Artsakh’s Cultural Heritage Erasure May Continue Thanks to Peace Treaty

Article 6 (b) of the Charter of the International Military Tribunal at Nuremberg (IMT) establishes that “plunder of public or private property, wanton destruction of cities, towns or villages, or devastation not justified by military necessity” are recognized as war crimes. The collective indictment of the great Nazi criminals at Nuremberg pointed to it.

The IMT also found Alfred Rosenberg guilty of crimes against humanity, notably through the organization of the infamous Einsatzstab Rosenberg, a vast operation to confiscate works of art, loot museums, libraries, and private collections. It did the same with Julius Streicher, guilty of having, in addition to numerous acts of persecution against Jews, ordered the destruction of the Nuremberg Synagogue in 1938.

The IMT at Nuremberg constituted the first step towards criminalizing acts that destroy cultural heritage. However, it was not until the Second Protocol (1999) to the 1954 Hague Convention that the issue of individual criminal responsibility was formally transcribed into positive international law.

Beginning in 1991, the former Yugoslavia was the scene of targeted and systematic destruction of cultural heritage. Experts have described this as a true “cultural catastrophe,” in which destruction is being carried out to erase the identity and memory of the adversary. Examples include the bombing of the old city of Dubrovnik in Croatia, the burning of the Sarajevo library, and the destruction of the Mostar Bridge in Bosnia and Herzegovina. Given the religious and ethnic specificities of the Yugoslav conflict, Article 3(d) of the ICTY Statute was invoked primarily in cases involving the destruction of religious or educational institutions, but also in other cases involving the destruction of historical monuments. The two most emblematic cases in this second category are The Prosecutor v. Miodrag Jokić and The Prosecutor v. Pavle Strugar.

Reduced Effectiveness of International Law

Despite the efforts of States Parties, the International Committee of the Red Cross (ICRC), UNESCO, and the international community, between 2004 and 2019, we witnessed the destruction of the Buddhas of Bamiyan in Afghanistan (2001), the city of the “333 Saints” in Timbuktu, Mali (2012), the 16th-century mausoleums and libraries in Tripoli and Zliten in Libya (2012), pre-Islamic works in Mosul, the Roman city of Hatra and cultural objects in Baghdad, Iraq (2015), the monumental triumphal arch of the ancient city of Palmyra, the Assyrian archaeological site of Tell Ajaja, the Seljuk minaret of the Umayyad Mosque in Aleppo, and several other historical sites in Syria (2015).

On August 22, 2016, the trial of militia member Ahmad Al Mahdi, head of the “Ansar Eddine” morality squad, opened before the ICC. He was being prosecuted for the war crime of destroying nine of the “333 Saints” mausoleums and the gate of the Sidi Yahia Mosque during the occupation of Timbuktu, northern Mali, between April 2012 and January 2013.

The ICC Trial Chamber found on September 27, 2016, that Ahmad Al Mahdi was guilty of the war crime of intentionally directing attacks against buildings of religious and historic importance in Timbuktu, Mali, in June and July 2012. The defendant admitted his guilt and was sentenced to nine years’ imprisonment and fined €2.7 million. The Court, having recognized his indigence, it encouraged the Trust Fund for Victims to supplement the reparations awarded.

‘Cultural Genocide” or ‘Ethnocide?’

Some authors use these expressions, but neither has legal validity. The Convention on the Prevention and Punishment of Genocide specifies in Article 2 that genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group. The acts covered by this article do not include the destruction of historical and cultural heritage.

Nevertheless, it remains politically and factually established that the deliberate destruction of heritage pursues a long-term strategy of cultural cleansing and is directly associated with ethnical cleansing. This is why the protection of cultural heritage is much more than a cultural issue; it is a security imperative, inseparable from the protection of human lives. UNESCO, which filed amicus curiae observations in the Al Mahdi case, states that the loss of heritage during armed conflict can “deprive a community of its identity and memory, as well as the physical evidence of its past,” adding that “those who destroy cultural heritage intend to weaken the social fabric of the communities concerned.”

A recent example shows how the Israeli authorities have not only destroyed all homes in Gaza but are also striving to erase all traces of the population’s millennia-old presence by systematically destroying the existing cultural heritage in the territory. UNESCO’s protection mechanisms have failed in this case too.

ECHR Offers Recourse for Individual Cases

It is always possible for individual claimants to file a petition with the European Court of Human Rights (ECHR) based on a different legal basis — that of human rights. The Armenian Church could — and actually has tried (back in 2021) —petition the European Court to protect the Armenian religious immovables in Nagorno-Karabakh. Some 20 applications have been submitted so far.

ECHR has territorial jurisdiction over Nagorno-Karabakh because Nagorno-Karabakh Armenians have been exempted from exhausting Azerbaijani domestic remedies.

II – Who Are the Victims, and What Remedies Are Available to Protect the Armenian Cultural Heritage of Artsakh?

In the Al Mahdi case, the ICC identified three distinct groups of victims: the Timbuktu community, the population of Mali as a whole, and the international community, because this act of destruction affects humanity as a whole. UNESCO ultimately declined to submit a claim for reparations on behalf of the international community, stating that the main victims were the local communities. The Court concluded that reparation for the harm suffered by the inhabitants of Timbuktu “will also effectively remedy [the harm] suffered more broadly by Malians and by the international community as a whole.”

It appears that the Armenians of Artsakh, as a population that lived in their ancestral and autonomous region for centuries, albeit under different state guardianships, and forcibly displaced between 2020 and 2023, could constitute themselves as victims of the destruction of Armenian cultural heritage and have a legal standing to bring the perpetrators to justice before international courts.

However, while Azerbaijan has ratified the 1954 Hague Convention and its protocols for the protection of cultural property in times of war and peace and also has legal obligations under customary international law, it has not ratified the Treaty of Rome (ICC). Thus, the question of territorial jurisdiction of the Court would be subject to fierce legal battles over the extraterritoriality of the Rome Treaty to destructions operated in Nagorno-Karabakh. In theory, the ICC does not have jurisdiction over crimes committed within the territory of Azerbaijan. In practice, options are defendable. In the case of Mali, the question did not arise because it had ratified the Treaty of Rome, the crimes were committed on its territory and Mali deferred the situation to the Court.

Therefore, the best solution to ensure that the destruction of the cultural heritage of Artsakh (and perhaps even that of Nakhichevan) is prosecuted as a war crime or a crime against humanity would be the creation of an ad hoc international criminal tribunal with special statutes. This diplomatic undertaking would require the mobilization of numerous States, primarily the government of the Republic of Armenia.

In 2015, for the first time in history, the safeguarding of the cultural heritage of a country, Mali, was included in the mandate of a United Nations Mission, the United Nations Multidimensional Integrated Stabilization Mission in Mali (MINUSMA). This Mission was tasked with “protecting the country’s cultural and historical sites against all attacks, in collaboration with UNESCO.” The creation of an ad hoc United Nations mission in Nagorno-Karabakh would be possible for a similar purpose. Azerbaijan would undoubtedly reject the creation of such a mission or its presence on the territory of Nagorno-Karabakh.

The only way to achieve its creation would be to obtain a decision from the United Nations Security Council, whose mission would consist in protecting the cultural heritage and ensure the safe return of Armenians from Nagorno-Karabakh. This is another diplomatic challenge, certainly, but one for which Armenia already has the tools to hold the Azerbaijani state accountable (criminal liability of State does not exist in international law) for its violations of international law, recognize its international responsibility and the ensuing consequences, namely reparation measures: restitution or compensation, as well as guarantees of non-repetition.

III – Armenia Has a Solid Legal Basis and Judicial Mechanism to Establish Azerbaijan’s Responsibility

I have already written an article and a report on the importance of the inter-state action brought by Armenia against Azerbaijan on the basis of the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) before the International Court of Justice (ICJ) and the possibility for any State to join this procedure, as permitted by the Statute of the Court and as provided for in the Draft Articles on the Responsibility of States for Internationally Wrongful Acts.

The issue of the protection of the Armenian cultural heritage of Artsakh is already included in Armenia’s first request for the indication of provisional measures under the ICERD in the Armenia v. Azerbaijan dispute. It has also been satisfied with the measures set out in the order of December 7, 2021.

Armenia alleges that acts of destruction and vandalism have been perpetrated by “Azerbaijani soldiers and mercenaries” against Armenian religious and cultural heritage sites, and that acts of desecration of Armenian cemeteries and religious artefacts, such as the “khachkars” (or “cross-stones”) have also occurred. Armenia further alleges that Azerbaijan, by carrying out what it calls restoration works on the cathedral of Shushi, has altered features characteristic of Armenian cultural heritage. Considering the alleged general context of anti-Armenian hatred, Armenia contends that the repeated destruction, alteration and desecration of Armenian cultural heritage and religious sites in territories controlled by Azerbaijan constitutes “racial discrimination” in breach of Articles 2 and 5 of ICERD and therefore that its rights under these provisions are plausible (Para. 50).

Azerbaijan states in its pleadings that its legislation prohibits the damage and destruction of religious and cultural heritage and asserts that it “facilitates efforts to protect and preserve” Armenian sites and artifacts relevant to the rights guaranteed by ICERD (Para. 54).

Azerbaijan further claims to have acknowledged publicly “its international obligation to protect and uphold historical, cultural and religious heritage in the liberated territories”. It observes that the protection of historic and cultural monuments is also enshrined in Azerbaijan’s Constitution and in its statutory law, which criminalizes the deliberate destruction or damaging of over 6,300 sites that are listed on its State Registry, which includes sites identified by Armenia. Azerbaijan adds that it has undertaken to “provide support for investigations of all credible allegations of vandalism, destruction, and unauthorized alteration of historical and cultural monuments and cemeteries used by ethnic Armenian individuals” (Para. 79)

The Court concludes that, pending the final decision in the case, Azerbaijan must, within the framework of its obligations under CERD, take all necessary measures to prevent and punish acts of damage to and desecration of Armenian cultural heritage, including, but not limited to, churches and other places of worship, monuments, sites, cemeteries, and artifacts (Para. 92).

It should therefore be noted that solid treaty bases, ICJ provisional measures imposed to Azerbaijan, and the latter’s recognition of its international obligations to protect the Armenian cultural heritage of Artsakh already constitute a set of legal assets that could lead to the recognition of Azerbaijan’s State responsibility by the United Nations’ Court, entailing an obligation of reparation.

A final judgment from the ICJ would open the way for requesting from United Nations Security Council the creation of a protection mission for both the population and the cultural heritage of Artsakh Armenians, especially if Azerbaijan is recalcitrant to enforce the judgment. It may be called to order or even sanctioned by the United Nations. A categorical refusal on its part and continued violations over time may give rise to resolutions and sanctions from the United Nations Security Council if a third State refers the matter to it. It would, of course, be natural that Armenia be the first State, but this is not mandatory.

It should be recalled that the Security Council adopted Resolution 2347 (March 2017). This resolution “underlines that the illegal destruction of cultural heritage, the looting and smuggling of cultural property in situations of armed conflict, including by terrorist groups, and attempts to deny historical roots and cultural diversity in this context, can fuel and exacerbate conflicts and hinder post-conflict national reconciliation, thereby undermining the security, stability, governance, and social, economic, and cultural development of the affected States.” It affirms that directing unlawful attacks against sites and buildings dedicated to religion, education, art, science or charitable purposes, or historic monuments may constitute, under certain circumstances a war crime and that perpetrators of such attacks must be brought to justice.

The Resolution elevates the protection of cultural heritage to a central issue of global peace and security. In this regard, it integrates the often dispersed and fragmented regimes of international law—cultural heritage law, humanitarian law, criminal law, and state responsibility—into global, regional, and national policies aimed at combating crimes against cultural heritage committed during armed conflict. Second, it also strengthens the principle of international cooperation, broadening its scope beyond relations between states, international organizations, and agencies, and promoting more inclusive participation of various stakeholders, including non-state actors, for better protection of cultural heritage in the event of armed conflict.

Conclusion

Only a just peace can be a true peace. The acknowledgment of Azerbaijan’s responsibility for the violation of the ICERD in all its forms is key in this process and the only path to sustainable peace. Otherwise, impunity for systemic anti-Armenian hatred, forced displacement of the Armenian population and destruction of the cultural heritage of Nagorno-Karabakh, mistreatment and unlawful trials of Armenian prisoners will prevail and cause irreparable harm to the rights of the people of Artsakh and to the Armenian cultural heritage in their ancestral territory.

The withdrawal of the ICJ proceedings initiated in 2021 would nullify all the gains obtained from the orders already issued by this Court. As analyzed above, the ICC jurisdiction to investigate acts of destruction committed on Azerbaijani territory or to prosecute the perpetrators of these acts is complex and uncertain. It therefore does not offer solid guarantees. If the ICJ withdrawal becomes reality, the Nagorno-Karabakh Armenians will be obliged to restart all the legal and political process from the beginning to assert their rights. It will provide temporary but sufficient time of impunity for Azerbaijan to continue its destruction.

(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), who has earned a Ph.D. in international law. He is a regular columnist for the Armenian Mirror-Spectator.)