Written by: Anahit Muradyan
On September 27, 2020, Azerbaijan, with Turkey’s active support, launched a military attack against the Republic of Artsakh (also referred to as Nagorno-Karbakh). According to several studies, investigations, reports provided by international human rights organizations, statements of foreign governments, and international media, the presence of mercenaries in Azerbaijan and Artsakh conflict zone has been established. The sources providing information about the use of Syrian mercenaries in the recent Artsakh war include not only pro-Armenian sources but also Western media, Russian sources, some independent sources, as well as evidence provided by several experts. In the scheme of the recruitment of mercenaries, Turkey’s role has been acknowledged as a state, which provided transit and logistics for the transfer of mercenaries to Azerbaijan.
Under public international law (“PIL”) and international humanitarian law (“IHL”), there are three major documents, which regulate mercenary activities: the Protocol Additional to the Geneva Conventions of August 12, 1949, and relating to the Protection of Victims of International Armed Conflicts (“Additional Protocol I”),[1] the Organization of African Unity’s (“OAU”) Convention for the Elimination of Mercenarism in Africa (1977),[2] and the International Convention against the Recruitment, Use, Financing and Training of Mercenaries (“UN Mercenary Convention”). [3] The first document deals with the status of mercenaries during the armed conflicts; the OAU Convention for the Elimination of Mercenarism in Africa handles the problem of the recruitment and use of the mercenaries but in the African context. Despite its moderate acceptance internationally, the UN Mercenary Convention provides a general prohibition of the recruitment, use, financing, and training of mercenaries. Azerbaijan and Armenia are parties to the UN Mercenary Convention and therefore have undertaken the obligations enshrined in the aforementioned convention. However, the facts that Azerbaijan recruited and used mercenaries in the recent Artsakh war provide evidence that Azerbaijan acted in breach of its obligations under the UN Mercenary Convention.
This raises the question whether Azerbaijan can be held liable for recruiting, financing, and using mercenaries and for the war crimes committed by them in the recent Artsakh war is based on the reasons listed below.
First, taking into account that the system of recruitment, deployment and use of mercenaries in Artsakh happened in the same way as previously in Syria and Libya, it becomes apparent that this continuous cycle of the use of mercenaries risks further violations of international law. For not allowing the impunity to lead to further commissions of the same gross violations of international law, there is a need to find ways to invoke the state responsibility for those violations. Second, since the establishment of the United Nations (“UN”) and after the adoption of the UN Mercenary Convention, there has not been a practical international case concerning mercenaries. In this regard, there is a gap in contemporary international law, therefore a need for a case law dealing with this issue. Third, the use of mercenaries is often accompanied by violations of human rights, and IHL as mercenaries are often associated with terrorist organizations and usually act in disregard of the laws of armed conflicts. Besides this, as it will be shown in the case of the 2020 Artsakh war, the mercenaries used by Azerbaijan, despite being recruited by and included in Syrian military brigades, were not trained soldiers and were not aware of the laws of armed conflict. The aforementioned raises the issue of gross violations of both IHL and international human rights law. Therefore, such international regulation as UN Mercenary Convention needs to be enforced to prevent its further violations and bring breaching states to justice.
In order to answer the above question, the literature, consisting of scholarly articles, international documents, the case law of the International Court of Justice (“ICJ”) will be used in the paper. Scholarly articles will give a clear insight into the debate around the legal definition and status of mercenaries in armed conflict by critically surveying conventional law. Among legal documents studied are the Geneva Convention’s Additional Protocol I (1977), the OAU Convention for the Elimination of Mercenarism in Africa (1977), and the UN Mercenary Convention. The paper will also elaborate on the Study on Customary International Humanitarian Law presented by the International Committee of the Red Cross (“ICRC”). For discussing ICJ’s evidentiary rules, the following case law will be touched upon: Nicaragua v. the United States of America, Corfu Channel case, the Democratic Republic of the Congo v. Uganda, United States Diplomatic and Consular Staff in Tehran, and the Georgia v. Russia case. For establishing the fact of the presence of mercenaries in Azerbaijan during the recent Artsakh war, the publications of international media, human rights organizations, independent experts, and the statements of foreign governments will also be examined in the paper. Taking into account that there is a general lack of literature concerning practical international cases dealing with the issue of mercenaries, reasoning by analogy will be employed in order to establish ICJ’s jurisdiction with respect to the issue of the breach of obligations by Azerbaijan under the UN Mercenary Convention.
Under the UN Mercenary Convention, Azerbaijan has undertaken inter alia the obligation not to recruit, use and finance mercenaries. Azerbaijan acted in breach of the aforementioned obligations as established by the evidence through the facts and information provided by major international media sources, independent experts, and the statements of the governments of several states that have become public knowledge. The available evidence concerning the recruitment, use, and financing of mercenaries by Azerbaijan will likely be sufficient to meet the evidentiary standards of the ICJ to establish the fact of the use of mercenaries by Azerbaijan in the 2020 Artsakh war.
Having sufficient evidentiary basis for submitting a claim to the ICJ, there is a need to establish the jurisdiction of the court. The following issues of major concern for meeting the jurisdictional requirements of the court are: whether there is the consent of the parties to ICJ’s jurisdiction; whether Armenia is the right claimant and has standing before the court; whether the late ratification of UN Mercenary Convention by Armenia can be a basis for the rejection of the claim. As the consent of the parties is required for ICJ to assume jurisdiction over this case, consent can be established through a compromissory clause stipulated in the UN Mercenary Convention, to which Armenia and Azerbaijan are parties. As neither Azerbaijan nor Armenia made any reservation with respect to this compromissory clause, it means that both of them have consented to the ICJ’s jurisdiction for matters of “interpretation or application” of the convention. However, the clause provides employing other dispute resolution mechanisms as a precondition before applying to the ICJ. As to Armenia’s standing before the court, there may be an argument that Artsakh is affected by the breach of the convention and not Armenia, and Artsakh, being an unrecognized state, will not have standing before the court. There are two counterarguments to this argument. First, assuming that Armenia has a substantiated title with respect to the territory of Artsakh, it can be considered as a state specially affected by the breach. However, the court may be reluctant to refer to the title of Artsakh in a case where the subject matter is a different issue; therefore, the second counterargument can serve the purpose of establishing Armenia’s standing.
In this case, Armenia being a third party can invoke Azerbaijan’s responsibility as the obligations enshrined in the UN Mercenary Convention are obligations erga omnes partes, i.e., Azerbaijan owes those obligations to all the state-parties to the convention. In regard to the temporal aspect of the ratification of the UN Mercenary Convention by Armenia, the obligations undertaken by the parties under the convention are not reciprocal, therefore not ‘synallagmatic’ in nature. It means that their binding effect is collective and cannot be separated into bilateral elements. Thus, even though Armenia was not a party to the UN Mercenary Convention when Azerbaijan acted in contravention of its obligations under the conventions, it should not have any legal consequences as in any case, Azerbaijan had the obligation which it should not have violated.
[1] Protocol Additional to the Geneva Conventions of 12 August 1949 and relating to the Protection of Victims of International Armed Conflicts (Protocol 1), June 8, 1977, 1125 U.N.T.S. 3.
[2] OAU Convention for The Elimination of Mercenarism in Africa, July 3, 1977, 1490 U.N.T.S. 89.
[3] International Convention against the Recruitment, Use, Financing and Training of Mercenaries, Dec. 4, 1989, 2163 U.N.T.S. 75.
