Why Are There No Armenians in Nagorno-Karabakh? International and Armenian human rights organizations publish joint report

BRUSSELS, NOVEMBER 11, ARMENPRESS. Through an international fact-finding effort that included hundreds of witness interviews and open-source data, authors of the Why Are There No Armenians in Nagorno-Karabakh? Special Report concluded that the forced displacement of the Nagorno-Karabakh Armenians in 2023 constitutes ethnic cleansing and the perpetrators must be held accountable.

The fact-finding report was jointly prepared by Freedom House, International Partnership for Human Rights (IPHR), a Ukrainian organization specializing in investigating international crimes and several Armenian and leading human rights organizations.

Armenpress Brussels correspondent Lilit Gasparyan spoke with Simon Papuashvili, IPHR’s Director for South Caucasus. 

Papuashvili, touching upon the process of preparing the report, the conclusions and their next steps, said that they plan to apply to the International Criminal Court based on the gathered evidence, with a request to hold the perpetrators to account. Papuashvili gave a detailed explanation on the instruments through which it is possible to hold accountable in the international justice system the Azerbaijani leader and others involved in crimes against the Armenians of Nagorno-Karabakh.

Along with Freedom House and many other organizations, your organization prepared a fact-finding report. How and why have you decided to realize the report "Why are there no Armenians in Nagorno-Karabakh?" 

I represent “International Partnership For Human Rights” (IPHR), which is an international NGO headquartered in Brussels and we have regional offices in Georgia and Ukraine. We work across Eastern Europe, Russia, the South Caucasus and Central Asia. So, this is our target region and as an organization, our mandate is to support local human rights groups and organizations in fulfilling their mandate. We have long-established partnerships with several leading Armenian civil society organizations with whom we have been working for over a decade now. 

We have been asked to conduct a project that would investigate international crimes that were committed in the context of the 2020 war, which we did. And then we have been monitoring the situation after the ceasefire agreement was signed and occasionally gathering evidence of large-scale clashes that happened in the period of the ceasefire. We organized one fact-finding mission in October 2022 to document crimes that Azerbaijani forces perpetrated within Armenian borders in September 2020. Then we have also been monitoring the impact of the Lachin Corridor blockade on the population of Nagorno Karabakh. When the Azerbaijani takeover happened on the 19th of September 2023 our Armenian partners reached out to us and asked us to help them investigate what was happening in terms of displacement, forced displacement of population from Nagorno Karabakh. We sat down with our partners and helped them develop a methodology to investigate forced displacement or ethnic cleansing. We have also helped to train about 25 Armenian civil society representatives who have been working since November last year to interview persons who were displaced from Nagorno Karabakh. 

Around 6 organizations were involved in this documentation project, including my organization, Freedom House, and a Ukrainian organization specializing in the investigation of international crimes, plus several Armenian and leading human rights organizations. Over 300 interviews were conducted with the persons displaced from Artsakh. And we have in parallel also been collecting open-source information, more specifically, information about the destruction of Armenian cultural heritage in Artsakh using satellite imagery analysis. We have been gathering also what we call linkage evidence or evidence. That helps us determine which Azerbaijani units were involved in different times that we have been investigating to understand their common structure and to do what we lawyers call attribution. So, attribution of crimes to particular persons. Based on the evidence that we have examined, we can conclude that the events in question amount to a crime against humanity or possible displacement of the civilian population. 

The report calls what happened to Artsakh Armenians ethnic cleansing and considers the issue in the legal framework, especially from the point of view of international criminal, human, and humanitarian law perspectives. What are the conclusions you reached while preparing this report?

We have documented several systemic and gross human rights abuses and international crimes, including extrajudicial killings, torture, or displacement crime, of course, displacement, destruction of cultural objects, and destruction of property. These were the key crimes that we have documented. What is important to note is that these crimes were widespread, systematic, and part of the state policy of Azerbaijan which was intended to cleanse the entire territory from ethnic Armenians. 

Our investigation was not focusing just on what happened on the 19th of September or what happened in the days following, but also, we have taken into consideration how numerous ceasefire violations and numerous incidents have been happening throughout 2020, 2021, and 2022, have affected the sense of security of the population of Artsakh.

If you, for example, look into the elements of crimes under Article 7 of the Rome Statute of the International Criminal Court, it talks about the creation of a forcing environment as one of the elements. So again, based on the evidence that we have and based on hundreds of conversations that we had with displaced persons, we saw that people staying in Artsakh since 2020 did not feel secure and their sense of insecurity was a result of multiple acts of violence and affects their daily life, especially during the blockade. Everything, from the lack of medication to the feeling of isolation, contributed to that feeling, and then actually after the military operation on 19 September 2023 essentially did not leave any other choice to ethnic Armenians living in Nagorno Karabakh but to flee. And then we also looked into how this process of displacement happened and how it affected people. Our conclusion is that we're indeed dealing with ethnic cleansing. 

While talking about ethnic cleansing, the next step for sure should be accountability. The report clearly shows that Azerbaijan depopulated Nagorno Karabakh in a planned manner and with intention. What is the toolkit with which Azerbaijan can be held accountable? 

When we were designing this project or the documentation project, one of the reasons why we did it was to create historical memory, but that was not the primary purpose. We also wanted to initiate and engage with certain legal strategies that can help us close the impunity gap, which is very persistent, and also to find ways creatively to facilitate access to justice for ethnic Armenians who have been forced out of their land and to facilitate the reparations. We have identified a number of legal instruments and mechanisms to this end. 

One such instrument is the European Court of Human Rights. However, my organization is not involved in this because many skilled Armenian organizations are working with them to build and litigate cases before the European Court and also the Armenian government has brought a case against Azerbaijan to the European courts. But we are focusing more on individual criminal responsibility, so relying on the International Criminal Court, and to this end, we are considering pursuing opportunities that Armenia’s ratification of the Rome Statute is opening to us. So, we are currently in the process of preparing so-called Article 15 communications to the International Criminal Court, one of those communications will relate to multiple ceasefire violations that have been accompanied by war crimes committed by Azerbaijan within Armenia itself, and then our second communication is focusing on the forced transfer, or ethnic cleansing that has taken place since 19 September 2023. We intend to demonstrate to the office of the Prosecutor of the International Criminal Court that these crimes that we have investigated are all within the jurisdiction of this Court and that it is in the interest of justice to open an investigation and prosecute those persons who are responsible for these crimes, because of their gravity and because of their scale. To make this happen and also to increase the chances or likelihood that the Court actually investigates, we are also talking to different countries that are parties to the Rome Statutes, mostly European countries but not only, to encourage them to make this so-called “State Party Referral”, which is one of the ways to trigger an investigation by the ICC. For example, this was done by over 40 countries in early 2022, when Russia unleashed a full-scale war against Ukraine. This could be done now by one or several countries that are interested in supporting our cause of closing the impunity gap. 

The other tool that we are considering pursuing is the so-called “Universal Jurisdiction Litigation”; what does ‘universal jurisdiction’ mean? It's a legal concept under which a country can prosecute an individual despite the nationality of this individual or despite where the crime has been committed. So, the idea is that some crimes are so serious by their nature that it is the obligation of civilized countries to prosecute those crimes. This is a legal concept that is quite well developed and has existed already for decades, and most European countries have possibilities under their criminal legislation to initiate investigations about events like the ones that are taking place in Artsakh. So, typically these are war crimes, crimes against humanity or crimes of genocide, and also crimes of torture and forced disappearances that are subject to Universal Jurisdiction Litigation. As we gather more evidence about perpetrators that we can link with the crimes that we have investigated, we intend to build cases against these perpetrators in different European countries. Our targets will be the Head of State of Azerbaijan, as well as other senior Azerbaijani officials or who we can link with the crimes in question and who have been involved either in conceiving, ordering, or actually perpetrating these crimes. Universal Jurisdiction can be also used to enable reparations for the victims. As you probably know, the corrupt political elite of Azerbaijan invests stolen money in what they consider safe jurisdictions —which are mostly European jurisdictions—, so this money is kept in different types of assets including property, but also company shares and other holdings. We are now in the process of mapping out where these assets might be and we intend to initiate multiple criminal cases in different European jurisdictions, where we are hoping to have perpetrators convicted and also hoping that victims can be compensated using these accounts and assets. 

And then the third quasi-legal mechanism that we intend to pursue is targeted sanctions. So, in the US it can be the Magnitsky Global Act, in the EU, it could be the Global Human Rights Sanctions Regime. The UK has its own sanctions regime. Once we have completed our evidence packages, we will be asking these different countries or blocks of countries to sanction perpetrators that we have identified. We're using all available legal and quasi-legal avenues to seek accountability for these gross human rights abuses. We're hoping that one or several of those strategies will bring the results and the results will be putting names to things, identifying perpetrators, and then also facilitating reparations for the victims. 

Talking about legal obligations, that is possible and effective when it comes to countries or leaders who respect them. Contrary to many decisions of international courts, Azerbaijan continues its anti-Armenian and hateful, aggressive rhetoric and policy. How, or in general, is it possible to force official Baku to respect these decisions and the rights of Artsakh Armenians?

Sure, there are limitations when it comes to the enforcement of international law, and these limitations are more evident when you are dealing with certain legal mechanisms like the ICJ (International Court of Justice) or the European Court of Human Rights, where they do not deal with individuals’ or the perpetrators' criminal liability, but they deal with the state's responsibility. For example, when the European Court of Human Rights fines violations and asks the country to pay compensation to the victims, this money comes not from the pockets of the perpetrators, but it comes from the pockets of the taxpayers. It's paid from the state budgets. The impact of this is much more limited, but the accountability avenues that I have described are about individual criminal liability. So, let's say we succeed within the Universal Jurisdiction case in any of the European countries against senior Azerbaijani officials. These officials, in the best case, will not be able to travel to Europe, because if they do, then they will be arrested. 

Plus, in many European countries, we can have in absentia trials, so these individuals can be prosecuted without their presence, without their appearance before the court, and potentially be convicted without their presence. And if we can successfully obtain convictions then we can use the assets that belong to them that are here in the West, not in Azerbaijan. We can confiscate those assets and give them to the victims. The same is true also for the International Criminal Court. When it comes to the International Criminal Court, the added value of this court is that this court can potentially go after heads of state and issue arrest warrants, like it did, for example, for Putin. And now Putin will never be able to come to Europe in his lifetime, because if he comes, he will be arrested. So, these are not bulletproof solutions, but they are legal strategies that can on one hand increase the cost for the wrongdoing of authoritarian leaders like Ilham Aliyev and can help us find ways to compensate the victims. 

As you mentioned, the West didn’t hesitate for a second to activate all mechanisms against Putin and his country just after the war in Ukraine was launched. What Azerbaijan did in Nagorno Karabakh is exactly the same as what Putin is doing in Ukraine. But the reaction of the collective West is quite different, there is always a kind of hesitation when it comes to Azerbaijan. When and how can they, if of course, they can, overcome this hesitation? 

I think it's important to remember that sanctions are an inherently political tool. So, when decisions pertaining to sanctions are made, they take into consideration political, economic, and security assets. The reason why Europe and also the US were probably more committed and more prompt in terms of responding to a full-scale war of Russia against Ukraine is because they felt directly threatened. They felt that if they did not do something to constrain Russia and its ability to wage this war of aggression against Ukraine, they would be the next targets. That's why the political will among the Western political players was common. For Azerbaijan, unfortunately, you know and I agree, that if you compare the situation with Russia-Ukraine, and Azerbaijan-Armenia, Russia is three times bigger than Ukraine. So, it's Azerbaijan in comparison to Armenia. Azerbaijan's military resources are —in terms of proportional comparison— bigger compared to Armenia’s, and so are Russia's compared to Ukraine, and then, we have seen with our own eyes the brutality and cruelty of the Azerbaijan forces, including against civilian —not just military— men or women. 

Unfortunately, Azerbaijan is not perceived as a threat by European nations or by the United States, and therefore there is less of a political will to confront Azerbaijan for its crimes. In the end, in the world in which we live, human rights, the rule of law, and good governance are things that are often used as lip service, and political security, and economic considerations override these considerations. But that's why our strategy is not to rely on political tools like sanctions, because you know we have to be realistic about the likelihood of sanctions being used against Azerbaijan, but when it comes to legal tools, like for example, the International Criminal Court, they can have more predictability and although ICC is also not 100% free from political influence, but relatively speaking and with the right approach we can succeed in our efforts to use this tool to bring human rights violating perpetrators to account. 

And in the end, like every report, this report also has recommendations for all parties, how do you summarize them? What are the main steps that will permit the Armenians of Artsakh to feel a positive change will happen?

Most of our recommendations pertain to justice and accountability, and what we consider necessary is to serve justice and serving justice means investigating these crimes by competent authorities internationally. Identifying and punishing the perpetrators and enabling compensations to the victims and also ideally providing necessary conditions for the return of the displaced ethnic Armenians. The last one is probably, and unfortunately, less realistic, probably given the current political situation, and the geopolitical situation, but we still insist that from the legal point of view, persons displaced have the right to return to their homes, to their land, and to continue their life peacefully. 

Lilit Gasparyan