Armenia v Azerbaijan before the European Court of Human Rights

On 28 September 2020, Armenia lodged a request for interim measures against Azerbaijan in view of the recent reignition of the conflict in and around the region of Nagorno-Karabakh.

One day later, the European Court of Human Rights decided to apply Rule 39 of the Rules of the Court. While the decision itself remains confidential as all interim measures, the press release details that the Court was of the view that “that the current situation gives rise to a risk of serious violations of the Convention, the European Court of Human Rights decided to apply Rule 39 of the Rules of Court.” As the press release details further the sitting chamber of seven called upon both Azerbaijan and Armenia “to refrain from taking any measures, in particular military action, which might entail breaches of the Convention rights of the civilian population, including putting their life and health at risk, and to comply with their engagements under the Convention, notably in respect of Article 2 (right to life) and Article 3 (prohibition of torture and inhuman or degrading treatment or punishment) of the Convention.” The Court further invited both countries to inform it, as soon as possible, of the measures taken to comply with their obligations, which is foreseen by Rule 39 § 3 of the Rules of the Court. In a statement of 1 October, the Secretary General of the Council of Europe Marija Pejčinović-Burić implored “all sides of the conflict to immediately cease hostilities and implement without delay the interim measures decided by the European Court of Human Rights.”

A golden age of inter-State applications

Repeatedly, I have stated that inter-State applications are rare occurrences. This seems to be true but for the year 2020, where Armenia’s application is already the third in three months, after the Netherlands lodged an application against Russia in July and Liechtenstein took action against the Czech Republic in August. Now, eleven sets of inter-State proceedings are pending before the Court, while overall, the new case is only the 27^th in the history of the Convention. Geir Ulfstein and I provided a broader overview of the challenges the Court faces on this blog earlier this year. In a recent interview about the apparent “golden age of inter-State applications” led by Justine Batura and Lukas Kleinert for Völkerrechtsblog, I had the opportunity to comment on some of the many issues surrounding the type of proceeding and the ongoing reform considerations about it.

Nagorno-Karabakh

The conflict between Armenia and Azerbaijan persists since the breakup of the former Soviet Union some thirty years ago. The self-proclaimed Republic of Nagorno-Karabakh is an enclave within Azerbaijan, which enjoys the support of Armenia.

The wider conflict has kept the Strasbourg Court busy. The cases of Chigarov and others v Armenia and Sargsyan v Azerbaijan can be labelled as “disguised” inter-State applications. In both cases, the home governments of the respective applicants intervened in the proceedings under Article 36 § 1 ECHR. The Court confirmed in Chigarov that Armenia exercised effective control over Nagorno-Karabakh and the surrounding territories and thus exercised (extraterritorial) jurisdiction in terms of Article 1 ECHR. In Sargsyan, the Court held that although the village from which the applicant had to flee was located in a disputed area, Azerbaijan exercised jurisdiction over it. There are currently more than one thousand similar individual applications pending before the Court which were lodged by persons displaced from Nagorno-Karabakh in and in the aftermath of the 1992 conflict.

A request for referral to the Grand Chamber is pending in the case of Makuchyan and Minasyan v Azerbaijan and Hungary. The case is about Azerbaijan’s alleged failure to enforce a prison sentence for an ethnically motivated hate crime.

Before the most recent hostilities emerged, Julia Emtseva provided an overview of the long history of the conflict, and highlighted the lack of grip of Security Council Resolution 2532, which – widely unsuccessful – called for a global ceasefire in view of the ongoing pandemic.

The role of Turkey: a possible co-respondent?

As international media outlets report, Turkey vowed support for Azerbaijan. It allegedly deployed F 16 fighter jets. Armenia could, from a procedural view, include Turkey in the inter-State proceedings under Article 33 ECHR as a co-respondent concerning Turkey’s role in the escalation of the conflict. The relationship between Armenia and Turkey is marked by the death some 1.5 millions of Armenians at the hands of the Ottoman Empire during the first World War.

The value of interim measures by the European Court of Human Rights: supervisory deterrent effect

The use of Rule 39 interim measures in acute inter-State conflicts is not new to Strasbourg. Similar measures were taken in the case of Ukraine v Russia in 2014 as well as Georgia v Russia II in 2008, as analyzed by Philip Leach on this blog. In the context of the Ukraine v Russia case, Kanstantsin Dzehtsiarou warned that it was “unrealistic to burden the Court with such an unattainable task as the prevention of war”. While I share the view that it is important to carefully manage the expectations towards the Court to achieve what many other bodies and initiatives have failed to do, it would be much worse if the Court remained silent when approached by a ECHR member state regarding the outbreak of hostilities and the loss of human life. The Court does not have the choice of which cases come before it.

When it comes to said management of expectations, one must add here that the compliance record of Azerbaijan with binding judgments of the Court certainly is among the worst in Europe, which is for example illustrated with the Ilgar Mammadov Article 46 § 4 ECHR proceedings.

What legal analysis permits of the available press release is that the Court does not impose new legal obligations on Armenia and Azerbaijan. Rather, it underlines existing and previously agreed treaty obligations enshrined in the Convention.

The value of the request for information is further to be highlighted. The use of interim measures can, and there must be always hope when dealing with human rights law, that there is a supervisory deterrent effect of a request for factual clarification.

The voice of the Court

The conflict in and around Nagorno-Karabakh will not be solved in Strasbourg. Interim measures from Strasbourg can help, at least one can hope, to contain the worst human rights violations by drawing attention to this theatre of – currently – acute conflict, even after the immediate media interest fades. The voice of the Court is a reminder for all involved that basic human rights obligations are to be respected. How the Court will deal, at a later stage of what will be certainly long ensuing proceedings, with the factually complex unfolding of events and the possible applicability of international humanitarian law, as well as the role of Turkey, remains to be seen.