Philippe Raffi Kalfayan

PARIS — Armenia and Artsakh face an existential threat the likes of which they have not encountered since independence in 1991. Philippe Raffi Kalfayan, a regular contributor to the opinion section of the Armenian Mirror-Spectator and an expert on international law, recently returned to his home in Paris from a stay in Armenia. What he saw there gave him cause for alarm.

“My recent stay in Yerevan was dedicated to discussing and preparing the legal field and actions related to Artsakh self-determination and post-war legal proceedings,” he said, adding, “My contribution is so minor compared to the young soldiers who sacrificed their lives for the country’s defense.”

“In my previous article, I had mentioned that this war could have been avoided. I have never believed that the Armenian army was superior to that of Azerbaijan. In Yerevan, people are now recognizing that for over 25 years Armenia had enjoyed ‘khorovadz’ and a privileged short term business and enrichment but neglected investing in modern weaponry and state security. This is why we are where we are,” he noted.

The Agreement

The shock waves from the signing of the November 10, which resulted in a ceasefire, still reverberate.

“The terms reflect the reality of the battlefield. It reflects territorial losses, more than what we could have returned if the war didn’t occur,” he explained.

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“Unexpectedly the army was not prepared for such a massive attack,” he said.

The agreement was signed under coercion, according to Kalfayan. “We had to decide whether to continue adding heavy losses,” he said, in effect, rendering Armenia without a choice.

The signature by the head of the state, in this case Armenia’s Prime Minister Nikol Pashinyan, legally engages the country, Kalfayan explained. Therefore, the country has to implement the measures. However, he added, “in order to be fully binding forever, the agreement needs to go through the ratification process,” according to Armenia’s constitution.

He added that Armenia, in effect, “is caught between two bad scenarios until December 1.” If parliament votes to reject the treaty, war will resume, “and the Russian Federation won’t be happy.”

In the event that parliament ratifies it, the content of the agreement could not be changed and future negotiations on the final status and territorial delimitations would be jeopardized.

Kalfayan blames the prime minister for not realistically assessing the country’s military capabilities and for tuning out the big hints dropped by Russian President Vladimir Putin and Foreign Minister Sergey Lavrov.

Putin said in an interview recently that Pashinyan had repeatedly been offered the solution of stopping the war in October, without any loss of property, if he agreed to the return of Azerbaijani refugees to Artsakh. He had refused.

Even at the Geneva meeting on October 30 between the foreign ministers of Armenia and Azerbaijan and the representatives of the OSCE Minsk Group, Armenia was offered a better deal than it got 9 days later.

In addition, Kalfayan notes that Armenia would have done much better had it mandated on October 20 former Presidents Robert Kocharyan and Levon Ter-Petrosyan to go to Moscow to negotiate a ceasefire with Russia.

“This initiative collapsed and the presidents didn’t go there,” he said.

“He knew the military situation was to the detriment of the army. He knew we have heavy human losses,” he said.

Pashinyan instead seemed to focus his efforts on the mobilization of the Armenian diaspora.

“Maybe he was having illusions about aid [arriving] from the diaspora. Maybe he had illusions that Western countries would come. Maybe he was in denial of reality,” Kalfayan said.

Russia’s Role

One of the surprising and devastating occurrences in the war was what did not happen: Russian involvement. Armenia and Russia are members of several defense pacts, including the Collective Security Treaty Organization.

“From a purely legalistic standpoint,” Kalfayan said, Russia’s answer to why they did not get involved — that Armenia proper itself was not attacked — was not wrong.

In addition, he said that sources indicated that while Pashinyan was talking several times a day with Putin, he did not formally ask for Russia’s direct intervention in Artsakh. The official method is a formal letter, which was not sent until November 1, after the Armenian leader got a specific request from Artsakh President Arayik Harutyunyan.

Added Kalfayan, “Meanwhile, Ilham Aliyev [of Azerbaijan] knew that he was about to win the war.”

For now, Kalfayan added, “The agreement is implemented and Russian Federation is actually administering Nagorno Karabakh, humanitarian aid, returning of refugees to their homes, delimitations of the territory, peacekeeping and monitoring mechanisms.”

Before and After the Ceasefire

Kalfayan said that he thought the decision to start a global war without due preparation in reply to a well-planned military attack and related actions (diplomatic, lobbying, legal, digital and media), then to keep on fighting and downplay losses, and finally to sign the ceasefire treaty basically under duress are typical of the fiery and vain temperament of Pashinyan.

“The cost of this in terms of human lives is just not acceptable,” he said.

“During his time in office Pashinyan has annihilated all checks and balances and on the contrary reinforced his personal power. In that respect, having decided that he may sign this agreement without consulting the Parliament, the President and the ministry of foreign affairs is somehow logical, though disastrous,” he noted.

He added, “Personally, due to my personal humanitarian convictions, I would have avoided the human losses at any rate. Conceding territories that the Armenian side had always intended to return was the option. This is what I would have considered a courageous decision. I have always found the declarations of invincibility issued by some political or military figures as extremely ridiculous and dangerous. From the first days, it was clear, based on authoritative sources that the human losses were considerable and that there existed imbalance in the levels of weaponry.”

Returning the territories from Azerbaijan that Armenia had taken during the previous war and held as an insurance policy was accepted by all, he said. He continued, “Most responsible political parties, including the ARF, have always accepted the idea that the five surrounding territories should be returned to Azerbaijan against the recognition of independence of Artsakh and the guarantee of a secure physical corridor to Armenia.”

And he tried to get his point across to Pashinyan.

“I wrote on October 30 to the Prime Minister a substantiated personal letter requesting from him three things: to stop the war as soon as possible in order to spare the lives of soldiers and young people; to visit Moscow as soon as possible and request from President Putin for the Russian Federation to intervene in Nagorno-Karabakh and to install a war cabinet, composed of a small team of experienced people from different political forces until the war and negotiation end up,” he explained.

The foreign ministers of Armenia and Azerbaijan with the OSCE Minsk Group cochairs on October 30

Minsk Principles

For the past couple of decades, the Minsk Group of the Organization for Security and Cooperation in Europe (OSCE) has overseen the ceasefire and met with Armenia and Azerbaijan to finally come to an agreement. Part of the reason the group did not have success was that the first stop was requiring Armenia to return the territories it had taken from Azerbaijan proper, without offering a similar show of good faith from Azerbaijan.

“Back in 2016, and later early 2019, I stressed that the Minsk process principles were representing a deadlock. Armenian diplomacy did not change the fundamentals of the negotiation, relying exclusively and too self-confidently upon the political process. It underestimated the geopolitical upheavals and did not anticipate the aggressiveness of Erdogan’s policy,” Kalfayan noted.

“The April war in 2016 was a strong signal, but nobody, except President Levon Ter Petrosyan, accurately interpreted the event,” Kalfayan said.

In a recent interview, after the signing of the ceasefire, Putin suggested that Armenia itself had not recognized a free Artsakh, therefore why should other nations?

However, Armenia had been caught in a legal Catch-22 regarding the recognition: It could not recognize the republic legally as it would hinder the negotiations with the Minsk Group, but on the other hand, it could not easily convince other nations to recognize it.

Said Kalfayan, “Armenia kept saying that if it had recognized Artsakh it would have stopped the negotiation process within the framework of Minsk Process. [Instead now] we are in a situation where Azerbaijan has violated the first of the basic principles of the negotiation process, i.e. the obligation to not use force, and created a new de facto situation where Artsakh has lost some portions of its historical autonomous territory (Oblast) and Armenia is no longer in a position to recognize Artsakh, nor to make that decision under the terms of the agreement. Recognizing Artsakh in 2016 or earlier would have forced the Minsk Group to reconsider the fundamental principles. The more time passed, the stronger the Azerbaijani army got prepared, and less chance was left to recognize it. The recognition of Artsakh by Armenia is now a frozen option and this matter of fact is at odds with the emerging movement of international recognition of Artsakh. We are witnessing a vicious circle, where international recognition will be hindered by the non-recognition from Armenia.”

Going Forward

And what does the future hold for the situation? Is there a way to make things better?

Kalfayan replied, “Yes, because the self-determination principle is more relevant than ever, and the November 10 agreement totally violated this right while it a peremptory norm of international law. No, because the de facto situation supersedes the legal one. All efforts should now be invested in the diplomatic process. For that, Armenia must replace its negotiator; Azerbaijan and Ilham Aliyev will never sit and have discussions again with Prime Minister Pashinyan. Armenians need new and experienced negotiators that may impose respect to Moscow and Baku.”

And now, with Turkey insisting on sending peacekeeping forces to Artsakh, the situation in Artsakh can become even more perilous. As of this writing, the Turkish forces have not yet been deployed, despite the overwhelming support of the Turkish parliament for that action. Russia has expressed its concert that Armenians, because of the Genocide, would not look favorable on the move.

Kalfayan takes it one step further. “The most effective protection left for Armenia is the bilateral military treaty with Russia.”

Churches and Monuments

One of the justified concerns of the Armenian nation is that the monuments will be destroyed upon the exit of the people of Artsakh. The media is teeming with photos of soldiers kicking down gravestones, blowing up church bell towers, etc.

Already, several museums have expressed concern and urged proactive actions to preserve the invaluable cultural riches.

Said Kalfayan, “The destruction of cultural heritage affects societies in the long term and prevents them from rebuilding themselves because culture is a glue of identity, a source of dignity. During the last two decades, much destruction occurred (Afghanistan, Syria, Libya, Mali, Iraq). The international community has been unable to prevent it despite the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict. That Convention and others that followed are insufficiently ratified by number of countries. UNESCO [United Nations Educational, Scientific and Cultural Organization] is more efficient in engaging in the reconstruction of the destroyed or damaged property.”

He added, “The destruction of cultural property is a weapon of war. In 2013, the ICC [International Criminal Court] prosecutor launched an investigation in the crimes committed in Mali. In 2016, the ICC found the Malian jihadist, Ahmad Al Faqi Al Mahdi, guilty of war crimes for the destruction in 2012 of ten religious sites in Timbuktu, while the city was under the control of Ansar Dine, a group suspected to have ties to al Qaeda. He was sentenced to nine years’ imprisonment. This was a historic judgment, as the destruction of cultural heritage had never before been considered a war crime.”

Unfortunately, UNESCO, like any other UN-related institutions, has no enforcement power. Even the International Court of Justice does not have the power to help in such cases, he said.

War Crimes

In addition, pictures and videos of brutal killings and mutilations of Armenians can be found readily. Regarding legal recourse, Kalfayan offered, “One must consider the difference between the criminal liability and state responsibility in international law.

“The criminal liability does not apply to states, since criminal law can only indict individuals. In order to bring individuals to justice (for an example Ilham Aliyev or Army Commanders), there is the ICC [International Criminal Court]. That avenue is not easily envisage-able, since neither Armenia nor Azerbaijan is party to the Treaty of Rome, which created it. The only way for the ICC prosecutor to decide upon a preliminary investigation is to obtain a resolution of the UN Security Council.

Azerbaijan, he noted, plays the game better. “Azerbaijan anticipated some steps during the war to claim that the Armenian side had attacked civilian targets or destroyed cultural properties. Whether true or not, those allegations have been relayed in the media and create an impression of mutual crimes,” he said.

Kalfayan continued, “The state responsibility for internationally wrongful acts offers civil-like liability proceedings within the framework of interstate claims before the International Court of Justice (ICJ). The ICJ considers the violations of international law and its judgments may decide continued on next page

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on the obligations of cessation and reparation, as well as the guarantees of non-repetition. The violations to be considered in the current conflict may find grounds in different conventions: the International Convention on the Elimination of all forms of Racial Discrimination, the International Convention against the Recruitment, Use, Financing and Training of Mercenaries, and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.” We are currently considering all avenues.

For now, he said, Armenia has to focus on healing its wounds and move forward. He suggested the establishment of a transition government that will fully discuss the future negotiations and the new path for diplomacy.

“The timing of the process depends on the ambitions of the Armenian side. We must be conscious that the longer the negotiations, the more irreversible the situation will be. It is likely that Azerbaijan and Turkey will accelerate the settlement of the regained territories,” he added.

And finally, he concluded, “For me, the existence of Armenia as a state is the victory over the Ottoman Empire and Turkey, whose project was and still is the annihilating of the Armenian Nation. Today, that victory has been hurt

very deeply, the population is devastated and fearful about the future, but the resignation is not part of my agenda. I never give up! And many of my working colleagues or friends in Armenia are of the same vein.”

Kalfayan is a French lawyer and international law expert. From 2001 to 2007 he was the secretary general of the International Federation for Human Rights (FIDH). Since 2003 Kalfayan has also served as a consulting legal expert for the Council of Europe’s Directorate General for Human Rights and Rule of Law.

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