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International Law

Failure of international humanitarian law in the Nagorno-Karabakh conflict

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Following the collapse of the Soviet Union, various ethnic conflicts emerged in the post-Soviet space, such as Nagorno-Karabakh, Transnistria, South Ossetia, Abkhazia, and the ongoing Ukrainian crisis. One of these unresolved conflicts is that between Armenia and Azerbaijan over Nagorno-Karabakh, generally considered a ‘frozen conflict’.

However, there isgrowing evidence that this is not a frozen conflict as soldiers and civilians are dying on a daily basis I n the militarized zone along the front line, which culminated in the four-day war between Armenia and Azerbaijan on the 2-5 April 2016. Following this war, never before has the international spotlight focused so much on this area and specifically on this conflict, which could cause future instability for the entire region of the South Caucasus.

It is the clash between the principles of territorial integrity and self-determination, which underlie the conflict over Nagorno-Karabakh. Prior to this most recent war, the entire Azerbaijani population, numbering 40,000 from Nagorno-Karabakh and 560,000 from the seven occupied districts had fled Nagorno-Karabakh and lived as internally displaced persons (IDPs) distributed over Azerbaijan which is proving to be a huge obstacle to the peace settlement and international recognition.

This violation of human rights was expressed by Azerbaijan and the applicants in the Chiragov and Others v. Armenia case. Azerbaijan produced a number of facts and arguments in the Chiragov case demonstrating that Armenia clearly exercises full control over Nagorno-Karabakh and has stationed its soldiers in the occupied territories. The judgment on the Chiragov case and similarly the Sargsyan v. Azerbaijan case were only declared by the European Court of Human Rights (ECtHR) on the 16th June 2015.

The recent judgment on the case of Chiragov and Others v. Armenia has established that it was the Republic of Armenia and not ‘Nagorno-Karabakh Republic’ (NKR) which is the party to the conflict. The initial dispute between Azerbaijan and its citizens of Armenian origin in Nagorno-Karabakh, but supported by Armenians living in what was then the Armenian SSR, can be defined as an internal armed conflict. As such, it was governed by the provisions of Art. 3 common to the four Geneva Conventions (GCs) of 1949. This common Art. 3 expressly binds all parties to the internal conflict including insurgents in Nagorno-Karabakh even though they do not have the legal right as private individuals within the national territory of a state party to sign the GC of 1949. Any occurrence of hostilities between Armenia and Azerbaijan would trigger the definition of ‘international armed conflict’.

The judgment on 16th June 2015 of the ECtHR Grand Chamber in the Chiragov and Others v. Armenia case confirms the control of Armenia in Nagorno-Karabakh, which invalidates Armenia’s claim to the national liberation of the Karabakh Armenians. Armenia is thus deemed responsible for the occupation of Nagorno-Karabakh. The ECtHR decision has put an end to Armenia’s denial of its own responsibility for illegal occupation and the presence of armed forces in the territories of Azerbaijan. As such, the judgment confirms that the territories in question are ‘occupied’ rather than ‘liberated’ despite what Armenia says. International law does not outlaw a country to use force to liberate its territories occupied by another state. The judgment states:

Art. 42 of the Regulations concerning the Laws and Customs of War on Land, The Hague 18 October 1907 defines belligerent occupation as follows: “territory is considered occupied when it is actually placed under the authority of the hostile army. The occupation extends only to the territory where such authority has been established and can be exercised”.

The case of Chiragov and Others v. Armenia concerns six Azerbaijani nationals who were forced to leave the district of Lachin in Azerbaijan by Armenian forces during the Nagorno-Karabakh War and since then have been unable to return to their homes and denied control over their property. The Court judged that Armenia had violated Art. 1 of Protocol No. 1 (protection of property) to the European Convention on Human Rights (ECHR), Art. 8 (right to respect for home and private and family life) and Art. 13 (right to an effective remedy) of the Convention. The crucial significance of this case is that the defendant is the Republic of Armenia and therefore NKR is not an independent or autonomous authority. The Court reaffirmed that from the outset of the conflict the Republic of Armenia has had a decisive influence over the NKR and the surrounding territories including the district of Lachin. Armenia is responsible for the occupation of Nagorno-Karabakh. The ECtHR decision has put an end to Armenia’s denial of its own responsibility for illegal occupation and military presence in the territories of Azerbaijan.

It should be noted that the applicants’ claim under Art. 14 (prohibition of discrimination) was rejected within the meaning of the Art. 14 of the Convention on the basis of ethnic and religious affiliation. On the other hand, on the same day, 16th June 2015, the Grand Chamber of the ECtHR gave its ruling on the Sargsyan v. Azerbaijan case and ruled that Azerbaijan had violated Articles 1 (Protocol No. 1 to the Convention), 8 and 13 of the ECHR.

Sargsyan was an Armenian refugee from Nagorno-Karabakh who had been forced to flee his home in Gulistan in 1992 following the conflict between Armenia and Azerbaijan over Nagorno-Karabakh. His claims that his rights to protection of property, to a family life, and to an effective remedy to the losses he had incurred, had all been violated, were all upheld by the ECtHR. The Court confirmed that although his village was in a disputed area, Azerbaijan had jurisdiction over it and had a duty to take alternative measures to secure Sargsyan’s rights. The Courtc onsidered that no separate issue arose under Art. 14, as Mr Sargsyan’s complaints under Art. 14 amounted essentially to the same complaints which the Court had examined under Articles 1 of the Protocol, 8 and 13 of the Convention. This is a successful precedent for Armenian refugees and IDPs to demand compensation from Azerbaijan. On the other hand, the compensation for the economically stretched Armenia would be a huge economic burden in the future compared to the more affluent Azerbaijan. However, the ECtHR’s decision was on the right of persons rather than on the conflict itself and thus can have no political influence in the final conflict settlement. The ECtHR’s verdicts do not solve the problem of Nagorno-Karabakh recognition nor refer to the status of Nagorno-Karabakh, but demonstrate the importance of refugee rights and conflict resolution. Both cases are about persons displaced by the conflict and had lost their properties and how they must now receive compensation. Because Armenia and Azerbaijan both intervened as third parties in the case in which the other case was a respondent they could be called interstate cases by proxy. Both of these cases are an important addition to the Court’s jurisprudence as there are thousands of other applications pending before the Court with the same issues.

These judgments provide an unprecedented opportunity for the international community to attempt to ensure that the thousands of victims of the conflict (refugees and IDPs) can now receive immediate redress without waiting for the final resolution to the conflict. As the situation between the two states appears to have deteriorated since April 2016 there is a great urgency for the deadlock to be broken.

In addition to the above, it should be noted that Armenia is a party to both the GCs of 1949 and Additional Protocols (AP) whereas Azerbaijan only ratified the GCs but not the APs. Hence, Armenia should have been bound by these stricter rules than Azerbaijan. Some rules were breached by Armenia in the Nagorno-Karabakh conflict such as the deportation and forcible transfer of civilians of an occupied territory. This first rule was breached by ethnic cleansing in the occupied territories of Azerbaijan. Secondly, Armenia arranged the continued mass settlement of its civilians to take up residence on occupied territory, which is contrary to Art. 85 (4) (a) of Protocol I. This was a grave breach of the Protocol as is discussed in the ‘Case of Major War Criminals’ in 1946 of the International Military Tribunal (IMT) at Nuremberg.

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International Law

Carl Schmitt for the XXI Century

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For decades, the scholars of international relations have confused the term “New World order” in the social, political, or economic spheres. Even today, few scholars confuse the term with the information age, internet, universalism, globalization, and  American imperialism. Unlike the complex categorization of the New World Order, the concept of the Old World Order was purely a juridical phenomenon. However, from standpoint of modernity, the term New World order is a purely ideological and political phenomenon, which embodies various displays such as liberal democracy, financial capitalism, and technological imperialism.

In his Magnus Opus “The concept of the Political”, Carl Schmitt lauded a harsh criticism on liberal ideology and favored competitive decisionism over it. This is why according to Schmitt’s critics; the whole text in “The concept of the political” is filled with authoritarian overtones. Nonetheless, the fact cannot be denied that it was the radical political philosophy of Carl Schmitt that paved the way for the conservative revolution in Europe. Even today, his writings are being regarded as one of the major contributions to the field of political philosophy from the 20th century.

Throughout his major works such as “Nomos of the earth”, “the Crisis of Parliamentary democracy”, “The concept of the Political” and “Dictatorship”, Carl Schmitt frequently employs unadorned terms such as ‘actual’, ‘concrete’, ‘real’, and ‘specific’ to apprize his political ideas. However, he advances most of the core political ideas by using the metaphysical framework. For instance, in the broader political domain, Carl Schmitt anticipated the existential dimension of the ‘actual politics’ in the world today.

On the contrary, in his famous work “The Concept of the Political” readers most encounter the interplay between the abstract and ideal and, the concrete and real aspects of politics. Perhaps, understanding of Schmitt’s discursive distinctions is necessary when it comes to the deconstruction of the liberal promoted intellectual discourse. However, the point should be kept in mind that for Schmitt the concept of the political does not necessarily refer to any concrete subject matter such as “state” or “sovereignty”. In this respect, his concept of the political simply refers to the friend-enemy dialectics or distinction. To be more precise, the categorization of the term “Political” defines the degree of intensity of an association and dissociation.

In addition, the famous friend-enemy dialectics is also the central theme of his famous book “The Concept of the Political”. Likewise, the famous friend-enemy distinction in Schmitt’s famous work has both concrete and existential meaning. Here, the word “enemy” refers to the fight against ‘human totality”, which depends upon the circumstances. In this respect, throughout his work, one of the major focuses of Carl Schmitt was on the subject of  “real Politics”. According to Schmitt, friend, enemy, and battle have real meaning. This is why, throughout his several works; Carl Schmitt remained much concerned with the theory of state and sovereignty. As Schmitt writes;

I do not say the general theory of the state; for the category, the general theory of the state…is a typical concern of the liberal nineteenth century. This category arises from the normative effort to dissolve the concrete state and the concrete Volk in generalities (general education, general theory of the law, and finally general theory of the knowledge; and in this way to destroy their political order”.[1]

As a matter of the fact, for Schmitt, the real politics ends up in battle, as he says, “The normal proves nothing, but the exception proves everything”. Here, Schmitt uses the concept of “exceptionality” to overcome the pragmatism of Liberalism. Although, in his later writings, Carl Schmitt attempted to dissociate the concept of “Political” from the controlling and the limiting spheres but he deliberately failed. One of the major reasons behind Schmitt’s isolation of the concept of the political is that he wanted to limit the categorization of friend-enemy distinction. Another major purpose of Schmitt was to purify the concept of the “Political” was by dissociating it from the subject-object duality. According to Schmitt, the concept of the political was not a subject matter and has no limit at all. Perhaps, this is why Schmitt advocated looking beyond the ordinary conception and definition of politics in textbooks.

For Schmitt, it was Liberalism, which introduced the absolutist conception of politics by destroying its actual meaning. In this respect, he developed his very idea of the “Political” against the backdrop of the “human totality” (Gesamtheit Von Menschen). Today’s Europe should remember the bloody revolutionary year of 1848 because the so-called economic prosperity, technological progress, and the self-assured positivism of the last century have come together to produce long and deep amnesia. Nonetheless, the fact cannot be denied that the revolutionary events of1848 had brought deep anxiety and fear for the ordinary Europeans. For instance, the famous sentence from the year 1848 reads;

For this reason, fear grabs hold of the genius at a different time than it does normal people. the latter recognizes the danger at the time of danger; up to that, they are not secure, and if the danger has passed, then they are secure. The genius is the strongest precisely at the time of danger”.

Unfortunately, it was the intellectual predicament at the European stage in the year 1848 that caused revolutionary anxiety and distress among ordinary Europeans. Today, ordinary Europeans face similar situations in the social, political, and ideological spheres. The growing anxieties of the European public consciousness cannot be grasped without taking into account Carl Schmitt’s critique of liberal democracy. A century and a half ago, by embracing liberal democracy under the auspices of free-market capitalism, the Europeans played a pivotal role in the self-destruction of the European spirit.

The vicious technological drive under liberal capitalism led the European civilization towards crony centralism, industrialism, mechanization, and above all singularity. Today, neoliberal capitalism has transformed the world into a consumer-hyped mechanized factory in which humanity appears as the by-product of its own artificial creation. The unstructured mechanization of humanity in the last century has brought human civilization to technological crossroads. Hence, the technological drive under liberal democratic capitalism is presenting a huge threat to human civilizational identity.


[1] Wolin, Richard, Carl Schmitt, Political Existentialism, and the Total State, Theory and Society, volume no. 19, no. 4, 1990 (pp. 389-416). Schmitt deemed the friend-enemy dialectics as the cornerstone of his critique on liberalism and universalism.

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International Law

Democratic Backsliding: A Framework for Understanding and Combatting it

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Democracy is suffering setbacks around the world. Over the past decade, the number of liberal democracies has shrunk from 41 to 32. Today, 34 percent of the global population lives in 25 countries moving in the direction of autocracy. By contrast, only 16 countries are undergoing a process of democratization, representing just 4 percent of the global population. Reflecting these troubling trends, USAID Administrator Samantha Power, during her confirmation hearing, highlighted democratic backsliding – along with climate change, conflict and state collapse, and COVID-19 – as among the “four interconnected and gargantuan challenges” that will guide the Biden Administration’s development priorities.

However, defining “democratic backsliding” is far from straightforward. Practitioners and policymakers too often refer to “democratic backsliding” broadly, but there is a high degree of variation in how backsliding manifests in different contexts. This imprecise approach is problematic because it can lead to an inaccurate analysis of events in a country and thereby inappropriate or ineffective solutions.

To prevent or mitigate democratic backsliding, policymakers need a definition of the concept that captures its multi-dimensional nature. It must include the actors responsible for the democratic erosion, the groups imperiled by it, as well as the allies who can help reverse the worst effects of backsliding. 

To address this gap, the International Republican Institute developed a conceptual framework to help practitioners and policymakers more precisely define and analyze how democratic backsliding (or “closing democratic space”) is transpiring and then devise foreign assistance programs to combat it.  Shifting away from broad generalizations that a country is moving forward or backward vis-à-vis democracy—which makes it difficult, if not impossible, to derive specific solutions—the framework breaks closing democratic space into six distinct, and sometimes interrelated, subsectors or “spaces.”

Political/Electoral: Encompasses the arena for political competition and the ability of citizens to hold their government accountable through elections. Examples of closing political or electoral space range from fraudulent election processes and the arrest or harassment of political leaders to burdensome administrative barriers to political party registration or campaigning.

Economic: Refers to the relationship between a country’s economic market structure, including access and regulation, and political competition. Examples of closing economic space include selective or politically motivated audits or distribution of government licenses, contracts, or tax benefits.

Civic/Associational: Describes the space where citizens meet to discuss and/or advocate for issues, needs, and priorities outside the purview of the government. Examples of closing civic or associational space include harassment or co-optation of civic actors or civil society organizations and administrative barriers designed to hamper civil society organizations’ goals including limiting or making it arduous to access resources.

Informational: Captures the venues that afford citizens the opportunity to learn about government performance or hold elected leaders to account, including the media environment and the digital realm. h. Examples of closing informational space consist of laws criminalizing online speech or activity, restrictions on accessing the internet or applications, censorship (including self-censorship), and editorial pressure or harassment of journalists.  

Individual: Encapsulates the space where individuals, including public intellectuals, academics, artists, and cultural leaders– including those traditionally marginalized based on religious, ethnicity, language, or sexual orientation–can exercise basic freedoms related to speech, property, movement, and equality under the law. Common tactics of closing individual space include formal and informal restrictions on basic rights to assemble, protest, or otherwise exercise free speech; censorship, surveillance, or harassment of cultural figures or those critical of government actions; and scapegoating or harassing identity groups.

Governing: Comprises the role of state institutions, at all levels, within political processes. Typical instances of closing the governing space include partisan control of government entities such as courts, election commissions, security services, regulatory bodies; informal control of such governing bodies through nepotism or patronage networks; and legal changes that weaken the balance of powers in favor of the executive branch.

Examining democratic backsliding through this framework forces practitioners and policymakers to more precisely identify how and where democratic space is closing and who is affected. This enhanced understanding enables officials to craft more targeted interventions.

For example, analysts were quick to note Myanmar’s swift about-face toward autocracy.  This might be true, but how does this high-level generalization help craft an effective policy and foreign aid response, beyond emphasizing a need to target funds on strengthening democracy to reverse the trend? In short, it does not.  If practitioners and policymakers had dissected Myanmar’s backsliding using the six-part framework, it would have highlighted specific opportunities for intervention.  This systematic analysis reveals the regime has closed civic space, via forbidding large gatherings, as well as the information space, by outlawing online exchanges and unsanctioned news, even suspending most television broadcasts.  One could easily populate the other four spaces with recent examples, as well. 

Immediately, we see how this exercise leads to more targeted interventions—support to keep news outlets operating, for example, via software the government cannot hack—that, collectively, can help slow backsliding.  Using the framework also compels practitioners and policymakers to consider where there might be spillover—closing in one space that might bleed into another space—and what should be done to mitigate further closing.

Finally, using this framework to examine the strength of Myanmar’s democratic institutions and norms prior to the February coup d’etat may have revealed shortcomings that, if addressed, could have slowed or lessened the impact of the sudden democratic decline. For example, the high-profile arrest of journalists Wa Lone and Kyaw Soe Oo in December 2017 was a significant signal that Myanmar’s information space was closing. Laws or actions to increase protections for journalists and media outlets, could have strengthened the media environment prior to the coup, making it more difficult for the military to close the information space.

A more precise diagnosis of the problem of democratic backsliding is the first step in crafting more effective and efficient solutions. This framework provides practitioners and policymakers a practical way to more thoroughly examine closing space situations and design holistic policies and interventions that address both the immediate challenge and longer-term issue of maintaining and growing democratic gains globally.

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International Law

Authentic Justice Thus Everlasting Peace: Because We Are One

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The ceasefire in the Israeli-Palestine conflict is a good thing. We thank God for it. Be it between two individuals or institutions or nations or the internal colonial and colonized, war does not do anything except cause more immediate or future mass misery and human destruction. Our continued memories of our interpersonal and international and internal colonial and civil wars and the memorials we erect to remember them recall and record wounds and pains we never get over. 

So it becomes a bothersome puzzle as to why we human beings still just don’t get that war like oppression leads to nowhere except to more human devastation. And we should have learned by now but have not that peacemaking like ceasefires mean nothing without justice.

 It is the reason why I constantly find myself correcting those who stress Peace and Justice.No Justice No Peace is more than a cliche.It is real politic emotionally, economically, socially, and spiritually.

Our American inner cities like those in every continent where culturally different and similar people live cramped impoverished lives and nations and colonial enclaves with such unequal wealth remind us of their continued explosive potentialities when peace is once again declared but with no justice.Everyone deserves a decent quality of life which not only includes material necessities but more importantly emotional and spiritual freedoms and other liberations.Not just the victors who conquer and rule and not just the rich and otherwise privileged.

 And until such  justices are  assured to everyone peacemaking is merely a bandaid on cancerous societal or International conflictual soars which come to only benefit those who profit from wars which are bound to come around again when there is no justice and thus peace such as  family destroying divorce lawyers, blood hungry media to sell more subscriptions , arms dealers to sell more murderous technologies, politicians needing  votes so start and prolong wars, and military men and women seeking promotion while practicing their killing capacities.

So if those of us who devoutly practice our  faiths or our golden moral principles,  let us say always and pray and advocate justice and peace always  as a vital public good  and  do justice then lasting peace in our personal lives and insist that national leaders, our own and others do the same in their conduct of international affairs and affairs with those who are stateless in this global world. 

All such pleading is essential since we are all brothers and sisters in the eyes of God who created all of us  in God’s image as one humanity  out of  everlasting divine love for all of us so we should love each other as God loves all of us  leading to desiring justice and thus lasting peace for each and every one of us.

This is difficult for those in international affairs to understand who take more conventional secular approaches to historical and contemporary justice and peace challenges as if our universal spiritual connectivennes  ( not to be confused with the vast diversity of organized religions)as human beings which makes us all brothers and sisters has no relevance. But if we are going to find true enduring peace we have no alternative but to turn our backs on increasingly useless secular methods which go either way, stressing peace then justice or justice then peace and understand how much we must begin to explore and implement approaches which we look at each other as spiritually connected brothers and sisters in which it is the expectation that peace only comes and lasts when  through the equal enjoyment of justices for every human being, we restore our universal kindred rooted in the everlasting love of God and thus for each other, no matter the different ways in which we define God or positive moral principles which originate in understandings that we human beings in all our diversities are one and thus brothers and sisters.

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