By Philippe Raffi Kalfayan published in The Armenian Mirror of Spectator
This article is an extract of a legal opinion to be published on the site of the International and Comparative Law Center – Armenia. Both articles have been released on the occasion of a communication from the author as a panelist in the session concerning the Nagorno-Karabakh (Artsakh) issue at the Global Armenian Summit which is taking place on September 18 in Yerevan. Its timing is coinciding with the one-year anniversary of the once unthinkable: the end of Artsakh Republic and the ethnic cleansing of its population and imprisonment of its leadership.
The current situation of Nagorno-Karabakh Armenian people is widely known: the population is no longer living on its ancestral land. Citizens were driven out forcibly at the end of September 2023, leaving behind their lands, personal and business properties, their cemeteries and the dead who were not buried according to tradition. Humanity is now watching passively the destruction of the Artsakh’s cultural and religious national heritage, as well as the erasing of all Armenian traces. Few Armenians still fight for the inalienable right of this people to live on its native lands.
Shockingly, the issue of Artsakh’s ethnic cleansing has already become an object of scientific curiosity while the embers of this conflict are still hot, the psychological trauma of blockade and forced displacement remain acute, and lastly, the self-determination question of Nagorno-Karabakh Armenian people is far from being over.
The forced exile simply obliges the reformulation of the right to self-determination, because the right to return is the new first stage of this process. It seems more convenient for the vast majority of Armenians in Armenia as well as the diaspora to cultivate victimhood rather than to fight for valid rights. The same process has been observed regarding the consequences of the 1915 genocide: the memorial approach is favored over a more combative objective — reparations.
The Nagorno-Karabakh Republic (NKR) authorities certainly made their share of mistakes leading to today’s calamitous situation. If they had accepted to leave aside their status as a self-proclaimed independent state, notwithstanding the legitimacy of the process that led to independence, they could at least have used some diplomatic and legal levers available to them as an ethnic native group. It would have affirmed their political will and raised awareness on the international scene.
The Committee for the Defense of the Fundamental Rights of the People of Nagorno-Karabakh, headed by Vartan Oskanian, claims to have been mandated by the exiled NKR parliament but its statement is ambiguous since it mentions the “people” and not the “Republic” of Nagorno-Karabakh. Their objective is to act for the right of Nagorno-Karabakh Armenian people to return to their homeland as an essential part of building a sustainable peace between Armenia and Azerbaijan. The second element of the declaration says that “the people remain resolute to determine their political future and exercise their own democratic self-governance.” It is unclear how this committee will proceed diplomatically to convince Azerbaijan on this particular aspect.
There are no major legal obstacles in international law regarding the right to return. That is why most countries, especially the US, Russia and EU members, claim that the return of Karabakh Armenians must be on the international agenda. Of course, it is quite cynical to declare so today while these same actors did not do anything to prevent the ethnic cleansing process when needed, including acts of terror against civilians and prisoners, the nine-month blockade and the final assault in September 2023.
The UN Security Council did not even adopt a resolution condemning the blatant violations. Here, too, it is unclear whether this was a failure of Armenian diplomacy or a mutually agreed decision. It is much more challenging to restore the rights of Nagorno-Karabakh’s people now that they are no longer living on their lands. The continued detention of the former leaders of NKR, the denial of the Armenian history of Nagorno-Karabakh, the destruction and looting of homes and the continuous anti-Armenian discrimination and rhetoric all clearly indicate that Azerbaijan does not intend to allow Armenians to return to their homes, regardless of their official statements.
The right to return is nevertheless the only legal and political path forward. Armenia has neither the military capacity, nor the political will to reconquer this historical Armenian land for now. In any case, such an act by Armenia would be unlawful. There are no more families ready to sacrifice their sons for the cause of Artsakh. But Armenians around the world have the duty to promote and defend the right to return of the Armenian people to their native Nagorno-Karabakh. The real challenges are else.
Social and Political Challenges
The time is of the essence if the strategies expanded on below to redress this calamity are to succeed. First, Azerbaijan is investing very rapidly and heavily in the territory, with the help of Turkey, to build a regional infrastructure and they have announced its demographic recolonization. Second, the Artsakh refugees in Armenia are living in precarious conditions, subjected to political control, and are therefore emigrating rapidly to Russia or Western countries. It is estimated that already 20,000 have left Armenia and only 4,300 applied for full Armenian citizenship as of September 3, 2024.
The diplomatic plane is no less challenging. Armenia’s incumbent government has recognized without nuances the belonging of the former autonomous region of Nagorno-Karabakh to Azerbaijan and it lacks a coherent strategy. On the one hand, the Ministry of Foreign Affairs and the agent of the government for legal affairs are defending the rights of Nagorno-Karabakh Armenians to return to their lands with security guarantees, respectively in diplomatic and judicial forums. The International Court of Justice (ICJ) provisional measures order on November 17, 2023, has already recorded that right. President Aliyev does recognize that right, too, but claims reciprocity for Azerbaijanis having left Armenia 30 years ago.
On the other hand, the Armenian Prime Minister Nikol Pashinyan and the President of the Armenian Parliament Alen Simonyan have declared abruptly that the Artsakh case is over and Armenia is no longer concerned with this issue. Simonyan even stated on November 16, 2023: “We have a big problem concerning the Artsakh Armenians. I don’t see the purpose of establishing statehood or preserving and developing state institutions here [he meant in Armenia]. I consider it an imminent threat and a blow to the security of the Republic of Armenia.” He made an ignominious and illegitimate statement on September 9, 2024: “Armenia’s government does not regard Nagorno-Karabakh’s exiled leaders as legal representatives of the region and of its displaced population.” That’s not him to decide.
Artsakh Armenians as Indigenous People
Let us now analyze the individual and collective rights of Nagorno-Karabakh people in the light of international law and the best forum where to claim and defend those rights.
In the literature, the difference between individual and collective rights is generally made on the manner the rights are exercised. Certain rights are exercised exclusively by an individual while others are exercisable jointly in community with others.
The international courts regularly favor the individual rights over the collective and political rights of a people or a community where such conflict exists. Even in the case of indigenous peoples or tribes, the individual right is protected. In fact, the collective rights are those human rights generally recognized to be exercisable by collectives (in other words by groups of individuals) and not reducible to the individual. That includes the right to self-determination. Although there is no normative definition of collective rights, the concept emerged because individual human rights do not guarantee adequate protection for indigenous peoples and other minorities exhibiting collective characteristics.
In the context of Nagorno-Karabakh, this collective aspect is particularly relevant although the Armenians never presented themselves as an “indigenous people.” This ethnic community existed on those lands long before the creation of the Armenian and Azerbaijani republics in 1918. They had always benefited from relative autonomy. They were colonized during the Soviet period and the administration of the region transferred arbitrarily under Azerbaijan rule in 1921 but under an autonomous regime. They proclaimed their independence in 1991 but as a consequence of the lost war in November 2020, the whole ethnic group was forced to leave en masse in September 2023; Azerbaijan being the state controlling effectively the surrounding territory since November 9, 2020.
Hence, the right to return is both an individual and collective right, since a homogenous group of individuals has been subjected to serious violations of its fundamental rights, including its right to self-determination.
The ICJ ordered interim measures that reflect the complementarity of individual and collective rights (ICJ, Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Armenia V. Azerbaijan), indication of provisional measures, Order 17 November 2023, para. 69.).
Applications by the European Court of Human Rights (ECHR) must also anticipate the redress to be conceived as a right to return on native lands and restitution for one’s home. If there is restitution, it supposes implicitly that people can return to Nagorno-Karabakh. Actually, there is an ECHR’s case law in relation with Armenian and Azerbaijani displaced nationals from the first Nagorno-Karabakh war (1992-1994). In Sargsyan v. Azerbaijan, the European Court concluded (2015) to the continuing violation of the rights of the applicant to return to Gulistan and to enjoy his property. The ECHR delivered a similar judgement (2015) in Chiragov v. Armenia, involving an Azerbaijani Yezidi forced out of the Lachin Corridor. The Committee of Ministers of the Council of Europe, which is the supervision body for the execution of the judgments, stated that seven years after the judgment none of individual and general measures have been enforced in both cases.
The European Court applied among other international legal provisions the UN Principles on Housing and Property Restitution for Refugees and Displaced Persons, known as the “Pinheiro Principles.” These principles provide that “All refugees and displaced persons have the right to have restored to them any housing, land and/or property of which they were arbitrarily or unlawfully deprived, or to be compensated for any housing, land and/or property that is factually impossible to restore as determined by an independent, impartial tribunal.”
The principles also recall that “The right to restitution exists as a distinct right, and is prejudiced neither by the actual return nor by the non-return of refugees and displaced persons entitled to housing, land and property restitution.” This specific principle has been applied in Sargsyan v. Azerbaijan for that latter are not in a position to guarantee secure access to the village and to assess the status of the applicant’s property in this area.
The Court indicates that “pending a comprehensive peace agreement it would appear particularly important to establish a property claims mechanism allowing the applicants and others in their situation to have their property rights restored and to obtain compensation for the loss of their enjoyment.”
Power of UN Security Council
While the right to return is indisputable legally, the battle is essentially of a diplomatic nature. Thus, the rights can be best defended by interstate claims and supported by resolutions of the UN Security Council. The ICJ, as the principal judicial organ of the United Nations is the ad hoc forum for Artsakh’s citizens. The key question is: Is the Republic of Armenia ready to support and lead the diplomatic and legal battle to the end?
Prime Minister Pashinyan noted the possibility of withdrawing applications against Azerbaijan on a reciprocal basis as an integral part of the negotiations over the possible peace treaty. Azerbaijani official sources did not report directly on this matter; only media close to the government elaborated on Armenian statements.
Abandoning the interstate proceedings at the ICJ would be a hard diplomatic blow to the cause of Artsakh, and sending a wrong signal, since it would offer impunity for crimes against humanity.
Accountability is crucial for identifying and recording underlying structural and systemic drivers of human rights abuses. Racial discrimination is identified as the root of the gross violations. If no corrective or transformative measures are imposed on Azerbaijan to put an end to racial discrimination against Armenians, there will be no sustainable peace. Accountability for serious crimes and accompanying transformative measures are guarantees of non-repetition. Peace between two countries, such as Armenia and Azerbaijan, cannot last long if those guarantees are not established. In the longer term, absence of accountability can serve as fertile ground for those who seek to manipulate history and offer a revisionist interpretation of what happened.
Third-Party Interventions for Artsakh People
The violation of the right to self-determination of Nagorno-Karabakh Armenians was associated with the serious violation of other conventional obligations, such as the prohibition of racial discrimination and that of torture and ill-treatment, all of which constitute internationally wrongful acts.
Any third state member of the United Nations has erga omnes obligations to address the violation of those fundamental rights. Erga omnes (“towards all”) obligations are either owed to a group of states including that state, and are established for the protection of a collective interest of the group; or owed to the international community as a whole. It entitles any state invoking responsibility to claim from the responsible state the (a) cessation of the internationally wrongful act, and assurances and guarantees of non-repetition and (b) performance of the obligation of reparation in the interest of the injured State or of the beneficiaries of the obligation breached. The ICJ jurisprudence evolved over time to define the scope of those obligations: In the Barcelon Traction case (1970), it referred to “the outlawing of acts of aggression, and of genocide” and to “the principles and rules concerning the basic rights of the human person, including protection from slavery and racial discrimination.” In the East Timor case (1995), the court added the right of self-determination of peoples to this list. It confirmed it in its advisory opinion on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (2004).
Recently there have been multiple proceedings engaged by third states based on the erga omnes principle. Those reference cases are Gambia (v. Myanmar) for the account of Rohingyas, South Africa (v. Israel) for the account of Palestinians (other states will intervene in this case. So far, Mexico, Libya, Colombia, Palestine, Spain and Türkiye), Venezuela (v. Germany) for the account of Palestinians: they bear the interests of victim groups who are not a State formally recognized by UN. All those cases are relevant for Nagorno-Karabakh Armenians in the sense that their rights as a people can be defended by third states because erga omnes obligations have been breached.
Very recently a new impetus was provided by the ICJ to the erga omnes obligations. After having found that Israel’s policies and practices of prolonged occupation, settlement and annexation of the Palestinian territory occupied since 1967 were in breach of international law and that the continued presence of Israel in the Occupied Palestinian Territory (OPT) was also illegal, the Court addressed the matter of the legal consequences for “other States.” The Court observed that the violations by Israel include certain erga omnes obligations. Such obligations are by their very nature “the concern of all States” and “in view of the importance of the rights involved, all States can be held to have a legal interest in their protection.” With regard to the right to self-determination, the Court considers that, while it is for the General Assembly and the Security Council to pronounce on the modalities required to ensure an end to Israel’s illegal presence in the Occupied Palestinian Territory and the full realization of the right of the Palestinian people to self-determination, all States must cooperate with the United Nations to put those modalities into effect.
Due to the radical stance taken by Azerbaijan and the continuation of racial discrimination and hate speech in Azerbaijani society, Nagorno-Karabakh Armenians have no other choice but to adopt a human-rights-based approach that will address the root causes of what they have faced, and prioritize the individual and collective right to return and the right to restitution.
Nagorno-Karabakh Armenians Must Act Independently
Nagorno-Karabakh Armenians must fight for their rights independently from the actions undertaken by the government of Armenia, whose interests are not necessarily theirs.
The displaced citizens must quickly lobby third states, not as a self-proclaimed state but as an ethnic group that has been forced to leave its ancestral lands. They must convince those third states to intervene in the ongoing proceeding initiated by Armenia against Azerbaijan at the ICJ (application of the International Convention on Elimination of Racial Discrimination). The ICJ has already concluded about the plausibility of claims brought by Armenia and ordered subsequent temporary measures aimed at the protection of Nagorno-Karabakh Armenians from irreparable harm. A judgment on the merits would definitely order the cessation of the forced displacement and its associated racial discrimination acts, confirm the right to return of Nagorno-Karabakh Armenians, the right to restitution of their homes and properties, the compensation for pecuniary and non-pecuniary damages, the release of all prisoners, the protection of the historical and patrimonial legacy of Artsakh, and suggest corrective and transformative measures in Azerbaijan laws to guarantee the security and the rights of Armenians returning to their native region.
In case Azerbaijan does not enforce the judgement, third states may refer the matter to the Security Council of the United Nations. This is the only international organ that can decide about effective sanctions and measures to oblige Azerbaijan to enforcing the judgment.
Yerevan, 18 September 2024
(Philippe Raffi Kalfayan, based in Paris, is a lawyer, associate-researcher and lecturer in international law at Paris Pantheon-Assas University, and a former secretary general of FIDH (International Federation of Human Rights), who has earned a Ph.D. in international law. He is a regular columnist for the Armenian Mirror-Spectator.)
