After the Ceasefire in the Caucuses: Can International Law Protect Cultural Heritage in Nagorno-Karabakh?
Vol. 42 Associate Editor
On November 9, 2020, Armenia and Azerbaijan signed a ceasefire agreement, brokered by Russia, ceasing all hostilities in the ethnic Armenian enclave of Nagorno-Karabakh. The terms of the ceasefire ceded areas of Nagorno-Karabakh—controlled by Armenian forces since the mid-1990s—to Azerbaijan after a bloody, 44-day conflict. The ceasefire agreement resulted in the deployment of nearly 2,000 Russian peacekeeping forces. The territory of Nagorno-Karabakh in question recently ceded to Azerbaijan includes dozens of historic Armenian churches and monuments. These include the Amaras monastery dating from the fourth century, the Tsitsernavank monastery dating from the fifth century, and the Dadivank monastery dating from the ninth century. Dadivank, said to have been founded by a disciple of the apostle Thaddeus, is now guarded by Russian peacekeeping forces, which are needed for the safe passage for Armenians worshipping there. But Armenians have good reason to fear the destruction of less prominent cultural monuments. Between 1997 and 2006, the Azerbaijani government destroyed eighty-nine churches and thousands of khachkars (Armenian stone crosses) in Nakhichevan, an Azerbaijani enclave to the south of Armenia. Azerbaijan’s Ministry of Culture has also systematically engaged in a campaign of cultural misattribution, falsely claiming that churches in Nagorno-Karabakh derive from “Caucasian Albanian” heritage rather than Armenian heritage—the political objective being that if the churches in Nagorno-Karabakh are not Armenian, then Armenians have no historic claim to the land. In the past, Azerbaijan has “restored” Armenian churches in its territory by removing their Armenian-language inscriptions and attempting to pass them off as Caucasian Albanian. Moreover, at the height of the conflict in October of 2020, Azerbaijani forces twice struck Ghazanchetsots, a 19th century cathedral in the historic fortress town of Shushi. Azerbaijan has denied intentionally striking Ghazanchetsots, claiming that the cathedral was either attacked by Armenian forces as a “provocation” or that Azerbaijani artillery mistakenly targeted it on two separate occasions. Journalists and international humanitarian organizations have suggested that both parties’ obligations under international law—such as the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict (“1954 Hague Convention” or “Convention”) and its Second Protocol—could provide adequate deterrence against the destruction of cultural heritage in Nagorno-Karabakh. But casual invocation of these international law agreements may be naïve given the lack of enforcement mechanisms. The 1954 Hague Convention was the first international agreement to provide for the protection of cultural property and heritage. Despite explicit reference to “Armed Conflict” in its title, the obligations of the Convention also apply in times of peace. But as of today, the 1954 Hague Convention has never been applied in times of peace; it has only been applied during armed conflict. Implementing the Convention, now that a ceasefire has been established in Nagorno-Karabakh, would be a first in international law. Both Azerbaijan and Armenia are not only parties to the 1954 Hague Convention, but are also parties to its Second Protocol, which provides limited enforcement mechanisms to protect cultural heritage by designating vulnerable cultural heritage sites for “enhanced protection.” A “serious violation” of the Second Protocol implicates criminal responsibility, but only in the jurisdiction where the offense is committed. There is no remedy in a neutral, international tribunal. Given Azerbaijan’s lack of criminal prosecution with regard to the destruction of Armenian churches and khachkars in Nakhichevan in the late 1990s and early 2000s, and the Azerbaijani Ministry of Culture’s deliberate misattribution of Armenia’s cultural heritage within its borders, it is doubtful that future prosecution under the terms of the 1954 Hague Convention would ever materialize in Azerbaijan. Nor is prosecution in an international tribunal likely under the Rome Statute, which established the International Criminal Court (“ICC”). Recently, the ICC has been receptive to prosecuting the destruction of cultural heritage as a war crime. Indeed, when combined with the principles of the 1954 Hague Convention, the Rome Statute’s power to prosecute “serious crimes” through the ICC is promising for the future of international cultural heritage law. But neither Azerbaijan nor Armenia has ratified the Rome Statute, and ICC jurisdiction can only be established over a non-party state if that state voluntarily accepts jurisdiction or if prosecution is referred to the ICC Prosecutor by the United Nations Security Council (“UNSC”). Although UNSC has recently emphasized and condemned the intentional destruction of cultural property, only twice in its history has it ever referred a non-party state to the ICC, and neither of these referrals (Darfur in 2005 and Libya in 2011) concerned the destruction of cultural heritage. While UNSC authorization to initiate ICC proceedings remains a possibility in Nagorno-Karabakh if cultural heritage is destroyed, it is an unlikely outcome. The 1954 Hague Convention and the Rome Statue work best in tandem with one another. Obstinance to one or both instruments make the implementation of serious international legal enforcement to protect cultural heritage difficult. If the Azerbaijani government is unwilling to undertake prosecutions for serious violations of the 1954 Hague Convention, the best course of action to preserve Armenian cultural heritage in Azerbaijan will be through on-the-ground, international monitoring by humanitarian organizations such as UNESCO and Blue Shield International. UNESCO has already proposed carrying out a mission of experts to take an inventory of Armenian cultural property ceded to Azerbaijan. Under the terms of the 1954 Hague Convention, such a mission requires the agreement of both parties. Azerbaijan has responded to UNESCO’s repeated attempts to undertake a mission in Nagorno-Karabakh by accusing UNESCO of politicizing the protection of cultural heritage. If Azerbaijan were to continue to avoid responsibility of its 1954 Hague Convention obligations, independent monitoring organizations such as Blue Shield International could still establish a presence on the ground in Nagorno-Karabakh by providing proactive protection at vulnerable sites. Blue Shield International has noted the critical situation in Nagorno-Karabakh, but has yet to establish a national committee to monitor the circumstances post-ceasefire. The visibility and awareness that monitoring provides may trigger sanctions under the terms of the Convention by other state parties. Without monitoring, Azerbaijan is free to ignore its obligations under the 1954 Hague Convention. Responding to the 1993 destruction of the 16th century Mostar Bridge during the Croat-Bosniak War by Croatian forces, Ksenija Drakulic, a Croatian journalist, reflected on the pain caused by the destruction of cultural heritage:
Why do we feel more pain looking at the image of the destroyed bridge than the image of the massacred people? . . . Perhaps because we see our own mortality in the collapse of the bridge . . . . We expect people to die; we count on our own lives to end. The destruction of a monument to civilization is something else. The bridge, in all its beauty and grace, was built to outlive us; it was an attempt to grasp eternity.
When the destruction of cultural heritage goes unenforced and unmonitored, that pain is exacerbated. Peace in the Caucuses will be a long and difficult road, but that road will be impassable if Azerbaijan systematically engages in the destruction of Armenian cultural heritage in Nagorno-Karabakh.
 Armenia, Azerbaijan and Russia Sign Nagorno-Karabakh Peace Deal, BBC (Nov. 10, 2020), https://www.bbc.com/news/world-europe-54882564.  Id.  Jack Losh, Russian Troops in Nagorno-Karabakh ‘Clearly a Win for Moscow,’ Foreign Policy (Nov. 25, 2020), https://foreignpolicy.com/2020/11/25/russian-troops-nagorno-karabakh-peackeepers-win-moscow-armenia-azerbaijan/.  Amos Chapple, Left Behind? Churches, Monasteries Due for Handover to Azerbaijan, Radio Free Europe (Nov. 14, 2020), https://www.rferl.org/a/churches-and-christian-monuments-due-to-be-handed-over-in-armenia-azerbaijan-peace-deal-/30944878.html.  Id.; see also Thomas de Waal, Perspectives | Now comes a Karabakh War Over Cultural Heritage, Eurasianet (Nov. 16, 2020), https://eurasianet.org/perspectives-now-comes-a-karabakh-war-over-cultural-heritage.  See Thom Mutch, Cultural Heritage Is Caught Up in the Conflict Over Nagorno-Karabakh, Atlas Obscura (Dec. 10, 2020), https://www.atlasobscura.com/articles/dadivank-monastery-nagorno-karabakh.  Id.  See Henry Foy, Russia Faces Peacekeeping Challenge in Nagorno-Karabakh, Financial Times (Nov. 18, 2020), https://www.ft.com/content/ecb89877-6fd8-44b1-bfb1-2c3276967696; de Waal, supra note 5.  Hugh Eakin, When an Enemy’s Cultural Heritage Becomes One’s Own, N.Y. Times (Nov. 30, 2020), https://www.nytimes.com/2020/11/30/opinion/armenia-azerbaijan-monuments.html; see also Dale Berning Sawa, The Ceasefire Agreement with Azerbaijan Comes with Great Risks for Armenia, The Guardian (Nov. 19, 2020), https://www.theguardian.com/commentisfree/2020/nov/19/ceasefire-agreement-azerbaijan-great-risks-armenia (noting the cleansing of Armenian culture in Nakhichevan).  See de Waal, supra note 5; @Anar_Karim (Nov. 11, 2020 3:11 AM), https://twitter.com/Anar_Karim/status/1326437397270310912 (“#Khudavang monastery [Dadivank Monestary] is one of the best testimonies of ancient Caucasian Albania civilization . . . . The monastic complex of #Khudavang later was occupied by #Armenian armed forces in 1992 and was subject to alteration and falsifications aimed to change its origins and character in violation of @UNESCO Hague Convention of 1954”). Mr. Karim is the first deputy minister of culture for Azerbaijan. For further discussion on Azerbaijan’s “Albanization” of Armenian churches see Thomas de Waal, Black Garden: Armenian and Azerbaijan through Peace and War 165–170 (2013).  See de Waal, supra note 5.  Azerbaijan: Attack on Church Possible War Crime, Human Rights Watch (Dec. 16, 2020), https://www.hrw.org/news/2020/12/16/azerbaijan-attack-church-possible-war-crime. Shushi was ceded to Azerbaijan by terms of the ceasefire.  Id.  Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict, May. 14, 1954, 249 U.N.T.S. 215 [hereinafter 1954 Hague Convention]; Second Protocol to The Hague Convention of 1954 for the Protection of Cultural Property in the Event of Armed Conflict, March 26, 1999, 2253 U.N.T.S. 172 [hereinafter Second Protocol].  See de Waal, supra note 5; Eakin, supra note 9.  See Andrew Miles, Conserving Culture: The Shift Towards International Criminal Liability for the Destruction of Cultural Property, 27 Minn. J. Int’l L. 581, 585 (2018).  1954 Hague Convention, supra note 14, at art. 18.  See Ashley Mullen, International Cultural Heritage Law: The Link between Cultural Nationalism, Internationalism, and the Concept of Cultural Genocide, 105 Cornell L. Rev. 1489, 1502.  See Second Protocol, supra note 14.  Id. at arts. 15–16.  Rome Statute of the International Criminal Court, July 17, 1998, 2187 U.N.T.S. 90 at art. 8(2)(e)(iv) (entered into force July 1, 2002) (punishing as war crimes “[i]ntentionally directing attacks against buildings dedicated to religion, education, art, science or charitable purposes, historic monuments”); see, e.g., The Prosecutor v. Ahmad Al Faqi Al Mahdi, ICC-01/12-01/15-171, Judgment and Sentence (Sept. 27, 2016) (prosecuting and convicting paramilitary leader for the destruction of Timbuktu mausoleums and shrines).  Ana Filipa Vrdoljak, Cultural Heritage, Transitional Justice, and the Rule of Law, in The Oxford Handbook of International Cultural Heritage law 179 (Francesco Francioni & Ana Filipa Vrdoljak eds., 2020).  The State Parties to the Rome Statute, Int’l Crim. Ct., https://asp.icc-cpi.int/en_menus/asp/states%20parties/pages/the%20states%20parties%20to%20the%20rome%20statute.aspx (last visited Dec. 23, 2020). Armenia is a signatory to the Rome Statue but has not yet ratified the Statute. Id. Azerbaijan is a non-party state and has not signed. Id.  See How the Court Works, Int’l Crim. Ct., https://www.icc-cpi.int/about/how-the-court-works (last visited Dec. 23, 2020).  Vroljak, supra note 22, at 179 (citing S.C. Res. 2347 (Mar. 24, 2017)).  Miles, supra note 16, at 600.  See Mullen, supra note 18, at 1502–1503, 1516–17 (noting political resistance to both the 1954 Hague Convention and the Rome Statute).  Nagorno-Karabakh: Reaffirming the Obligation to Protect Cultural Goods, UNESCO Proposes Sending a Mission to the Field to All Parties, UNESCO (Nov. 11, 2020), https://en.unesco.org/news/nagorno-karabakh-reaffirming-obligation-protect-cultural-goods-unesco-proposes-sending-mission.  Id.  UNESCO Is Awaiting Azerbaijan’s Response Regarding Nagorno-Karabakh Mission, UNESCO (Dec. 21, 2020), https://en.unesco.org/news/unesco-awaiting-azerbaijans-response-regarding-nagorno-karabakh-mission.  See Press Release, Republic of Azerbaijan, Ministry of Foreign Affairs, Commentary of the Press Service Department of the Ministry of Foreign Affairs of the Republic of Azerbaijan to the UNESCO Press Release on Sending of a Mission to Azerbaijan (Dec. 22, 2020), https://mfa.gov.az/en/news/7102/view.  Blue Shield National Committee Activities, Blue Shield Int’l., https://theblueshield.org/what-we-do/the-national-committees/ (last visited Dec. 23, 2020).  Blue Shield Statement on Fighting in Nagorno-Karabakh, Blue Shield Int’l. (Oct. 7, 2020), https://theblueshield.org/blue-shield-statement-on-fighting-in-nagorno-karabakh/.  1954 Hague Convention, supra note 14, at art. 28.  Amy E. Schwartz, Is It Wrong to Weep for Buildings?, Wash. Post (May 10, 1994), https://www.washingtonpost.com/archive/1994/05/10/is-it-wrong-to-weep-for-buildings/6123a1c1-c29c-4803-aa7b-3a6a8d125885/?noredirect=on&utm_term=.c2e1f735395c. 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