CONCURRING OPINION OF JUDGE HARUTYUNYAN

Although the Court has already had the opportunity to express its position on the question of effective control in Nagorno-Karabakh and surrounding territories, it is worth noting that the positions expressed in Chiragov and Others v. Armenia ([GC], no. 13216/05, ECHR 2015) are currently rather outdated in the light of recent developments and the results of the second Nagorno ‑ Karabakh war of 2020.

In Chiragov and Others , the Court held that a number of factors such as economic, financial and military ties made it possible to establish that Armenia had effective control over Nagorno ‑ Karabakh and thus should bear the responsibilities arising from its positive obligations. It is worth mentioning that the Court has underlined in its recent case-law that effective control is not equivalent to occupation within the meaning of international humanitarian law, if it is established on the basis of the Court’s own criteria that are different from those of public international law.

In the light of the events of the forty-four-day war in and around Nagorno ‑ Karabakh, the situation of effective control fundamentally changed and the conclusions of the previous case-law of the Court are no longer valid. After the tripartite ceasefire statement [1] of 9 November 2020 imposed on Armenia (which gave rise to major international and constitutional law concerns), the effective control of Nagorno-Karabakh and seven surrounding regions was divided between two member States of the Council of Europe – Russia and Azerbaijan.

Following the 2020 Nagorno-Karabakh war, Azerbaijan gained control over the integral parts of Nagorno-Karabakh that it had seized during the fighting, including the districts of Hadrut and Shushi. It also maintained its control over four of the adjacent territories surrounding Nagorno-Karabakh that it had seized during the war, namely Qubadli, Zangilan, Jabrayil and Fuzuli, and was granted effective control of the remaining three territories of Aghdam, Lachin and Kalbajar through the tripartite ceasefire statement. The only territory whose effective control is currently not within the jurisdiction of Azerbaijan is the Lachin corridor (5 km wide) connecting Armenia to Nagorno-Karabakh. Control over the corridor is exercised by the armed forces of the Russian Federation.

The current area of Nagorno-Karabakh which was not transferred to Azerbaijan is placed under Russian “boots on the ground”. It should be recalled that the 9 November tripartite statement does not ensure an international peacekeeping mission in Nagorno-Karabakh but rather a Russian one, which was not duly agreed with the OSCE Minsk Group Co ‑ Chairs.

The Commander-in-Chief of the Russian military legion in Nagorno ‑ Karabakh is the de facto decision-maker. The Russian border guards stationed on the Armenia-Nagorno-Karabakh road through the Lachin corridor decide who can or cannot visit Nagorno-Karabakh. Many international journalists were recently refused entry to visit Nagorno-Karabakh to document post-war effects on people’s lives. [2]

The change of effective control in Nagorno-Karabakh has largely contributed to the continuing violations of the newly formed Azeri ‑ Armenian border in the Gegharkunik and Syunik regions of Armenia by Azerbaijani troops. The enforced drawing of the border taking into account GPS connections and Google Maps (an application developed by a private company) gave rise to serious condemnation by the international community. Such a practice is not based on public international law and international public order.

This behaviour by Azerbaijan has allowed Russia to increase its military influence over Armenia, by placing its military personnel in the south of Armenia. In fact, Russia is boosting its feet on the ground in Armenia as an overriding criterion for enjoying effective control over Armenia. As of 17 June 2021, Russia is planning an additional deployment of its armed forces to the Syunik and Gegharkunik regions of Armenia. [3]

The territorial changes had a direct influence on the demographic picture of the region. The second Nagorno-Karabakh war of 2020 was accompanied by the departure of tens of thousands of ethnic Armenian residents from the long-time settlements of Hadrut and Shushi in the southern part of Nagorno ‑ Karabakh, as well as from territories outside the region. [4] As the military and political control over these districts changed, the entire population of Hadrut and Shushi had to flee under constant threat to their lives and property.

The expulsion of the Armenian population from Nagorno-Karabakh and surrounding regions was accompanied by execution videos of Armenian soldiers and civilians shared via multiple social media outlets, as well as videos of the demolition of homes and destruction of the cultural and religious heritage of Armenians in Hadrut and Shushi especially. [5] [6] [7] No case has been brought in Azerbaijan against the perpetrators of those crimes against the Armenians.

Furthermore, a State-sponsored Armenophobia element has emerged in Azerbaijani society after the end of the war. The so ‑ called “Trophy Park” inaugurated in Baku by the Azerbaijani President displays Armenian military equipment taken as a trophy during the war and shows dehumanising scenes, including wax mannequins depicting dead and dying Armenian soldiers. In her strong letter of condemnation to the President of Azerbaijan, the Council of Europe Commissioner for Human Rights Dunja Mijatović stated: “This kind of display can only further intensify and strengthen long ‑ standing hostile sentiments and hate speech, and multiply and promote manifestations of intolerance.” [8] The official reply by the Office of the President of Azerbaijan, demonstrating a refusal to prevent the continued damage and human suffering caused to the Armenian population by the conflict, [9] is yet further proof that the Armenian refugees cannot count on a safe return to their homes and on having a decent life free from discrimination, inhuman and degrading treatment and threats to their lives. Therefore, as previously argued by Armenia and local Armenians, the jurisdiction of Azerbaijan is dangerous to the safety of ethnic Armenians indigenous to those lands and the Armenian cultural heritage. The element of ethnic hatred towards Armenians in Azerbaijan has also been recognised by the Court in various cases (see, for example, Makuchyan and Minasyan v. Azerbaijan and Hungary , no. 17247/13, 26 May 2020, and Saribekyan and Balyan v. Azerbaijan , no. 35746/11, 30 January 2020).

Azerbaijan has continued to hold Armenian prisoners of war, in grave violation of international humanitarian and international human rights law, despite many calls from the international community to release them. On 20 May 2021 the European Parliament condemned Azerbaijan for holding and torturing Armenian prisoners of war and other captive persons in degrading conditions since the end of the active stage of hostilities. It also called on the Government of Azerbaijan to cooperate with the European Court of Human Rights and to comply with the interim measures in place. Finally, the European Parliament demanded “the immediate and unconditional release of all Armenian prisoners, both military and civilian, detained by Azerbaijan during and after the conflict , and that Azerbaijan refrain from detaining people arbitrarily in the future”. [10]

Although there have been a number of clashes between Azerbaijani and Armenian armed forces on the new line of contact created as a result of the November ceasefire statement, reports of a targeted invasion of certain areas deep within the internationally recognised borders of Armenia emerged in early May 2021. In particular, on 12 May 2021 several hundred Azerbaijani soldiers advanced 3.5 kilometres into the international border area around Ishkhanasar in the Syunik province of Armenia around Lake Sev (Sev Lij). A similar intrusion was also halted south of the village of Verin Shorja in the Gegharkunik province, territories which were never part of Azerbaijan during the Soviet era. [11] Thus, certain territories inside Armenia are currently under the effective control of Azerbaijan. The Russian troops additionally deployed in Armenia “to protect it from external threats” did not implement their international obligations.

The international reaction to the occupation of certain strategic territories in Armenia was strong and supportive of Armenia’s territorial integrity.

On 27 May 2021 the US State Department indicated that it was concerned “by recent developments along the international border between Armenia and Azerbaijan, including the detention of several Armenian soldiers by Azerbaijani forces”. [12] Moreover, it stated: “Specifically, we call on Azerbaijan to relocate its forces to the positions they held on May 11 . We also call on Armenia to relocate its forces to the positions they held on May 11, and welcome statements of intent to this effect. These actions will de-escalate tensions and create space for a peaceful negotiation process to demarcate the border on an urgent basis. The United States is prepared to assist these efforts.”

On 14 May 2021 the President of France, Emmanuel Macron, gave a statement which read as follows: “Azerbaijani armed forces have crossed into Armenian territory. They must withdraw immediately. I say again to the Armenian people: France stands with you in solidarity and will continue to do so.” [13] On 27 May 2021 the Ministry for Europe and Foreign Affairs of France expressed “its deep concern over the increasing number of incidents seen on the border between Armenia and Azerbaijan, the latest of which was the capture of six Armenian soldiers by Azerbaijani forces during the night of May 26” and reaffirmed President Macron’s statement of 14 May. [14] On 1 June 2021 the French President again stated that “the Azerbaijani troops must leave Armenia’s sovereign territory” and called on the parties “to return to the positions held”. [15]

On 28 May 2021 the European Union External Action Service issued a statement calling for a return to the positions held before 12 May 2021. The statement read as follows: “All forces should pull back to positions held before 12 May and both sides should engage in negotiations on border delimitation and demarcation. We continue to call on Azerbaijan to release all prisoners of war and detainees without delay.” [16]

Finally, the OSCE Minsk Group Co-Chairs in a statement of 28 May 2021 called on Azerbaijan to “release ... all prisoners of war and other detainees on an all for all basis” and noted that “the use or threat of force to resolve border disputes is not acceptable”. [17]

In the light of the foregoing, the Court must develop a clearer formulation as its previous case-law on the subject of effective control in Nagorno-Karabakh and surrounding territories no longer corresponds to the present-day reality. More specifically, the Court must clarify that Armenia no longer has effective control over Nagorno ‑ Karabakh and surrounding territories. In fact, the forty-four-day war revealed two “beneficiaries” of effective control over Nagorno-Karabakh and surrounding territories: the Russian Federation for the remaining parts of Nagorno-Karabakh, the Lachin corridor and the ongoing reinforcement of its “boots on the ground” in Armenia; and Azerbaijan for all territories surrounding Nagorno ‑ Karabakh, the Shushi and Hadrut regions of Nagorno ‑ Karabakh and several parts of Armenian territory in the Syunik and Gegharkunik regions. Statements given by Russia and Azerbaijan on implementing demarcation and delimitation without the participation of the other two members of the OSCE Minsk Group Co-Chairs – France and the United States – go against the internationally recognised format for settling the Nagorno-Karabakh conflict.

[1] Kremlin, Statement by the President of the Republic of Azerbaijan, the Prime Minister of the Republic of Armenia and the President of the Russian Federation, published 10 November 2020. http://en.kremlin.ru/events/president/news/64384

[2] Reporters Without Borders, “Russian peacekeepers deny foreign reporters access to Nagorno-Karabakh”, 9 April 2021. https://rsf.org/en/news/russian-peacekeepers-deny-foreign-reporters-access-nagorno-karabakh

[3] https://mil.am/hy/news/9547

[4] Congressional Research Service, “Azerbaijan and Armenia: The Nagorno-Karabakh Conflict”, 7 January 2021, p. 15. https://fas.org/sgp/crs/row/R46651.pdf

[5] Human Rights Watch, “Azerbaijan: Armenian Prisoners of War Badly Mistreated: Investigate, Prosecute Violations; Ensure Protection of All Military Detainees”, 2 December 2020. https://www.hrw.org/news/2020/12/02/azerbaijan-armenian-prisoners-war-badly-mistreated

[6] Human Rights Watch, “Azerbaijan: Armenian POWs Abused in Custody: Investigate Abuse; Protect All Detainees”, 19 March 2021. https://www.hrw.org/news/2021/03/19/azerbaijan-armenian-pows-abused-custody

[7] Zartonk Media, “Azeris Publish Videos of their Soldiers Humiliating & Killing Two Armenian Captives, One an Elderly Civilian”, 15 October 2020. https://zartonkmedia.com/2020/10/15/azeris-publish-videos-of-their-soldiers-humiliating-killing-two-armenian-captives-one-an-elderly-civilian/

[8] Letter from the Council of Europe Commissioner for Human Rights, 27 April 2021. https://www.coe.int/en/web/commissioner/-/azerbaijan-efforts-to-deal-with-the-past-should-become-the-priority-to-ensure-reconciliation-andlasting-peace

[9] Reply of the Permanent Representative of the Republic of Azerbaijan to the Council of Europe, 20 April 2021. https://rm.coe.int/reply-of-the-azerbaijani-authorities-to-the-letter-of-the-council-of-e/1680a24413

[10] European Parliament resolution of 20 May 2021 on prisoners of war in the aftermath of the most recent conflict between Armenia and Azerbaijan (2021/2693(RSP)). https://www.europarl.europa.eu/doceo/document/TA-9-2021-0251_EN.html (emphasis added).

[11] https://mirrorspectator.com/2021/05/24/armenia-rules-out-border-demarcation-talks-until-azerbaijani-forces-pull-out-of-armenian-territory/

[12] https://www.state.gov/detention-of-armenian-soldiers/

[13] https://twitter.com/EmmanuelMacron/status/1392965873187659778

[14] https://www.diplomatie.gouv.fr/en/country-files/armenia/news/article/armenia-azerbaijan-incidents-on-the-border-between-armenia-and-azerbaijan-may

[15] https://www.rferl.org/a/france-macron-nagorno-karabakh/31284862.html

[16] https://eeas.europa.eu/headquarters/headquarters-homepage/99246/armeniaazerbaijan-statement-spokesperson-recent-developments-border_en

[17] https://www.osce.org/minsk-group/487879