ECHR judgment and the Karabakh Conflict
Turgut Kerem Tuncel*On June 16, the Grand Chamber of the European Court of Human Rights (ECHR) declared its judgment in a case opened by six Azerbaijani nationals against Armenia on the complaint that in 1992, Armenian forces forced them to leave the district of Lachin in Azerbaijan and that since then, they have been unable to return to their homes, and are being denied control over their properties. The ECHR found Armenia guilty of violating certain rights of the applicants defined by the European Convention of Human Rights and obliged Armenia to pay compensation that may amount up to 8.2 million euros.
This is only the first case and around a thousand similar cases are pending against both Armenia and Azerbaijan. Because the recent case will be a precedent of future cases, compensation issue will be a big burden for the small Armenian economy, when the pending cases are finalized. Besides that, the judgment of the ECHR is likely to have significant political consequences.
The judgment of the ECHR imposes the resolution of the issue of refugees and IDPs as an integral part of the conflict resolution process. As such, the judgment undermines Armenia’s position that insists on postponing the issue until the aftermath of a comprehensive resolution of the conflict and categorically rejects the possibility of the return of the Azerbaijani refugees and IDPs to the territories under Armenian control.
Besides these, the merits of judgment contain consequential statements that confirm Azerbaijan and Armenia as the parties of the conflict, notwithstanding the Armenian claim that the conflict is between the de facto Nagorno-Karabakh Republic (NKR) and Azerbaijan.
Armenia argues that Karabakh conflict is about the national liberation of the Karabakh Armenians from Azeri domination on the basis of the principle of self-determination. Armenia rejects that it is a direct party to the conflict.
Azerbaijan, on the other hand, holds that the conflict over Nagorno-Karabakh is between Azerbaijan and Armenia and one-fifth of the territory of Azerbaijan is under the occupation of Armenia. Azerbaijan insists that the Armenian occupation of the Azerbaijani territories is a violation of the international principle of the territorial integrity of the states.
No state recognizes the de facto authority in the NKR as an independent state. Yet, Armenia insists that Armenia and the NKR are two different states and the NKR must be admitted to peace negotiations. What lies behind this insistence is the intention of pushing the de facto and then the de jure recognition of the NKR by the international community. By that, Armenia also aims to nullify Azerbaijan’s argument of Armenian occupation. Azerbaijan categorically rejects the inclusion of the NKR in the peace negotiations.
In the merits of the judgment, the ECHR determines that from the early days of the Karabakh conflict, Armenia has been a party of the conflict and the NKR and Armenia are highly integrated entities in virtually all important matters. The ECHR observes that the military, political, financial and other support of Armenia is vital for the survival of the NKR. Accordingly, the ECHR has determined that Armenia exercises “effective control” over Nagorno-Karabakh and the surrounding territories. As to the concept of “effective control,” the merits of the judgment states that:
Accordingly, occupation within the meaning of the 1907 Hague Regulations exists when a state exercises actual authority over the territory, or part of the territory, of an enemy state. The requirement of actual authority is widely considered to be synonymous to that of effective control.
As such, the judgment of the ECHR confirms Armenia as one of the parties of the Karabakh conflict and it is an occupant on Nagorno-Karabakh and the surrounding territories. This invalidates the self-determination argument of the Armenian side and affirms that the lands in question are “occupied” rather than “liberated,” notwithstanding the Armenian discourse.
Obviously, verification of the Armenian occupation of the Azerbaijani territories is more than a secondary issue. Rather, this verification identifies the nature of the conflict, which would, in return, determine the legitimate and lawful resolution of the Karabakh conflict. Therefore, the judgment of the ECHR Grand Chamber of June 16 is likely to have consequences for the lawful resolution of the Karabakh conflict.
Moreover, this judgment may lead some third parties that provide implicit or explicit support to Armenia and the de facto authority in Nagorno-Karabakh to revise their policies.
*Turgut Kerem Tuncel is an expert at the Center for Eurasian Studies (AVİM).