A Serious Risk of Genocide: Recent Developments in Nagorno-Karabakh

By Dr Aldo Zammit Borda, Reader in International Law at City, University of London and Ms Mijerita Khachatryan, LLM candidate in Public International Law, University of Westminster

Introduction

The 44-day war of 2020 between Armenia and Azerbaijan, over the contested territory of Nagorno-Karabakh, which ended with a tripartite agreement on a ceasefire between Armenia, Azerbaijan, and Russia, generated renewed interest in this long-standing conflict. The legal debates revolved around the law of occupation, the right to (delayed) self-defence, questions around territorial integrity and the right to self-determination of Armenians of Nagorno-Karabakh, as well as around the commission of international crimes. Beyond those questions, moreover, scholars have analysed broader aspects of the conflict, including its environmental impacts and the politicisation of science by the two sides.

The issue of human rights violations has also received significant attention, and has formed the basis of various cases brought by Armenia and Azerbaijan before the European Court of Human Rights and the International Court of Justice (ICJ). With respect to the latter, the ICJ has so far made three orders for provisional measures in relation to the application of the International Convention on the Elimination of All Forms of Racial Discrimination (CERD). It also rejected a request for additional orders and a request for modification of an order. This post will focus on the ongoing implementation of those orders by the two parties.

A Deteriorating Human Rights Situation

From one perspective, the war of 2020 and the fragile ceasefire that ensued has been characterised as Azerbaijan ‘liberating’ a significant part of its occupied territories. From another perspective, however, the events of 2020 have been characterised as the illegal use of force by Azerbaijan not only against the disputed areas of Nagorno-Karabakh but also against the sovereign territory of Armenia using artillery, heavy weapons and drones and targeting provinces, that, suddenly and as a result of the 44-day war of 2020, found themselves bordering with Azerbaijan, including the Syunik, Gegharkunik, and Vayots Dzor provinces.

For the ethnic Armenian majority of around 120,000 living in Nagorno-Karabakh, moreover, the war had the significant effect of confining them to this landlocked mountainous region, leaving open only one entry/exit corridor between Nagorno-Karabakh  and the outside world through Armenia, the Lachin Corridor. And since 12 December 2022, even that single and vital corridor has been blockaded by a group of persons who present themselves as ‘eco-activists’ (ICJ Order of 22 February 2023, para. 30). According to Azerbaijan, this blockade was not orchestrated by Azerbaijan and the eco-activists constituted genuine environmental protests (para 33). However, according to Armenia, many of the activists were well known for ‘posting anti-Armenian hate speech publicly on social media, and for having ‘direct ties to the Government [of Azerbaijan]’ (para 30).

The ongoing blockade of the Lachin Corridor, moreover, has separated many families and has violated the right to public health, medical care, social security and social services, by preventing critically ill ethnic Armenians hospitalized in Nagorno-Karabakh  to be transferred to medical facilities in Armenia for urgent medical care and for life-saving treatment. The blockade has also prevented the importation of essential goods, foodstuffs, medical and medicine supplies into Nagorno-Karabakh (para. 31).

These worrying developments led the Lemkin Institute for Genocide Prevention to issue a ‘Red Flag Alert for Genocide’, making the following observation: this blockade is part of the broader genocidal aims of the Azeri leadership, supported by its staunch ally Turkey, as well as a continuation of genocidal acts carried out by the Baku regime against the Armenian community. The blockade is, therefore, not an isolated act but one occurring in the context of a war, at times latent, that Azerbaijan unilaterally began in September 2020 and that has as its aim the takeover of historic Armenian lands in the Republic of Artsakh and in the Republic of Armenia along with the forced displacement (“ethnic cleansing”) of the Armenian populations in Azeri-acquired territory. The Lemkin Institute takes the position that such aims are genocidal in that they seek to permanently destroy the Armenian identity in these regions.

While this alert was dismissed by some Azeri websites, it is significant that the Lemkin Institute is not alone in warning that the serious situation in Nagorno-Karabakh is in danger of descending into genocide. In September 2022, Genocide Watch also issued a Genocide Warning, noting that ‘due to its unprovoked attacks and genocidal rhetoric against ethnic Armenians, Genocide Watch considers Azerbaijan’s assault on Armenia and Artsakh to be at Stage 4: Dehumanization, Stage 7: Preparation, Stage 8: Persecution, and Stage 10: Denial.’ Moreover, the rhetoric of dehumanization, threats and denial has continued to increase on the part of the President of Azerbaijan and recently this has been accompanied by specific threats of use of force.

Moreover, it is significant that, in the ongoing ICJ cases, the Court deemed it fit, on three occasions, to indicate provisional measures to the parties, with two orders addressed to Azerbaijan and one addressed to Armenia. It should be recalled that provisional measures are only issued when the ICJ considers that irreparable prejudice could be caused to rights which are the subject of judicial proceedings or when the alleged disregard of such rights may entail irreparable consequences. While at this stage of proceedings, the ICJ has not made any definitive findings, these provisional measures suggest that, on the basis of evidence before it, the Court found it urgently necessary to order such measures for the protection of rights under CERD. The next part of this post will review the implementation of those measures by the two parties.

Provisional Measures Addressed To Azerbaijan

In an Order of 7 December 2021, the ICJ made the following three indications for provisional measures addressed specifically to Azerbaijan:

1. Protect from violence and bodily harm all persons captured in relation to the 2020 Conflict who remain in detention, and ensure their security and equality before the law;
2. Take all necessary measures to prevent the incitement and promotion of racial hatred and discrimination, including by its officials and public institutions, targeted at persons of Armenian national or ethnic origin;
3. Take all necessary measures to prevent and punish acts of vandalism and desecration affecting Armenian cultural heritage, including but not limited to churches and other places of worship, monuments, landmarks, cemeteries and artefacts.

Subsequently, in an Order of 22 February 2023, the ICJ added the following provisional measure addressed to Azerbaijan:

4. The Republic of Azerbaijan shall, pending the final decision in the case and in accordance with its obligations under the International Convention on the Elimination of All Forms of Racial Discrimination, take all measures at its disposal to ensure unimpeded movement of persons, vehicles and cargo along the Lachin Corridor in both directions.

Armenia’s original application to the ICJ for provisional measures was motivated by worrying reports of alleged violations of CERD by Azerbaijan, including reports of the ill-treatment and physical abuse of Armenian POWs captured during the war and the destruction of Armenian cultural and religious monuments in the captured areas of Nagorno-Karabakh. It was, moreover, also motivated by the opening of a ‘Spoils Of War Park,’ on 12 April 2022, aimed at glorifying Azerbaijan’s victory in the war by presenting tanks and weapons captured from the Nagorno-Karabakh Defense Army, exhibiting hundreds of helmets of Armenian soldiers killed during the war and displaying wax mannequins of Armenian soldiers represented through exaggerated caricatures, with an expressed objective of dehumanizing and humiliating Armenian soldiers.

While in its application, Armenia had asked the Court to request Azerbaijan to close that Park, in its order, the ICJ appeared to be satisfied by the assurances of Azerbaijan that mannequins depicting Armenian soldiers and displays of helmets allegedly worn by Armenian soldiers during the 2020 conflict had been permanently removed from the Park and will not be shown in the future. As a result, the ICJ did not include a request to close the Park.

According to available reports, Azerbaijan has materially failed, and continues to fail, to fully implement and comply with the ICJ’s order for provisional measures. With respect to the first provisional measure on the protection from violence, in September 2022, a video emerged showing the extrajudicial execution of Armenian prisoners of war (POWs) by Azerbaijan forces (see Human Rights Watch) and there have been reports of continued violence and bodily harm perpetrated by Azerbaijani forces on persons captured in relation to the 2020 conflict (see here).

With respect to the second provisional measure ordered by the ICJ, to wit, the prevention of incitement and promotion of racial hatred and discrimination, including by Azerbaijani officials and public institutions, the speech delivered by the President of Azerbaijan, Ilham Aliyev, and published on the Official Presidential website of Azerbaijan on 24 December 2022, is fraught with denialism and incitement of racial hatred. In that speech, President Aliyev denies the very existence of the Republic of Armenia and the Armenian people, referring instead to ‘Western Azerbaijan’ and the ‘Western Azerbaijan Community’. In his speech, the President presents a revisionist narrative of history in which Armenia’s existence is framed as illegitimate and occupying the ‘historical lands’ of Azerbaijan.

And with respect to the ICJ’s third provisional measure, relating to vandalism and desecration of Armenian cultural heritage, several Members of the European Parliament who spoke in relation to the adoption of a Resolution on the destruction of cultural heritage in Nagorno-Karabakh made reference ‘Azerbaijan’s continued policy of erasing and denying the Armenian cultural heritage in and around Nagorno-Karabakh in violation of international law and the recent Order of the International Court of Justice (ICJ).’

Finally, with respect to the ICJ’s order relating to the re-opening of the Lachin Corridor, rather than taking ‘all measures at its disposal to ensure unimpeded movement of persons, vehicles and cargo along the Lachin Corridor in both directions’, it was reported in April 2023, that Azerbaijan had taken further measures to disrupt movement, including by establishing a checkpoint on the Lachin Corridor bridge. Azerbaijan’s establishment of this new checkpoint raises fears of a new surge in fighting.

The above, therefore, indicates that Azerbaijan has not only failed to comply, in good faith, with the ICJ’s orders for provisional measures, but it has also taken action in direct contravention of such orders.

Provisional Measures Addressed To Armenia

On the same day that the ICJ delivered its Order indicating provisional measures against Azerbaijan (7 December 2021), the Court also indicated a provisional measure against Armenia, namely:

1. The Republic of Armenia shall, in accordance with its obligations under the International Convention on the Elimination of All Forms of Racial Discrimination, take all necessary measures to prevent the incitement and promotion of racial hatred, including by organizations and private persons in its territory, targeted at persons of Azerbaijani national or ethnic origin.

In addition, another provisional measure was addressed to both Armenia and Azerbaijan, namely: ‘Both Parties shall refrain from any action which might aggravate or extend the dispute before the Court or make it more difficult to resolve.’

Other applications for provisional measures filed by Azerbaijan, such as relating to the alleged planting of landmines and booby traps by Armenia, were on the evidence before the Court, rejected by the ICJ in its orders of 7 December 2021 and 22 February 2023.

In its application to the ICJ, Azerbaijan alleged that Armenia was directly or indirectly sponsoring or supporting organizations that engage in discrimination against Azerbaijanis. It particularly singled out the Voxj Mnalu Arvest organisation, which stands for ‘Art of Survival’ (or ‘VoMA’). In their submission, the Agent for Azerbaijan characterised VoMA as an organisation promoting the incitement of racial hatred and racially‑motivated violence against Azerbaijanis.

As reported by Reuters, VoMA is a non-governmental school whose aim is to train Armenian volunteers survival skills and how to defend themselves in case of need. In a report by France24, against the background of the ongoing instability and threat of attacks in the region, the main ethos of VoMA is ‘always on guard in case of new attacks’ by Azerbaijan. And indeed, even though in its submission to the Court, Azerbaijan asked the Court to specifically censure the VoMA organization, in its indication of provisional measures (above), the ICJ omitted express mention of that organisation.

Nevertheless, it should be noted that since 29 November 2022, a draft law on so-called ‘military, patriotic and sporting’ activities was drafted and submitted to the National Assembly of the Republic of Armenia. This draft law aims at regulating the work of organizations like VoMA and other non-governmental organisations, and contains provisions that aim to prevent the incitement and promotion of racial hatred within and outside of those organisations.

Conclusion

Since Russia’s invasion of Ukraine, the Russia-Ukraine conflict has tended to overshadow other conflicts in the region. However, it would be dangerous for the international community to overlook the recent developments in Nagorno-Karabakh and the blatant and systematic non-compliance of Azerbaijan with the ICJ’s orders for provisional measures.

It would be dangerous not only because of the terrible precedent such non-compliance sets, which undermines the ICJ Statute and erodes trust in the ICJ’s legal authority. But in the particular case of Nagorno-Karabakh, it would be dangerous also because such non-compliance is leading to a severe deterioration of the human rights situation, which organisations such as the Lemkin Institute and Genocide Watch have warned may descend to genocide.

Given that, under the Genocide Convention, all State Parties have a duty to prevent genocide, the international community therefore has not only a political and ethical, but a legal, duty to act in this case. In the Genocide case, the ICJ was clear that ‘a State’s obligation to prevent, and the corresponding duty to act, arise at the instant that the State learns of, or should normally have learned of, the existence of a serious risk that genocide will be committed’ (para 431). From that moment onwards, if the State has available to it means likely to have a deterrent effect on those suspected of preparing genocide, or reasonably suspected of harbouring specific intent (dolus specialis), it is under a duty to make such use of these means as the circumstances permit.

A growing number of reports have shown that Azerbaijan’s continued non-compliance with the ICJ’s orders has given rise to the existence of a serious risk that genocide will be committed. As noted above, since the end of the 2020 conflict, denialist rhetoric at the highest echelons of Azerbaijan is on the increase. According to that rhetoric, Armenia and the Armenian people have been written out of history. In their place, the Azerbaijani President has referred to ‘Western Azerbaijan [Armenia]’, insisting that this is Azerbaijan’s historical land, making reference to many purported ‘historical documents, historical maps, and our history.’

The international community needs to take heed of these serious developments. States Parties to the Genocide Convention need to act now to prevent the situation from descending into another genocide.