Published by The Lawfare Institute
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A war broke out on Sept. 27 in the mountainous region of Nagorno-Karabakh, also known as the Republic of Artsakh or the Nagorno-Karabakh Republic (NKR). The region—no bigger than the state of Delaware—hosts a population of around 150,000 people, almost all of whom are ethnically Armenian. It is internationally recognized as lying within Azerbaijan’s borders but sees itself as a de facto independent republic, with its own parliament, president and army.
Yet the conflict extends beyond an internal fight between Azerbaijan and a breakaway republic. Armenia does not claim ownership of Nagorno-Karabakh but considers itself the guarantor of the security of the ethnic Armenians living in the region and is NKR’s lifeline to the outside world. Turkey is also a player in the conflict: It has pledged support for Azerbaijan, closing its border with Armenia and reaffirming Azerbaijan’s claims to territorial integrity. Amid the current crisis, Turkish President Recep Tayyip Erdogan pledged to “support our Azerbaijani brothers with all our means as always,” including military assistance. Lastly, Russia considers the Caucasus its “near abroad,” brokering cease-fires each time the conflict escalates but also selling arms to both sides.
Though sporadic sniper fire across the border has been common since the Karabakh War “paused” in a cease-fire in 1994, there have been two major conflagrations where troops have attempted to cross the Line of Contact, which lies in the Murovdag mountain range between Azerbaijan and NKR and separates the Azerbaijan armed forces and NKR Defense Army. The first was a four-day war in April 2016, and the second is the current conflict. The present violence has escalated to the worst the region has seen in decades. Both Armenia and Azerbaijan have declared martial law. And in Azerbaijan, curfews have been enforced, much of the internet has been blocked and other civil freedoms have been limited. To understand the competing territorial claims fueling the conflict, it is important to first understand the history of the region.
The region is known by several different names. Before 2017, the republic had referred to itself interchangeably as the Nagorno-Karabakh Republic or the Republic of Artsakh; in 2017, however, it adopted a new constitution that settled on the latter moniker. The name Artsakh dates back to the classical period, when the region was one of the provinces of the Armenian kingdoms. For much of the Middle Ages, though formally under the Persian Empire, the region maintained autonomy under the Principality of Khachen, governed by Armenian lords. In the late 1700s, the Karabakh Khanate was established under Persian rule but was abolished after the Russian Empire took control over the area in the early 1800s.
Problems over Nagorno-Karabakh’s status began after the Russian Revolution in 1917 and the retreat of Russian troops from the Caucasus. Both Armenia and Azerbaijan claimed the region as theirs when they became independent in May 1918. In July 1918, a congress elected by residents of the region voted unanimously to become part of the Armenian Republic. Nevertheless, when the Soviet Union took control of the Caucasus, Nagorno-Karabakh was ultimately placed within the boundaries of Soviet Azerbaijan—though it was granted autonomous status as the Nagorno-Karabakh Autonomous Oblast (NKAO). The oblast’s borders were drawn such that they were not contiguous with the Armenian Soviet Socialist Republic (SSR).
After the region’s establishment as an autonomous oblast, the government of NKAO persisted in efforts to join the Armenian SSR. NKAO brought the issue before USSR central bodies in the 1930s as well as in 1945, 1965, 1967 and 1977, but each effort was unsuccessful; oftentimes, the principal advocates were imprisoned. NKAO maintained its autonomous status throughout the USSR period. During Mikhail Gorbachev’s era of perestroika and glasnost toward the end of the Cold War in the late 1980s, the regional government once again demanded a transfer to Armenia, passing a resolution in its representative body in 1988.
Despite the USSR’s policy of increased democratic openness, the response from the Azerbaijani authorities was heavy handed. In February 1988, the Sumgait massacre saw hundreds of Armenian civilians indiscriminately killed, raped, maimed and burned alive. In 1990, the Baku pogrom resulted in the beating, killing and otherwise expulsion of all Armenians from Azerbaijan’s capital city. The ethnic violence was reminiscent of massacres that had taken place prior to Soviet hegemony over the area, including the 1920 Shushi massacre. Besides direct violence, Karabakh Armenians were denied Armenian-language textbooks in schools and television broadcasting in their own language, among a whole host of cultural and linguistic freedoms under the Azerbaijani SSR. Armenian leaders complained that this was a result of an attempt to “Azerify” the region and reduce its Armenian population.
Censuses taken by the USSR reported that, in 1926, 89.1 percent of NKAO residents were Armenian and 10 percent were Azerbaijani. By 1989, according to the census, the population was 76.9 percent Armenian and 21.5 percent Azerbaijani. In a 2002 interview, Heydar Aliyev, Azerbaijan’s president at the time and father of the current president, said that he had tried to increase the number of Azerbaijanis and reduce the number of Armenians living in the region while he was Soviet Communist Party administrator.
In 1991, the NKAO adopted a declaration proclaiming itself the independent Nagorno-Karabakh Republic (NKR) in accordance with the appropriate USSR Law. In a December 1991 referendum, 99 percent of participants voted for the independence of Nagorno-Karabakh, though Nagorno-Karabakh’s Azeri minority boycotted the vote. NKR maintains that it is a free, sovereign state; however, it has chosen not to apply for U.N. membership ahead of a final negotiated settlement. Countries around the world consider Azerbaijan to be the successor of the Azerbaijani SSR, which included the NKAO (now NKR), and no country recognizes NKR as independent.
Azerbaijani troops had in effect been at war against armed Armenian groups since 1988. Upon NKR’s secession, fighting in the region escalated, lasting three years and leaving a death toll of about 30,000. There was also large-scale displacement as a result of the fighting: Estimates suggest that close to 1 million people were displaced, including both Azerbaijanis and Armenians. Many ethnic Azerbaijanis fled from regions surrounding Nagorno-Karabakh, which became a “buffer zone” for the newly independent NKR. This period also saw the largest massacre of the modern conflict, where Armenian forces killed “whole columns of Azerbaijani citizens fleeing the besieged town of Khojaly” on Feb. 26, 1992.
Fighting finally ended in May 1994 with a cease-fire—known as the Bishkek Protocol—signed by Armenian and Azerbaijani defense ministers, along with the commander in chief of the Artsakh Defense Army. Besides the NKAO, ethnic Armenian forces had also asserted control over surrounding districts, ensuring contiguity with the Republic of Armenia and a security buffer zone.
However, peace hasn’t always been stable, and the current fighting is due partly to the inefficiency of conflict resolution mechanisms. The Organization for Security and Co-operation in Europe (OSCE) Minsk Group (co-chaired by Russia, France and the U.S.) was formed in 1992 to encourage a negotiated resolution to the conflict in Nagorno-Karabakh. The group, however, has struggled to fulfill its mandate of deescalating conflict and overseeing a negotiated settlement—in part because of the Minsk Group’s inability to independently monitor the Line of Contact. The OSCE’s monitoring missions in Nagorno-Karabakh comprise only six observers, who are not stationed there permanently but make temporary visits. The observers must announce their visits to the Line of Contact but have been unable to do so consistently due to a lack of cooperation from Azerbaijan. OSCE removed staff from the area at the outbreak of the coronavirus, and when the organization requested that its staff return in September 2020, Azerbaijan refused permission. In comparison, the OSCE operates 700 monitors in Eastern Ukraine—a territory smaller than NKR—while the European Union operates approximately 200 in its monitoring of the disputed territories in Abkhazia and South Ossetia.
Other difficulties have also plagued the Minsk Group. Along with Armenia and Azerbaijan, the NKR government is a signatory to the Bishkek Protocol, which the OSCE Minsk Group endeavors to uphold. But NKR civilian authorities were left out as a separate party to the negotiations after Robert Kocharyan, the former NKR president, became president of Armenia in 1998. In addition, the group has struggled to prevent violations of the cease-fire agreement due to the lack of an enforcement mechanism and the ability of parties to exercise a veto over the monitoring process—both of which have made it difficult for the Minsk Group to determine fault or condemn cease-fire violations.
In addition to the Bishkek Protocol, other cease-fires to end renewed fighting have been agreed upon. Russia brokered the cease-fire that ended the four-day war in 2016. Yet on May 18, 2017, the OSCE Minsk Group co-chairs for the first time made a clear attribution of blame against Azerbaijan’s instigation of cease-fire violations. Since then, there have been further cease-fire breaches, though there haven’t been clear attributions of blame due to difficulties in monitoring the Line of Contact. Azerbaijan has typically been hesitant to install monitoring technology at the Line of Contact, and Azerbaijani Ambassador to the U.S. Elin Suleymanov has said, “What we do not like is the effort to put stationary equipment along the line of contact because the line of contact is a line of contact between two militaries.” Conclusively determining fault, therefore, is challenging.
In July 2020, fighting broke out across the border in Armenia proper for several days—reigniting the conflict and sparking the current escalation. Azerbaijan threatened to attack a nuclear power plant outside Yerevan, Armenia’s capital, and Armenian news outlets published images of destroyed infrastructure and accused Azerbaijani forces of bombing a kindergarten in Armenia’s Tavush region and a textile factory producing masks for the coronavirus pandemic.
When a high-ranking Azerbaijani general was killed in the crossfire, anti-Armenian rhetoric escalated in Azerbaijan. Tens of thousands of Azerbaijanis took to the streets in Baku chanting “death to Armenians” and marched to the Parliament building, demanding war with Armenia. President Aliyev condoned the march as “another picture showing the unity and power of the people.” Violence also spiraled around the world: An Armenian school in San Francisco was vandalized with threatening graffiti; an Armenian embassy vehicle was burned in Berlin; and in Moscow, Azerbaijani men instigated what turned into a massive brawl with attacks on both Armenians and Azerbaijanis. Meanwhile, Turkey stood firmly behind Azerbaijan: Turkish Defense Minister Hulusi Akar commented that Armenia will be “buried under their own plot, drown in it, and will absolutely pay for what they did.” Turkish President Erdogan chimed in too, proclaiming, “[W]e will continue to fulfill the mission our grandfathers have carried out for centuries in the Caucasus”—an indirect reference to the Armenian Genocide carried out by the founders of the Turkish Republic.
Late summer was quieter following this uptick of violence in July, but worrying signs remained. Turkey held military exercises with Azerbaijan, which made threats to restart war. Azerbaijan’s President Aliyev also fired his foreign minister, Elmar Mammadyarov, accusing the minister of “leading useless negotiations” to allow the World Health Organization access to NKR to help its residents deal with the pandemic. Mammadyarov, who had led peace talks with Armenia for 16 years, was replaced with the country’s education minister.
Meanwhile, NKR announced plans to move its parliament from Stepanakert to Shushi. Known as “Shusha” to Azerbaijanis, the city was majority Azerbaijani during the Soviet period and is of great historical importance to Azerbaijan. In response to NKR’s announcement, the Azerbaijani Ministry of Foreign Affairs released a statement decrying the move as an “attempt to strengthen the policy of ethnic cleansing in the occupied territories of Azerbaijan.”
Other than this, life within NKR and along the Line of Contact was relatively peaceful, until two weeks ago. Then, fighting broke out in NKR on Sept. 27. Since then, Azerbaijani forces have shelled civilian cities far from the Line of Contact in NKR, including the capital city, Stepanakert—killing and injuring civilians and journalists. Azerbaijani forces have also bombed sites of worship and cultural heritage. Video shows the shelling of key bridges allowing travel in and out of the mountainous region, which could severely hinder humanitarian efforts from reaching the population. Meanwhile, Azerbaijan has argued that Armenia and NKR are targeting dense civilian populations as well. The Azerbaijani Defense Ministry accused Armenian forces of shelling the towns of Tartar, Barda and Beylagan.
The past weeks’ fighting appears to have been a premeditated attack by Azerbaijan, backed strongly by Turkey. Turkish arms sales to Azerbaijan escalated from well under $1 million in July to $33 million in August and $77 million in September, and Turkey has deployed F-16 fighter planes to Azerbaijan Though the Baku-Ankara agreement prioritizes military cooperation between Turkey and Azerbaijan, Turkey has also deployed Syrian foreign fighters. Before the violence erupted, Syrian National Army commanders were transferred in late September to southern Turkey, and then transported to Azerbaijan on Sept. 25. This occurred two days before the violence began in NKR.
In the past 16 days, each player has responded differently. Turkey has provided arms, mercenaries and diplomatic support to Azerbaijan, while Russia has invited the Armenian and Azerbaijani foreign affairs ministers for talks. Both Armenia and Azerbaijan had preconditions to returning to the negotiation table: Armenians wanted withdrawal of foreign mercenaries from the region, while Azerbaijan wanted Armenians to leave the entire territory. Nevertheless, the parties accepted Russia’s invitation and traveled to Moscow for peace talks, resulting in a temporary cease-fire to allow for the Red Cross to arrange for bodies to be exchanged. The cease-fire was breached almost immediately. A new humanitarian cease-fire was agreed to on Saturday, Oct. 17, after the week-old Russian-brokered cease-fire failed—yet that too was breached, and fighting continues.
International Law Violations
The recent violence raises numerous questions about possible violations of international law. Due to Azerbaijan’s July 2020 attacks on Armenia proper, which breached Armenia’s territorial sovereignty, the fighting would constitute an international armed conflict. Likewise, any violations of international humanitarian law (IHL) by Armenia in its attacks within Azerbaijan would also constitute an international armed conflict: Azerbaijan alleges Armenia has breached Azerbaijan’s territorial sovereignty by attacking targets there.
Beyond the question of territorial sovereignty, the conflict has raised the specter of indiscriminate attacks. These attacks violate the central principles of international humanitarian law, distinction and proportionality, as they have caused incidental loss to civilian life and damage to civilian objects that are excessive in relation to the direct military advantage anticipated.
Restrictions on media within Azerbaijan make it difficult to verify whether Armenia has committed international law violations. During this most recent escalation, however, credible international sources reporting out of NKR have logged a number of international law violations committed by Azerbaijan.
There are credible assertions of Azerbaijan targeting or indiscriminately injuring civilians, which would run afoul of IHL prohibitions on the use of force against civilians. Azerbaijan’s attacks on key passageways—one of only a handful out of the region—are excessively damaging to civilians and breach both the proportionality and distinction principles. Targeting objects of dual purpose, like bridges and roads, can be deemed an IHL violation if those are the main routes for civilians to escape the city and to receive humanitarian or medical aid. At this time there is no evidence Azerbaijan has taken precautionary measures to avoid any collateral damage caused by their attacks.
Furthermore, Azerbaijan opening fire on civilians would be a violation of Common Article 3 of the Geneva Conventions, which calls for mere minimum standards of treatment for civilians who are caught in the midst of noninternational armed conflicts within their homelands. Since NKR is de jure recognized as within the borders of Azerbaijan, Azerbaijani attacks of civilian cities would violate Common Article 3 of the laws of war. The strikes on civilian cities and objects likely would not benefit from a military necessity justification, as they conferred no military advantage but did kill and injure civilians and force them to take refuge in basements and shelters.
Furthermore, recent video evidence shows Azeri soldiers capturing and executing two Armenian soldiers in the village of Hadrut in Nagorno-Karabakh. Under the Third Geneva Convention, mistreatment and murder of prisoners of war is prohibited and is considered a war crime.
Evidence also indicates that Azerbaijan is using internationally condemned weapons, including cluster munitions deployed against civilian targets. Though neither Azerbaijan nor Turkey is a signatory to the Convention on Cluster Munitions, the use of such munitions is prohibited under customary international law because of their indiscriminate nature. Lastly, overwhelming evidence now demonstrates that Turkey has deployed Syrian foreign fighters against Armenia, including a mixture of ideologically driven militants and impoverished Syrian nationals who claim they were misled and coerced into participating in the war.
Turkey’s use of mercenaries—whom it is reportedly paying $1,500 each—adds another element. Mercenaries deployed by Turkey have been credibly accused of war crimes and crimes against humanity in Northern Syria, and are also affiliated with well-known terrorist organizations, such as the Hamza Brigade, the Islamic State, al-Qaeda and al-Nusra Front. Even the head of Russia’s SVR Foreign Intelligence Service stated that the conflict was attracting people he described as mercenaries and terrorists from the Middle East: “We are talking about hundreds and already even thousands of radicals hoping to earn money in a new Karabakh war.”
This raises the issue of whether Turkey could be in breach of its obligations under the International Convention for the Suppression of the Financing of Terrorism, to which it is a member. In particular, Turkey’s actions raise questions under Article 2(1)(b) of the convention, which forbids providing funds with the knowledge that they will be used to cause death or serious bodily injury to civilians, and to compel a government to abstain from fighting or pursuing its self-determination efforts. What’s more, Azerbaijan and Syria—though not Turkey—have also acceded to the International Convention Against the Recruitment, Use, Financing and Training of Mercenaries, calling into question the use of mercenaries on their territory. Article 2 of the convention maintains that “any person who recruits, uses, finances or trains mercenaries ... commits an offence for the purposes of the Convention,” and Article 5 maintains that “States Parties shall not recruit, use, finance or train mercenaries and shall prohibit such activities in accordance with the provisions of the present Convention.” Article 6 would require that Azerbaijan report this knowledge to the U.N. secretary-general, and Article 12 would also require Azerbaijan to extradite the alleged offender or submit the case to competent authorities for prosecution purposes.
Armenia has also been accused of international law violations. News headlines claim that Armenia has indiscriminately attacked and targeted civilian objects. Additionally, though they may have a strong argument for military necessity, reports have indicated that NKR targeted the military airport in Azerbaijan, which was receiving and hosting the foreign fighters and supplies coming in from Turkey. Azerbaijan does not have free media, curtails freedom of expression, and bans foreign journalists from entry, which makes it difficult to verify these claims. But civilians almost certainly have been killed, and Turkish sources have reported that at least nine civilians were killed in the attack on the Ganja airport. Furthermore, credible reports have indicated that civilians were killed by Armenian strikes on a cemetery in Tartar, Azerbaijan.
Human Rights Watch has called on both sides to respect an absolute ban on targeting civilians or civilian objects, and Russia has called on both sides to respect the cease-fire in NKR. The European Court of Human Rights has also chimed in, applying Rule 39 of the Rules of Court (interim measures), stating that the court “now calls on all States directly or indirectly involved in the conflict, including Turkey, to refrain from actions that contribute to breaches of the Convention rights of civilians, and to respect their obligations under the Convention.” This advice seems not to have been heeded.
It is unclear how much longer the fighting can go on with such uneven resources. Together, Armenia and Artsakh are home to just over 3 million people, outnumbered 30-to-1 by the combined population of Azerbaijan (10 million) and Turkey (83 million). Azerbaijan also has greater spending power—with the support of Turkey’s treasury and $100 million in U.S. security aid, oil-rich Azerbaijan has a superior ground and air arsenal replete with a large assortment of drones. Azerbaijan has the support of weapons from Israel, foreign fighters from Turkey and a $4.8 billion military budget, while Armenia has a military budget of $447 million and little foreign support.
A number of international bodies have urged a halt to the fighting, including the OSCE Minsk Group, the European Court of Human Rights and the U.N. Security Council. The deputy U.S. secretary of state and the Russian foreign minister have also condemned the violence. The Organization of American States, French President Emmanuel Macron and members of the U.S. Congress are among those who have made statements specifically condemning Turkey and Azerbaijan. In recent days, Israel has indicated that it may potentially halt the sale of Israeli-made weapons, including drones, to Azerbaijan; members of Congress have urged the U.S. State Department to cut military aid to Azerbaijan and sanction Turkey; and the EU has indicated that it may impose sanctions on Turkey.
What will happen next is unclear. As recently as March 2020, 43 percent of Armenians believed that it was either likely or very likely for there to be a solution to the conflict through peaceful negotiation. The most recent polling of Azerbaijanis, taken in 2013, indicates that 81 percent of the country’s population declared they would “never accept” an independent Nagorno-Karabakh. For now, the violence has continued for 16 days, longer than any outbreak since the early 1990s.