Arunansh B. Goswami

By Arunansh B. Goswami

Special to the Mirror-Spectator

The phrase “international law” was first coined by the utilitarian philosopher Jeremy Bentham; he defined it as “a collection of rules governing relations between states.” Accordingly to legal philosopher John Austin, international law is no law at all because it lacks coercive sanction; according to him, “the so-called law of nations consists of opinions or sentiments current among nations generally. It therefore is not law properly so called.” This statement of Austin appears more and more relevant when we observe the ongoing violation of human rights of the people of Artsakh in spite of existing treaties and International Court of Justice (ICJ) judgements in place to prevent this abhorrent state of affairs. In this region, realpolitik rather than law is determining the ongoing situation. Diplomatic homilies on upholding “international law” are a regular feature of international summits, but the Machiavellian volt-face follows in matters of actual geopolitics. But the use and importance of international law cannot be overstated; its persuasive value is immense. It’s important that lawyers, attorneys at law, and others alike know what international laws are being violated in Artsakh by Baku.

What Can India Do?

Addressing the recent 19th East Asia Summit, Indian Premier Modi said, “Our approach should be one of developmentalism and not expansionism.”

But what we saw during the invasion of the Armenian enclave of Artsakh by the energy rich and hence diplomatically strong Azerbaijan [oil reserves of 7 billion barrels (1 Mt) and access to the Caspian Sea, unlike landlocked Armenia] and later forced exodus from this region of ethnic Armenians to change regional demography, pursuing a Hobbesian-Machiavellian foreign policy inspired by Turkish-Turanism, was a blatant violation of established tenets of international law and the declared foreign policy goal of the Modi administration.

Get the Mirror in your inbox:

India has global power aspirations. It is the world’s fifth-largest economy (nominal GDP) that maintains the second-biggest professional army in the world with 1.45 million active military personnel. Even after all this, it will succeed in achieving global power status if it plays a decisive role in solving regional conflicts beyond its immediate neighborhood. The response of India has been less emphatic in the case of the Armenian situation. India can play an important role in ensuring that international law is upheld in Artsakh, and it needs to walk the talk [PM Modi has often talked about India being a land of “Buddha,” not “yuddha” (war)], and start from officially recognizing the Armenian Genocide of the past when Ottomans and Young Turks tried to wipe out Hayastan (Armenia) as a nation from the face of the earth and preventing the ongoing genocide of Armenians and their culture in Artsakh.

Realpolitik versus Law

After launching the military offensive in 2020, Azerbaijan blockaded the Lachin Corridor; even though the International Court of Justice ordered “unimpeded movement” in both directions Baku conveniently ignored this. Now it is promoting cultural genocide in Artsakh, even though Baku is a party to The Hague Convention of 1954 for the Protection of Cultural Property in the Event of Armed Conflict, and on December 7, 2021 the ICJ indicated in its Order that it “shall 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 this battle between realpolitik and international law, democracies around the world need to decide on which side they are on.

It is disheartening that only 34 countries in the world as of 2023 have recognized the Armenian Genocide as a historically documented fact, and when a substantial repetition of the same is happening in the present, most countries are showing a lack of will and initiative to protect the human rights of the Armenians. The horrible silence of countries with the rule of law on the violence and displacement of ethnic Armenians and the mistreatment of approximately 240 Armenian prisoners of war and civilian detainees in Azerbaijan raises questions on grand claims of upholding human rights made by these countries primarily from the global north at global forums. This dastardly disregard for the plight of the Armenians is ongoing even though the ICJ ordered Azerbaijan to ‘protect from violence and bodily harm all persons captured in relation to the 2020 conflict who remain in detention.’ New Delhi can make a difference to ensure the accountability of Baku, which has till now blatantly ignored ICJ orders.

Refugee Crisis

According to the United Nations High Commissioner for Refugees (UNHCR), following the escalation of a decades-long conflict in the region at the end of September 2023, more than 100,000 refugees were forced to flee from their homes to Armenia. Battered refugees from Artsakh in Yerevan are witnesses to the horror unleashed by the Azeris. To get the answer to a profoundly important question, that is, is Baku doing genocide of ethnic Armenians in Artsakh? Readers should read the Genocide Convention of 1948; according to Article 2 of the same, “causing serious bodily or mental harm to members of the group” constitutes genocide when “committed with intent to destroy, in whole or in part, a national, ethnical, racial, or religious group.”

International Covenant on Civil and Political Rights Article 7 of the 1966 International Covenant on Civil and Political Rights provides: “No one shall be subjected to torture or to cruel, inhuman, or degrading treatment or punishment.” Article 4(2) states that there can be no derogation from Article 7. According to an investigation by Human Rights Watch, Azerbaijani forces abused Armenian prisoners of war (POWs) from the 2020 Artsakh conflict, subjecting them to cruel and degrading treatment and torture either when they were captured, during their transfer, or while in custody at various detention facilities. The moot question is, What is the international community doing? Organizing the 29th annual UN climate conference in Baku (Azerbaijan) from November 11 to 22, 2024, is like rubbing salt on the wounds of the victims of Azeri aggression.

The International Court stated in the Barcelona Traction case that there existed an essential distinction between the obligations of a state towards the international community as a whole and those arising vis-à-vis another state in the field of diplomatic protection. By their very nature, the former concerned all states, and all states can be held to have a legal interest in their protection; they are obligations erga omnes (towards all). Examples of such obligations included the outlawing of aggression and genocide, the protection from slavery and racial discrimination, and the prohibition of torture.

Further, the International Court in the East Timor case stressed that the right of peoples to self-determination “has an erga omnes character,” while reiterating in the Genocide Convention (Bosnia v. Serbia) case that the rights and obligations enshrined in the Convention are rights and obligations erga omnes.

 Conclusion

The aggravation of conflicts in several parts of the world is primarily because of the less than needed response of the United Nations to enforce international law in conflict zones. People of Artsakh are waiting for the countries in both the global north and south to come together to protect their human rights. India should take forward steps to show its geopolitical power by officially recognizing Armenian genocide and also ensuring that the present Armenian refugees get justice. Anatole France wrote in 1916, “Armenia is dying, but it will survive. The little blood that is left is precious blood that will give birth to a heroic generation. A nation that does not want to die does not die.” This author hopes that countries around the world will come together to protect the human rights of the people of Artsakh.

(Attorney Arunansh B. Goswami is also a historian and visiting fellow at the Orbeli Analytical Research Center, an initiative of the Prime Minister of the Republic of Armenia.)

 

Get the Mirror-Spectator Weekly in your inbox: