Baku, August 18, AZERTAC
On 16 June 2015, twenty-three years after fleeing an ethnic cleansing by Armenian forces in the district of Lachin (Azerbaijan), six victims, including Elkhan Chiragov, received a judgment from the European Court of Human Rights (Strasbourg) in their favor. This decision reminds that while there may be "no prospect of a political solution yet in sight" to the Nagorno-Karabakh conflict, it does not remain in a legal vacuum. The Chiragov and others v. Armenia case is just a beginning of a legal battle for application of the rule of law without which no political solution can be durable.
The Strasbourg Court has a limited mandate. It can hear complaints from individual victims within the member states, for violations that occurred or continue after the date when member states joined the Council of Europe, and only for violations of rights that fall within the scope of the Convention on Human Rights. And it appears that Chiragov`s situation does meet all the criteria.
Why was the case lodged and decided against Armenia anyway? After all the victims were in Azerbaijan, and the events complained of happened in Azerbaijan as well. Armenia claimed that the victims were not within their jurisdiction at all. Moreover, Armenian government denied that they had anything to do with the armed attack on Chiragov`s village and claimed instead that the actions were those of the "Nagorno-Karabakh Republic" fighting for independence from Azerbaijan. But the Court held that Armenia is responsible because it exercised 'effective control' over "NKR", or basically occupied the Nagorno-Karabakh and other territories in Azerbaijan:
"the Republic of Armenia, from the early days of the Nagorno-Karabakh conflict, has had a significant and decisive influence over the "NKR", that the two entities are highly integrated in virtually all important matters and that this situation persists to this day. In other words, the "NKR" and its administration survives by virtue of the military, political, financial and other support given to it by Armenia which, consequently, exercises effective control over Nagorno Karabakh and the surrounding territories, including the district of Lachin."
In reaching this conclusion, the court took note that there was a "high degree of integration between the forces of Armenia and Nagorno-Karabakh" and "indications of service of Armenian soldiers in the "NKR". The court found that Armenia`s "military support has been – and continues to be – decisive for the conquest of and continued control over the territories in issue". Besides military control, there was also political dependence, integration of judiciary and legislation, and financial support from Armenia.
The Strasbourg Court could not rule that there was an unlawful use or threat of force by Armenia against Azerbaijan under the UN Charter because the Convention does not cover this issue. It did rule that it is Armenia responsible for violation of Chiragov`s right to property, right to home and family life, and right to an effective legal remedy.
Moreover, it held that Armenia is an occupying power, because
"…occupation…exists when a state exercises actual authority over the territory, or part of the territory, of an enemy state. The requirement of actual authority is widely considered to be synonymous to that of effective control."
According to the court, Armenia as an occupying power should also be guided by the UN "Principles on Housing and Property Restitution for Refugees and Displaced Persons" (Pinheiro Principles).
Armenia also argued that it is not responsible for human rights violations that happened in 1992 (way before 2002 when Armenia joined the Council of Europe). The court held that as the occupation is continuous, the breach of Chiragov`s rights continues to the present day.
The Strasbourg Court also disagreed that Chiragov and other victims must litigate in courts of the "NKR", because "virtually all Azerbaijanis have left the disputed territories" and "it is not realistic that any possible remedy in the unrecognised "NKR" entity in practice could afford displaced Azerbaijanis effective redress".
Moreover, the laws of "NKR" that deprive victims of their property claims "cannot be considered legally valid" because "that the "NKR" is not recognised as a State under international law by any countries or international organizations".
Chiragov and others v. Armenia decision by the Grand Chamber of the European Court of Human Rights is a landmark decision that recognizes the validity of compensation and restitution claims of about 800,000 Azerbaijani victims of occupation. The court acknowledged Armenia`s occupation of Azerbaijani territories, attributed actions of the "Nagorno-Karabakh Republic" to Armenia, and upheld victims' rights to property, private and family lives, and of access to effective remedies.
While there are no winners in wars, there are in litigation. In this case, the winners are Azerbaijanis, like Chiragov, and the rule of law.
Javid Gadirov, SJD
School of Public and International Affairs
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