice of some of the latter in the surrender of Artsakh, is seated in Yerevan and occupies the position of Prime Minister of Armenia.
It is the agenda of Turkish commandant Nikol Pashinyan, who brings peace-loving to the point of absurdity, that worsens the condition of the forcibly displaced Artsakh Armenians and those held hostage in Baku with each passing day.
Amidst total state failure, it is the Armenian world, in Armenia and Spyurk, that has a duty to act together to achieve nationwide goals, and there can be no Nikol Pashinyan with his obsessive desire to renounce international legal claims against Azerbaijan, to prevent Armenians from effectively defending their rights instead of resorting to unprovoked wars and irrational moves.
[1] Repatriation (in international humanitarian law) is the personal right of a refugee, a prisoner of war, or a displaced person to return to their place of origin upon the cessation of active hostilities.
[2] From the international law perspective, the sovereignty over the territory of Artsakh has not been transfered to Azerbaijan. As a general rule, such issues are resolved on the basis of a bilateral international treaty (peace treaty, delimitation treaty). The notion of ‘internationally recognised borders’ has no legal connotation.
[3] The term is used because of its usage in the Tripartite Ceasefire Agreement of 9-10 November 2020 and by the UN International Court of Justice. The actual settlement is referred to as Berdzor.
[4] The 2001 Shanghai Convention on Combating Terrorism, Separatism and Extremism, usually invoked as an example to the contrary, is a regional international treaty that lacks universally recognised norms of international law (jus cogens) and suffers from a number of serious legal and technical deficiencies, in particular in the clarity and precision of its wording.
[5] In particular, In March 2024, the Committee of Ministers of the Council of Europe called on Azerbaijan to implement the judgements of the European Court of Human Rights concerning the case of ‘Makuchyan and Minasyan v. Azerbaijan’ related to the brutal murder of Armenian officer Gurgen Margaryan.
