von TJORBEN STUDT
Genocide is commonly defined as the premeditated destruction of a national, ethnical, racial or religious group – often associated with mass shootings and the use of crematoria, reminiscent of the historical crimes of Nazi-Germany. However, even without such explicit acts, the denial of access to vital goods can also threaten genocide, as Azerbaijan’s blockade of the Latchin Corridor demonstrates. Raising global awareness of the situation in Nagorno-Karabakh is critical for preventing an unseen act of genocide.
Historical context
There has been a conflict between Armenia and Azerbaijan over the Nagorno-Karabakh region for several years. The Nagorno-Karabakh region, which Azerbaijan legally recognizes as part of its territory, has been controlled by ethnic Armenians backed by the Armenian government since the end of a separatist war in 1994. In 2020, Azerbaijan regained a significant part of the Nagorno-Karabakh region.
The conflict intensified in December 2022 when Azerbaijan blocked the Lachin Corridor, which was the only available access to the Nagorno-Karabakh enclave, thereby isolating nearly 120,000 Armenians residing there. The blockade has prevented the transportation of life-sustaining commodities, such as food, oil, baby formulas, and medicinal supplies. Moreover, it has impeded the entry of the Red Cross into Nagorno-Karabakh for carrying out humanitarian work.
Qualification of the blockade under international law
Even if at first glance genocide is not necessarily associated with the prevention of the delivery of goods, Azerbaijan’s extensive action is nevertheless relevant under international law according to Art. II (c) Genocide Convention – similary relevant under international criminal law pursuant to Art. 6 (c) Rome-Statute. These two norms define genocide a.o. as „acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, by deliberately inflicting on the group as such conditions of life calculated to bring about its physical destruction in whole or in part“.
If, as is reported, the group has no independent supply of food and medical aid, the non-delivery due to the blockade would undoubtedly be a case of creating such a condition. The absence of food is probably the most obvious life-destroying condition, as people will simply starve to death.
The ICJ has already expressed a similar concern in an order of 22 February 2023 (Armenia v. Azerbaijani), stating that „restrictions on the import and purchase of goods necessary for humanitarian needs, such as foodstuff and medicine, including lifesaving medicines, treatment for chronic diseases or preventive care, and medical equipment, may have a serious detrimental impact on the health and lives of individuals“.
It is irrelevant that Azerbaijan cannot exterminate the Armenians as an entire ethnic group by blocking the Latchin Corridor, because the relevant provisions of international law also consider destroying a part of the group to be relevant.
Furthermore, the responsible government of Azerbaijan should not lack the intent to destroy in accordance with Article II (c) Genocide Convention and Art. 6 (c) Rome-Statute. This is shown by the fact that the blockade is maintained despite the now frequent reports of the life-threatening situation of the 120,000 Armenians in Nagorno-Karabakh – and also the expert opinion from former ICC Chief Prosecutor Luis Moreno Ocampo. The fact that the Azerbaijani government continues to maintain the blockade probably indicates an intent to destroy by imposing life-threatening conditions. This assumption is further supported by the fact that Azerbaijan has not complied with the ICJ’s decisions to lift the blockade, but has instead tightened it by extending to the Red Cross.
It should be acknowledged, however, that these objective circumstances may not necessarily be sufficient to prove the requisite intent to destroy directly and with sufficient certainty in individual cases.
In this sense, it is important to note that the blockade may also be considered a widespread and systematic attack against the civilian population, with the knowledge of the attack, through extermination, therefore constituting a crime against humanity according to Art. 7(1)(b), (2)(b) Rome-Statute and a war crime under Art. 8(1), (2)(b)(xxv) Rome-Statute, without requiring the genocide specific intent to destroy.
Possible courses of action
If, on the basis of the above, the risk of an emerging genocide and other acts of extermination is considered to exist, the pressing question remains as to the extent to which the realisation of this risk can be averted.
It should be noted that under both the Genocide Convention and the Responsibility to Protect Principle, States Parties have an obligation to prevent genocide. In this regard, the ICJ has already ruled on 26 February 2007 in the case of Bosnia and Herzegovina v. Serbia and Montenegro that there is a duty to prevent genocide. Thereafter the obligation to prevent genocide arises not only when the commission of genocide commences. This is because the primary aim of the obligation is to prevent or attempt to prevent the occurrence of such acts. In reality, a country’s obligation to prevent or intervene arises as soon as it is aware, or should reasonably have been aware, of the potential for genocide to happen.
However, the obligation to prevent genocide is limited to the state in whose territory the genocide is taking place, as the Genocide Convention does not allow for sovereign intervention without the state’s consent. Rather, the only option is to appeal to UN bodies and persuade them to take action – Art. VIII Genocide Convention. It is worth pointing out, however, that the requests of the UN and the repeated decisions of the ICJ to Azerbaijan to lift the blockade have remained without corresponding reactions. This shows that the international community’s instruments of action are severely limited in their effectiveness due to the lack of international enforcement powers.
In this scenario, appealing to the International Criminal Court is of no use either because it can only impose harsh penalties for genocide. The prevention of genocide is not possible if the threat of punishment and the prosecution of the perpetrators of genocide do not have a deterrent effect.
Ultimately, the international community as a whole and individual states as such still have diplomatic and economic leverage over Azerbaijan to force it to the negotiating table, if necessary through sanctions, and to secure the release of the Latchin Corridor.
It is worth mentioning that the intervention of the EU and Germany may contradict their economic interests and is therefore unlikely, as they have already committed themselves to a broader energy cooperation with Azerbaijan to replace the lack of Russian gas supply as an indirect consequence of the war in Ukraine.
Conclusions
A genocide appears to be underway in Nagorno-Karabakh, given the grave situation of the 120,000 Armenian residents. In order to prevent an unseen mass starving, it is necessary to focus the world’s attention on the events there and utilize all possible negotiating options to lift the blockade. The Armenians of Nagorno-Karabakh should not become collateral damage of the war in Ukraine. Nor should the EU be deterred from taking all necessary measures to prevent genocide by the newly created economic dependencies vis-à-vis a state reported to be acting in violation of international law.
Zitiervorschlag: Studt, Tjorben, Starving to death – an unseen genocide is happening in Nagorno-Karabakh, JuWissBlog Nr. 54/2023 v. 29.08.2023, https://www.juwiss.de/54-2023/.
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