Is there a three-way war?

The war over Nagorni Karabakh seems to have stopped. There are many dead - and international law falls by the wayside

Thanks to its increased military strength and with the help of Turkey, Azerbaijan has managed to retake large areas of Nagorni Karabakh and inflict a devastating defeat on Armenia. In terms of international law, the action is illegitimate.

The war over Nagorni Karabach took place on the weekend of 7/8. November a dramatic turnaround. With the capture of the second largest city, Shusha, by Azerbaijani troops, the Armenian leadership had to admit the hopelessness of the Armenian-Karabakh defense. The last civilians were evacuated from the largely destroyed capital Stepanakert before a trilateral nine-point plan was signed on November 9 to immediately halt all fighting between Armenia, Azerbaijan and Russia as mediators.

Azerbaijan is in the midst of victory, while Armenia has plunged into a deep existential crisis. In countless interviews, Azerbaijani President Aliyev justifies the reconquest of Karabakh and the neighboring areas with the right to territorial integrity. This was also stated in the UN resolutions of 1993.

So that the silence of the international community on this war does not become too unmistakable, some clarifications are necessary, which will hopefully lead to corresponding diplomatic and legal consequences:

1. Azerbaijan's claim to territorial sovereignty does not undermine the peoples' right to self-determination, which is high in international law. The Armenian people, who were granted the autonomous region of Nagorni Karabakh by the former Soviet Union as early as 1924, can refer to this (with 94 percent of the local population). The claim to self-determination is also derived from the experience of discrimination and oppression of the population under communist rule, from which the strong will and probably also the right to independence of Karabakh after the end of the Soviet Union can be derived.

In addition, Azerbaijan recognized Nagorni Karabakh as a contractual partner in the tripartite Bishkek treaty dated May 11, 1994. In April 2016, when Azerbaijan made clear its intention to retake Karabakh with military attacks, the treaty was reaffirmed. One must therefore assume that it was still valid on September 27, 2020 - the day Baku opened the war.

2. Nagorni Karabach has - although not internationally recognized - all the criteria of a de facto state. From this, rights and obligations (elected and functioning institutions, protection of the population, etc.) are derived, from which at least partial international law subjectivity can be derived. Because of this, the «Republic of Artsakh» is protected against attacks from outside by the general prohibition of violence under international law (Art. 2, UN Charter) and is authorized to defend itself (Art. 51). Well-known international law experts have commented on this (prominently Otto Luchterhandt from the University of Hamburg).

3. The massive military actions by Azerbaijan along the entire ceasefire line and partly also along the international border with Armenia have broken both the international prohibition of violence and, in particular, the 1994 ceasefire agreement. And that with full awareness of the fact that there has been a «Minsk format» with three presiding states (Russia, USA, France) since 1994, in order to peacefully regulate the claims of both sides.

Neither Azerbaijan nor Armenia have declared themselves ready, despite massive diplomatic efforts over many years, to seriously implement the “Madrid Principles” of the 2007 OSCE Ministerial Meeting, which show the exact way to a long-term peaceful solution. The failure of the negotiations so far in no way justifies a targeted and apparently long-planned military circumvention of the ban on violence. The return of the occupied Azerbaijani provinces around Nagorni Karabakh would have been possible through political negotiations.

4. Turkey is also making itself a criminal offense with its substantial support for violent acts contrary to international law as well as the transfer of regular troop units to Azerbaijan and their use against Nagorni Karabakh. Through its war rhetoric, its military activities and the illegal smuggling of mercenaries from Syria, Turkey made a significant contribution to the escalation of the war and thus to the death and displacement of many civilians. Against the background of the genocide of the Armenian people in 1915/16, one would expect particular political restraint from its Armenian neighbor Turkey, or infer a moral and legal obligation to contribute to peace in the region.

5. In the course of the intense war of aggression on the one hand and the war of defense on the other, there were obviously numerous and massive violations of humanitarian international law by both sides. In particular, the targeted attacks on civilian targets, presumably using prohibited weapon systems, presumably represent crimes against humanity and war crimes to a high degree.

6. The stationing of Russian troops for peacekeeping and stabilization, which is already in full swing due to the trilateral treaty, is not based on an internationally agreed mandate; neither on the part of the UN Security Council nor the OSCE. The unauthorized action of President Putin has reduced the "Minsk format", which was previously considered sacrosanct, to absurdity. As in other regions of the South Caucasus, this will freeze the conflict at the current level. A sustainable peace solution is likely to look different, especially since it is still unclear what Azerbaijan intends to do with the previously unconquered core area of ​​Nagorni Karabakh, which according to the treaty should remain connected with Armenia.

Yes, it was seen coming. And once again we failed to protect the people. What remains is once again a blood-soaked and deserted piece of "territory". Who will hold those responsible to account?

Günther Bächler was Special Envoy in the South Caucasus for the OSCE Chairmanship from 2016 to 2018.