During the course of the Patriotic War, Armenia violated the norms of international law by causing damage to the civilian population and civilian infrastructure on the territory of Azerbaijan, far from the combat zone. The Center for Analysis of Economic Reforms and Communication (CAERC) is conducting systematic research into Armenia’s aggression against Azerbaijan and its international legal responsibility in this regard. Questions on this topic were answered by Vusal Gasimli, Executive Director of CAERC and Doctor of Economic Sciences.

How can Armenia’s aggression against Azerbaijan be assessed from the perspective of international law?
With the involvement of international experts, Azerbaijan will accurately calculate the damage inflicted by Armenia on land, water, forests, mineral resources, as well as property and cultural assets.

Armenia may be held accountable under different branches of law, including humanitarian law, the law of peace, and human rights law, for the harm inflicted on peaceful Azerbaijani civilians.

Humanitarian law, as a branch of general law, was formed earlier than the legal framework regulating human rights. The foundations of humanitarian law consist of “Geneva law,” based on the Geneva Conventions signed in 1949; “Hague law,” based on the Hague Conventions of 1899 and 1907; and certain resolutions of the UN General Assembly. Geneva law protects persons who do not take part in hostilities, including the wounded, prisoners of war, civilians, and others. Hague law, in turn, provides for the restriction and prohibition of certain methods and means of warfare in order to prevent violence.

The Geneva Conventions consist of four parts: rules on the treatment of the wounded during war; the treatment of persons affected by naval warfare; the treatment of prisoners of war; and the Fourth Convention, which concerns the protection of civilians during wartime. Compliance with the Geneva Conventions is monitored by the International Committee of the Red Cross.

The protection of civilians regulated by the Fourth Geneva Convention has been recognised by the United Nations as “customary legal norms,” meaning customs applicable to everyone or legalised by most states. The applicability of customary legal norms to a state is considered regardless of whether that state has ratified the relevant legal instruments. In other words, customary legal norms, such as the protection of civilians during war, also apply to countries that have not ratified the Statute of the International Court of Justice. From this perspective, holding Armenia accountable for crimes committed against Azerbaijan is legally possible.

Some customary legal norms are considered of higher importance and are accepted as peremptory norms of international law (jus cogens), which are absolutely binding on all states. While customary norms may not be applied if they contradict a state’s domestic legal system, peremptory norms constitute an exception. Even if such norms are not confirmed by, or are contradicted within, a state’s domestic legal framework, they are regarded as mandatory and unconditional obligations under international law. These norms regulate issues such as international crimes, crimes against humanity, aggressive policy (occupation) and aggressive war, genocide, and slavery.

Can we say that peremptory norms of international law have been violated against Azerbaijan?
Yes, violations of peremptory norms of international law that are unconditionally binding have occurred against Azerbaijan. First and foremost, the occupation by Armenians of 20 percent of Azerbaijan’s territory is regarded under international law as aggressive policy, and the mass deaths that occurred in this process reveal facts of aggressive war and even genocide, which is regulated by another peremptory norm. An important point is that an aggressive war is attributed to the initiating party; the responding party is not considered to be waging an aggressive war under international law.

Aggressive war also constitutes a violation of the Hague Conventions. These conventions prohibit the use of asphyxiating gases and substances that cause unnecessary suffering, as well as the destruction, looting, or confiscation of property without military necessity. As is well known, Armenians committed serious violations against Azerbaijan under all these prohibitions. Recorded facts include the firing of shells containing white phosphorus at areas inhabited by Azerbaijani civilians, the use of cluster munitions, and the looting or complete destruction of property belonging to the Azerbaijani people in the occupied territories. Another example of prohibited weapons is cluster munitions, the use of which in densely populated areas is banned under the Convention on Cluster Munitions. These weapons were used by Armenians against civilians in Ganja, Barda, and other settlements, causing mass casualties.

How are Armenia’s acts of vandalism against Azerbaijan’s cultural, historical, and religious monuments reflected in international law?
Under Hague law, all possible measures must be taken to protect cultural monuments and medical facilities. These requirements are also reflected in another international legal instrument, the Convention for the Protection of Cultural Property in the Event of Armed Conflict. Serious violations by Armenians must also be noted in this area. In the occupied territories of Azerbaijan, Armenians destroyed almost all historical and religious monuments or desecrated mosques by keeping pigs inside them. Moreover, not only in the occupied territories but also during armed attacks on other Azerbaijani regions, Armenians caused damage to more than 20 religious sites and historical monuments during the six-week war.

In what forms can Armenia’s international legal responsibility be realised?
International legal responsibility is an absolute responsibility and refers to the obligation of a subject of international law to eliminate and compensate for damage caused by the violation of an international legal obligation against another equal subject. Armenia has incurred responsibility in the forms of reparation, restitution, compensation, and satisfaction for crimes committed against Azerbaijan. These forms may be both material and non-material.

Reparation is the process by which the defeated party compensates the victorious party for damage caused during military operations. Restitution refers to restoring the situation to the state that existed before the crime was committed, such as the release of unlawfully detained persons or the return of seized property. Compensation refers to the payment of material funds for material or moral damage and is the most commonly used form of redress in modern international law. Satisfaction includes a public apology by the offending party and commitments not to repeat similar actions.

What can be said about practical examples of international legal responsibility in world practice?
Reparations were first imposed after the First World War. In 1919, the Treaty of Versailles was signed, determining the responsibility of Germany and its allies and setting compensation at 269 billion gold marks, equivalent to approximately 100,000 tonnes of gold.

After the Second World War, reparations were again imposed on Germany and its allies, as decided at the Yalta Conference in 1945. As a result, Germany transferred to the USSR approximately 400,000 railway wagons of goods, equipment from 2,885 factories, equipment from 96 power plants, 340,000 vehicles, 200,000 electric motors, 1,335,000 head of livestock, 2.3 million tonnes of grain, one million tonnes of potatoes and vegetables, half a million tonnes of oil and sugar, 20 million litres of alcohol, and 16 tonnes of tobacco. In addition, telescopes from the Humboldt University astronomical observatory, Berlin metro cars, cruise liners, and other technological equipment were transferred as reparations. Germany also paid reparations to other countries in stages.

Another example is the reparations determined following the conflict between Japan and Indonesia. Under the peace and compensation agreement signed on 20 January 1958, Japan was obliged to pay Indonesia USD 223 million over a period of 12 years.

Furthermore, the United Nations imposed compensation obligations on Iraq for the damage and losses caused by its illegal occupation of Kuwait in 1990–1991, and the United Nations Compensation Commission was established to ensure payment.

How will the mechanism for holding Armenia accountable for crimes committed against Azerbaijan operate?
Accountability at the international level is also reflected in the Criminal Code of the Republic of Azerbaijan. Accordingly, holding Armenians accountable for crimes committed against Azerbaijan can be carried out both under international law and on the basis of domestic legislation. Under domestic law, persons held responsible for crimes may be placed on international wanted lists, detained by the competent authorities of the country in which they are located, transferred to investigative bodies, and tried by the courts of the Republic of Azerbaijan. Where this is not possible, resolution through international law and international courts may be considered.

Responsibility for international crimes was first defined in Azerbaijan’s Criminal Code in 1999. Under Article 10 of the Criminal Code, the criminality of an act and the punishment for it are determined by the criminal law in force at the time the act was committed, meaning that retroactive application of criminal law is prohibited. Crimes against peace and humanity and war crimes committed after that date may be prosecuted by domestic courts.

The Prosecutor General’s Office of the Republic of Azerbaijan has demonstrated systematic and commendable activity in this field.

As noted, crimes committed by Armenians constitute international crimes and are subject to universal jurisdiction. This means that other states, relying on their domestic legislation, may prosecute and try persons who committed international crimes in Azerbaijan. The practice of Denmark, Germany, and some other states in recent years, where individuals responsible for crimes against humanity and war crimes committed in Yugoslavia and Rwanda were prosecuted on the basis of universal jurisdiction, can be cited as examples.

What other forms of international accountability can be used?
Ad hoc tribunals may be established. Such bodies are created temporarily to address a specific conflict and to hold the accused party accountable. These tribunals may be established by decisions of the UN General Assembly upon the initiative of the UN Security Council or the UN Secretary-General. Examples include ad hoc tribunals for Yugoslavia, Rwanda, Lebanon, and Sierra Leone.

The International Criminal Court (ICC), operating under the Rome Statute ratified by 124 countries, ensures accountability for crimes committed at the international level. The ICC currently covers three categories of crimes: genocide, war crimes, and crimes against humanity. Since the Court cannot exercise jurisdiction over crimes committed before the entry into force of the Rome Statute, atrocities committed by Armenians during the First Karabakh War, although falling under all three categories, could not be brought before the Court. However, violations of international law committed by the enemy during the Patriotic War for the liberation of Karabakh may be referred to the ICC through the United Nations.

How can compensation from Armenia be claimed?
The United Nations Compensation Commission (UNCC) was established in 1991 pursuant to UN Security Council Resolution 687 to ensure compensation for damage caused by Iraq’s illegal occupation of Kuwait in 1990–1991. To date, compensation amounting to USD 350 billion has been paid in response to 2.7 million claims. The Commission regulates compensation under six categories of claims.

The International Court of Justice, as the principal judicial organ of the United Nations, is characterised by extensive judicial activity. Its main functions are the settlement of legal disputes submitted by states and the provision of advisory opinions on legal questions submitted by duly authorised international bodies and agencies.

The European Court of Human Rights, established under the Convention for the Protection of Human Rights and Fundamental Freedoms, is accessible to citizens of states that have ratified the Convention. Protection under the Convention applies to relations between individuals and public authorities. Thus, any Azerbaijani citizen who has suffered damage may bring a complaint against the Armenian state in this manner. Activities in this direction have already begun.

What work is being carried out to assess the damage caused by Armenia?
Two methods may be used to measure damage caused by conflicts. The first is the assessment of direct damage, which evaluates the real value of damage to destroyed infrastructure. The second is indirect damage, which assesses lost opportunities and additional benefits foregone as a result of infrastructure destruction.

Impact assessment methodologies have also been applied in various conflicts. For example, in 2019 the United Nations Development Programme conducted an impact assessment in Yemen based on a results-oriented methodology. Another assessment, carried out by the World Bank in Iraq in 2018, identified needs for assessing war damage and reconstructing infrastructure systems. This assessment evaluated damage to infrastructure destroyed by the ISIS terrorist organisation across social, production, utilities, housing, tourism, transport, state facilities, ecology, and other sectors.

To ensure the assessment and elimination of damage inflicted by Armenia on the civilian population, state property, infrastructure facilities, and business entities on the territory of Azerbaijan since 27 September 2020, a State Commission has been established.