Armenian News-News.am is continuing its series of interviews with international legal specialists, human rights defenders, and human rights protection experts to understand what needs to be done and what mechanisms are in place for the 23 Armenian prisoners illegally held in Baku in order to protect the rights of the military-political leadership of Artsakh, prevent their torture, and ensure their return.
This time, we spoke with Philippe Raffi Kalfayan, PhD in International Law, Associate-Researcher at Paris Pantheon-Assas University, Legal Counsel to Governments.
Azerbaijan continues to illegally keep 23 Armenians in Baku prisons. From the application sent by Ruben Vardanyan’s legal team to the United Nations Special Rapporteur on Torture, we learned that he was tortured. Surely, other Armenian prisoners are subjected to torture and cruel treatment as well. According to you, in this case, what should the state do to protect its citizens, what should human rights organizations and NGOs do, and what should the Diaspora do?
I do have three remarks on the statement presenting the question.
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First, there is no doubt that prisoners of Armenian descent have been subjected to torture and to cruel treatment in the past, including the prisoners of war. Some of those cases are documented and have been reported to the UN Committee Against Torture (CAT) during its last session in April 2024. CAT was reviewing Azerbaijan’s situation in the framework of the periodic review. It concluded: “The Committee was alarmed by alleged extra-judicial killings, torture, and ill-treatment of national and ethnic Armenians during armed conflict and anti-terrorism operations, and the perceived lack of investigations and prosecutions of these allegations. It also expressed concerns over the continued detention of 23 individuals of Armenian ethnic or national origin for terrorism and related offences. The Committee urged Azerbaijan to state at the highest levels that any violations of international humanitarian law and human rights law are unacceptable. It also called for independent, impartial, transparent, and effective investigations into the allegations of serious violations and urged the State party to bring those responsible to justice.”
UN Committee’s findings have stronger legal force that any procedure engaged by UN special procedures (the Special Rapporteur on Torture is one of them). Azerbaijan has an obligation to respond to UN Committee against Torture (Azerbaijan is a party to the Treaty prohibiting torture and ill-treatment).
Meanwhile, all channels, be they treaty bodies or special procedures, must be used by NGOs and lawyers in regional (European) and international forums. Each record of violations of international law is a precious element for current and future judicial proceedings against Azerbaijan, as well as for awareness of governments, legislative bodies, and intergovernmental institutions around the globe. This is where the diaspora and the diplomatic apparatus of the Republic of Armenia must act jointly in a concerted manner.
Second, as far as the eight former officials arrested and imprisoned, I personally don’t have much details. The application made to the Special Rapporteur on Torture by one of Ruben Vardanyan’s lawyers mentions the ill-treatment related to his detention conditions and the retaliatory measures he has been subjected to after he decided to go on hunger strike. Those ill-treatments are quite common in authoritarian countries. Here, it is specially alarming due to Azerbaijan’s official hate policy toward Armenians, and in particular toward Artsakh Armenians who are presented as the worst evils.
All those ill-treatments are assimilated to torture in the wide understanding of that word in the light of the Convention prohibiting torture. As a matter of fact, the arbitrary arrest and detention of those persons, the fabricated charges of terrorism, the hate of Armenians are creating an environment conducive to ill-treatment. Knowing that terrorism or terrorism-related offences are punished very severely in Azerbaijan and considering the structural absence of fair trial conditions in this country, the prisoners are indeed subjected to mental ill-treatment since they cannot build any hope on justice but just hope for political pressures from the international community. I am not sure that the so-called international community exists at the moment, especially when it concerns the violations of international law.
Republic of Armenia does not communicate much about the prisoners. The incumbent authorities are instead having unworthy and unacceptable words against Artsakh people and their leaders. One can still hope that the fate of the 23 known prisoners is part of the negotiations taking place between Armenia and Azerbaijan. Not doing it would be criminal.
Third, your statement construes that the prisoners have the status of RA citizens, but are they RA citizens? Considering the public debates about that issue that revealed the subtle differences between citizenship and passport) but also on the current government policy trying to build a state where the nation is not included, one must wonder legitimately if Armenian Government considers those prisoners as Armenian nationals ought to be protected.
I have considered publicly from the beginning that no peace treaty or agreement should ever be engaged without the prior return of those prisoners. This is a matter of national pride and precisely a trust-building between nationals and their government. This is also a customary practice from most states. You will never watch USA, France, Russia, Israel, and others sign peace with a hostile party while their nationals are hostages.
Hence my response to your question is purely political:
Republic of Armenia, as a state, should never have let this situation happen as far as the arrest of former officials at the end of September 2023. It is still an enigma: why many former Artsakh officials left the territory, while those ones have been arrested.
It reveals that the capitulation’s conditions have not been negotiated properly by anticipation. RA agreed to surrender Artsakh to Azerbaijan but without securing the free transfer of ALL Artsakh people.
Any state which cares for national dignity should protects its nationals, and establish the return of prisoners and hostages as a diplomatic priority.
Assistant to the President of Azerbaijan Hikmet Hajiyev recently announced that an invitation was sent to Armenia to participate in COP29, to be held in Baku in November. Azerbaijan also declares on all platforms that COP29 should be the “COP of Peace,” but it continues to violate human rights and illegally detain Armenians. Is this not an opportune moment for Armenia to demand the return of the Armenian hostages and prisoners, in order to prove Azerbaijan’s real peaceful intentions?
Your question makes no mention of the fact that Armenia already got compensation for its support to Azerbaijan’s bid to host the 29th Session of the Conference of Parties (COP29) to the UN Framework Convention on Climate Change. 32 Armenian military servicemen have been released thanks to this support. Azerbaijan insists in the joint statement that this release is a gesture “driven by the values of humanism and as a gesture of goodwill”. Therefore, Armenia cannot play anymore that card. It is the role of other states to boycott the COP29 in Azerbaijan if the prisoners and hostages are not released prior to the opening D-day of that conference. There are already enough factual and legal records of the arbitrary arrest and detention of those prisoners and of their torture and ill-treatment by Azerbaijan to justify such a stance. In addition, it is of general knowledge that there is no rule of law in Azerbaijan: no independence of the judiciary and of the lawyers.
Recently, the first prosecutor of the International Criminal Court, Luis Moreno Ocampo, announced a campaign advocating for COP29 to consider not only issues surrounding climate change, but also human rights and the release of prisoners. How do you evaluate such an initiative?
This statement is conforming to my hereinabove response. I commend his call, but I am shameful that Mr. Ocampo needed to issue that open letter to make move the Armenians in Armenia like in the diaspora. His call means: Armenians, if you don’t take the lead for the immediate release of Armenian hostages and political prisoners from Baku at the occasion of COP29 coming event, then others cannot help! (This statement is true for the question of prisoners, as well as for the conduct of other Armenian public affairs.)
As said above, RA cannot unfortunately play anymore that card, because the joint statement supports Azerbaijan bid without condition. The release of remaining Armenian war or political prisoners is not mentioned.
My opinion is that the remaining prisoners, especially the former leaders of Artsakh, will be kept hostage by Azerbaijan until Armenia abandons the Artsakh existence into its constitution. This hostage taking is unlawful from an international law perspective but this is the victor’s law imposed on the defeated party personified by the Prime Minister. Azerbaijan’s goal is to humiliate definitively the Armenians and cancel all the dreams of an independent Artsakh. Keeping hostage and condemning in Azerbaijani courts the former leaders of Artsakh aims at destroying any idea of resistance.
One of Azerbaijan’s demands is that Armenia withdraw the lawsuits filed against Azerbaijan in international courts. What consequences could this have for Armenia?
First of all, I would like to say that this demand would not be a surprise if confirmed. That would be a normal step if Azerbaijan was a sincere partner in its will to sign a fair peace treaty. Obviously, it is not since new conditions emerge one after the other by Azerbaijan.
What was more surprising is that the idea of abandoning interstate proceedings has been first brought to the public debate domestically by RA Prime Minister.
The human rights community reacted promptly but also my colleagues, the former Armenian and Artsakh ombudspersons Arman Tatoyan, Artak Beglaryan and Gegham Stepanyan, as well as lawyers representing the interests of Armenian citizens in international courts, Ara Ghazaryan and Siranush Sahakyan. Those 5 issued a joint statement warning against the consequences for Armenia to withdraw from lawsuits against Azerbaijan in international courts . I fully subscribe to the key points developed into this statement.
Both the evocation and the debate about this eventuality are a disaster for the cause of justice, the struggle against impunity for international crimes, the credibility of Armenia as an international subject of law, and finally for the diplomatic efforts of Armenia.
International law and diplomacy are intrinsically related. The statement of the Prime Minister sabotages the efforts of the MFA and of the RA Agent for international legal affairs. It endangers the temporary legal victory obtained at the International Court of Justice (ICJ), one of the very few good initiatives of this government. Indeed, none of former governments did ever engage in interstate proceedings.
Abandoning the interstate proceedings at the ICJ would be the definitive burial of the Artsakh cause and a wrong signal to the humanity, since impunity will be consolidated. Such a move would also damage all other proceedings engaged at the European Court of Human Rights or at the International Criminal Court.
The current temporary measures decided by the ICJ already protect the right of return of Artsakh population on their lands.
It must be reminded that the ICJ Order of 7 December 2021, indicated that Azerbaijan shall, in accordance with its obligations under the International Convention on the Elimination of All Forms of Racial Discrimination, (a) Protect from violence and bodily harm all persons captured in relation to the 2020 Conflict who remain in detention, and ensure their security and equality before the law; (b) Take all necessary measures to prevent the incitement and promotion of racial hatred and discrimination, including by its officials and public institutions, targeted at persons of Armenian national or ethnic origin; (c) Take all necessary measures to prevent and punish acts of vandalism and desecration affecting Armenian cultural heritage, including but not limited to churches and other places of worship, monuments, landmarks, cemeteries and artefacts.
In its last request for interim measures from the ICJ, further to the 19 September 2023’s Azerbaijan full-scale military assault on the 120,000 ethnic Armenians of Nagorno-Karabakh and their forcible displacement to Armenia, Armenia indicated that “Azerbaijan shall refrain from taking punitive actions against the current or former political representatives or military personnel of Nagorno-Karabakh”.
The ICJ order on 17 November 2023 concludes that “Azerbaijan must ensure that persons who have left Nagorno-Karabakh after 19 September 2023 and who wish to return to Nagorno-Karabakh are able to do so in a safe, unimpeded and expeditious manner”. It also recalls Azerbaijan’s undertaking “to protect and not to destroy registration, identity and/or private property documents and records found in Karabagh”.
Although this last order did not mention any measure in relation to the war and political prisoners, I do consider that the ICJ is the right forum where to bring and defend their case. If the forcible transfer of Artsakh is later recognized by the Court as a violation of international law, the release of Artsakh people will become an obligation of Azerbaijan in the light of its obligation of cessation of the violation. The predominant exigency of cessation in the case of wrongful apprehension, detention or imprisonment of human beings emerged in the ICJ United States Diplomatic and Consular Staff in Tehran case opposing United States v. Iran. The fact that the detained entities are human beings, injured by their unlawful treatment in their physical and psychic integrity, in their personal liberty and dignity, makes their release, morally and legally, more evidently an urgent question of cessation of the violation.
Nothing of this may happen if Armenia abandons the interstate proceedings.
This abandon scenario is not speculative if we rely on current government public speeches. Armenians must anticipate this perspective. Although the RA withdrawal from ICJ proceedings would create serious diplomatic hindrances, there exist alternative solutions to continue the defense of Artsakh people’s rights and the release of hostages without RA government. It is inappropriate to elaborate on those options publicly.
And our traditional final question: is real peace, or any peace treaty, possible if one country continues to hold the citizens of another country as captives or hostages?
The continuous arrogant attitude and ever-growing demands of the victor country, Azerbaijan, don’t augur a real peace. The incumbent RA government must admit that the peace at any price failed so far. Azerbaijan is winning time to save the organization of COP29 in November 2024. After that, the behavior of Azerbaijan will depend on the geopolitical balance and perspectives in the South Caucasus at that time. The presidential elections in USA and its subsequent developments in the Ukraine-Russia war will be the strong factors.
Armenia must also make advantage of this time. It should stop negotiations on the basis in the current conditions and better focus its resources in making the country stronger in all aspects before the next stages.
There cannot be lasting peace when it is built only on the demands of the victor. Armenia has demonstrated its good will to obtain peace. It is now the turn of Azerbaijan to prove its goodwill: the release of all prisoners and hostages would be a good start.
