Thawing the Frozen Conflict? The European Court’s Nagorno-Karabakh Judgments

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Last September, Erik Fribergh, the Registrar of the European Court of Human Rights, told Government representatives on the Steering Committee for Human Rights (CDDH) that ‘the Court is … not equipped to deal with large scale abuses of human rights. It cannot settle war-like conflicts between States.’ Yet, as Fribergh noted, the Court is increasingly being called on to adjudicate on such situations. Through the two Grand Chamber judgments delivered on 16 June (Sargsyan v Azerbaijan and Chiragov v Armenia) has the European Court entered into the terrain of international conflict resolution?

Both judgments upheld the European Convention rights of families displaced by the Nagorno-Karabakh conflict in the early 1990s, a conflict that created hundreds of thousands of refugees and internally-displaced persons (IDPs) on both sides, and which has remained unresolved in the ensuing decades. Peace negotiations have been held under the auspices of the OSCE ‘Minsk Group’ (co-chaired by France, Russia and the United States), but as the judgments make clear, settlement negotiations have repeatedly failed, due to the uncompromising attitudes of both Governments. The cases are legally important, given the Court’s position on the jurisdictional reach of the Convention, which Marko Milanovic has previously discussed here. They are politically significant too – in emphasising the importance of the two states establishing a property claims mechanism, and giving the parties to the cases 12 months to come back with proposals on redress, the Court has arguably given significant fresh impetus to the resolution of the ‘frozen conflict’.

To recap, Minas Sargsyan and his family, ethnic Armenians, lived in the village of Gulistan just north of the Nagorno-Karabakh region, but within Azerbaijan. In June 1992 the village was heavily bombed by Azerbaijani forces, and the villagers fled for their lives. The Sargsyans resettled as refugees in Armenia. The applicants in the Chiragov case were Azerbaijani Kurds living in the Lachin region which came under repeated attack and they too fled, in May 1992, shortly before the town of Lachin was captured by forces of Armenian ethnicity. They were subsequently not able to return to the region and therefore lived as IDPs elsewhere in Azerbaijan. In both cases the applicants’ complaints about the loss of their homes, land and property were upheld, with the Court finding continuing violations of their rights under Article 1 of Protocol 1, Article 8 and Article 13. These judgments need to be read together with the separate admissibility decisions (here and here) published in December 2011.

The jurisdictional circumstances of each case were quite different. As Marko Milanovic has discussed, the Chiragov case concerned the extra-territorial reach of the Convention (did Armenia have jurisdiction over events occurring within the territory of Nagorno-Karabakh?), whereas in Sargsyan the more novel question was whether Azerbaijan was still considered to exercise jurisdiction over a part of its own territory over which it claimed to have lost control.

In the Sargsyan case, the location and status of the village of Gulistan, where the Sargsyan family had lived, was highly contested – notably as to its proximity to the two states’ military positions. On the available evidence, the Court found that it was not established that Azerbaijani forces were (or had been) present in Gulistan; however, there was also no evidence that the ‘Nagorno-Karabakh Republic’ had positions or troops in the village. The Grand Chamber therefore concluded that as the village was situated in the internationally recognised territory of Azerbaijan, a presumption of jurisdiction applied (see Assanidze v Georgia and Ilasçu v Moldova and Russia). A limitation of a state’s responsibility had only previously been accepted in respect of areas where another state or separatist regime exercised effective control, and the Court rejected the Azerbaijani Government’s argument that this should be extended to disputed zones, or ‘areas which are rendered inaccessible by the circumstances’.

The potential impact of the judgments

What impact, if any, will these judgments have on future negotiations over the Nagorno-Karabak conflict? It was a central feature of both judgments that the Court made resoundingly clear its view of the inadequacy of both states’ stances towards the settlement negotiations. For example, in Sargsyan, it underlined that:

…. it is the responsibility of the two States involved in the conflict to find a political settlement of the conflict…. Comprehensive solutions to such questions as the return of refugees to their former places of residence, re-possession of their property and/or payment of compensation can only be achieved through a peace agreement. Indeed, prior to their accession to the Council of Europe, Armenia and Azerbaijan gave undertakings to resolve the Nagorno‑Karabakh conflict through peaceful means…Although negotiations have been conducted in the framework of the OSCE Minsk Group, more than twenty years have gone by since the ceasefire agreement in May 1994…without a political solution being yet in sight. As recently as June 2013 the Presidents of the Co-Chair countries of the Minsk Group…have expressed their “deep regret that, rather than trying to find a solution based upon mutual interests, the parties have continued to seek one-sided advantage in the negotiation process” … (Sargsyan, para. 216)

As Gulistan was situated in an area of military activity, the Court found that it was justifiable on grounds of safety to refuse the former villagers access to it. Nevertheless, in such a situation, the State still had a duty to take ‘alternative measures’ in order to secure property rights, which were a key pillar of the negotiations:

The right of all internally displaced persons and refugees to return to their former places of residence is one of the elements contained in the 2007 Madrid Basic Principles which have been elaborated in the framework of the OSCE Minsk Group…and form the basis of the peace negotiations. (Sargsyan, para. 236)

The mere fact that peace negotiations were on-going did not absolve the two Governments from taking other measures, especially when negotiations had been pending for such a long time, without leading to tangible results. In both cases, the Court directed the Governments’ attention towards international standards on property rights (notably the UN Pinheiro Principles), concluding:

…it would appear particularly important to establish a property claims mechanism, which should be easily accessible and provide procedures operating with flexible evidentiary standards, allowing the applicant and others in his situation to have their property rights restored and to obtain compensation for the loss of their enjoyment. (Sargsyan, para. 238, Chiragov, para. 199)

How likely is it that these decisions will lead to real change on the ground? There is a positive precedent in the context of another long-standing and intense political dispute – property claims in northern Cyprus. In its 2005 judgment in Xenides-Arestis v Turkey, the Court directed the Turkish government to introduce a mechanism of redress for property claims within three months, which led to the establishment of the Immovable Property Commission (IPC) (whose composition included a former Secretary General and Deputy Secretary General of the Council of Europe). Subsequently, in its decision in 2010 in Demopoulos v Turkey, the Grand Chamber found that the IPC provided an accessible and effective framework of redress.

Elsewhere, the Court made a creative, and ultimately successful, contribution to resolving large-scale property claims in Poland, stretching back to the aftermath of the Second World War (Broniowski v Poland). It has also directed a number of states (albeit with mixed results) to introduce mechanisms to redress mass property claims: examples include Romania, Albania and Italy. Furthermore, the Court can be increasingly prescriptive in such contexts, for example, directing states to take measures in order to prevent the unlawful occupation of immovable property (Sarica and Dilaver v Turkey) and stipulating factors to be taken into account in calculating compensation for expropriated property (Yetiş v Turkey).

The Nagorno-Karabakh judgments provide an unprecedented opportunity for the international community to seek to ensure that the victims of the conflict – the hundreds of thousands of refugees and IDPs – can now receive redress. In the light of recent reports that the situation between the two states is in fact worsening, there is an even greater urgency for the deadlock to be broken. Both states are, and will continue to be, in violation of the European Convention unless and until the two Grand Chamber judgments are implemented. So, will the three co-chairs of the OSCE Minsk Group take this opportunity to exert the requisite diplomatic pressure on the two states? Given the confidential nature of the Minsk process, it is very hard to say how the co-chairs will respond. However, as a result of the judgments, a new player now has a role in the resolution process, namely the Council of Europe, which is in a position to pursue the interests of the individual victims of the conflict, independently of the political machinations inherent in the OSCE Minsk Group negotiations. Using the two Grand Chamber judgments as (legally binding) pressure points, Council of Europe states have a significant and timely opportunity, through the Committee of Ministers’ implementation process, to exert a level of influence which could be decisive.

Note: Together with the NGO Legal Guide, Philip Leach (EHRAC) represented the applicants in Sargsyan v Azerbaijan.

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Jamal says

July 9, 2015

Dear Philip,
I think it is not first time when ECtHR applies Convention in post-conflict contexts, as it should be doing. I mean they are not "thawing the conflict", but applying rule of law where there was none since 1991.
Actually Chiragov is closer in its facts and legal issues to Loizidou, than to Sargsyan. The only thing that Sargsyan and Chiragov case share in common is that they are from Nagorno Karabakh region. But Chiragov, unlike Sargsyan, and like Loizidou, involves unrecognized state (NKR in Azerbaijan, TRNC in Cyprus) and protracted occupation.
I think Chiragov is also important because it shows that the Court will apply the same approach to actions of unrecognized republics in Eastern Ukraine.
The implications of cases like Chiragov are potentially vast. It holds that Republic of Armenia is basically an occupying power and all issues arising from breaches of the Convention on the occupied territory shall be solved accordingly. Eg, in Chiragov Court refers to Pinheiro Principles that call for restitution of property, rather than mere compensation.