06.08.21 [Nurlan Mustafayev is a counsel on international legal affairs at the State Oil Company of the Republic of Azerbaijan and a pro bono advisor to Azerbaijani refugees on property rights issues. Views expressed in this blog post are personal and do not represent those of his employer or any governmental institution.]
Following the so-called ‘44-Day War’ in late 2020 between Armenia and Azerbaijan, the conflicting parties lodged inter-State applications to the European Court of Human Rights (Court) alleging various breaches of the European Convention on Human Rights (European Convention) and international humanitarian law. The applications follow the Court’s issuance of an interim measure and a statement at the early stages of the war calling upon the parties to protect the rights of the civilian population.
This blog article discusses the salient legal issues associated with property rights violations in this multi-faceted inter-State case under the European Convention’s Protocol No. 1. The article argues that the Court’s ruling should not offer a mere acknowledgment of the historical wrong committed against a million Azerbaijani displaced persons (IDPs) but provide full reparations for massive and systematic violations of their property rights for the past 30 years.
The three-decade-long Armenia’s occupation of Azerbaijan’s Upper Karabakh region and adjacent seven districts in the 1991-1994 war witnessed putative looting and transfer of private properties and civilian infrastructure on a large and systematic scale. According to Human Rights Watch, Armenia displaced about 750,000-800,000 Azerbaijani IDPs from such occupied territories (HRW Report, 99), who had to abandon more than 150,000 houses and apartments under military occupation. The UN estimated total economic damage to Azerbaijan, including damages to public and private property, due to Armenia’s occupation at approximately $53.5 billion (UN Report, 52).
In this context, Azerbaijan’s inter-State application deals with the legacies of Armenia’s occupation policies from 1991 to 2020, particularly pecuniary and non-pecuniary (moral) damages to Azerbaijani IDPs. The scale of the alleged damages and the number of injured parties could make this inter-State case the most consequential case in the Court’s jurisprudence in the context of international conflicts and property rights.
In its application under Article 33 of the European Convention, Azerbaijan submitted that Armenia committed numerous breaches of the European Convention during the recent war by indiscriminate attacks on civilians as well as civilian and public property and infrastructure, including the use of ballistic missiles against civilian settlements; executions, ill-treatment, and mutilations of combatants and civilians; the capture and continued detention of prisoners of war; and the forced displacement of the civilian population in areas affected by the recent war; the destruction of cultural and religious property in the occupied territories.
Azerbaijan additionally submitted that Armenia has ‘continuously’ violated the European Convention since 1991 for occupying and displacing about one million Azerbaijani IDPs from Upper Karabakh and seven adjacent districts and violating their human rights, including the property rights, under the European Convention’s Protocol No. 1.
Principal Judgements: Effective Control and State Responsibility
The Court’s landmark judgments in the cases of Chiragov and Others v. Armenia and Sargsyan v. Azerbaijan, decided in 2015 (partly discussed here, here), will likely constitute the conceptual foundations for its approach to admissibility and the merits of the case on property rights.
In Chiragov, Zalayan and Others v. Armenia, and Muradyan v. Armenia, the Court upheld Armenia’s extra-territorial jurisdiction over Azerbaijan’s Upper Karabakh and seven adjacent districts by virtue of its military occupation (effective control). It also regarded Armenia’s administrative practice of continuous denial of access to the property and lack of due compensation as a violation of the property rights of six Azerbaijani Kurdish families displaced from the Lachin district in 1992 under Article 1 of Protocol No. 1.
By extension, following the principles espoused in Chiragov, the Court will likely reaffirm Armenia’s extra-territorial jurisdiction over the occupied territories and its responsibility for continuous denial of access to the property of a million Azerbaijani IDPs from 1991 to 2020. Following the ‘44-Day War’, which reconfirmed Armenia’s army forces’ entrenched presence in the occupied territories (‘boots on the ground’) and its direct participation in the war, the Court’s State responsibility doctrine loosely applied in Chiragov will require a significant revision.
Provisional Damages and Reparations
In 2017, the Court issued just-satisfaction judgments in the cases of Chiragov and Sargsyan, awarding each of the applicants aggregate sums of 5,000 euros for ‘certain’ pecuniary losses and moral damage ‘pending a solution on the political level’. The Court’s interpretation of property rights in the case is not limited to Protocol No. 1 but also includes other relevant European and the UN’s Pinheiro Principles, occupying power was obliged to comply.
The Court held that long-standing conflicts are not, in reality, amenable to full reparation. Having this as a guiding principle, it carved out a separate category of ‘long-standing conflicts’ and unconvincingly linked damages and just satisfaction to the ‘pending political settlement of the conflict’. Thus, it assessed damages on a discretionary and equitable basis given the vague criteria such as the exceptional character of the conflict, the passage of a long period of time, the difficulty in precise calculation of damages, the lack of precise ownership documentation, etc. Due to such ‘imponderables’, the Court limited the heads of pecuniary damages to ‘denial of access to the property, loss of income from the IDPs’ lands and their increased living expenses’.
The Court’s restrictive approach to damages and reparations begs many questions. Would the aggregate sum of 5,000 euros put an IDP family in the position in which they would have been had the violation not taken place (restitutio in integrum)? Is it adequate financial compensation for continuous denial of access to the property for the excessive period of 30 years? Do such vague criteria, namely, ‘long-standing conflicts’ and ‘imponderables,’ justify awarding a ‘symbolic’ compensation for property rights violations instead of restitutio in integrum? These questions did not get enough assessment in Chiragov but will be highly relevant in the inter-State case.
Since Armenia’s domestic laws do not allow any reparations to be made to Azerbaijani IDPs (as confirmed in Chiragov), the Court’s reference to the equity to award less than the value of actual damages is indefensible within the meaning of Article 41 of the European Convention. The purpose of ‘just satisfaction’ is to complement partial reparations to injured parties allowed under the laws of the Member State (e.g., Armenia). Given no reparations are permitted under the laws of Armenia, the Court’s just satisfaction amount shall be close to restitutio in integrum rather than being a ‘symbolic’ financial acknowledgment of a violation of the European Convention.
The impact of the new emerging evidence after Azerbaijan’s recovery of the occupied territories is another relevant point in the inter-State case. For instance, the extensive evidence reveals numerous desolate cities, towns and villages wholly stripped of all infrastructure and private property under Armenia’s occupation, the facts unavailable to the Court’s consideration in Chiragov. As this new situation may eliminate many ‘imponderables’ in Chiragov, the Court should rethink its approach to damages by including an estimated value of private properties as well.
In sum, the Court’s subordinating damages and compensation to ‘pending a solution on the political level’ indicate that its restrictive interpretation in Chiragov is a provisional or interim solution, which may change in the pending inter-State case. In addition, given the scale of property rights violations and many imponderables, the Court should commission a fact-finding mission to assess the relevant facts in the de-occupied territories.
Public Property and Infrastructure
Besides private property rights, one of the key issues in this inter-State case is damages to extensive public property and infrastructure (e.g., utilities, factories, roads, airports, schools, educational, medical, and cultural facilities, telecommunication and energy networks, water facilities, etc.) in the territories previously occupied by Armenia. Of particular importance is educational, cultural, and religious property, which were entirely dismantled and appropriated.
The Court needs to assess the protection of property rights in occupied territories in a ‘holistic’ way since the destruction of the civilian infrastructure makes the enjoyment of private property rights ‘ineffective’ and ‘illusory’. Still, it also makes the whole civilized life impossible in the area. Accordingly, the looting and transfer of the civilian infrastructure in occupied territories should also be accounted for in the Court’s assessment of violations of Article 1 of Protocol No.1 and determining the amount of reparations.
Subsidiarity and Property Claims Mechanism
By emphasizing the principle of subsidiarity, the Court upheld the importance of establishing an accessible mechanism to process property claims (Chiragov, para 188). For instance, the Immovable Property Commission (IPC) set up by the Turkish administration in northern Cyprus could be an example of an Armenia-Azerbaijan IPC.
However, in the post-Chiragov period, no IPC or laws offering compensation for IDPs were implemented, arguably because of its significant legal and financial implications for Armenia running into billions of US dollars. In this sense, the Court overestimated the probability and practicality of an Armenia-Azerbaijan IPC. For instance, neither a Russia-brokered trilateral Agreement on 10 November 2020, which ended the recent war, nor the OSCE Minsk Group’s ‘Basic Principles’ addresses the compensation issue to Azerbaijani or Armenian displaced persons. In addition, even if the parties reach a final peace treaty, it does not necessarily follow that such an agreement will provide reparations in line with the European Convention’s requirements. Thus, the Court should protect property rights in this case as if no IPC will be feasible; otherwise, a million IDPs will be without effective legal remedy or fair compensation.
Property Rights under Transformative Military Occupation: A New Framework
While the Court in Chiragov established Armenia’s responsibility for violations of Protocol No. 1, the case was disappointing in terms of determining pecuniary and moral damages and the amount of just satisfaction. Mainly due to the doctrinal rigidity, the Court interpreted a large number of imponderables created by the wrongful actions of Armenia, as the occupying power, to the disadvantage of the Azerbaijani IDP property holders.
In this author’s view, the key reason was that the Court’s evaluation standards focused on establishing Armenia’s ‘overall’ responsibility for human rights violations without thoroughly assessing the details of its occupation policies. While the Court’s recent decision in Georgia v. Russia (II) (discussed here) made incremental progress by evaluating the ‘occupation phase’ after Russia invaded Georgia (para 145-222), however, it fell short of comprehensively assessing Russia’s formal and informal occupation policies. In this context, the Court needs a new perspective and framework to deal with the protection of property rights under military occupation.
In this author’s view, the Court should treat massive and systematic property rights violations under military occupation differently from other cases. According to the International Red Cross, transformative and prolonged occupation policy, aside from administering a foreign territory, intends to ‘overhaul the institutional and political structure of the occupied territory, often to make it accord with the occupying power’s own preferences’. Changing facts on the ground, such as setting a local administration, expelling the local population, systematic policies to appropriate the property, organizing new settlements, etc., are parts of such occupation policies. This concept also provides a causal link between the systemic violation of property rights in occupied areas and its attribution to the occupying power’s deliberate policies. In this context, the Court should view the systemic and massive property rights violations in this inter-State case through a lens of Armenia’s deliberate policy to ‘transform’ the occupied territories line with its political designs for the past 30 years.
The Court’s current approach to reparations for property rights violations and State responsibility in the context of military occupation provides neither adequate compensation nor deterrence. The doctrinal rigidity and ‘symbolic’ compensation payable by the wrongdoing States do not provide strong deterrence against the repetition of these acts in the future. To ensure full State accountability, a Convention State found in violation of the ‘public order of Europe’ by occupying another Convention State and committing massive property rights violations shall be liable for complete reparations or ‘punitive’ damages instead of ‘token indemnity’ or ‘symbolic’ compensation.
Following Georgia v. Russia (II) and Ukraine v. Russia, Azerbaijan v. Armenia will be the third inter-State case in the Court’s jurisprudence involving military occupation in the post-Soviet space. It is an opportunity for the Court to evolve its concepts and principles applicable to military occupation and human rights violations.
Source: Opinio Juris: http://opiniojuris.org/2021/08/06/azerbaijan-v-armenia-before-the-european-court-of-human-rights-the-protection-of-property-rights-in-occupied-territories/