[Sheila Paylan is an international human rights lawyer and Senior Legal Advisor at the Center for Truth and Justice. She has previously served as a legal advisor to the United Nations for more than 15 years, and as a pro bono advisor to the Republic of Armenia in the aftermath of the 2020 Nagorno-Karabakh War. The views expressed in this post are entirely her own.]
The Nagorno-Karabakh conflict is now said to have ended on 1 January 2024, on which day the de facto Republic of Nagorno-Karabakh is considered to have ceased to exist (see e.g. here and here). Headlines the world over since late September 2023 have announced “The End of Nagorno-Karabakh” (see e.g.here, here, here and here), after Azerbaijan’s brutal military assault on the region forced Nagorno-Karabakh authorities to surrender and the entire indigenous Armenian population to flee into neighboring Armenia.
There are serious problems with recognizing “the end” of Nagorno-Karabakh given the violent and illegitimate means that Azerbaijan used, especially over the last three years, to achieve it. The present post will shed light on the danger in accepting the Nagorno-Karabakh conflict as resolved and Republic as dissolved under such circumstances.
Background
At the heart of the Nagorno-Karabakh conflict lies a territorial dispute, intertwined with ethnic, historical, political, and nationalistic elements. The conflict has involved competing claims to the control and sovereignty over the mountainous enclave east of Armenia within the borders of Azerbaijan, which has been inhabited by an ethnically Armenian majority population for millennia. Nagorno-Karabakh, a former Autonomous Oblast (NKAO) under the Soviet Union, declared independence at the Union’s dissolution. Azerbaijan, unwilling to accept this unilateral secession, responded with anti-Armenian pogroms. The ensuing conflict escalated into a full-scale war in the late 1980s and early 1990s, with Armenia eventually entering the theater of war in support and defense of Nagorno-Karabakh, and ended with a ceasefire in 1994 which left Armenians in control of the region. Peace negotiations to resolve the underlying issues and disputes over the status of Nagorno-Karabakh persisted for the next 26 years.
On 27 September 2020, Azerbaijan, backed by Turkey, decided it was done negotiating and waged a large-scale military attack against Nagorno-Karabakh until a Russian-brokered ceasefire was reached on 9 November 2020 which, this time, left Azerbaijan in control of most of the region. The 2020 war was rife with reports of the use of inherently indiscriminate munitions, chemical weapons, and Syrian mercenaries, as well as evidence of torture, mutilation, executions and enforced disappearances against Armenian POWs and civilians. More than 5,000 people were killed during the 44-day conflict.
Three years later, on 19 September 2023, Azerbaijan launched its final military assault under the guise of an “anti-terrorist” operation to reclaim what was left of Nagorno-Karabakh. After 24 hours of heavy bombardment, Azerbaijan succeeded in gaining exclusive control over the entire region and cleansing it of its ethnic Armenian population. The final days of September 2023 saw more than 100,000 ethnic Armenians flee Nagorno-Karabakh and pour into neighboring Armenia. The forced displacement took place after Azerbaijan held the Armenians of Nagorno-Karabakh under blockade inducing starvation for nearly ten months. The United Nations estimates that as few as 50 Armenians are left.
Soon thereafter, Azerbaijani President Ilham Aliyev stated: “Many reiterated there is no military solution to this conflict. We have shown that there is. And we have shown it again recently. This topic is now closed! The subject of the Karabakh conflict is closed once and for all!”
Risk of Legitimizing the Use of Force to Settle Territorial Disputes
Aliyev now regularly boasts and threatens the use of military force to get what he wants, even (purportedly) peace (see inter alia here, here, here and here). The international legal framework, however, unequivocally condemns the settlement of international disputes by force, a principle enshrined in the UN Charter. As the Ethiopia-Eritrea Claims Commission found, “the practice of States and the writings of eminent publicists show that self-defense cannot be invoked to settle territorial disputes.” See Partial Award – Jus Ad Bellum – Ethiopia’s Claims 1-8, para. 10. This precedent is directly applicable to the Nagorno-Karabakh situation given that Azerbaijan invoked the right of self-defense to restore its territorial integrity in launching the 2020 war. The Commission also noted that “border disputes between States are so frequent that any exception to the prohibition of the threat or use of force for territory that is allegedly occupied unlawfully would create a large and dangerous hole in a fundamental rule of international law” (emphasis added).
The issue of whether Azerbaijan’s use of force in 2020 was legitimate gave rise to a spirited debate in the war’s aftermath. On the one hand, Akande and Tzanakopoulos concluded that Azerbaijan’s use of force was legal, arguing that an occupation that is a direct consequence of an armed attack by another state is a “continuing armed attack,” and that the attacked state therefore never loses its right to self-defense, regardless of how much time passes (see EJIL:Talk! and EJIL; see also Heller). According to Ruys and Rodríguez Silvestre, on the other hand, Azerbaijan’s use of force was illegal because the right of self-defense stops where there exists a territorial status quo characterized by a prolonged absence of fighting and peaceful administration of the territory concerned, as in the case of Nagorno-Karabakh (see Just Security and EJIL). For Knoll-Tudor and Mueller, “[a]ny other result would challenge the overall architecture of peace preservation” (see also Mégret and Paylan).
Both sides of the debate start from the premise that Armenia was an occupying State. But the characterization of whether Armenia’s involvement in the Nagorno-Karabakh conflict can be described not only as an “occupation” but also an “illegal” one is complex and depends on the perspective and legal criteria being applied. Armenia has historically emphasized the self-defense efforts of the Nagorno-Karabakh Armenians against Azerbaijani persecution, while Azerbaijan has accused Armenia of aggression and occupation from the early stages of the conflict. Akande and Tzanakopoulos’ position that “occupation that is a direct consequence of an armed attack by another state is a ‘continuing armed attack’” in the context of the Nagorno-Karabakh conflict touts the Azerbaijani stance that the conflict started with Armenia attacking Azerbaijan first. However, the authors fail to provide any support or reference for such a factual premise.
The Nagorno-Karabakh conflict is widely recognized as having begun on 20 February 1988, when the NKAO independently proclaimed its intention to separate from the Azerbaijani SSR and join the Armenian SSR (see also here). The violence that ensued between Azerbaijani and local Armenian forces has been described by Human Rights Watch as having escalated “to a point approaching civil war” (see here, p. 5). It was not until 1991 that a newly independent Armenia entered the conflict, after extreme acts of persecutory violence had been committed against Armenians throughout Azerbaijan. The conflict then escalated significantly in 1992 when Armenia’s support for Nagorno-Karabakh Armenians became more direct and substantial.
Armenia’s involvement in the war thus evolved over time. That the conflict ceased in 1994 with Armenians in control of the former NKAO and several surrounding territories bordering Armenia for the next 26 years is not contestable. The conclusion that such control amounted to occupation, especially of the surrounding territories, is not unreasonable. But to claim that such control or occupation originated from an Armenian invasion to conquer Azerbaijani territory is not only baseless but also recklessly disregards the nuanced historical context and unfairly biases the narrative.
Akande and Tzanakopoulos also take issue with the passage of time, arguing that “[s]urely, when something lasts for a quarter of a century, then its ‘temporary’ character can be called into question” (see EJIL, p. 1306), in line with the Azerbaijani position that 26 years of peace negotiations was too long to wait thus justifying its resort to the use of force. Such an observation, again, ignores that a peaceful resolution of disputes will surely take more time than a militarily forced one. It took 27 years for Greece and (now North) Macedonia to resolve their dispute, and that was just over a name. If it were Armenia’s intention to render the situation in and around Nagorno-Karabakh permanent, then it would have officially recognized Nagorno-Karabakh’s independence. It did not. That should count for something. Instead, Armenia sought to reach an appropriate compromise short of Azerbaijan’s maximalist demands that would provide a status for Nagorno-Karabakh’s ethnic Armenian population to guarantee their rights and security. Akande and Tzanakopoulos’ position appears to suggest that there is a time limit for that.
The results of supporting Azerbaijan’s position and failing to hold it accountable for resorting to the use of force in 2020, even in purported self-defense, are now clear. The international community was unable to prevent the ethnic cleansing of Nagorno-Karabakh, which Azerbaijan continues to justify in the name of sovereignty and territorial integrity while holding no apparent regard for the lives or basic human rights of the Armenian population. Despite Azerbaijan’s actions in 2023 having been met with worldwide condemnation, including by the EU Parliament and members of the UN Security Council, the lack of more robust consequences for Azerbaijan’s breaches of international law, including the use of force to obliterate the dispute over the status of Nagorno-Karabakh, not only undermines the legal order but also sets a dangerous precedent for repeat behavior.
Indeed, Aliyev’s success in using force to take Nagorno-Karabakh has emboldened him to now lay claim to Armenia proper, including Yerevan, as historic Azerbaijani land, dubbing it “Western Azerbaijan.” Aliyev has already begun to invade Armenia since May 2021, with a major offensive in September 2022 having resulted in further war crimes (see here and here) and the occupation of over 200 square kilometers of Armenian sovereign territory. Aliyev’s actions in Nagorno-Karabakh having gone unpunished, there are now clear signs that Azerbaijan is gearing up for full-scale war and forcing Armenia to hand over more territory.
Risk of Legitimizing Contempt for ICJ Rulings
On 17 November 2023, the International Court of Justice (ICJ) ordered Azerbaijan to, inter alia, “ensure that persons [of Armenian national or ethnic origin] who [found themselves compelled to flee] Nagorno-Karabakh after 19 September 2023 and who wish to return to Nagorno-Karabakh are able to do so in a safe, unimpeded and expeditious manner” (see Order, paras. 56, 58, 74). Azerbaijan has yet to comply with this binding ruling, as well as others preceding it, including the ICJ’s repeated orders to unblock the Lachin Corridor (see hereand here). These decisions are in no way moot or extinguished and continue to stand.
Aliyev, who has ruled with an iron fist for more than 20 years after inheriting his post from his father, has made no secret that he believes that the “might is right” principle prevails over the rule of international law. There can be no reasonable expectation that Azerbaijan will adhere in good faith to the ICJ’s orders or to its international human rights obligations. Such non-compliance highlights a growing contempt for international law and legal institutions, weakens the authority of the ICJ, and threatens the rule of law and the peaceful resolution of disputes. Summarily accepting the end of Nagorno-Karabakh therefore risks legitimizing Azerbaijan’s flagrant violations of the ICJ’s orders to achieve that end.
Conclusion
The end of Nagorno-Karabakh (conflict and Republic), as it stands, presents a troubling precedent for international law and the norms governing State behavior. While international law provides valuable tools for resolving territorial and other disputes, challenges certainly persist. Some authoritarian States such as Azerbaijan clearly reject the authority of international courts and legal principles insofar as they apply to them.
The success of peaceful and legitimate conflict resolution efforts thus depends not only on the political will of the warring parties, but also a wider global commitment to upholding the rule of law. As such, the international community must be resolute in refusing to accept the end of Nagorno-Karabakh under the violent terms dictated by Azerbaijan, lest it risk legitimizing force over diplomacy, might over right, and criminal means to achieve desired ends, with profound implications for global peace and security.
