The Sword is Mightier than the Pen:
The Precedence of Facts on the Ground over the Written Ceasefire Agreement in Nagorno-Karabakh
Stanisław Krawiecki[*]
Introduction
“Armed hostilities ended on 10 November 2020.”[1] That’s one of the first assertions made by Armenia in its International Court of Justice (“ICJ”) case against Azerbaijan for violation of the Convention on the Elimination of All Forms of Racial Discrimination (“CERD”). The case[2] is concerned with alleged violations of a treaty that fits most clearly into the international human rights regime. However, this essay concentrates on what the above-quoted assertion means under international humanitarian law (“IHL”) and what its implications for the application of IHL and human rights could be if it reflected reality.
I argue that the assertion is incorrect—and potentially contrary to Armenia’s interests.[3] Armed conflicts under international law do not end (or start) with words, but on actions (and cessation thereof). Indeed, the conflict’s duration is important for the status of persons affected by it: soldiers captured by the other side in later months will only be protected as prisoners of war (“POW”) if the conflict did not end in November 2020, as this essay argues. I start by briefly outlining the legal requirements for the start and end of an international armed conflict and argue that Armenia’s assertion at the ICJ is not legally significant per se. I then suggest that it is not clear the Karabakh conflict legally ended on November 10, 2020. The next section discusses the implications, concentrating specifically on the status of POWs and the applicability of human rights to protect captured soldiers. Importantly, even as the essay focuses on the legal issues at stake, it is crucial to bear in mind the human tragedies underlying the case.
Factual Framework for the Start and End of International Armed Conflict under IHL
IHL applies to “‘all cases… of any other armed conflict which may arise [between state-parties].”[4] A formal declaration of war is not required to launch an armed conflict between two states under international law.[5] Thus, an armed conflict exists whenever there is actual resort to force between states. It is a factual analysis.[6]
Conversely, the legal standard governing the ‘end’ of an international armed conflict and thus the cessation of the application of IHL is not perfectly clear.[7] Despite Kleffner’s suggestion that it is peace treaties that bring a formal end to a war,[8] actual cessation of hostilities appears to be a requirement. Although the Geneva Conventions and Additional Protocol I apply until the “general close of operations,”[9] which could be read both functionally (actual end of fighting) and formalistically (a signed document announcing the end of fighting), Tadic held that IHL applies “beyond cessation of active hostilities.”[10] Tadic thus deems a factual end of fighting a necessary requirement.
Indeed, analysis published in the International Red Cross Review suggests that the ‘end’ analysis is akin to the ‘start’ assessment: an international armed conflict terminates when the conditions that triggered its legal beginning cease to exist.[11] In other words, only once hostilities between two states actually end can the conflict be declared finished.[12] Moreover, a break in fighting does not suffice. The end must be sufficiently permanent. To avoid the “revolving door” phenomenon and legal uncertainty, the termination has to be “sufficiently general, definitive, and effective.”[13]
Therefore, if there is any difference between end of actual fighting (shooting) and the end of international armed conflict (“IAC”), the latter is harder to meet. To promote certainty, Geneva’s “general close of operations” can be read to include more than the cessation of shooting.[14] It also includes the mobilization or deployment of troops along the border.[15]
Thus, even a definitive-sounding statement is not enough in the absence of an actual end of hostilities consistent with the statement.[16] If there is a substantial risk[17] that fighting will resume, or if opposing soldiers continue to be engaged in military-related actions, the conflict is ongoing. The end of an armed conflict is therefore an objective factual assessment[18] and is treated as such in this essay.
Based on that standard, Armenia citing the November 10, 2020 Agreement with Azerbaijan is either tactical or a mistake. Armenia is either risking IHL protections for its soldiers captured after November 10, or it is preferring the application of the human rights regime. The Agreement did not necessarily end all hostilities between the two independent states over the disputed region of Nagorno-Karabakh.[19] On November 10, both states announced a ‘ceasefire.’[20] Although the Agreement contains provisions on the division of territory and the deployment of Russian troops, suggesting peace-like intent, factually, the fighting did not end.[21]
For example, only seven days after the agreement, Azerbaijan was reported to have attacked and entered Armenian territory, either killing or capturing soldiers.[22] Armenian soldiers were also deployed there with the expectation that hostilities would continue. This incident could be characterized as a mere border skirmish, but there is sufficient evidence to support the notion that there was ongoing conflict for IHL purposes.[23]
Moreover, in December 2020, a number of Armenian soldiers were reported captured in an Azeri ‘raid.’[24] The capture was the result of a hostile military act against Armenia. Since the soldiers were part of a military unit, their capture constituted an operation to detain identifiable combatants. Some of the soldiers are still held, some perished.[25] Furthermore, in July 2021, an Azeri drone entered at least 50 kilometers deep into Armenian territory and was shot down en route to Yerevan.[26] The hostilities, or at least the fighting between Armenian and Azeri soldiers by the borders, seem to be continuing in 2022.[27] Thus, the November 10 Agreement likely did not coincide with a cessation of the armed conflict under international law.
Implications
If and when the conflict ended have powerful implications for the applicability of certain legal regimes, rights, and protections. In particular, what some conceive of as human rights sensu lato of persons affected by this conflict can be protected by international humanitarian law itself, international human rights, or even international criminal law.
One of the most visible implications concerns POWs. The Karabakh war included many captures of individual soldiers and military units—many young, recent recruits who left entire families behind. Especially in international armed conflicts, interned soldiers enjoy the protection of the Geneva Convention III.[28] However, since the status of POWs as such derives from IHL, IHL likely has to apply at the time of the soldiers’ capture for them to be protected by it.[29] It is true that the determination of POW status is more nuanced than just ‘combatants captured between the beginning and end of armed conflict.’ However, IHL sensu lato still has to be found applicable in order for its provisions to render protection to captured soldiers. Moreover, an ongoing international armed conflict is the most straightforward way to ensure that IHL applies. Indeed, in arguing for the broad protection of captured soldiers, Pictet found that the capture of the opposing state’s armed forces could suggest that an international armed conflict has not ended and saw this as the easiest route to POW protection.[30] Hence, although it is possible to argue that POW protection could apply to soldiers captured outside of an international armed conflict, by arguing that it ended, Armenia provokes controversy and opens the door to arguments that IHL no longer applied to anyone.
Therefore, those captured between September 27 and November 10, 2020 are most likely POWs. However, the status of the 60 to 160 Armenian soldiers captured by Azeri forces in mid-December 2020 depends on whether the conflict had indeed ended on November 10.[31] If it did, then Armenia’s assertion at the ICJ could be self-harming—the captives might not be able to claim POW protection. Lack of POW status does not necessarily mean they would be left without any protection (see below), but it does make claiming IHL-based protection challenging. Under art. 118(1) of Geneva Convention III, POWs are to be repatriated “without delay after the cessation of active hostilities.”[32] While it could provide an implicit argument for the illegality of protracted holding of those captured before November 10, it would also harm the claims pertaining to those captured later. In fact, the assertion could lend some legitimacy to Azerbaijani claims that the captured members of the Armenian armed forces deployed to the border as part of a regular military operation—who would clearly be combatants if detained during an armed conflict—are, in fact, “terrorists” assailing Azeri territory during peace who can be freely prosecuted under domestic criminal law.[33]
However, the reality—factual and thus legal—is different. The armed conflict did not end on November 10. Henceforth, all soldiers captured by Azerbaijan are POWs by virtue of being members of regular Armenian armed forces “fallen into the power of the enemy.”[34] By extension, arguments on whether the soldiers were captured in Armenian or Azeri territory would not matter because an international armed conflict extends throughout territories of the parties. Thus, the captives would be protected until their liberation, regardless of whether the conflict ends while they are in captivity.[35]
There is also another possibility, although unlikely here. Even if the conflict ended on November 10, it could restart in time of—or with—the capture,[36] thus re-launching POW protection. This outcome would be in line with IHL protective aims. However, if the capture happened in the absence of actual fighting, the new ‘hostility’ might not suffice to launch a new conflict—especially if we ascribe literal meaning to the ‘first shot’ theory that IAC will not start without actual fighting. Given the nature of IHL as non-enforcement norms interpreted by state-parties, Armenia’s assertion at least created the opportunity for Azerbaijan to argue that those soldiers entered Azeri territory outside of war, committing peacetime crimes. As much as that turns the nature of Azeri invasion on its head, Armenia’s submission does not help protect its soldiers in practice.
In any case, regardless of whether the war ended, international human rights also extend protection. A powerful view of the European Court of Human Rights[37] is that human rights protections co-apply in armed conflict.[38] Hence, even if I am correct that the war did not end on November 10, 2020, human rights protections would apply thereafter. That means that even if Armenia is wrong in its ICJ submission, the protection of the CERD still applies and its violations since the war started on September 27 can be litigated. The co-application theory is not uncontested: displacement of human rights by IHL, as well as IHL applying instead of human rights as lex specialis in many situations in armed conflict are competing views.[39] Still, the idea of IHL as fully supplanting international human rights is often only supported by the United States and Israel—hence, Armenian soldiers are still likely protected. However, IHL protections at least mean there is some absolute rule protecting POWs. Thus, a lack of IHL-based safeguards at the very minimum invites Azerbaijan to justify their actions with public emergency—an avenue much less viable under Geneva’s clear and detailed prescriptions as to the treatment and return of POWs.
However, human rights, including treaties such as the European Convention, will apply even if Armenia’s assertion at the ICJ is correct. For instance, the protections of life, liberty, and against torture[40] would still apply to protect those soldiers captured after November 10, 2020 from abuse.[41] In fact, the upside of Armenia’s assertion is that there might not even be any justification for their capture and detention in the first place outside of an armed conflict. That is, unless a legally paradoxical situation is conceivable: that border tensions are enough to create a public war emergency to justify the continual detention of another state’s soldiers captured along the border under human rights standards which often balance state interests against the rights of those involved,[42] but not enough to launch a new conflict under IHL. That would be the worst outcome for Armenia, potentially permitting both the capture and prosecution of soldiers. Simply put, the international human rights regime in many—though not all—cases permits a balancing analysis (“proportionality”), where certain rights can be limited based on the pertinent state interest. On the other hand, the IHL system, with all its flaws, in theory guarantees certain rights (for example to POWs) absolutely. Thus, foregoing IHL protections at the minimum risks certain absolute protections—e.g. against criminal prosecution—in favor of some which are potentially derogable.
Indeed, many other values such as the life of civilians and cultural heritage are protected by human rights norms both in and outside an armed conflict. Hence, the beheadings of civilians,[43] or wiping out of churches[44] (the latter, if not both, being an explicit part of Armenia’s claims at the ICJ) will be prohibited after November 10, 2020, regardless of whether IHL continues to apply—with the caveats inherent to the analysis of derogable human rights.
Lastly, the assessment of the end of the armed conflict could have implications for international criminal law. Neither Armenia nor Azerbaijan are parties to the Rome Statute, which established the International Criminal Court to prosecute individuals for crimes against humanity, inter alia. However, if a special tribunal empowered to prosecute war crimes and crimes against humanity were to be established, and the conflict had ended, the capture of soldiers would have technically happened in peace. Then, for the acts against soldiers to constitute crimes against humanity, they would have to be a part of a broader attack, possibly including acts against civilians. Actions against soldiers in peace can form a part of a crime against humanity, but it is unclear whether they can constitute its core.[45] A criminal tribunal could push the international doctrine in that direction, but the question is not settled.
Conclusion
Overall, it appears that Armenia’s assertion that the Karabakh war ended with the November 10, 2020 ceasefire agreement might be misleading. Under international (humanitarian) law, factually, the conflict did not end then—and it is unclear when it did, if at all. This could have implications for the application of IHL and its specific protection to soldiers captured after November 10 as POWs. Thus, Armenia should prefer for its ICJ assertion not to reflect reality. Although if it did, there would be less controversy regarding the application of human rights protections after November 10 (outside of armed conflict). Still, there are interests which are better protected if IHL applies.
Several areas warrant expansion. A broader discussion of other rights and provisions beyond those pertaining to captured soldiers is one of them. Some rights might have right-specific jurisprudence on their application in war. This essay also proceeded on an assumption that the entirety of this war can be classified as an international armed conflict, based on the involvement of Azeri and Armenian armies. However, if any part of it were deemed a conflict not of an international character, a different analysis might be necessary because of intensity and organization requirements, less treaty-law, and the emergence of concepts such as ‘indefinite war.’[46]
This essay, discussing a case study, only scratched the surface. Further study is needed on the impact of the uncertainty of the law on complex interactions between international legal regimes protecting individual rights. Such a study at both the theoretical and practical levels would further the understanding of and the protective functions of the law over hostilities.
[*] Stanisław Krawiecki received his J.D., cum laude, from Harvard Law School in 2022. He has a B.A. in History, Politics and Economics from University College London, 2019. He served as an editor-in-Chief of the Harvard Human Rights Journal, vol. 34 (2020-21). He also served as a former student criminal defense attorney at the Criminal Justice Institute and a student attorney at the International Human Rights Clinic at HLS.
[1] Republic of Armenia v. Republic of Azerbaijan (Arm. v. Azer.), Application Instituting Proceedings and Request for Provisional Measures, 2021 I.C.J. 1, para. 5 (Sept. 16).
[2] As well as the counter-filing by Azerbaijan. See Interpretation and Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Azer. v. Arm.), Application Instituting Proceedings, 2021 I.C.J. (Sept. 23).
[3] Note that this essay focuses on Armenia’s point of view. Many Azeri rights were allegedly violated in Nagorno-Karabakh over the past decades, but that falls outside the scope of this essay. Azeri claims pertain to occurrences before the war, but this essay discusses Armenia’s assertion and is temporally concerned with events after September 2020. See, e.g., Jeyhun Aliyev, Armenia ‘Removes’ Azerbaijan’s Traces in Upper Karabakh, Anadolu Agency (Nov. 18, 2019), https://www.aa.com.tr/en/politics/armenia-removes-azerbaijans-traces-in-upper-karabakh/1649122 [https://perma.cc/E45W-DXNP].
[4] Geneva Convention Relative to the Protection of Civilian Persons in Time of War, art. 2, Aug. 12, 1949, U.S.T. 3516, 75 U.N.T.S. 287 (citing common article 2).
[5] See 3 Emily Crawford, The Temporal and Geographic Reach of International Humanitarian Law, The Oxford Guide to International Humanitarian Law 58 (Ben Saul & Dapo Akande eds., 2020).
[6] See Jean Pictet (ed.), Commentary, I Geneva Convention for the Amelioration of the Condition of the Wounded and the Sick in Armed Forces in the Field, Int’l Comm. of the Red Cross 32 (1952); Prosecutor v. Tadic, Case No. IT-94-1-I, Decision on Defence Motion for Interlocutory Appeal on Jurisdiction, para. 70 (Int’l Crim. Trib. for the Former Yugoslavia Oct. 2, 1995).
[7] See Dustin A. Lewis, Gabriella Blum & Naz K. Modirzadeh, Indefinite War: Unsettled International Law on the End of Armed Conflict, Harv. L. Sch. Program on Int’l L. & Armed Conflict 60 (2017).
[8] Jann Kleffner, Peace Treaties, Oxford Pub. Int’l L. (Mar., 2011), https://opil.ouplaw.com/view/10.1093/law:epil/9780199231690/law-9780199231690-e367 [https://perma.cc/CYG3-J3F2].
[9] Geneva Convention Relative to the Protection of Civilian Persons in Time of War, art. 6(2), Aug. 12, 1949, U.S.T. 3516, 75 U.N.T.S. 287; Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts art. 3(b), June 8, 1977.
[10] Tadic, supra note 6, at 70.
[11] See Marko Milanovic, The End of Application of International Humanitarian Law, 96 Int’l Rev. of the Red Cross 163, 170 (2014).
[12] See id. at 171.
[13] Prosecutor v. Gotovina, Case No. IT-06-90-T, Trial Judgment, para.1694 (Int’l Crim. Trib. for the Former Yugoslavia Apr. 15, 2011).
[14] See Yves Sandoz et al. (eds.), Commentary, Additional Protocols of 8 June 1977 to the Geneva
Conventions of 12 August 1949, Int’l Comm. of the Red Cross 152–153 (1987).
[15] See Commentary, I Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, Int’l Comm. of the Red Cross 279 (2d ed., 2016).
[16] See Crawford, supra note 5, at 61. See also ICRC, supra note 14, at 279. Another question beyond scope is how long after the last shot a conflict ends.
[17] See Milanovic, supra note 10, at 174.
[18] See Crawford, supra note 5, at 60–62.
[19] This essay does not delve into Karabakh’s complex legal status. It assumes the war can be characterized as an international armed conflict (“IAC”).
[20] See Statement by the Prime Minister of the Republic of Armenia, the President of the Republic of Azerbaijan and the President of the Russian Federation (Nov. 10, 2020), https://www.primeminister.am/en/press-release/item/2020/11/10/Announcement [https://perma.cc/CNX6-2HPL].
[21] Beyond what follows, there are countless other examples, including what I learned while working as an interviewer-investigator in Armenia in 2021.
[22] See, e.g., Lillian Avedian, Dozens of Armenian Soldiers Captured or Missing After Border Attack, Armenian Weekly (Nov. 17, 2021), https://armenianweekly.com/2021/11/17/dozens-of-armenian-soldiers-captured-or-missing-after-border-attack/ [https://perma.cc/8NEV-QSQP].
[23] See ICRC, supra note 14, at 279.
[24] See Nagorno-Karabakh: Dozens of Armenian Soldiers ‘Captured in Raid,’ BBC (Dec. 16, 2020), https://www.bbc.com/news/world-europe-55329493 [https://perma.cc/3326-R9M3].
[25] Ani Mejlumyan, A Year After War, Armenian Prisoners Still Bargaining Chips in Azerbaijan, Eurasianet (Dec. 10, 2021), https://eurasianet.org/a-year-after-war-armenian-prisoners-still-bargaining-chips-in-azerbaijan [https://perma.cc/P52L-YXGJ].
[26] See Azeri Drone Intercepted by Armenia Is Israeli-Made Aerostar, Armenpress (July 30, 2021, 10:34 AM), https://armenpress.am/eng/news/1059473.html [https://perma.cc/YGM7-NPBS].
[27] See Deadly Clashes Break Out Once More at Armenia-Azerbaijan Border, France 24 (Dec. 1, 2022, 11:12 AM), https://www.france24.com/en/europe/20220112-four-soldiers-killed-in-new-clashes-at-armenia-azerbaijan-border [https://perma.cc/LRG6-6R7Y]. I do not mean to dismiss them as ‘mere’ border fights and deaths. These are immense tragedies. For space reasons, and respecting the soldiers and their families, on both sides, I do not describe more.
[28] See Geneva Convention Relative to the Treatment of Prisoners of War, Aug. 12, 1949, 6 U.S.T. 3316, 75 U.N.T.S. 135
[29] Id. at art. 2.
[30] Curiously and somewhat controversially, Pictet argued that the capture of members of the opposing state’s armed forces is a factor suggesting that an existing international armed conflict has not ended. See Jean Pictet (ed.), Commentary, III Geneva Convention Relative to the Treatment of Prisoners of War, Int’l Comm. of the Red Cross 23 (1952).
[31] See BBC, supra note 23.
[32] Geneva Convention Relative to the Treatment of Prisoners of War art. 118(1), Aug. 12, 1949, 6 U.S.T. 3316, 75 U.N.T.S. 135.
[33] See, e.g., Press Release, Republic of Azerbaijan Ministry of Foreign Affairs, No:198/21, Head of the Press Service Department of the Ministry of Foreign Affairs of the Republic of Azerbaijan, Leyla Abdullayeva answers the question of the media regarding the statement made by French President E.Macron at the joint press briefing wit (last visited Apr. 19, 2022), https://mfa.gov.az/en/news/no19821-head-of-the-press-service-department-of-the-ministry-of-foreign-affairs-of-the-republic-of-azerbaijan-leyla-abdullayeva-answers-the-question-of-the-media-regarding-the-statement-made-by-french-president-emacron-at-the-joint-press-briefing-with-the [https://perma.cc/T9V3-MB2U] (describing captured Armenians as “members of the sabotage group” and describing their conduct as a “terror act”).
[34] See Geneva Convention Relative to the Treatment of Prisoners of War art. 4, Aug. 12, 1949, 6 U.S.T. 3316, 75 U.N.T.S. 135.
[35] See Geneva Convention Relative to the Treatment of Prisoners of War art. 5(1), Aug. 12, 1949, 6 U.S.T. 3316, 75 U.N.T.S. 135.
[36] “Likewise, the capture by a State of members of the armed forces of another State may constitute the start of an international armed conflict, triggering the application of the Third Convention from then on.” Commentary, Convention (III) Relative to the Treatment of Prisoners of War. Geneva, 12 August 1949, Int’l Comm. of the Red Cross 1101 (2020). https://ihl-databases.icrc.org/applic/ihl/ihl.nsf/Comment.xsp?action=openDocument&documentId=0837F01F5B0DBC5BC125858500469047 – 1
[37] Both Armenia and Azerbaijan are subject to its jurisdiction.
[38] Hassan v. United Kingdom, App. No. 29750/09 (Sept. 16, 2014), https://hudoc.echr.coe.int/fre#{%22itemid%22:[%22002-10082%22] ); see also Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, International Court of Justice (2004).
[39] See, e.g., Marco Sassoli, International Humanitarian Law and International Human Rights Law, in The Oxford Guide to International Humanitarian Law 381, 390-92 (Ben Saul, Dapo Akande eds., 2020).
[40] International Covenant on Civil and Political Rights (1966) (‘ICCPR’), Arts. 6, 9, 7.
[41] Azerbaijan: Armenian POWs Abused in Custody, Human Rights Watch (Mar. 19, 2021, 8:00 AM), https://www.hrw.org/news/2021/03/19/azerbaijan-armenian-pows-abused-custody [https://perma.cc/7TJN-RTHQ].
[42] Cf. U.N. Hum. Rts. Comm., General Comment 35, Article 9 (Liberty and security of person), U.N. Doc CCPR/C/GC/35 (2014) (stating that a public emergency created by war could mean detention is not arbitrary under ICCPR Art. 9).
[43] Andrew Roth, Two Men Beheaded in Videos from Nagorno-Karabakh War Identified, Guardian (Dec. 15, 2020, 0:00 AM), https://www.theguardian.com/world/2020/dec/15/two-men-beheaded-in-videos-from-nagorno-karabakh-war-identified [https://perma.cc/MQM8-CJKJ].
[44] See Joshua Kucera, What Happened to the Church?, Eurasianet (Mar. 26, 2021), https://eurasianet.org/what-happened-to-the-church; https://eurasianet.org/azerbaijan-begins-controversial-renovation-of-armenian-church [https://perma.cc/W3ED-FL3Z]; Simon Maghakyan, Special Investigation: Declassified Satellite Images Show Erasure of Armenian Churches, Art Newspaper (June 1, 2021), https://www.theartnewspaper.com/2021/06/01/special-investigation-declassified-satellite-images-show-erasure-of-armenian-churches [https://perma.cc/5VQS-X2LC]; Abdujalil Abdurasulov, Nagorno-Karabakh: The Mystery of the Missing Church, BBC (Mar. 25, 2021), https://www.bbc.com/news/av/world-europe-56517835 [https://perma.cc/YM2F-KK9G].
[45] See Prosecutor v. Tolimir, IT-05-88/2-A, Judgement, paras.141-42 (Apr. 8, 2015).
[46] See Lewis, supra note 7 (the PILAC is entitled ‘Indefinite War’).
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