Last month, the self-declared independent republic of Artsakh (Nagorno Karabakh) lowered its flag, opting to dissolve all state institutions following a months-long blockade by Azerbaijani forces that brought about an acute humanitarian crisis among its predominantly ethnic Armenian population. The republic’s demise was the culmination of decades of tension and periods of conflict between Azerbaijan and the ethnic-Armenian enclave, paired with its supporters in Yerevan.
Leading up to this decision, JURIST Managing Editor for Interviews James Joseph interviewed Sheila Paylan, an international lawyer who advises the UN on matters of international law and human rights. They discussed the Nagorno-Karabakh conflict, its historical underpinnings, recent tensions, and the role international justice might play in preventing future conflicts such as this one.
JURIST: Will you give us a brief overview of the conflict in Nagorno-Karabakh?
Sheila Paylan: How we got here is such a complex and multi-layered question. But basically, we’ve seen in many parts of the world that the drawing of borders in the context of creating nation-states doesn’t always work. The former Soviet Union was pretty much colonial. It’s not considered to be the same as what happened in Africa, but the drawing of borders was arbitrary and not drawn in accordance with with the sort of cohesion of the groups of people that were living within them. It’s not the only situation in which autonomous regions are annexed like this. There are other formally autonomous regions that didn’t quite make it as well. You have occasions as South Ossetia. You’ve got some autonomous regions in Uzbekistan and Tajikistan because Stalin adopted a sort of gerrymandering ‘divide and conquer’ policy. This came to a head at the fall of the Soviet Union, where this Autonomous Oblast of Nagorno Karabakh, which was majority-Armenian populated, did not want to be did not want to end up as part of Azerbaijan. The law of secession applicable at the time of the fall of the Soviet Union did suggest that Nagorno-Karabakh could have had this opportunity, but Azerbaijan obviously didn’t want it and it just created this 30-year war, starting in the 80s – a fight for independence that was supported by Armenia, with questions of unification with Armenia because that’s what Karabakh always wanted. They wanted to be one state, but … [Karabakh] was independent of Azerbaijan and ran itself for the last 30 years. However, three years ago, Azerbaijan took drastic, violent, aggressive measures to reclaim the territory after 26+ years of peace talks that were not really leading to work going forward, because they would always come to a deadlock. So they solve the problem and that’s illegal, but we see that in many parts of the world. There’s law and then there’s politics.
JURIST: Azerbaijan has recently refused to hold talks over the sovereignty of Armenia to Nagorno-Karabakh and further refused to answer the question of where that stands under international law and is instead suffocating Nagorno-Karabakh through force. So I wondered if maybe you could talk a little bit about the sort of ceasefire violations and renewed tensions and this push towards this full-scale conflict in the region that we may see on the horizon and whether that is a possibility?
Paylan: Azerbaijan refused to show up at the Granada talks, seemingly because they were receiving so much backlash on September 19. They took back what was left of Nagorno Karabakh, again by military force; and in the end, this led immediately to a mass depopulation of Nagorno Karabakh off of all its Armenian population that has been termed an “ethnic cleansing.” There were maybe 50 people left, but everybody left because they were too terrified to stay, understandably after nine months of near total blockade, and three months of total blockade, and just violent, aggressive, hateful behaviour, not only for the last nine months but for the last minimum three years, and before that they were more or less protected because there was military protection. But there was no shortage of anti-Armenian hatred within Azerbaijan. So it’s just an impossible situation for ethnic Armenians to be able to live under Azerbaijani rule, and after 24 hours of bombing, Karabakh capitulated or surrendered. It was impossible; you’re committing suicide to stay. The tension between Armenia and Azerbaijan has also been long-standing; and yes, Azerbaijan’s rhetoric is not more peaceful since the end of Karabakh. They have made no secret of their feelings that Armenia or their irredentist ideology that Armenia is ancient Azerbaijan and that we don’t really have a right to exist here, even though we’re a sovereign state member of the United Nations [1] and have been here for millennia. I don’t know where they come up with this stuff, but it’s just that sort of propaganda that we see every time in the building. It’s just these red flags that they’re they’re building towards their next move, and last year, in September, they already had the biggest invasion of Armenia proper. So they’re already in Armenian territory, and they want to link their mainland Azerbaijan called Nakhchivan which is an exclave of on the other side of Armenia. So this is their next step, because every time they take military force to get territory, they get away with it. So they’re going to do it again. And we hear the signs. We see the signs. But members of the international community, especially those who we rely on to facilitate or mediate a peaceful resolution of this are unable or willfully blind, to what is happening. This all shows we’re going to be we’re at heightened risk of something bad.
JURIST: We’ve seen increasingly on the world stage that there’s the “you’re willing and able” state doctrine, as it’s known. States are unwilling largely to get involved in the conflict of other states even when they’re infringing on the sovereignty of other states and committing mass human rights violations. And there is this air of impunity across the world at the moment, pretty much since Russia’s invasion of Ukraine and China’s genocide of the Uyghur population, and this stagnation of an ability to assist those in need. Both politically through political will and also through through legal mechanisms. How do you do you see this conflict unfolding in the wake of what we’ve seen in Ukraine, in the wake of Chinese aggression against Taiwan at the moment in the wake of what’s now escalating in Israel?
Paylan: To the extent that Azerbaijan is content to use the language of occupation, like, that Armenia is occupying Azerbaijan’s territory, this is going to continue. They see Armenian land as their land, and it’s it’s the only way in which they can frame an illegal invasion to be palatable. So that’s how Russia invaded Ukraine. But there there is a lot of people who conflate the Nagorno Karabakh issue with the Armenia issue: they’re two separate republics. One was recognised is it recognised sovereign country member of the United Nations the other one was an independent de facto republic that was running itself, far more democratically and economically viable than Azerbaijan, but it was disputed and the world doesn’t like separatist movements. The world doesn’t like to see division, and I get that. So the Nagorno-Karbakh issue, I guess one could say is resolved, but it’s not because it was resolved in such an egregiously wrong way that something needs to be done about it. When you conflate that with Armenia you make a huge mistake, because if we are going to excuse Azerbaijan for what it’s done in the name of the sacrosanct principles of territorial integrity [2] and sovereignty, they are grossly infringing on a member state of the United Nations’ territorial integrity and sovereignty. And it’s true that countries are expected to be able to defend themselves, and there is a certain level at which I understand that it’s not the responsibility of any other country to come to our aid, because we aren’t strong enough. But it is the responsibility if the world, and like-minded states care about living in a world where aggression doesn’t have this contagious domino effect then they do. We need to step up and and stop this movement that we are seeing far too much of now. Azerbaijan invaded Armenia before Russia invaded Ukraine. Russia has been watching the world not care, and so the more they get away with it, the more it’s going to happen, and you must realise we’re not that far from Europe.
JURIST: No, I think that’s always the case, isn’t it? I think that the Russia-Ukraine conflict has really brought that to light, how the sort of geographical mapping of the world and this sort of that categorisation of Eastern Europe and that othering of non-Central European aligned states, and Russia has seen how that’s happened with Ukraine and obviously with the Armenia and Azerbaijan conflict, so it’s given that ability to be able to act with impunity. My last question on this conflict was about this: you’ve written about Armenia’s ratification of the Rome Statute. I just wondered if you could give us a sort of rundown of what that will do for Armenia in this in this situation.
Paylan: I recently published a piece on this, explaining what it means for Armenia is that we finally for the first time have an actual viable avenue for accountability for the heinous crimes that have been committed against Armenians. We did not have that possibility before. There were many calls for different alternatives. Armenia is pursuing action through the ICJ in the ECHR but this is not criminal accountability. They won’t prevent criminal accountability and for the prevention of the commission of future war crimes, you need a criminal body that will impose justice for there to be deterrence and none such exists in respect of Armenia and Azerbaijan, and none such will exist because the world is not going to create a special court for us. The world is not even going to create a little independent investigative commission for a while. Hopefully they will — hopefully with what’s happened, but we need something like the ICC … as a tool to show there can be consequences to this gratuitously violent behaviour that we see coming and directed towards us, which is very much linked to the lack of to impunity. So, it will give I think it will give a level of deterrence. Also, it’s a strong statement that Armenia needs to make to show itself to be on the right side of the coin like we are international rules based order. There was a certain level at which I felt that continuing to ask the world to intervene and and to support Armenia when it wasn’t joining that club.
[W]e’re finally getting aligned with the expectations that we have and the values that we hold. And I find that that makes it a very brave and bold move, considering how much pressure — the terrible timing with Putin’s arrest warrant from the ICC, the pressure, the enormous pressure Russia has been putting on Armenia not to ratify because of course, Russia falls in the group of non like-minded states where they don’t want to advance international criminal justice. So these small states have to take a stand against the big bullies. And we’ve joined that club, and I think that’s going to be it’s good for Armenia. It’s good for me as sovereignty, but it’s also good in terms of an extra tool to help protect Armenia where it doesn’t necessarily have big drones and big weapons. Law enforcement action is also a weapon.
Following Artsakh’s announcement that it will dissolve by January 1, 2024, JURIST reached out to Paylan for a follow-up comment. She replied: “The agreement was produced under duress and use of force and is therefore legally invalid.”
Notes:
[1] Armenia joined the United Nations on 2 March 1992, and in December 1992 the United Nations established an office in Yerevan.
[2] enshrined in Article 2 of the UN Charter and has been recognised as customary international law.
