After Azerbaijan invoked the right to self-defense and advanced in its occupied territories (starting from 27 September 2020) and end of the military operations with a trilateral statement by Armenian, Azerbaijani and Russian heads of states on 10 November 2020, some people started to question the legality of Azerbaijan’s military operations. Let’s look into this matter.
The Ministry of Foreign Affairs of Azerbaijan announced that “on 27 September 2020, the armed forces of Armenia have launched another act of aggression against Azerbaijan, by intensively attacking the positions of the armed forces of Azerbaijan as well as residential areas along the frontline, with the use of large-caliber weapons, mortar launchers and artillery of different calibers”. Azerbaijani MFA also noted that counter operations are “conducted within the right to self-defense to prevent another military aggression by Armenia”.
According to Article 51 of the UN Charter, states have “the inherent right of individual or collective self-defense if an armed attack occurs against a Member of the United Nations”.
Right to self-defense is an exception to Article 2(4) of the UN Charter, which prohibits the use of force. For the sake of clarity, it should be noted that Article 2(4) prohibits the use of force against another state while Azerbaijan uses its forces within its own internationally recognized territory. Therefore, military operations conducted by Azerbaijan to restore its territorial integrity does not fall under the above-mentioned prohibition. Also, the authors of this blog post very well argue inter alia that Azerbaijan’s military operations would not be an act of aggression under international law.
The International Court of Justice, the judicial body of the UN, has consistently held that the right of self-defense enshrined in Article 51 reflects customary international law (Nicaragua v USA para. 194; Oil Platforms 2003 para. 43). The ICJ also held that acts of violence by armed groups or non-state actors amount to armed attack if those acts are attributable to a state (Nicaragua v USA para. 193), which is Armenia in this case (Chiragov v. Armenia (ECHR) para. 186).
In order to invoke the right of self-defense, a state must be a victim of an armed attack (Nicaragua v USA para. 195). Azerbaijan is clearly a victim of an armed attack by Armenia as Armenia kept Azerbaijani territories of Nagorno Karabakh and adjacent seven districts under effective control (Chiragov v. Armenia (ECHR) para. 186) or military occupation as the result of armed hostilities waged by Armenian forces mainly during the early 1990s. The UN Security Council confirmed this by demanding the unilateral withdrawal of occupying forces from Azerbaijani territories in its four resolutions adopted during the hostilities back then. This demand reflects Article 2(4) and the UN General Assembly Resolution on Definition of Aggression (1773) Article 3 which classifies occupation resulting from military invasion as “aggression”, the term that goes hand in hand with the term of “armed attack” in international law.
1990s’ hostilities in Karabakh stopped after the signing of the declaratory Bishkek Protocol in May 1994 which called for a ceasefire and work on “signing a reliable, legally binding agreement providing for a mechanism to ensure the non-resumption of military and hostile actions, the withdrawal of troops from the occupied territories”. However, the binding agreement has never been signed later on (at least up until 27th of September 2020) despite negotiations. This in turn means illegal occupation has never ended and therefore, Azerbaijan’s right to self-defense in this regard has never ceased to exist.
Armenia did not see Azerbaijani counter operations against itself but the unrecognized “Republic of Artsakh” while not recognizing this so-called puppet state and declared that Armenian forces “will act confidently with all their capacities to ensure the security of the people of Artsakh and to deliver appropriate military and political response”. Armenia’s resistance or “military response” against Azerbaijan in the Azerbaijani territories is illegal and violates Article 2(4) of the UN Charter, which prohibits the use of force against member states. The claim of self-defense for occupying new Azerbaijani territories back in 1993 during the UN Security Council meetings has been rejected as unjustifiable.* And there is no well-established state practice regarding the invocation of self-defense in similar situations even when requested by a puppet regime.** These points have actually been evidenced by the signing of the trilateral statement on 10 November 2020 which envisaged the withdrawal of Armenian troops from Azerbaijani territory as the result of successful Azerbaijani military advancements.
Long story short, Azerbaijan’s use of force to restore its territorial integrity during the 2020 Karabakh War was completely legal. Azerbaijan agreed to the deployment of Russian peacekeepers around the Armenian community of Nagorno Karabakh and the final resolution of the conflict rises over the horizon.
*The repertoire of the Practice of the Security Council: Agenda Items in 1993-1995 (Chapter VIII of the Repertoire – Items relating to the situation between Armenia and Azerbaijan) 692.
**Marco Longobardo, The Use of Armed Force in Occupied Territory 90, 99 (2018).