By Philippe Raffi Kalfayan

Special to the Mirror-Spectator

The current coverage of recent events focuses on the war, namely its human and material losses. War is raging between the Armenian armed forces, on one side, and the Azerbaijani army, on the other, supported by Turkey as well as its hired mercenaries.

This war was announced days before it broke out. Turkey and its leader, President Recep Tayyip Erdogan, clearly incited Azerbaijan to enter the war. Some unfortunate statements and attitudes on both sides provided provocation as well. This war was predictable and predicted (see ) and human lives could have been saved. There will be time to analyze it later.

Today, however, the focal point must be the cessation of hostilities and the achievement of a final political settlement of the dispute.

The military resistance on the ground is, of course, important, but a diplomatic victory is no less so. Without legality, sovereignty is merely de facto power, the effectiveness of which only depends on the balance of power. The intervention of Turkey has changed the balance and increased dramatically the threat to the status of Karabakh Armenians or their potential forced displacement; those two offenses constitute the crime of genocide.

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The political status of Karabakh and the right of its people’s to self-determination are one century old issues. Nothing has changed: same causes and same effects.

This commentary aims to elucidate, with legal arguments, that Karabakh’s independence is the proper, immediate, well-reasoned and legally grounded remedy to put an end to this historical bloody dispute.

Armenian diplomacy for years has favored the status quo rather than new initiatives; they have maintained an obedient attitude toward the Minsk Process of the Organization for Security Cooperation in Europe (OSCE) mediating countries (Russia, France and the US) instead of advocating solutions based on reality. Now Armenia is facing a bigger challenge, one which may be out of our control.

All states and intergovernmental organizations call for the cessation of hostilities and a return to the negotiation table. If the priority is indeed to stop the bloodshed and save lives on both sides, the cease-fire would be short-lived if nothing changes in the principles of the negotiation. Those were already deadlocked before the war. They are now totally irrelevant, since even the first condition of the agreements has been violated, i.e. the peaceful process.

The existence of the United Nations’ four Security Council resolutions from 1992 to 1994 demanding the restitution of some of the occupied territories to Azerbaijan does not confer the right for that nation to use force, nor to commit flagrant violations of international humanitarian law.

Minsk Group Principles

In 1996, the OSCE member states laid out three principles as a legal basis for the peaceful settlement process: 1) territorial integrity of Armenia and Azerbaijan; 2) legal status of Nagorno-Karabakh to be based on self-determination, which confers on Nagorno-Karabakh the highest degree of self-rule within Azerbaijan; 3) guaranteed security for Nagorno-Karabakh and its population.

In November 1998, the Minsk Group proposed that the use of the Lachin Corridor by Karabakh for unimpeded communication between Karabakh and Armenia be the subject of a separate agreement. The Lachin district must remain a permanently and fully demilitarized zone.

The basis of the negotiated settlement plan is based on the principles introduced by OSCE Minsk Group in Madrid (November 2007): 1) the return of territories surrounding Nagorno-Karabakh to Azerbaijani control; 2) an interim status for Nagorno-Karabakh providing guarantees for security and self-governance; 3) a corridor linking Armenia to Nagorno-Karabakh; 4) the future determination of the final legal status of Nagorno-Karabakh through a legally binding expression of will; 5) the right of all internally displaced persons and refugees to return to their former places of residence; 6) international security guarantees that would include a peacekeeping operation.

These principles are supported by other intergovernmental organizations, which have accepted the exclusive role of the OSCE. Neither Armenia nor Azerbaijan rejected them but they interpret them differently. Indeed the reconciliation of self-determination and territorial integrity principles is quite a challenge, especially in the present dispute. I had argued in March 2019 (see that the content of the agreed plan is no longer applicable. Today, the primary condition, which is the non-use of force, is blatantly violated and hence it annihilates any chance of a compromise between the two parties and thus the whole settlement plan must be reconsidered.

Self-Determination and Secession

In terms of international law, the self-determination of peoples is conceived, outside the context of decolonization, as a process purely internal to states and respecting their territorial integrity. However, secession is a fact in the light of international law even if the sovereign state does not consent to it. Pakistan is a good example of a successful secession: it became independent against the will of India, the state to which it was attached.

Secession is also called external self-determination. International law does not provide a right to secession, except when there are violations of peremptory norms (jus cogens), but it does not prohibit it either. Even if the will of the people is determined by a popular referendum (this was the case of Quebec-Canada or Catalonia-Spain), there is only one possible scenario where “remedial secession” could be accepted as an ultimate solution: to demonstrate that the physical integrity of the people is imperiled.

Three conditions were defined by the Supreme Court of Canada (Secession of Quebec) to assess the appropriateness and applicability of this “last resort” concept: (i) failure to respect the principles of representativeness of “the people in their entirety”; (ii) flagrant violations of fundamental human rights, in particular threats against the physical integrity of persons; (iii) no possibility of a peaceful solution within the existing State structure. The remedial secession doctrine is still very much debated; some States, like Germany pleaded in favor of it in the Kosovo independence case before the International Court of Justice (ICJ 2010). The Court considered that it had not to make a decision on this issue.

Are conditions for Secession of Nagorno-Karabakh from Azerbaijan Met?

Any categorical and immediate answer to this question would be subjective. Moreover, the self-proclaimed Nagorno-Karabakh Republic has been living independently and has had all the attributes of a state for 26 years. The three criteria are therefore at odds with the current political reality. Meanwhile it is necessary for political reasons to confront the three criteria for remedial secession in the Karabakh case. It is submitted that:

  • The internal self-determination process has failed so far
  • The degree of official hatred and criminal acts has reached a no return point
  • The current war, that includes Turkey, is a concrete example of Azerbaijan’s real intentions toward the Armenians

Internal Self-Determination Process Doomed to Failure

One should not forget that it has not been established that Nagorno-Karabakh belongs to Azerbaijan. Indeed, the Constitution Act of Independent Azerbaijan (October 18, 1991) leads to an opposing conclusion. Article 2 reads: “the Republic of Azerbaijan is the heir of the Republic of Azerbaijan that existed from 28 May 1918 till 28 April 1920.” Until July 1921, the territory of Nagorno-Karabakh was claimed by both Armenia and Azerbaijan and subject already to a fierce dispute, including armed conflict and mass massacres (against Shushi Armenians in 1920). The disputed territory was attached to Azerbaijan on July 5, 1921 night after an arbitrary decision by Stalin, since the plenary session of the Caucasian Bureau of Russian Communist Party-Bolsheviks failed to get a majority vote on it.

The night before the same body had decided to “include Nagorno-Karabakh in the Armenian SSR, and to conduct a plebiscite in Nagorno-Karabakh only.” In other words, from 1918 to 1920 Nagorno-Karabakh was not considered as a territory of Azerbaijan. Hence, the independence act of 1991 does not include Nagorno-Karabakh.

It is also worth reminding that Stalin’s decision pointed to the “necessity of establishing peace between Muslims and Armenians” (…) granting it “wide regional autonomy with an administrative center of Shushi, included in the autonomous region.” It is strange to note that the Madrid Principles are using almost the same approach of “highest degree of autonomy.”

In 1923, the “Nagorno Karabakh Autonomous Oblast” (NKAO) was established. In 1977, the proceedings of the USSR Council of Ministers session (23 November 1977) includes the following: “as a result of a number of historic circumstances, Nagorno-Karabakh was artificially annexed to Azerbaijan several decades ago. In this process, the historic past of the Oblast [region], its ethnic composition, the will of its people and economic interests were not taken into consideration. Decades passed, and the Karabakh problem continues to raise concern and cause moments of animosity between the two peoples, who are connected with ages-old friendship. Nagorno-Karabakh should be made part of the Armenian Soviet Socialist Republic” (See Shahen Avakian, Nagorno-Karabakh Legal Aspects, 5th edition).

Nothing had changed in 1988, when Karabakh Armenians, after 68 years of “colonialism” (the same word is used by the Azerbaijan Independence Act to define its subordinate relationship with USSR) requested peacefully to be attached to Armenia. They finally went through a referendum, a process enshrined in the constitutional provisions of the Soviet Union. We all know the rest of the history and the consequences.

In other words, the dispute has existed since the early 20th century with the same causes and the same effects. Any internal self-determination process is doomed to fail. In addition the hatred has accrued considerably.

Hatred and Enmity Have Reached Point of No Return

The Republic of Azerbaijan has developed and deployed such a systematic level of hate speech against Armenians over the past 30 years that it is hard to imagine how, despite the promise of “a high degree of autonomy” for the landlocked territory, the proclaimed security guarantee for the Armenians of Nagorno-Karabakh would be effective. European and UN institutions and treaty members regularly denounce this hate speech. The European Commission against Racism and Intolerance (ECRI) in its report on Azerbaijan (March 2016) observes that: “Almost all of the 196 hate speeches dealing with ethnic conflicts were directed at Armenians. Politicians and civil servants were the main disseminators of hate speech, followed by journalists.” The European Advisory Committee of the Framework Convention for the Protection of National Minorities noted, for example, “a persistent public discourse around the Nagorno-Karabakh conflict invariably identifying Armenia or the Armenians as ‘the enemy’ and openly disseminating hate messages.” (cf. )

This hate speech leads to heinous crimes. During the April 2016 war (April 2-6), three Armenian soldiers were beheaded and photos of Azerbaijani soldiers posing with the head of one of them were shared on social media. The bodies of 18 other Armenian soldiers, reported missing, returned under the auspices of the International Red Cross Committee (ICRC) showed signs of torture and mutilation. A petition is pending in Strasbourg. The practice of torture to death on Armenian captives is systematic and has already been sanctioned by the European Court of Human Rights (case Saribekyan and Balyan v. Azerbaijan Judgment January 30, 2020).

From Discrimination to Ethnic Cleansing

There is a de facto incitement to murder Armenians. Gurgen Margaryan, a lieutenant in the Armenian armed forces, was beheaded with an axe in his sleep by Azerbaijani Lieutenant Ramil Safarov in Budapest in February 2004. The two men were attending a NATO-sponsored English training course as part of the “Partnership for Peace” program.

Sentenced to life imprisonment by the Hungarian courts, Safarov was extradited to Azerbaijan in 2012 at the request of the Azerbaijani government, which also offered assurances that Safarov would serve the rest of his sentence in his homeland. Instead of serving his sentence, he was greeted as a hero. He was released, pardoned, and received a promotion at a public ceremony, and was awarded his salary for his time in prison as well an apartment in Baku. The European Court of Human Rights rendered a judgment on May 26, 2020 (Makuchyan and Minasyan v. Azerbaijan and Hungary), which concluded that the measures taken by the Azerbaijani authorities vis-à-vis Safarov resulted in his impunity, which, combined with the glorification of an extremely cruel hate crime, were causally linked to the Armenian ethnicity of the victim and were therefore racially motivated. The Azerbaijani government denied its direct state responsibility, but did not refute the applicants’ allegation of discrimination.

Finally, threats of total annihilation are regularly formulated by politicians. Elman Mammadov, a member of parliament, said: “It is not clear why Turkey tolerates the Armenian people on their lands […] If Turkey and Azerbaijan coalesce, they could wipe Armenia off the world map. Armenians should beware of it […].”

Hafiz Hajiyev, a leader of the new Musavat party, said: “Our sons are going to blow up the nuclear power plant in Armenia so that no Armenians are left in this territory.”

This threat was reiterated on July 17, 2020 by the spokesman for the Azerbaijan Defense Ministry. Echoing the calls for cleansing Armenians from the Caucasus, Turkish politicians are just adding their long-rooted hatred and racial and religious vilification. The Nationalist Movement Party (MHP) leader Devlet Bahçeli said on October 4 that Armenia should “drown in the blood it spills.” The ongoing war, with disastrous human losses, will only extend a mutual hatred for another century.

Very objectively, what remain of the chances of implementing the principle of internal self-determination under these conditions? It is obvious due to the late developments that the “highest degree of autonomy” option is not viable. In addition, the three belligerent parties (this includes Turkey) will now oppose a return to the previous status quo.

The Minsk mediating countries must recognize the remedial secession of Nagorno-Karabakh as the ultimate solution.

The negotiated principles, as their implementation is foreseen, are not applicable. A final and one-step settlement is necessary. Other examples (Palestine and Jerusalem’s Final Status) show that the final status is the core issue and the weaker state will never be favored.

The Minsk Group must discuss Karabakh’s independence. This solution is inevitable and the Minsk Group must act it and lead the remaining negotiation on the delineation of territories in order to open up Nagorno-Karabakh, otherwise the threat to the physical integrity of the Armenian population of this region would persist. On 6 May 2016, former President Levon Ter Petrossian wrote: “sooner or later the international community will recognize Karabakh’s independence” ( At the 1996 OSCE Lisbon Summit, he had declared: “it seems to us that Azerbaijan is trying to break the logic accepted by everyone in the negotiation process. We strongly believe that if the Karabakh conflict is resolved on the basis of the principles proposed by Azerbaijan, a constant threat of genocide or forced deportation will remain to the people of Nagorno Karabakh.” We are there 24 years later!

After all, the formation of nation states is a continuous process, evolving and adapting to political changes in the international arena. Thirty states have been created since the disintegration of the Eastern European bloc in 1990, 129 in total since 1941, thanks to the decolonization process, democratic processes and remedial secessions. The legacy of Stalin must be erased in the Caucasus.

The City Council of Geneva adopted an unprecedented resolution on October 7: it “recognizes the right of the people of Nagorno-Karabakh to self-determination as the only way to ensure their safety.” As regards the supra developments, the City Council, by recognizing that the existence of people of Karabakh is threatened, retains only one international principle, the self-determination. Eliminating the territorial integrity principle from the resolution means recognizing the remedial secession. A special status of autonomy could not ensure security of Karabakh people. Hence it amounts to recognizing their remedial secession. It is urgent other initiatives of that kind follow.

Therefore, I suggest:

  • The Republic of Armenia must call for the international recognition of Nagorno-Karabakh independence by other Nations
  • The National Assembly of the Republic of Armenia must call for the international recognition of Nagorno-Karabakh independence by national parliaments
  • United Nations’ members must consider that the prevention and repression of genocide is a jus cogens (peremptory) and erga omnes (universal) obligation, whether their country ratified the Convention or not
  • All diaspora individuals and organizations must advocate their respective governments and parliaments for recognition of Nagorno-Karabakh independence

[Philippe Raffi Kalfayan, based in Paris, is a Lawyer, Lecturer in International Law and a former Secretary General of FIDH (International Federation of Human Rights). He is a regular columnist for the Mirror-Spectator.]

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