By Artyom Tonoyan
When Azerbaijan with the help of Turkey launched the war to retake Nagorno-Karabakh in late September 2020, it sought to portray its adventure as defensive in nature, reacting to events rather than dictating them. Ilham Aliyev attempted to give what was clearly a war of aggression some semblance of legal grounding and therefore legal justification. Furthermore, as the Azerbaijani president likes to say repeatedly, Azerbaijan took it upon itself to enforce the 1993 UN Security Council resolutions calling on Armenian armed forces to retreat from “occupied areas of Azerbaijan.” Now a pair of European legal scholars with training in international law and the laws of war have authored an article that appeared in the European Journal of International Law undermining and all but nullifying the Aliyev regime’s legal pretensions.
The authors of the article are Tom Ruys and Felipe Rodríguez Silvestre, professor of international law and a doctoral researcher respectively, affiliated with Ghent Rolin-Jaequemyns International Law Institute (GRILI), at Ghent University in Belgium. Broadly speaking, their purpose is to investigate how the important (if often overlooked) international legal principle known as jus ad bellum applies, (or does not), to the Nagorno Karabakh conflict. Since the war was waged on Azerbaijan’s initiative, despite that country’s insistence on the contrary, it is Azerbaijan’s actions that most interest the authors and whether the justifications put forth by Azerbaijan hold any legal merit.
Thus the crucial question to which the authors seek an answer is the following: “When part of one state’s territory is occupied by another state for a prolonged duration, can the former state have lawful recourse to military force to recover its land?”. As Ruys and Rodríguez Silvestre will then demonstrate, though the issue is complicated and Azerbaijan’s grievances are real, and perhaps even compelling, the answer is far from obvious. Moreover, as they put it “Upon weighing the arguments, we believe a negative answer is in order.”
Now to the arguments.
According to the authors, there are several reasons why Azerbaijan’s arguments lack merit. First they argue that Azerbaijan’s invocation of the right to self-defense is irreconcilable with an important component of the jus ad bellum, the “immediacy requirement,” which posits that in order for a conflict to have a legitimate footing there needs to be an immediate threat of danger to the side initiating conflict, notwithstanding the fact of a prolonged occupation of parts of its territories. As they put it “the lapse of time between the initial attack and the invocation of self-defence cannot be extended indefinitely.” Furthermore,
“the state whose territory is invaded in breach of the prohibition on the use of force will lose the ability to invoke the right of self-defence if it either (i) refrains from responding with counter-force for a prolonged period of time (taking into account the need for negotiation, military preparation, efforts to seek third-state support, etc.), or (ii) responds with counter-force, but ultimately fails to repel the invading forces from its territory before a prolonged cessation of active hostilities occurs.”
On the surface, the argument appears to be dubious, and indeed a counter argument appears to be more logically consistent, if legally exotic. The argument that posits that “an unlawful occupation” is not subject to the immediacy requirement since a prolonged occupation is war by other means and an armed response is legally justified without a fixed temporal reference. In short, the aggrieved party can initiate, or at the least is legally permitted to launch a war as long as there is occupation, regardless of whether the administration of the occupied territories is peaceful or civil. The authors argue, however, that in the history of modern territorial conflicts this particular legal doctrine has rarely been invoked and for good reason; it has the potential to open the proverbial can of worms. Furthermore, the authors argue that “Strikingly, Azerbaijan did not unequivocally rely on the notion of occupation as a continuing armed attack, but instead claimed that it was conducting a ‘counter-offensive’ following intensive shelling of its armed forces by Armenia.” Their argument is further bolstered by the fact that none of the OSCE Minsk Group co-chair countries endorsed Azerbaijan’s actions. If anything, their joint declarations were condemnatory of the use of force as a method of conflict resolution.
According to Ruys and Rodríguez Silvestre, Azerbaijan’s case for its use of force is further undermined on account of yet another important international legal doctrine, that of the non-use of force to settle territorial disputes, “as consecrated in the UNGA Friendly Relations Declaration, … [which] necessarily applies irrespective of whether a state holds a valid title over land or not.”
Taking account of the fact that globally there are well over 100 cases of “territorial disputes” similar to the Nagorno-Karabakh conflict, any exception to the principle of non-use of force threatens “to render Article 2(4) UN Charter meaningless in many cases,” thereby torpedoing the very existence of international bodies tasked with overseeing international affairs, interstate disputes among them.
Basing their arguments on the above-discussed “immediacy requirement” and “the principle of the non-use of force to settle territorial disputes” the authors conclude that “a state cannot invoke the right of self-defence to recover occupied land when the territory has been peacefully administered by another state for a prolonged period of time.” The key word here being time. Time prolongs the status quo thereby removing the “immediacy requirement” as an effective factor.
The question then arises about Azerbaijan’s legal recourse(s): does it have any, now that use of force is found to be unacceptable and altogether illegal. To the authors, Azerbaijan does have recourse, albeit within certain limits. To the authors, there are several internationally agreed upon compellence mechanisms the application of which would be well within legality. They single out “enforcement measures under Chapter VII of the Charter” by the UN Security Council “whether by authorizing military enforcement action and/ or by imposing economic sanctions,” as well as “[u]nilateral sanctions imposed by individual states or regional organizations such as the European Union and the victim state itself … .” As the war of 2020 proved, Azerbaijan held little regard for the existing legal mechanisms, repudiating them in favor of an illegal war. Though able to recover part of its internationally recognized territories, it did so at the cost of mass human rights violations, and blatant contravention of “UN Charter’s preamble to the fundamental human rights of individual human beings – including, first and foremost, the right to life, also recognized as the ‘supreme right’.” The result is a new status quo with the conflict ultimately remaining unsolved.