Published: 2 Oct 2019 | By Oliver Saunders
Aliyev v Armenia, Hakobyan v Azerbaijan et al.
Application Nos: 25589/16, 25576/16, 74566/16, 74508/16
Judgment date: 9 July 2019
The ECtHR has communicated four cases, brought by individuals (two families in Azerbaijan and two in Nagorno-Karabakh) whose homes were shelled by the armed forces of Armenia and Azerbaijan in April 2016. Hostilities between the two Caucasus nations have been ongoing since war broke out in 1992 over the disputed Nagorno-Karabakh Republic (NKR). Despite a ceasefire agreement in 1994, recurring breaches have occurred, with the worst breach taking place in April 2016 known as the “Four-Day War”.
Between 2 and 5 April 2016, Armenian and Azerbaijani forces shelled towns and villages bordering the line of contact between NKR and Azerbaijan, including those where the applicants lived:
- Mr Aliyev and his family were awoken by shells exploding around their house in Gapanli on 4.4.16. The home was damaged but the family escaped injury;
- Mr Allahverdiyev and his family evacuated Tapgaragoyunlu in the early morning of 2.4.16, however the following evening (upon returning) Mr Allahverdiyev was injured in the face and his property damaged by shellfire;
- Mr Hakobyan and his wife left Mataghis on 2.4.16 after the bombardment had shattered the windows of their home and left a 2 x 1 metre hole in the wall;
- Mr and Mrs Ohanyan and their family were also awoken in Talish by the attack on 2.4.16; three family members were injured during the evacuation, their property sustained significant damage and they lost some of their livestock.
The applicants complain that the attacks put their lives at risk, caused injuries and damaged their properties. The Court communicated questions to the parties regarding:
- the right to life (Art. 2)
- the prohibition of inhuman and degrading treatment (Art. 3)
- the right to respect for their family life or home (Art. 8)
- the right to peaceful enjoyment of their property (Art. 1 of Protocol No. 1)
- the right to an effective remedy (Art. 13)
- the right not to be discriminated against, on the basis of ethnicity or nationality (Art. 14)
The first question for the Court will be whether the complaints fall under the jurisdiction of the relevant states (Art.1). Jurisdiction is “primarily territorial”, but may exceptionally arise in circumstances of “State agent authority and control” and “effective control over an area”. In the context of the NKR dispute, the Grand Chamber in Chigarov and Others v Armenia [GC] (No. 13216/05, 16.06.15, para. 186) held that Armenia exercised “effective control” over the NKR and surrounding territories.
Also of significance is whether the states breached Art. 2(1) by putting the lives of the applicants in danger from shelling. The Court breaks down this issue into four sub-questions including whether the force used was in compliance with the Convention or international humanitarian law (IHL) (emphasis added).
The framing of these questions can be viewed as an attempt to navigate the differing norms of the Convention and IHL. Landais and Bass outlined the issue for the Court (in “Reconciling the rules of international humanitarian law with the rules of European human rights law”), that there is scope for military action (that injures civilians or damages their property) to be found lawful under IHL (the lex specialis in international conflict), whilst failing to satisfy the “absolute necessity” test of Art. 2(2). The Court, cognisant of this issue, stated in Varnava and others v Turkey (No. 16064/90, 18.09.09) that “Article 2 must be interpreted so far as possible in light of the general principles of international law, including the rules of international humanitarian law which play an indispensable and universally accepted role in mitigating the savagery and inhumanity of armed conflict” (para. 185).
As the Grand Chamber has previously emphasised, such cases ultimately require a peaceful political settlement between the two states (see Chigarov v Armenia [GC] (just satisfaction), No. 13216/05, 12.12.17, para. 48; Sargsyan v Azerbaijan [GC] (just satisfaction), No. 40167/06, 12.12.17, para. 30).