Comment to the article "Why Armenia is Not Referring the Situation to the ICC"

 

The article addresses a significant and thought-provoking topic. However, it is written predominantly from an Armenian perspective, which frames Armenia as the victim in this context. This approach, while offering insight, overlooks the broader geopolitical and historical dimensions of the Nagorno-Karabakh conflict that are essential for a balanced analysis. As such, the article raises several points of contention:

1. Political Context: Armenia’s current situation is rooted in its unlawful occupation of internationally recognized Azerbaijani territories from the early 1990s until late 2020. Presently, Azerbaijan does not occupy any Armenian territory. Instead, the ongoing border disputes stem from Azerbaijan’s armed forces reclaiming their internationally recognized territories and reaching an approximate, yet previously undelimited, border with Armenia. The lack of delimitation arose from Armenia’s prior refusal to recognize the former Soviet administrative boundary as legitimate, compounded by its occupation of territories beyond that border. These disputes are now subject to an ongoing delimitation process.

2. Legal Considerations: Cases potentially under the jurisdiction of the International Criminal Court (ICC) are already being investigated and prosecuted by Armenia, which has demonstrated its willingness and ability to address these matters. Given the ICC’s principle of complementarity, its jurisdiction in this context is highly questionable. This legal limitation, rather than political pressure, explains Armenia’s decision not to proceed further. Political constraints did not prevent Armenia from initiating a case before the International Court of Justice (ICJ). Furthermore, it is worth noting that Azerbaijan has prosecuted its own citizens for violations of humanitarian law during the 2020 conflict and has called on Armenia to do the same. However, Armenia has consistently refused to prosecute its own nationals, suggesting a mutual reluctance to address these legal violations comprehensively.

3. Factual Accuracy: The claim of forced deportation of Karabakh Armenians does not withstand close scrutiny. During the conflict in September 2023, there was a week-long period following the cessation of hostilities when no civilians or military personnel were harmed, and fighting had ceased entirely. During this time, the Armenian population’s evacuation to Armenia was organized in a highly coordinated manner by the Armenian separatist authorities, who remained in charge at the time. Azerbaijani armed forces had targeted only the separatists’ military infrastructure and refrained from entering heavily populated areas. There is no evidence of threats, coercion, or ultimatums issued by Azerbaijani authorities to compel Armenian civilians to leave. On the contrary, Azerbaijani authorities documented those leaving through the border checkpoint and declared that individuals were welcome to return under Azerbaijan’s legal framework. A dedicated website was even created to facilitate registration for return and provide proper documentation. Therefore, the assertion of forced deportations lacks substantial evidentiary support.

These are just some points to consider in connection to this topic. That said, I want to thank the author for a very interesting article about a conflict that is understudied in the literature.

Kamal Makili-Aliyev

Doctor of Laws

23.01.2025