Groningen Journal of International Law

International Law Under Construction

The Potential of Common Article 1 to the Geneva Conventions in the Nagorno-Karabakh Conflict (and Beyond)

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Kilian Roithmaier

Introduction

Since the end of the Nagorno-Karabakh War in 1994, Armenia and Azerbaijan have remained in dispute over the Nagorno-Karabakh region that is internationally considered to be part of Azerbaijan and occupied by Armenia. The conflict has triggered occasional fighting in the past, but the most recent and intense round of hostilities erupted after Azerbaijan commenced a military offensive on 27 September 2020. On 9 November 2020, Armenia and Azerbaijan concluded a ceasefire agreement brokered by Russia. Whether the truce, despite reported violations, will hold and resolve the decades-old dispute, remains yet to be seen.

The conflict has brought to the surface a variety of questions under international law, such as the status of Nagorno-Karabakh (see here), the lawfulness of Azerbaijanian self-defense (see here and here), and the implications of the ceasefire agreement (see here and here). Of no lesser concern are the allegations of widespread violations of international humanitarian law (IHL) by both sides of the conflict. Armenia and Azerbaijan have been accused of using indiscriminate weapons, killing civilians, and destroying civilian infrastructure. In response, the international community called on Armenia and Azerbaijan to respect IHL in their military operations. However, under Common Article 1 to the Geneva Conventions (CA 1), the obligation to ensure respect for IHL may also extend to third States, in particular those that maintain close relations with belligerent parties. This post will explore the potential of CA 1 to ensure respect for IHL in complex conflict situations through the influence of third States in the context of the Nagorno-Karabakh conflict.

Obligations of Third States under Common Article 1 to the Geneva Conventions

CA 1 reads: “The High Contracting Parties undertake to respect and to ensure respect for the present Convention in all circumstances.” Uncontroversially, the provision sets forth internal obligations for States to ensure respect for IHL by their organs and people, in particular their armed forces. In its 1986 Nicaragua Judgment, the International Court of Justice (ICJ) complemented CA 1 with an external negative dimension. It held that the terms of CA 1 impose an obligation on States “not to encourage [parties to an armed conflict] to act in violation of the provisions of [IHL]” (para 220).

More controversially, in its 2004 Wall Advisory Opinion, the ICJ held that CA 1 also contained an external positive obligation to stop and prevent violations of IHL: “[E]very State party to [the Geneva Conventions], whether or not it is a party to a specific conflict, is under an obligation to ensure that the requirements of the instruments in question [i.e., the Geneva Conventions] are complied with” (para 158). Embracing this interpretation, the International Committee of the Red Cross (ICRC), in its 2020 Commentary to the Third Geneva Convention qualifies the external positive dimension of CA 1 as a due diligence obligation (i.e., an obligation of means, not result). As such, third States are obliged to use all means that are “reasonably in their power” to stop violations of IHL and prevent future violations, especially where there is an expectation of such based on past patterns (paras 198, 195; for a non-exhaustive list of possible measures, see paras 214-216). The degree and extent of the obligation thereby depend “on the specific circumstances, including the gravity of the breach, the means reasonably available to the State, and the degree of influence it exercises over those responsible for the breach” (para 198). Hence, the obligation operates as a “sliding scale”: its scope depends in particular on States’ ties with belligerent parties (e.g., diplomatic or economic) and their proximity to the conduct of hostilities (e.g., in partnered warfare or by the supply of relevant intelligence or arms).

It should be noted, however, that this view has not remained free from criticism. In his separate opinion to the 2004 Wall Advisory Opinion, Judge Kooijmans doubted that the Court’s interpretation was “correct as a statement of positive law” (para 50). It has also been rejected by legal scholars (see, e.g., here and here) and States (e.g., the United States, which, however, accepts an external positive dimension of CA 1 as a matter of policy; see here, p 12).

Though the debate on the exact scope of CA 1 is ongoing, it appears justified, in particular in respect of the object and purpose of CA 1 and IHL more broadly as well as subsequent State practice (see for this ICRC Commentary, para 204; see also here), to subscribe to the conclusion that CA 1 also contains an external positive dimension as a matter of positive law (or at the very least as a matter of policy). Rather than denying this dimension altogether, the more appropriate view is to make the existence and degree of a particular State’s external positive obligation dependent on a consequent application of the described due diligence standard (i.e., whether that State can be reasonably expected to influence the conduct of another State).

The Nagorno-Karabakh Conflict and the Involvement of Third States

In order to assess third States’ obligations under CA 1 in the Nagorno-Karabakh conflict, it is, therefore, necessary to determine which States can be said to have sufficiently close ties with the belligerent parties to reasonably enable them to ensure respect for IHL. A detailed inquiry into the role of all conceivable third States lies beyond the scope of this post. However, four States may be mentioned here: Turkey has repeatedly supported Azerbaijan politically, with the supply of arms and military equipment (see also here, p 6), and allegedly by transferring military personnel and mercenaries into the region during the hostilities; Russia, while considered to be politically aligned with Armenia and being its main supplier of military equipment, has also sold weapons to Azerbaijan (see here, pp 6, 10) and brokered the 2020 ceasefire agreement under which it will deploy 1,960 personnel as a peacekeeping force along the armistice line; Israel has been Azerbaijan’s main supplier of arms (see here, pp 6, 10); and Iran, while officially taking a neutral position, is considered a close(geo-)political partner of Armenia.

Common Article 1 in the Nagorno-Karabakh Conflict

Having established relevant third States for the purpose of CA 1 in the Nagorno-Karabakh conflict, the remainder of this post shall inquire into the specific obligations that CA 1 imposes on them. This inquiry is not meant to be exhaustive, but rather to illustrate the relevance of CA 1 in such complex conflict situations. As pointed out, the extent of the external positive obligation under CA 1 depends on (1) the gravity of the breach, (2) the means available to, and (3) the degree of influence exercised by the respective third State. Regarding the gravity of the alleged breaches, there can be little doubt that they amount to serious violations of IHL. Under points 2 and 3, the extent of an external positive obligation depends on a third State’s proximity to the actual conduct of hostilities as well as its degree of influence over a belligerent party (i.e., for the ‘sliding scale’ character of the obligation).

As such, positive obligations of suppliers of military equipment go beyond the obligations of sole political partners. This is because the supply of arms directly enhances the capabilities of a belligerent party to conduct military operations. As a result, weapon-supplying States also bear a particularly strong obligation to ensure respect for IHL because in such cases, the positive obligation under CA 1 “is closely related to the negative duty neither to encourage nor to aid or assist in violations of the Conventions” (ICRC Commentary, para 200). Existing and potential future arms deals also place States in a “unique position to influence” the conduct of a belligerent party (ibid). Therefore, as long as hostilities are ongoing or as long as there is a reasonable risk of them resurfacing (which, arguably, is the case here, even after the conclusion of the ceasefire agreement), States should make any transfer of military equipment to either Armenia or Azerbaijan dependent on assurances (diplomatic or otherwise) that they will not be used in violation of IHL. Insofar as such guarantees are unreliable, insufficient, or refused, States must withhold arms transfers. Given the allegations of a widespread pattern of IHL violations by Armenia and Azerbaijan between 27 September and 9 November 2020, this obligation also applies to future arms sales. As regards past transfers of military equipment, States should be obliged to scrutinize whether their equipment has been used in serious violations of IHL. Where this is the case, they should be required to exert (public or confidential) pressure on the belligerent parties to investigate and prosecute perpetrators nationally or internationally.

An obligation that applies to both weapons-supplying States and sole political partners is to exert diplomatic pressure, publicly or confidentially, on Armenia and/or Azerbaijan to respect IHL in all circumstances. Third States could also offer their assistance for investigations into past violations of IHL and programs to prevent future IHL violations (e.g., through training and legal assistance) or refer the case(s) to regional and international bodies (in particular the United Nations General Assembly and Security Council or the ICJ). Should these measures prove inadequate or insufficient, and given the widespread pattern of IHL violations, third States should, where this is lawful under general international law, make the renewal or conclusion of trade and other agreements as well as the granting of comparable privileges dependent on assurances of respect for IHL.

Finally, Russia’s facilitation of the ceasefire agreement and the employment of peacekeeping personnel may also constitute a means to ensure respect for IHL under CA 1. While not included in the list of possible measures in the ICRC Commentary and not directly aimed at improving “compliance with the Conventions” (para 215; emphasis added), a ceasefire ends and potentially prevents future active hostilities. Though the agreement did not establish a procedure to investigate alleged past violations of IHL, it can reduce the likeliness of future violations. As such, it fulfils at least the preventive aspect of the external positive obligation under CA 1.

Conclusion

This post attempted to serve as a reminder of the potential of CA 1 in complex conflict situations such as the Nagorno-Karabakh conflict. Belligerent parties frequently rely on the material and political support of other States. These States are thus in a powerful position to exert pressure on belligerent parties to respect IHL. It is precisely this position that the external obligation under CA 1 seeks to engage. Consequently, CA 1 can play an important role in preventing, bringing to an end, and penalizing violations of IHL. And while (some) States remain reluctant to accept this dimension of CA 1 as legally binding, they might, at least, embrace it as a matter of policy. Either way, CA 1 is a useful tool to ensure respect for IHL in the Nagorno-Karabakh conflict and beyond.

Kilian Roithmaier, LL.M. is a PhD Candidate in the Transboundary Legal Studies department at the University of Groningen. The working title of his research project is “Ensuring Respect for International Humanitarian Law in Proxy Wars: Towards a Complementary Legal Framework for the Regulation of State Support to Non-State Armed Groups”. Before joining the University of Groningen, he worked as a Junior Researcher at the T.M.C. Asser Institute, where he conducted fundamental as well as policy-oriented research on armed conflicts, international humanitarian law, and (counter)terrorism. He obtained his LL.M. in public international law from the University of Amsterdam.

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