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Armenia and Azerbaijan's Struggle with Occupation in Nagorno-Karabakh Carolyn Morway

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Armenia and Azerbaijan's Struggle with Occupation in Nagorno-Karabakh Carolyn Morway Brooklyn Journal of International Law Volume 44 | Issue 1 Article 11 12-31-2018 Armenia and Azerbaijan's Struggle with Occupation in Nagorno-Karabakh Carolyn Morway Follow this and additional works at: https://brooklynworks.brooklaw.edu/bjil Part of the Civil Rights and Discrimination Commons, Comparative and Foreign Law Commons, European Law Commons, Human Rights Law Commons, International Humanitarian Law Commons, International Law Commons, Law and Politics Commons, Military, War, and Peace Commons, Other Law Commons, and the Transnational Law Commons Recommended Citation Carolyn Morway, Armenia and Azerbaijan's Struggle with Occupation in Nagorno-Karabakh, 44 Brook. J. Int'l L. 448 (2018). Available at: https://brooklynworks.brooklaw.edu/bjil/vol44/iss1/11 This Note is brought to you for free and open access by the Law Journals at BrooklynWorks. It has been accepted for inclusion in Brooklyn Journal of International Law by an authorized editor of BrooklynWorks. ARMENIA AND AZERBAIJANS STRUGGLE WITH OCCUPATION IN NAGORNO-KARABAKH 2018]Armenia and Azerbaijan's Struggle with Occupation 449 INTRODUCTION or over a quarter of a century, tense ceasefire, punctuated Fby bloody violence,1 has entrenched South Caucasus neigh- bors Armenia2 and Azerbaijan3 in a “frozen conflict” over Na- gorno-Karabakh.4 Armenia’s occupation of Nagorno-Karabakh5 1. Nagorno-Karabakh Profile, BBC (Apr. 6, 2016), http://www.bbc.com/news/world-europe-18270325 (describing the recent vio- lence in Nagorno-Karabakh as beginning “[i]n 1988, towards the end of Soviet rule,” when Azerbaijan and Armenia started “a bloody war which left the de facto independent state in the hands of ethnic Armenians when a truce was signed in 1994. Both sides have had soldiers killed in sporadic breaches of the ceasefire.”). 2. The World Factbook: Armenia, C.I.A. (Aug. 20, 2018), https://www.cia.gov/library/publications/resources/the-world- factbook/geos/am.html. 3. The World Factbook: Azerbaijan, C.I.A. (Aug. 20, 2018), https://www.cia.gov/library/publications/the-world-factbook/geos/aj.html. 4. Emily Tamkin, Azerbaijan’s President Calls for Renewed Nagorno- Karabakh Talks. It’s Not That Simple., FOREIGN POL’Y (Mar. 15, 2017), http://foreignpolicy.com/2017/03/15/azerbaijans-president-calls-for-renewed- nagorno-karabakh-talks-its-not-that-simple/ (defining a frozen conflict as “one in which both sides are at a tense but calm standstill.” However, Nagorno Karabakh’s Ombudsman for Human Rights stated that the conflict is “not fro- zen,’ . [noting that] in the past 10 months . 20 soldiers from the Nagorno Karabakh side were killed, and 95 were wounded. He said he knew that the Azeri side suffered losses, as well.”); Alan Hope, United Nations at Crossroads, TREND NEWS AGENCY (Sept. 19, 2017), https://en.trend.az/world/other/2798457.html (disparaging the U.N. as “an overstaffed well-oiled bureaucratic machine” unable to resolve the “frozen con- flicts in Nagorno Karabakh”); What Were US Legislators Doing Paying an Ille- gal Visit to Nagorno-Karabakh? Eurasia Crossroads, TREND NEWS AGENCY (Dec. 19, 2017), https://en.trend.az/azerbaijan/2837801.html (“Nagorno- Karabakh is the breakaway province of Azerbaijan which has been stuck in limbo a so-called frozen conflict since just after the collapse of the Soviet Union.”); cf. LAURENCE BROERS, THE NAGORNY KARABAKH CONFLICT: DEFAULTING TO WAR 3 (Chatham House 2016), available at https://www.chathamhouse.org/publication/nagorny-karabakh-conflict-de- faulting-war (“[I]noculated by the language of frozen conflict’, regional and global powers have overlooked a dispute that could embroil them all in a major new war.”); but see Karabakh Conflict Is Not Frozen, French Ambassador Says, ARKA NEWS AGENCY (Dec. 12, 2017), http://arka.am/en/news/poli- tics/karabakh_conflict_is_not_frozen_french_ambassador_says/ (quoting Jona- than Lacôte, French Ambassador to Armenia, as finding it “hard to include the Nagorno-Karabakh conflict among the frozen’ conflicts” because of the reflec- tion of the conflict among the public and the continuing fighting, “add[ing] that 57 soldiers have died at the line of contact since the beginning of 2017.”). 450 BROOK. J. INT’L L. [Vol. 44:1 is far from successful,6 and the destructive disorder in the con- tested region stands in disturbing juxtaposition with the inter- national law of occupation, which is “primarily motivated by hu- manitarian considerations.”7 According to Article 42 of the 1907 Hague Regulations, a “territory is considered occupied when it is actually placed under the authority of the hostile army. The occupation extends only to the territory where such authority has been established and can be exercised.”8 The international law of occupation still applies in situations of partial territorial occupation, and even if the occupier “meets with no armed re- sistance.”9 Under the 1949 Fourth Geneva Convention Relative to the Protection of Civilian Persons in Time of War (“Fourth Geneva Convention”) and its Additional Protocol I, an occupier 5. Eugene Kontorovich, Symposium on Occupation Law: The Necessary Non-Normativity and Temporal Indeterminacy of Occupation Law, OPINIO JURIS (Aug. 30, 2017), http://opiniojuris.org/2017/08/30/the-necessary-non-nor- mativity-and-temporal-indeterminacy-of-occupation-law/ (“International law . regards Armenian control [of Nagorno-Karabakh] as an occupation. .”); see also NONA MIKHELIDZE & NICOLETTA PIROZZI, CIVIL SOCIETY AND CONFLICT TRANSFORMATION IN ABKHAZIA, ISRAEL/PALESTINE, NAGORNO-KARABAKH, TRANSNISTRIA AND WESTERN SAHARA, MICROCON 16 (2008), available at https://ssrn.com/abstract=1307808 (“The long lasting ethno-political conflict between Azerbaijan and Armenia . resulted in the Armenian occupation of about 20% of Azerbaijan’s territory, including Nagorno-Karabakh and seven adjacent districts. .”). 6. David M. Edelstein, Occupational Hazards: Why Military Occupations Succeed or Fail, 29 INT’L SECURITY 49, 4951 (2004), https://muse.jhu.edu/arti- cle/171547 (arguing that a successful occupation “secure[s] the interests of the occupying power and prevent[s] the occupied territory from becoming a source of instability,” while recognizing that “[d]espite relatively successful military occupations of Germany and Japan after World War II, careful examination indicates that unusual geopolitical circumstances were the keys to success in those two cases, and historically military occupations fail more often than they succeed.”). 7. Occupation and International Humanitarian Law: Questions and An- swers, INT’L COMM. RED CROSS (Aug. 4, 2004), https://www.icrc.org/eng/re- sources/documents/misc/634kfc.htm (emphasis added). 8. Convention (IV) Respecting the Laws and Customs of War on Land art. 42, Oct. 18, 1907, 36 Stat. 2277, available at https://ihl-databases.icrc.org/ap- plic/ihl/ihl.nsf/Article.xsp?action=openDocument&documen- tId=3741EAB8E36E9274C12563CD00516894 [hereinafter 1907 Hague Regu- lations]. 9. Geneva Convention Relative to the Protection of Civilian Persons in Time of War art. 49, Aug. 12, 1949, 6 U.S.T. 3516, 75 U.N.T.S. 287, available at https://ihl-databases.icrc.org/ihl/INTRO/380 [hereinafter Geneva Conven- tion]. 2018]Armenia and Azerbaijan's Struggle with Occupation 451 has the duty to implement humanitarian safeguards to protect the welfare of the occupied people.10 Unfortunately, the Nagorno-Karabakh occupation is plagued by the question of whether the international law of occupation even applies.11 This uncertainty underlies a corrupt occupation12 permitting international human rights violations in and around 10. See Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol I), June 8, 1977, 1125 U.N.T.S. 3, available at https://www.icrc.org/eng/resources/documents/misc/additional-protocols- 1977.htm [hereinafter Protocol I]. 11. Kontorovich, supra note 5 (observing, first, that the non-enforcement “of occupation law by the international community almost entirely exempts” Na- gorno-Karabakh from the international law of occupation, and second, that Ar- menia views its “control as an exercise of the self-determination of the Karabakh population”not as an occupationalthough international law re- jects this argument); see also Thomas De Waal, Solve the Nagorno-Karabakh Conflict Before It Explodes, N.Y. TIMES (Apr. 7, 2016), https://www.ny- times.com/2016/04/08/opinion/solve-the-nagorno-karabakh-conflict-before-it- explodes.html (explaining that international inaction is based on a “hope among the international community . that the problem can be left alone.”). 12. Corrupt occupation is the author’s term and is intended to be more of a critique of the international law of occupation and less of the state actors. In the case of Nagorno-Karabakh, Armenia does not view its control as an occu- pation of the territory and its people; relying on the 1991 referendum and sub- sequent creation of Nagorno-Karabakh’s central government, it considers the territory to be independent, including from the sovereignty of either Armenia and Azerbaijan. See Nagorno-Karabakh: A Plan for Peace, INT’L CRISIS GROUP 35 (Oct. 11, 2005), https://www.crisisgroup.org/europe-central-asia/cauca- sus/nagorno-karabakh-azerbaijan/nagorno-karabakh-plan-peace. Conversely, Azerbaijan considers Armenia to be acting illegally in its occupation of Na- gorno-Karabakh. See Press Release, General Assembly, General Assembly Adopts Resolution Reaffirming Territorial Integrity of Azerbaijan, Demanding Withdrawal
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