A year after Azerbaijan and Armenia fought the Second Karabakh War, the two nations seem set to battle things out once again - but this time in court. Both sides have been drawing up cases against the other though their approaches are somewhat different.

The 9BR Report

A group of London-based lawyers have been investigating charges of “illegality and criminality under international law” regarding acts committed by Armenia against Azerbaijani civilians before and during the 2020 conflict. The group from 9 Bedford Row Chambers (hence its acronym 9BR) was led by Steven Kay QC. His high-profile legal career at the International Criminal Court (ICC) has included the trial of former Yugoslav President Slobodan Milosevic. 

The group’s “initial assessment” report also looks at potentially criminal acts committed in the name of Armenia’s so-called ‘Tonoyan Doctrine.’ Named after the Pashinyan Government’s then defence minister David Tonoyan, this pre-2020 plan was a tactic to ensure a strong bargaining position in any future peace deal with Azerbaijan. The idea was that Armenia could hope to maintain indefinite control of at least some of the Azerbaijani lands that it then occupied by use of ‘active deterrence.’ Put more simply, rather than wait passively for time to pass, Yerevan might hope to ensure the status quo, which kept the lands in Armenian hands by preparing attacks, then offering later to stop them. This would be a carrot/stick way of reaching a more lasting peace without surrendering its occupied land.

Some have suggested that Tonoyan, by the timing of the strategy’s announcement, sabotaged previously hopeful signs that the new Pashinyan government might reach a peaceful Azerbaijan-Armenia agreement. After all, Tonoyan had summarized the ideas in March 2019 during a trip to the US that came directly after Pashinyan and Aliyev had been negotiating in Vienna. He denies the claim.

Looking into civilian attacks during the main conflict period, a trio of 9BR lawyers, i.e. Kay with Drea Becker and Joshua Kern, visited areas of Fizuli District that had been recently de-occupied, as well as parts of Azerbaijan that lay outside the previous conflict zone. The fact that Armenian missile attacks had targeted civilian targets in such areas, Kay suggested, “could be characterized as war crimes.” The focus of the research was on five particular strikes that caused 56 civilian deaths, notably in Ganja and Barda – large urban centres that are a long way from the area of military fighting. 

While ‘independent of any government,’ the investigation looked specifically at Armenian deeds, as is made transparently clear from the accompanying video to the background of the conflict. That video is presented by the same Azerbaijani-born, British-trained international lawyer (Dr. Farhad Mirzayev) who organized the research. Mirzayev also repeats claims that well before the latest conflict, Armenians had put explosives in toys to kill children (at least two cases were reported - 1994 and 2011) and that shooting civilians in border villages had been “standard practice for Armenian armed forces in all the years of the occupation.”

Armenia Attacks Azerbaijan

As the 9BR Report lays bare Azerbaijan’s potential for legal recourse through the ICC, Armenia itself took to the courts. On September 16, a press release from the International Court of Justice (ICJ) in The Hague announced that Armenia had instituted proceedings against the Republic of Azerbaijan alleging violations of the CERD convention against racial discrimination.

The accusations claim that “for decades, Azerbaijan has subjected Armenians to racial discrimination” and that Baku has subjected Armenians “to systemic discrimination, mass killings, torture and other abuse,” though it is hard to see in what context that holds water. Since the 1990s, there have been shrinkingly few Armenians living in Azerbaijan other than in those areas occupied by Armenia.

The application to the UN’s ‘world court,’ whose purpose is to resolve disputes between nations, does not mean that the case will be heard: first, the question will arise as to whether the court has jurisdiction in the matter.

 “Our whole life is a matter of semantics, because words are the tools with which we work, the material out of which laws are made.”

 

• - Felix Frankfurter, 1882-1965, US Supreme Court Justice

Not unpredictably, Azerbaijan’s response to Armenia’s ICJ filing was to rapidly file a counterclaim also under the CERD. The proceedings, launched on September 23, claim, amongst other things, that Yerevan “continues its policy of ethnic cleansing” and “incites hatred and ethnic violence against Azerbaijanis.”

Is International Law the Best Approach?

International law is a slippery fish. Agreeing on terms is never easy. Countries challenge jurisdictions. For example, numerous states refuse to be bound by the International Criminal Court, while even the UK government is unhappy about being bound by the European Court of Human Rights. Of course, even when not enforceable, a series of generally accepted legal norms can be applied to geopolitical situations. However, while better than violence, legal claims and counterclaims are still a form of fighting. And what would be more productive would be for both sides to work harder at finding ways to cooperate rather than to seek international sympathy through the courts.

In a separate independent fact-finding mission, Human Rights Watch teams visited sites that had been on both sides of the conflict to see the damage inflicted. They verified numerous claims on both sides of hospitals and, especially, schools damaged in the 2020 conflict. The report underlined that – in many cases – there had been a blurring of lines between military and civilian usage of such buildings or a reasonable possibility that the buildings had been hit in error instead of nearby objects that might have been considered genuine militarily targets.

Satellite imagery analysis of damaged sites and military positions established during October 2020 in the city of Tartar, Azerbaijan, as of October 23, 2020. Satellite imagery © 2020 CNES / Airbus.

That is no excuse for several of the worst attacks, but following the HWR’s recommendations might be more helpful than seeking legal recourse in the world courts. These ideas include suggestions that:

“Both sides should commit to ensure that all children, including children with disabilities, have access to school this school year.”

“...in Armenia… authorities should investigate, or at the very least acknowledge and seek to remedy, the military use and looting of schools.”

“Azerbaijan should investigate all instances where its forces positioned military targets near schools. If its forces confiscated school records or other property in the areas where it took control, it should pass these to the authorities on the Armenian side.”

“...skirmishes along the volatile new line of contact show the need to strengthen commitments to the global norm of protecting education from attack.”

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