Estimation of damage from occupation will strengthen Azerbaijan’s position

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https://www.turan.az-After the 44-day war, Azerbaijani officials, including the president, repeatedly accused Armenia of war crimes and destruction in the regions liberated from the occupation, stating that after calculating the damage and conducting monitoring, they would appeal to the International Court of Justice to pay compensation for the damage caused. However, many lawyers argue that such a legal mechanism does not exist.Is it so? Famous lawyer Fuad Agayev tells about it in an interview with ASTNA.

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– What steps should the Azerbaijani side take to receive compensation from Armenia? What are the rules of procedure? Is there a legal mechanism for this?

-The government of Azerbaijan and state bodies are correct in calculating the damage caused. I cannot say how detailed and professional these calculations are. I hope the appraisal will be professional and of high quality. As for the appeal to court, it depends on what kind of court we mean. According to official information, on January 15, 2021, the Republic of Azerbaijan sent a fully drawn up complaint to the European Court of Human Rights (ECHR). Only general information was provided on the complaint. Therefore, it is difficult to give any assessment to this now. At the same time, the Republic of Armenia filed a complaint against Azerbaijan on February 2.

One can apply to the ECHR through the procedure of an interstate complaint, and Azerbaijan has already submitted such a complaint once. The filing of one complaint does not exclude the filing of other complaints. For example, you can point to the problem between Georgia and Russia. In 2008, in connection with the occupation by Russia of a number of Georgian territories, called South Ossetia and Abkhazia, and as a result, accompanied by massive violations of the rights of Georgian citizens, the Republic of Georgia filed interstate complaints to the ECHR against the Russian Federation.

There were at least three such requests, if I am not mistaken. With a similar complaint, the Ukrainian Republic turned to the ECHR regarding violations related to the events in Donbass and the occupation of Crimea. We must take into account the fact that the appeals to the ECHR   raise mainly issues related to the violation of human rights and freedoms. In this regard, appropriate compensation may be required. The ECHR makes decisions in connection with compensation, including interstate complaints. Of course, the ECHR does not consider issues directly related to the violation of property, personal interests of the state. The ECHR examines issues related to the rights and freedoms of citizens living in the territory of this state. Issues related to the violation of such principles as the territorial integrity of the state, sovereignty, inviolability of its borders do not belong to the jurisdiction of the ECHR.

–But many lawyers argue that such a legal mechanism does not exist. In particular, the interview of lawyer Samed Rahimli with local media has caused a lot of discussion in recent days. Samed Rahimli stated about the absence of legal mechanisms to ensure that Armenia issues compensation to Azerbaijan for the Karabakh war. He substantiated his opinion by the fact that “the legal basis for the payment of compensation, that is, the fact of causing damage, is not enough. The legal mechanism that will provide compensation should have the structures authorized by the parties in the appointment and execution of compensation. Disputes within the state are usually resolved by the courts.  With the development of international human rights law, tribunes have arisen to investigate and make decisions of individuals to states, such as the European Court of Human Rights. This body does not resolve interstate disputes.” How right is Samed Rahimli?

Yes. Although Azerbaijan can apply to the ECHR, the ECHR is not The Hague International Court. Not being an international court the ECHR cannot directly consider issues related to the long-term occupation of a significant part of the territory of Azerbaijan, as well as the implementation of various activities on the lands belonging to the Azerbaijani state. The ECHR cannot consider the issue of damage caused to Azerbaijan. For this, there is a body such as the International Court of Justice. There is an international court and there is an international criminal court. These are different structures.

Azerbaijan, in that case, could apply to the International Court of Justice if it was a party to the corresponding status of this court. However, Azerbaijan is not a party to the status of the International Court of Justice. For this reason, Azerbaijan cannot currently apply to this court. However, there may be such an option. If the Republic of Azerbaijan and the Republic of Armenia come to an appropriate agreement, this issue can be considered in The Hague. That is, it can be considered in the International Court of Justice. At the same time, a number of issues related to actions against Azerbaijan can be averaged; compensation may be required and so on. However, this is not currently possible. It turns out that the work on calculating the damage is going in vain. This is by no means the case.

Many of us know that the work carried out by the Armenian side in the occupied territories was carried out, as a rule, through specific companies. Most of these companies are owned by other states. These are structures registered in other states. Of course, the Azerbaijani state may have the opportunity to apply to the relevant courts of the countries to which these companies belong. True, a lot depends on the legislation of those states. However, in principle, such an appeal is possible and it can be quite successful.

-Can Armenia submit claims to Azerbaijan in the same manner? Can Armenia go to court, accusing Azerbaijan of war crimes? How should Azerbaijan defend itself in this case? If the charges are mutually brought against the International Court of Justice, how will the issue be resolved?

– One case is some kind of accusation of crimes; another is the requirement on violating the sovereign rights of the state. These are different questions. Because, the first one belongs to the jurisdiction of the International Criminal Court. Genocide, ethnic cleansing and other serious crimes are considered by this court. These issues are also provided for in the Criminal Code of Azerbaijan. Such issues could be dealt with internationally in the International Criminal Court, located in The Hague. However, neither Azerbaijan nor Armenia are members of this court.

There is another point here: the citizens of some states with the status of members of this court fought on the territory of Azerbaijan and, according to law enforcement agencies, committed actions that would be qualified as international crimes. Raising the issue of their responsibility in this court may prove promising. Until Azerbaijan and Armenia are members of this court, the International Criminal Court cannot consider these issues. It cannot consider the question of the responsibility of specific defendants. But this does not mean that the Azerbaijani courts cannot consider this issue either.

-Is there still a precedent for applying to the International Court of Justice with a claim for compensation for war crimes, for destruction? Was there such an experience? I wonder how it ended.

 

There are such precedents. The Nuremberg Tribunal and its sentences are linked to such precedents. That is, it directly considered issues related to the crimes of Nazi Germany and its leaders. In addition, the International Criminal Tribunal, created in connection with the former Yugoslavia, considered the issues of Milosevic and other persons who committed serious international war crimes against humanity. The number of convicts is not small. There were even those who committed suicide before being sentenced, like Milosevic. Most of those who appeared before the tribunal were convicted. There were also those who were sentenced to death at the Nuremberg Tribunal when the death penalty was still in force. Recently, there have also been people sentenced to long life sentences in cases involving Yugoslavia and Uganda. Of course, there was such an experience.

What steps should the Azerbaijani side take? What should Azerbaijan do to achieve its goal?

-I voiced my proposals on this matter during the 44-day war. In general, the Azerbaijani state has taken a number of steps in this direction. I cannot say how professionally these steps were taken, because I was not involved in this work, I was not familiar with these complaints, their content and quality. But I can say that when considering the cases of Chiragov and others against Armenia, Sargsyan and others against Azerbaijan in the ECHR, the Azerbaijani side was represented by sufficiently experienced and competent foreign lawyers. I believe that the same experience was used this time.

Even if Azerbaijan is not a member of the statuses of international and international criminal courts, that is, it cannot apply to these international courts, its assessments, calculations of the amount of damage caused and relevant documents will in any case strengthen Azerbaijan’s positions in the negotiations between Azerbaijan and Armenia. The damage caused by Armenia as a result of violation of the sovereignty of Azerbaijan as a state will be revealed.

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