Azerbaijan’s push into the Armenian enclave of Nagorno-Karabakh is drawing comparisons to other episodes of ethnic cleansing. What can be done under international law?
The ethnic Armenian population of the Nagorno-Karabakh enclave in Azerbaijan, a largely Christian community in a predominantly Muslim nation, is experiencing ethnic cleansing at warp speed. Over the last week, almost all of the estimated 120,000 ethnic Armenians in Nagorno-Karabakh have fled west to Armenia. This exodus follows clashes with the Azerbaijan army that have reportedly killed upwards of four hundred people, including some civilians. The renewed conflict demonstrates the failure of years of diplomatic efforts to prevent the persecution of ethnic Armenians, and remaining options to address the situation with the tools of international law are limited.
The Armenian government has accused Azerbaijan of ethnic cleansing in Nagorno-Karabakh. The term “ethnic cleansing” has garnered varied definitions over the years, but the United Nations describes it as “a purposeful policy designed by one ethnic or religious group to remove by violent and terror-inspiring means the civilian population of another ethnic or religious group from certain geographic areas.” The use of starvation tactics against ethnic Armenians during the monthslong closure of the so-called Lachin Corridor between Nagorno-Karabakh and Armenia, combined with Azerbaijani army intimidation, resulted in an exodus of Armenians that has triggered the charge of ethnic cleansing.
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While ethnic cleansing is not defined as a matter of criminal law, its attributes appear in the crime against humanity of persecution and as predicates for acts of genocide. International criminal tribunals prosecute those atrocity crimes, and in many such cases, claims of ethnic cleansing have been front and center. The most prominent example of ethnic cleansing in the last few decades was the forcible removal of the Muslim Bosniak population of Bosnia and Herzegovina by Bosnian Serb (Orthodox Christian) and Bosnian Croat (Roman Catholic) forces in the early 1990s.
An explicit invocation of ethnic cleansing also can be found in the Responsibility to Protect principle (R2P) adopted by consensus by the UN General Assembly in 2005. R2P states that nations have the responsibility to protect their own populations from “genocide, crimes against humanity, ethnic cleansing, and war crimes.” But if a government fails to do so, R2P proclaims, then the UN Security Council can act with enforcement power under the UN Charter to prevent and confront such assaults on a civilian population. The Security Council has not acted under R2P in the current Nagorno-Karabakh crisis because Russia, as one of the five veto-wielding Permanent Members of the Council, almost certainly would block any such action while it remains focused on waging a war of aggression against Ukraine.
Deterrence, including measures that could discourage ethnic cleansing, reached its expiration date in Nagorno-Karabakh. It is now too late for international monitors to bear witness to the fate of ethnic Armenians in Nagorno-Karabakh. The UN observers that have arrived in the enclave have confirmed that nearly all ethnic Armenians have already fled to Armenia.
The history of monitoring in the region is mixed. In the wake of the 2020 resurgence of conflict over the enclave, Russia deployed peacekeepers to Nagorno-Karabakh, an echo of the small contingent of monitors sent by the Organization for Security and Cooperation in Europe (OSCE) years earlier. The Russian force, which normally would act as a de facto monitoring mission, has proven itself to be remarkably ineffective. It refused to intervene to open the Lachin Corridor, and it has now failed to deter a renewed assault on the enclave.
However, one other prospect could be the deployment of OSCE or UN monitors under a fresh mandate to patrol the Armenia-Azerbaijan border in hopes of deterring cross-border movements by either country’s armed forces. This approach would have to include a negotiated withdrawal of Azerbaijani forces from the Armenian territory that they occupied in 2021 and 2022 and a return to internationally recognized borders. If that idea proves unworkable, the two countries could agree to take the dispute to the International Court of Justice for adjudication.
Azerbaijan claims that it will treat the remaining Armenians in Nagorno-Karabakh just like any other minority population. That promise likely will not instill much confidence among the small number of Armenians who now face the prospect of Baku dominating their governance in Nagorno-Karabakh.
Azerbaijan is party to multiple multilateral treaties that include obligations that either explicitly protect or reflect the rights of minority populations. OSCE High Commissioner on National Minorities Kairat Abdrakhmanov could intensify his monitoring of Azerbaijan’s compliance with and any violation of the European Convention on Human Rights, the Framework Convention for the Protection of National Minorities, and the International Covenant on Civil and Political Rights. Aggrieved ethnic Armenians can lodge claims against Azerbaijan in the European Court of Human Rights, the legal arm of the Council of Europe, a human rights body to which Armenia and Azerbaijan both belong.
To demonstrate its respect for R2P, Azerbaijan should prevent ethnic cleansing, including its incitement, against ethnic Armenians. While that could seem inconceivable given what has occurred in Nagorno-Karabakh, the United Nations and influential actors such as the United States, Turkey, and the European Union should be pressing the point in all diplomatic exchanges with Baku.
There is long-standing animosity between the ethnic Armenians of Nagorno-Karabakh and Azerbaijan’s majority-Muslim population, whose resentment has been stoked by the brutal war and subsequent Armenian occupation of the enclave and surrounding Azerbaijani districts in the early 1990s. The resulting armed conflicts of recent years and the rout that has driven most ethnic Armenians onto Armenian territory demand some sort of dialogue. Otherwise, resentments and insecurities will govern the future relationship between Azerbaijan and Armenia.
As a start, the Council of Europe should explore a truth and reconciliation commission that brings both government officials and average citizens together to address grievances and hopes. There likely is no turning back on the fate of Nagorno-Karabakh as a territory now—it will be absorbed into the nation-state of Azerbaijan. But the ethnic Armenians who have called Nagorno-Karabakh home will still seek an end to persecution and hatred. Respect and dignity are the pillars of any truth and reconciliation commission. Armenia and Azerbaijan should work to restore both to their peoples, starting with an initiative that seeks the truth and creates momentum for reconciling divisive prejudices. Nor need there be a trade-off between justice and transparency, as both could be uniquely balanced in the outcome, as proved to be the case in Sierra Leone after its civil war.
One approach to justice would be to turn to the International Criminal Court (ICC), which can investigate and prosecute charges such as ethnic cleansing. On October 3, the Armenian Parliament ratified the Rome Statute of the ICC and two months after its formal deposit of that instrument of ratification—probably early December 2023—will become a state party. The news was not welcomed by Armenia’s longtime (now fading) ally Russia, whose leader, President Vladimir Putin, has been charged by the ICC with war crimes in Ukraine and who now could be arrested if he were to visit Armenia. Azerbaijan remains a non-party state of the court.
Armenia’s embrace of the ICC can be a powerful weapon of lawfare. Indeed, even before it formally becomes the 124th member of the ICC, Armenia could file immediately a special “Article 12(3)” declaration granting jurisdiction to the Court over the forcible deportation of ethnic Armenians from Nagorno-Karabakh onto Armenian territory. This option would be similar to the ICC’s current jurisdiction for atrocity crimes committed on Ukrainian territory (a non-party State). Ukraine had filed two such declarations, triggering an official ICC investigation into the Ukraine situation (and of Russian officials). The investigation commenced following referrals by scores of ICC countries; a similar course of events could be a plausible prospect for Armenia’s injury in the Nagorno-Karabakh situation. Once Armenia’s status at the ICC is settled, Azerbaijan political and military leaders could be drawn into the jurisdiction of the ICC because of the character of the alleged crime, just as the forcible deportation (ethnic cleansing) of the Rohingya minority onto the territory of ICC member Bangladesh by military forces of Myanmar (a non-ICC country) in 2017 exposed Myanmar officials to ICC investigation.
Baku might want to capitalize on the depopulating of Nagorno-Karabakh with a swift military movement across Armenian territory to control access to Nakhchivan, an exclave region of Azerbaijan bordering Iran. But now that Armenia is poised to join the ICC, Azerbaijan’s political and military leaders would likely risk investigation by the ICC prosecutor of the crime of aggression. That may explain the Armenian Parliament’s rapid move to ratify the Rome Statute—to address not only the fate of ethnic Armenians but to deter any Azerbaijani aggression across its territory.
