Human Rights in a De Facto State: The Locus of Responsibility
The Second Karabakh War of 2020 not only shifted the geopolitical balance in the South Caucasus but also created a need to review the implications of human rights protection in the aftermath of significant military confrontation. This is especially true in light of the lack of conflict resolution and the non-recognition of one of the parties involved in the conflict (state of Nagorno-Karabakh). This article presents the current discourse around human rights issues in the de facto states of the South Caucasus and analyzes the human rights situation in Nagorno-Karabakh after the war.
Historical Context in the South Caucasus
The South Caucasus as a geopolitical region includes three UN member states (Armenia, Azerbaijan, and Georgia), two partially recognized countries (Abkhazia and South Ossetia)[1], as well as one non-recognized state (Nagorno-Karabakh). The dissolution of the Soviet Union, despite being celebrated as a step towards democratization, nevertheless became a breeding ground for a series of lingering violent conflicts. The first phase of post-independence military conflict in the early 1990s ended with the signing of ceasefire agreements. The Bishkek Protocol was signed between Armenia, Azerbaijan and Nagorno-Karabakh. In the Georgian-South Ossetian conflict the signatories to the Sochi Agreement were Georgia and Russia, while 1994 Moscow Agreement signed between Georgia and Abkhazia ended miliary actions in the Georgian-Abkhaz conflict. In the subsequent years, all de facto entities aspired to build statehood and achieve international recognition. Abkhazia and Nagorno-Karabakh were significantly more successful in building stronger political structures, military and civil society, while South Ossetia struggled to develop independent (from Russia) social-political structures.ย Despite their efforts, Abkhazia, South Ossetia, and Nagorno-Karabakh remain unrecognized by most UN member states due to the prevalence of the principles of state sovereignty and territorial integrity over the principle of self-determination.
Under the current paradigm of international law, existing de facto states have very limited access to the international arena. They are not members of major international organizations, are not signatories to foundational conventions and treaties, and do not have direct access to major international institutions. As such, they are only indirect participants in international legal processes. For example, Armenia instituted proceeding against Azerbaijan before the International Court of Justice also on behalf of the Armenian population of Nagorno-Karabakh with regard to violations of the International Convention on the Elimination of All Forms of Racial Discrimination (CERD). Similarly, Russia represented South Ossetian de facto authorities in the ICC investigation into alleged crimes against humanity and war crimes committed in the context of an international armed conflict in 2008. Each of the de facto states in the South Caucasus has developed a binary relation with their parent and patron states. In this context, the parent state is the one from which the de facto state is seeking independence, while the patron state is the one that provides political, economic, and military support to the de facto regimes. Due to the secessionist nature of these conflicts, Abkhazia, South Ossetia, and Nagorno-Karabakh have highly confrontational relations with their respective parent statesโGeorgia and Azerbaijan. At the same time, statehood would have been impossible without the patronage of Russia and Armenia. Exclusive dependence on the patron state and exclusion from international structures because of a lack of recognition further undermines the effective application of international human rights protection standards.
The unrecognized status and lack of direct jurisdiction by the parent states means that legislation of the internationally recognized state and its responsibilitiesโhighlighted by human rights treatiesโcannot be applied to these entities. To protect the rights of their citizens, all de facto states in the South Caucasus have enacted local legislation and established Ombudsman institutions. However, the centralized governance style and weak separation of powers in the de facto states jeopardize the functioning of these protections. Limited access by international human rights monitoring organizations and the lack of reliable and regularly reported data make it difficult to speak holistically about human rights in the de facto states. At the same time, while the de facto status is a limiting factor for applying internationally mandated protections, human rights in these states have some degree of protection and freedom. The most recent 2022 Freedom in the World reportย by Freedom House ranks Abkhazia and Nagorno-Karabakh as partially free.
The lingering conflicts and limitations posed by non-recognition created two distinct lenses for viewing human rights. The power asymmetry and sense of insecurity resulted in a stronger emphasis not on internal (by own government/authorities) but on external (by the other side/enemy) violations of human rights. This external locus to uphold human rights diverts attention from the domestic human rights context, pushing it to the background.ย ย
Human Rights in Nagorno-Karabakh: History of Conflict
Facilitated by the collapse of the USSR, the ethno-political tensions in Nagorno-Karabakh transformed into a bloody war in 1991-1994. The war ended with a ceasefire agreement that solidified the territorial gains of the Armenian side and effectively integrated Armenia and Nagorno-Karabakh. They share the same socio-economic, educational, and cultural space. The political and military elites and structures are also extremely intertwined. Two former presidents of ArmeniaโRobert Kocharyan and Serzh Sargsyanโare from Nagorno-Karabakh and have used the ongoing conflict as the foundation of their political platform.ย ย
The unresolved conflict over Nagorno-Karabakh was frozen since the end of the first war in 1994. The militarization of the region and public discourse, a stagnant negotiation process, and frustration with limitations imposed by the COVID-19 pandemic created suitable conditions for a “perfect storm.” On July 15, 2020, thousands of Azerbaijanis took to the streets in an unprecedented protest โdemanding war with Armenia.โ Many analysts also believe that Armenian Prime Minister Pashinyanโs statement โArtsakh[2] in Armenia, thatโs it!โ during his visit to Nagorno-Karabakh a year earlier became one of the triggers for the events that unfolded a year later. Previous small-scale clashes and provocations had built up significant tensions that resulted in a devastating full-scale war on September 27, 2020. Tactics used by both Armenia and Azerbaijan raised major concerns among international actors. Based on its ground investigation, Amnesty International concluded that โ[t]he two sides used notoriously inaccurate and indiscriminate weapons in populated civilian areas.โ The UN High Commissioner for Human Rights warned that continued indiscriminate targeting of civilian populated areas โmay amount to war crimes.โ In addition, international actors independently reported numerous war crimes committed by both sides during the war and called for an urgent investigation into the perpetrators. The war ended with the Russian-brokered trilateral truce agreement after claiming the lives of over seven thousand servicemen on both sides.
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Human Rights in Nagorno-Karabakh: Post-2020 War
The end of hostilities and deployment of Russian peacekeeping forces has provided some physical security. Nevertheless, the humanitarian situation in the region remains highly volatile. Relief and human rights monitoring organizations continue to face obstacles to physically access these areas. The outcome of the Second Karabakh War, the significant territorial and human losses sustained, the hate speech and โArmenophobicโ rhetoric from officials in Baku, and an uncertain future after the expiration of the Russian peacekeeping mission in 2025 emphasize human rights through the conflict (external) lens; this contrasts heavily with the holistic (internal) lens of human rights that places individuals within their local contexts and outside of the conflict dynamics.ย ย
The conflict lens of the human rights violations of the Armenian population by Azerbaijan or Azerbaijani armed forces remains central in the political discourse. The existential threat to the Armenian population of Nagorno-Karabakh, exacerbated by the ongoing siege of the region, trumps all other issuesโincluding domestic human rights. Since September 2020, Nagorno-Karabakh Ombudsman has published nineteen ad-hoc reports, eighteen of which report the violations of human rights of the Artsakh (Nagorno-Karabakh) people by Azerbaijan or Azerbaijani armed forces. With the continued potential for future military action, LGBTI, disability, gender, and other human rights issues not framed by conflict remain outside of local human rights debate. This dismissal is justified by the need to be united and strong in the face of a powerful and dangerous enemy.ย ย
ะขhe current framing of human rights issues is rooted in earlier political processes. In 2016, the Armenian Defense Minister Vigen Sargsyan introduced the โNation-Armyโ concept as the foundation of the country’s defense strategyโalso extended to Nagorno-Karabakh. Its basic premise is that societyโs unconditional support to the army is required for strong, combat-ready armed forces, and that any disturbance within the traditional societal structure endangers the army, and thus, the security of people.ย ย
An illustrative example of how this ideology penetrates other domains is the current approach to domestic violence and womenโs rights. Amnesty International and local experts point out that after the Second Karabakh War, there were increased cases of domestic violence in Armenia. However, cases remain underreported and improperly investigated by the government because they jeopardize the very core of society. Experts on gender-based violence note that โ[i]f a woman speaks out about domestic violence it is seen as a challenge to the family and, therefore, a challenge to the nation and its survival.โ The unresolved conflict, possibility of another military escalation, the need to have combat-ready army where the image of the soldier is built around the stereotype of masculinity, places the LGBT community in increased marginalized position since they donโt fit the mainstream military and patriotic contexts. These narratives of militarism and polarized gender roles also create a breeding ground for harassment, discrimination, and violence against the LGBT community and further justify the discriminatory treatment of LGBT people in Nagorno-Karabakh and Armenia.ย
Is There a Way Forward?
The international community can only discuss a more comprehensive and inclusive way of addressing human rights in Nagorno-Karabakh after the resolution of the conflict, which is still very far away. The persistence of the โexternal threat of exterminationโ narrative that is reinforced by Azerbaijan’s coercive actions will continue to shape the human rights dimension with an outward-looking trajectory.
ย An important interim measure for strengthening the internal lens of human rights would be the development of credible mechanisms for the international monitoring of human rights violations directly related to the conflict and the establishment of sound practices for accountability. A practical step in this direction would be the commissioning of regular international fact-finding missions to monitor and report on human rights violations. The international community should use all its political and legal weight to ensure compliance with rulings of the International Court of Justice to ensure the protection of rights of the Armenian population of Nagorno-Karabakh. The reliable functioning of international monitoring, reporting, accountability, and protection mechanisms will allow for renewed confidence that human rights violations directly related to the conflict will receive due attention and justice. This will free up discursive space and will create public demand for more inclusive and inward-oriented work on human rights in Nagorno-Karabakh.ย
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[1] Abkhazia and South Ossetia are largely recognized as part of Georgia. These disputed territories were first recognized by Russia in 2008 and only four other UN member states (Venezuela, Nicaragua, Nauru, and Syria) recognized them as independent.
[2] Artsakh is the Armenian word for Nagorno-Karabakh.
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Dr. Margarita Tadevosyan is a Post-Doctoral Fellow and Research Professor at Jimmy and Rosalynn Carter School for Peace and Conflict Resolution. She is a scholar-practitioner of conflict resolution with over a decade of experience working in the South Caucasus conflict context.
Image Credit: Nicholas Babaian, Wikimedia Commons. CC BY-SA 2.0
