Kalfayan: Release of Armenian POWs in Azerbaijan Is a Matter of National Dignity

The Republic of Armenia, as a state, should never have let this situation happen as far as the arrest of former officials at the end of September 2023 is concerned. It is still an enigma: why did many former Artsakh officials leave the territory, while others were arrested?

News.am: Assistant to the President of Azerbaijan Hikmet Hajiyev recently announced that an invitation was sent to Armenia to participate in COP29, to be held in Baku in November. Azerbaijan also has declared on all platforms that COP29 should be the “COP of Peace,” but it continues to violate human rights and illegally detain Armenians. Is this not an opportune moment for Armenia to demand the return of the Armenian hostages and prisoners?

Your question makes no mention of the fact that Armenia already got compensation for its support for Azerbaijan’s bid to host the 29th Session of the Conference of Parties (COP29) (see https://www.primeminister.am/en/press-release/item/2023/12/07/Announcement/). Thirty-two Armenian military servicemen have been released thanks to this support. Azerbaijan insisted in the joint statement that this action was “driven by the values of humanism and as a gesture of goodwill.” Therefore, Armenia cannot play that card anymore. It is the role of other states to boycott the COP29 in Azerbaijan if the prisoners and hostages are not released prior to the opening that conference. There are already enough factual and legal records of the arbitrary arrests of those prisoners and of their torture and ill-treatment by Azerbaijan to justify such a stance. In addition, it is of general knowledge that there is no rule of law in Azerbaijan: no independence of the judiciary and of the lawyers.

News.am: Recently, the first prosecutor of the International Criminal Court, Luis Moreno Ocampo, announced a campaign advocating for COP29 to consider not only issues surrounding climate change, but also human rights and the release of prisoners. How do you evaluate such an initiative?

This statement is conforming to my hereinabove response. I commend his call but I am ashamed that Mr. Ocampo needed to issue that open letter to make the Armenians move.

His call means: Armenians, if you don’t take the lead for the immediate release of Armenian hostages and political prisoners from Baku at the occasion of COP29 coming event, then others cannot help! (This statement is true for the question of prisoners, as well as for the conduct of other Armenian public affairs.)

My opinion is that the remaining prisoners, especially the former leaders of Artsakh, will be kept hostage by Azerbaijan until Armenia abandons the mention of Artsakh from its constitution. This hostage-taking is unlawful from an international law perspective but it is a case of the victor’s law being imposed on the defeated party, personified by the Prime Minister. Azerbaijan’s goal is to humiliate definitively the Armenians and cancel all dreams of an independent Artsakh. Keeping hostages and condemning in Azerbaijani courts the former leaders of Artsakh aim at destroying any capacity of resistance.

News.am: One of Azerbaijan’s demands is that Armenia withdraw the lawsuits filed against Azerbaijan in international courts. What consequences could this have for Armenia?

First of all, I would like to say that this demand would not be a surprise if confirmed. That would be a normal step if Azerbaijan were a sincere partner in its will to sign a fair peace treaty. Obviously, it is not since their leaders ask for new conditions every day.

What was more surprising was that the idea of abandoning interstate proceedings was first brought to the public debate domestically by Armenia’s Prime Minister.

The human rights community reacted promptly, as did my colleagues, the former Armenian and Artsakh ombudspersons Arman Tatoyan, Artak Beglaryan and Gegham Stepanyan, as well as lawyers representing the interests of Armenian citizens in international courts, Ara Ghazaryan and Siranush Sahakyan. Those five issued a joint statement warning against the consequences for Armenia dropping lawsuits against Azerbaijan in international courts. I fully subscribe to the key points developed into this statement.

Both the evocation and the debate about this eventuality are a disaster for the cause of justice, the struggle against impunity for international crimes, the credibility of Armenia as an international subject of law, and finally for the diplomatic efforts of Armenia.

International law and diplomacy are intrinsically related. The statement of the Prime Minister sabotages the efforts of the Ministry of Foreign Affairs and of the Republic of Armenia Agent for international legal affairs. It endangers the temporary legal victory obtained at the International Court of Justice (ICJ), one of the very few good initiatives of this government. Indeed, none of former governments did ever engage in interstate proceedings.

Abandoning the interstate proceedings at the ICJ would be the definitive burial of the Artsakh cause. Such a move would also damage all other proceedings at the European Court of Human Rights or at the International Criminal Court, because the judges are not indifferent to diplomatic pressures or bilateral settlements

The current temporary measures decided by the ICJ already protect the right of return of Artsakh population on their lands.

It must be reminded that the ICJ Order of December 7, 2021, indicated that Azerbaijan shall, in accordance with its obligations under the International Convention on the Elimination of All Forms of Racial Discrimination, (a) Protect from violence and bodily harm all persons captured in relation to the 2020 Conflict who remain in detention, and ensure their security and equality before the law; (b) Take all necessary measures to prevent the incitement and promotion of racial hatred and discrimination, including by its officials and public institutions, targeted at persons of Armenian national or ethnic origin; (c) Take all necessary measures to prevent and punish acts of vandalism and desecration affecting Armenian cultural heritage, including but not limited to churches and other places of worship, monuments, landmarks, cemeteries and artefacts.

In its last request for interim measures from the ICJ, after the September 19, 2023 full-scale military assault on the 120,000 ethnic Armenians of Nagorno-Karabakh and their forcible displacement to Armenia, Armenia indicated that “Azerbaijan shall refrain from taking punitive actions against the current or former political representatives or military personnel of Nagorno-Karabakh.”

The ICJ order on November 17, 2023 concludes that “Azerbaijan must ensure that persons who have left Nagorno-Karabakh after September 19, 2023 and who wish to return to Nagorno-Karabakh are able to do so in a safe, unimpeded and expeditious manner.” It also recalls Azerbaijan’s undertaking “to protect and not to destroy registration, identity and/or private property documents and records found in Garabagh”.

Although this last order did not mention any measure in relation to the war and political prisoners, I do consider that the ICJ is the right forum where to bring and defend their case. If the forcible transfer of Artsakh’s population is later recognized by the Court as a violation of international law, the release of Artsakh people will become an obligation of Azerbaijan in the light of its obligation of cessation of the violation. There is a precedent in the case law of the ICJ (United States Diplomatic and Consular Staff in Tehran case opposing United States v. Iran). The fact that the detained entities are human beings, injured by their unlawful treatment in their physical and psychic integrity, in their personal liberty and dignity, makes their release, morally and legally, an urgent question.

None of this may happen if Armenia abandons the interstate proceedings.

Although Armenia’s withdrawal from ICJ proceedings would create serious diplomatic hindrances, there exist alternative solutions to continue the defense of Artsakh people’s rights and the release of hostages.. It is inappropriate to elaborate on those options publicly.

News.am: And finally, is real peace, or any peace treaty, possible if one country continues to hold the citizens of another country as captives or hostages?

The continuous arrogant attitude and ever-growing demands of the victor country, Azerbaijan, don’t augur a real peace. The Armenian government must admit that the peace at any price failed so far. Azerbaijan is trying to save the COP29 in November. After that, its behavior will depend on the geopolitical balance and perspectives in the South Caucasus at that time. The presidential elections in the US and its subsequent developments in the Ukraine-Russia war will be the strong factors.

Armenia must also take advantage of this time. It should focus its resources on making the country stronger in all aspects before the next stages of negotiation.

There cannot be lasting peace when it is built only on the demands of the bully victor. Armenia has demonstrated its good will to obtain peace. It is now the turn of Azerbaijan to do so: the release of all prisoners and hostages would be a good start.