The Security Council action in response to further escalation of the conflict
Perhaps it would have been possible to prevent further escalation of the conflict, as well as the destruction of civilian settlements and the mass exodus of the population from the occupied territories, had the Security Council adopted a resolution with an enforcement clause in it. There were proposals voiced in the Council during the proceedings, before the adoption of the fourth resolution 884 on the matter, to include in the text an expression of the Council’s intention to take further appropriate steps in case these resolutions continue to be defied.[100] In any case, although the first resolution is not without value in terms of providing together with the subsequent resolutions an overall legal framework for the ongoing peace negotiations, it did not prevent the conflict from further escalating into full-fledged war. The possible rationale behind the positions of at least several permanent members of the Security Council elaborated above explains why the subsequent resolutions adopted by the Council in response to the increasing violence and advancement of Armenian forces deeper into the territory of Azerbaijan by and large repeated the pattern and were watered down to certain extent. However, the other resolutions adopted in the course of 1993 introduced a number of new elements, which are important to explain so as to trace the evolution of the assessment of the situation by the Security Council.
Amid the escalation of the hostilities and intensifying armed attacks in the course of the four months, the Security Council adopted three more resolutions.[101] The second resolution (853) openly acknowledged the existence of tensions between Armenia and Azerbaijan (in previous resolution the Council only expressed concern over deterioration of relations between the two countries).
Paragraphs 3, 4, 5, 8, and 12 of the resolution are of particular interest and should be analyzed together, since in these provisions the Security Council essentially outlined a step-by-step approach for the conflict settlement. Thus, in paragraph 3, the Council excluded any conditionality on the withdrawal of the occupying forces, explicitly demanding the “immediate, complete and unconditional withdrawal of the occupying forces involved from the district of Agdam and all other recently occupied areas of the Azerbaijani Republic.”[102] With this unequivocal demand, the Security Council left no room for interpretation of the text of the resolution and a priori excluded any trade-off of the occupied territories for some sort of political gains at the negotiation table. The importance of this position by the Council is even more apparent, if compared with other cases, when ambiguity in the text of the resolutions of the Security Council resulted in endless interpretation and “chicken-and-egg” type debates over the terms of the conflict settlement. The classic case in point is resolution 242 (1967).[103] The ambiguous design of the resolution meant different things to the different parties involved. As a result, the Arab States referring to the resolution demanded immediate withdrawal of Israel from the occupied territories, while Israel, referring to the provisions of the same resolution, maintained that withdrawal is conditioned by the permanent peace agreement, security, and recognition of Israel by its Arab neighbors.[104]
In paragraph 4 of resolution 853, the Security Council calls for the parties to reach and maintain durable cease-fire arrangements, whereas in paragraph 5, it “reiterates in the context of paragraphs 3 and 4 above its earlier calls for the restoration of economic, transport and energy links in the region”. In paragraph 8 the Council “urges the parties concerned to refrain from any action that will obstruct a peaceful solution to the conflict, and to pursue negotiations within the Minsk Group of the CSCE, as well as through direct contacts between them, towards a final settlement.”
The Security Council expressed its grave concern at the displacement of large numbers of civilians in the Azerbaijani Republic […]”, and in paragraph 12 of the resolution requested the Secretary-General and relevant international agencies “to assist displaced persons to return to their homes.” It is noteworthy that the Council did not put any conditions on the return of the displaced population, suggesting that the return should start immediately as soon as the situation on the ground allowed for doing so. Thus, already at this stage, the Council clearly showed that it favors a phased approach in the settlement of this conflict as the only viable option, which would consist of the sequence of steps, which in its view need to be taken to remove the results of the conflict and foster a resolution, starting with withdrawal of occupying forces, establishment and maintenance of durable cease-fire arrangements, restoring communications in the region, return of the displaced population to their homes and continuing negotiations towards a final settlement.
Another noteworthy element, which was absent in the first resolution, was the coining by the Security Council of the term “Nagorny Karabakh region of the Azerbaijani Republic,” which was used in the subsequent resolutions of October and November 1993.[105] Armenia was continuously referring in its correspondence to the Security Council to the self-proclaimed “Nagorny Karabakh Republic,” implying that it was an independent “state” and was distributing documents on its behalf.[106] Azerbaijan categorically rejected any attempts to introduce into United Nations the usage of any concepts that would undermine its sovereignty and territorial integrity and registered its vigorous objection with the Security Council President[107] to the use of term “Nagorny Karabakh Republic” in the letters circulated as a Security Council document at the request of Armenia.[108] By using the term the “Nagorny Karabakh region of the Azerbaijani Republic” in the operative paragraph[109] of the above-mentioned resolution, the Security Council decided which of the legal propositions presented by Armenia and Azerbaijan was in accord with international law and reaffirmed that the Nagorny Karabakh region was part of the territory of the Republic of Azerbaijan.
Furthermore, unlike resolution 822, in which the Security Council reaffirmed “the respect for sovereignty and territorial integrity of all States in the region,”[110] in its second and subsequent resolutions the Council was more specific and reaffirmed “the sovereignty and territorial integrity of the Azerbaijani Republic and of all other States in the region.”[111] Removing of the word “respect” from the phrase put an additional emphasis on the recognition of the sovereignty of Azerbaijan over its territory, including the Nagorny Karabakh region.
This opinion of the Security Council essentially reflected the general view of the international community,[112] which, based on the principle uti possidetis juris, recognized the former administrative borders between the Union Republics of the former Soviet Union as the international boundaries of the newly independent States protected by international law.[113] The Government of Armenia was alarmed with such a position of the Security Council and could not hide its irritation with the language of the resolutions.[114]
This assessment by the Security Council of the Nagorny Karabakh region as being a part of the territory of the Republic of Azerbaijan under international law was in line with other paragraphs of this and other resolutions in which the Council reaffirmed the inviolability of international borders and inadmissibility of the use of force for the acquisition of territory.[115] The statements by the permanent members of the Security Council during the proceedings leading to the adoption of these resolutions indicate that the members of the Council were alarmed with the continuing military activities and seizure of additional territory by force. The members of the Security Council wanted to send a clear message that “the international community will no longer tolerate the continuation of bloodshed and the ever-more-dangerous escalation of the conflict.”[116] It seems that in order to make their appeal to stop the hostilities more convincing, the members of the Security Council chose to reaffirm in the subsequent resolutions the futility of territorial acquisitions by force since, as was mentioned above, any occupation under international law would not lead to the automatic transfer of sovereignty over that particular territory or change of its legal status.
Interestingly, the nine members of the Minsk Conference[117] spoke in similar terms in their statement endorsed by the Security Council,[118] in which they stressed that “no acquisition of territory by force can be recognized, and the occupation of territory cannot be used to obtain international recognition or to impose a change of legal status.”[119]
The Security Council went even further in its second resolution (reiterated in its forth resolution) and for the first time urged “the Government of the Republic of Armenia to continue to exert its influence to achieve compliance by the Armenians of the Nagorny Karabakh region of the Azerbaijani Republic with its [resolutions …].”[120] The appearance of such explicit reference to the link between the Government of the Republic of Armenia and the separatist regime in Nagorny Karabakh region and the apparent influence of the former over the latter is noteworthy. The strong link between the Government of Armenia and the forces in the Nagorny Karabakh region was also obvious to the European Community, which in its statement of September 3, 1993, in line with the second resolution adopted by the Security Council, called on the Government of Armenia to “use its decisive influence over the Armenians of Nagorny Karabakh to see that they comply with the Security Council [resolutions …].”[121]
The report of the Chairman of the Minsk Conference of the CSCE addressed to the President of the Security Council, which was discussed in the Security Council before the adoption of the second resolution, sheds light on the reasons the Security Council found it necessary at this point to refer to the Government of Armenia in its resolution.[122] In this report, which was drafted in the aftermath of the armed attack and seizure of the city of Agdam located beyond the administrative line of the former NKAO, the Chairman of the Minsk Conference, Mr. Raffaelli, noted that the situation in the conflict zone changed dramatically and that further territories of the Azerbaijani Republic were occupied. While noting in his report that the attitude of the leaders of the local Armenian community in Nagorny Karabakh is governed by military rather than diplomatic considerations, in his statement supported by the nine countries of the Minsk Conference issued earlier, he warned that “those who encourage the Armenian community of Nagorny Karabakh to continue the fighting and the encroachment on the surrounding territories share responsibility for the continuing loss of Armenian lives and the destruction of the Armenian economy.”[123] He came to conclusion that under the circumstances, political pressure by the international community is necessary to give impetus to the peace process and called for early action by the Security Council.[124] It is noticeable that the Chairman of the Minsk Conference, while noting that the forces in Nagorny Karabakh are encouraged by a third party, warned of the negative consequences of the continuing military operations for the economy of Armenia, implicitly acknowledging in this way that those who encourage further occupation of the territories of Azerbaijan were in Armenia.
Given the overall military context in which the Security Council adopted its second resolution and the reports from the CSCE indicating the existence of forces encouraging further military advances in the conflict zone, one can argue that by urging the Government of Armenia to continue to exert its influence to achieve compliance by the Armenians of the Nagorny Karabakh region with its resolutions, the Security Council had established that the Government of Armenia was in a position to exert influence to have all occupying forces cease hostile acts and withdraw from the occupied territories of Azerbaijan (this is what it demanded in its resolutions). The Security Council was more specific in this regard, and it its statement of August 18, 1993, amid the intensification of the fighting in the Fizuli district of Azerbaijan demanded the immediate, complete, and unconditional withdrawal of occupying forces from the occupied areas of Azerbaijan and called “the Government of the Republic of Armenia to use its unique influence to this end.”[125]
The Security Council in its resolution 853 of July 1993 urged “states to refrain from the supply of any weapons and munitions which might lead to an intensification of the conflict or the continued occupation of territory.”[126] But already in its fourth resolution in the wake of occupation of Zangelan district of the Republic of Azerbaijan and the attack on the city of Goradiz in the Fizuli district the Council went even further and specifically called “the Government of the Republic of Armenia to use its influence to […] ensure that forces involved are not provided with the means to extend their military campaign further.”[127] The Security Council apparently was aware that due to the complex geography of the area of conflict, the only direction through which the forces in and around the Nagorny Karabakh region could be resupplied with ammunition was through the roads linking Armenia and the Nagorny Karabakh region passing through the Lachin and Kelbadjar districts, which were occupied by then and were under the Armenian control.
At the same time, the authors of these resolutions wanted to balance the reports coming from the region pointing to the direct involvement of Armenia in the conflict by presenting the role of the Government of Armenia in a positive way.[128] By urging the Government of Armenia to continue to exert its influence, the Security Council seems to be convinced that this influence was taking place for a while. Yet, not only as a result of this influence by Armenia the fighting was halted, on the contrary, the conflict zone expanded even further with more territories of Azerbaijan falling under the occupation.[129] However, the important thing is that by stating that the Government of Armenia is in a position to exert continuous influence over the occupying forces it seems that the Security Council was under the impression that the advancing occupying forces were under the control of the Government of Armenia.[130]
The determination of a potential of control by the de jure organs of a state over the course of the military actions allegedly carried out by the paramilitary forces on the territory of another sovereign state was used by the ICJ in its judgment in the Nicaragua case[131]and elaborated further in the Bosnian Genocide case[132] to attribute the illegal conduct by the paramilitary forces of an outside state, thus establishing said state’s responsibility for this conduct under international law. Elaboration in detail of the question of the control by an outside state over the paramilitary forces carrying out military activities in the territory of another state is beyond the scope of this article and requires separate consideration.[133]
Further advance of the Armenian forces and the expansion of the conflict deeper into Azerbaijani territories and closer to the international borders of Azerbaijan with Iran and Turkey alarmed these regional countries. In the wake of the occupation of Djabrail and Kubatli districts and the real threat of the seizure of the Zangelan district of Azerbaijan, the Minister of Foreign Affairs of Iran, Ali Akbar Vilayati, in his letter addressed to the UN Secretary-General expressed his concern with the developments and called the United Nations to “take immediate and effective measures to implement Security Council Resolutions 822 (1993) and 853 (1993) and decisively compel the aggressive forces to accept a cease-fire and to withdraw to the internationally recognized borders.”[134] This recognition of the fact that the attacks on the southwestern districts of Azerbaijan were mounted from the territory of Armenia is particularly noteworthy, since Iran from the beginning of the conflict was pursuing a neutral policy, and, second, the geographic proximity of the fighting allowed Iran to monitor the events right across its border with Azerbaijan.
Similarly, the Government of Turkey after the Kelbadjar offensive and especially with the occupation of other districts of Azerbaijan as well as the armed attacks on the Nakhichevan province, urged Armenia to stop aggression against Azerbaijan, to respect its commitments under the U.N. Charter, and made improvement of its relations with Armenia,[135] conditional upon the withdrawal of the Armenian forces from the occupied territories.[136]
The Member States of the European Community also in response to the attacks of the Armenian armed forces against the south-western districts of Azerbaijan[137] issued a statement on September 3, 1993, in which they called on these forces to fully respect the Security Council resolutions and withdraw from the regions of Kelbadjar, Agdam, Fizuli, and Djebrail, emphasizing that the “member States have no evidence that Azerbaijan would be capable of initiating major attacks from these regions.”[138] Indeed, the sequence of the occupation of the territories of Azerbaijan suggests that the advances of the Armenian armed forces resembled more pre-planned military operations rather than sporadic spillover of fighting into the neighboring areas.[139]
Interestingly, Russia, which after its retreat from the South Caucasus in the wake of the demise of the Soviet Union, thought to make a comeback through offering to the parties a peace plan on its own terms, perceived the mediation efforts of Iran and especially of Turkey as attempts to expand their influence into the region.[140] The coincidence of the intensification of the fighting and further advances of the Armenian armed forces deeper into the territory of Azerbaijan with the reluctance of Azerbaijan to accept the terms of the proposed Russian deal[141] is striking and reveals the geopolitical dimension of the conflict.[142]
Under the circumstances, in the course of the three months the Security Council adopted two more resolutions (874 and 884). The Security Council seems to be convinced that the southwestern districts of Azerbaijan were also attacked from the territory of Armenia and in its fourth resolution (884) in the paragraph concerning the occupation of the Zangelan district condemned the “attacks on civilians and bombardments of the territory of the Azerbaijani Republic.”[143] The evolution in the assessment of the situation by the Council is even more revealing, if compared with its previous resolutions, in which the Security Council spoke in general terms and condemned “bombardments of inhabited areas.”[144]
The third resolution (874), unlike the two previous ones, mentions the role of the Russian Federation in establishing the cease-fire while urging the states in the region “to refrain from any hostile acts and from any interference or intervention which could lead to the widening of the conflict and undermine peace and security in the region.”[145] Although no states were singled out, given the frustration of Russia with various international mediation efforts, the primary sponsor of this paragraph was, arguably, Russia, which under the pretext of preventing a possible spillover of the conflict into neighboring regions wanted to put the weight of the Security Council behind its efforts to rebuff the possible involvement of Turkey and, to a lesser extent, that of Iran. In this regard, the distinction, which the Security Council made in this resolution between the terms interference and intervention, is particularly noteworthy.
In its fourth resolution (884) the Security Council, while reiterating its previous demands to cease armed hostilities, make the cease-fire effective and permanent, and demanding unilateral withdrawal of occupying forces from the Zangelan district and from other occupied areas of Azerbaijan, again expressed its concern at the displacement of a large number of civilians in the Republic of Azerbaijan and requested the Secretary-General and relevant international agencies to provide urgent humanitarian assistance to the affected civilian population and to assist displaced persons to return to their homes.[146]
The resolution 853 and subsequent resolutions 874 and 884 are particularly noteworthy. In these resolutions the Security Council used its authority under Article 34 and determined that the continuation of the conflict in and around the Nagorny Karabakh region of the Azerbaijani Republic, as well as the ongoing tensions between the Republic of Armenia and the Azerbaijani Republic, would endanger peace and security in the region. Such a determination is a prerequisite for invoking the relevant provisions of Chapter VI, particularly Article 33(2), Article 36, and Article 37(2), which give the Council the authority to recommend terms of settlement of the conflict. By making such determination on the situation, the Council indicated that it was acting under these provisions.
The fact that the Security Council did not specifically mention in these resolutions that it was acting under Chapter VII diminishes neither the power of the Council to express its authoritative position towards the conflict nor the value of the recommendations of the terms of the settlement that in its assessment would restore international peace and security. What is essential is that the Council is empowered through these Articles to consider the merits of the conflict situation and reach a conclusion, which, as Kirgis pointed out, would have “normative consequences.”[147] And this is what the Security Council did. The text of the adopted resolutions indicate that the Security Council made it clear that it would not accept any fait accompli situations arising as a result of the use of force for the acquisition of territory. The determination by the Council of the fact of the occupation of the territories of Azerbaijan and the qualification of the occupation as illegal under international law by definition requires that the perpetrator of this illegal act is obliged to end this occupation immediately and unconditionally. In other words, the obligation to put an end to an internationally wrongful act derives not only from principles and norms of international law[148] but also from the acts of application of these norms through, inter alia, the UN Security Council resolutions. The existence of the fact of the occupation also obliges all states not to recognize as lawful the situation resulting from the occupation of the territories of the Republic of Azerbaijan, nor render aid or assistance in maintaining this situation.
Furthermore, the resolutions adopted by the Security Council are binding on the basis of Article 25 of the U.N. Charter, which states that “the Members of the United Nations agree to accept and to carry out the decisions of the Security Council in accordance with the present Charter.” This understanding of the meaning of Article 25 is reflected in the interpretation by the authoritative Venice Commission of the Council of Europe in the recommendations contained in the resolutions adopted by the Security Council[149] in the wake of the escalation of the armed conflict in Georgia in August 2008.[150]