Language:
Crime of Aggression by Azerbaijan
29 Sep 2020

Early in the morning of September 27, 2020, the Azerbaijani side started to shell towards Artsakh on the border, which is accompanied by targeting peaceful settlements and civilian infrastructures. Azerbaijan's large-scale attack on the settlements of Artsakh led to casualties and damage among the civilian population. Then, on 29 September, Azerbaijani army attacked Armenian borders in the direction of Vardenis district. Azerbaijani leadership continues committing the Crime of Aggression, which is a grave violation of international law.

The reinforcement of the jus cogens principle of the prohibition of the aggressive war was a long and complicated process, the principle was firstly defined by the Kellogg-Briand Pact (1928), the Geneva Protocol (1924), the Assembly of the League of Nations Resolution (1925 and 1927), and the Resolution of the American States (1928). Then, the full definition of the Aggression was given by the General Assembly as Resolution 3314 (XXIX) on 14 December 1974. The preamble of the UN 3314 resolution inter alia defines the authority of the UN Security Council to determine the existence of any threat to the peace, breach of the peace or act of aggression The article 1 of the Resolution gives the definition of Aggression, according to which; “Aggression is the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State, or in any other manner inconsistent with the Charter of the United Nations, as set out in this Definition”։[1] 

The Resolution gives explanatory note: In the Definition of the term "State" particularly stating that it is used without prejudice to questions of recognition or to whether a State is a member of the United Nations.

  The Article 2 of the Resolution states that The First use of armed force by a State in contravention of the Charter shall constitute prima facie evidence of an act of aggression although the Security Council may, in conformity with the Charter, conclude that a determination that an act of aggression has been committed would not be justified in the light of other relevant circumstances, including the fact that the acts concerned or their consequences are not of sufficient gravity. Then the Resolution enumerates the acts, that shall, subject to and qualify as an act of aggression, which inter alia includes 

(a) The invasion or attack by the armed forces of a State of the territory of another State, or any military occupation, however temporary, resulting from such invasion or attack, or any annexation by the use of force of the territory of another State or part thereof.

(b) Bombardment by the armed forces of a State against the territory of another State or the use of any weapons by a State against the territory of another State; 

(…)

(d) An attack by the armed forces of a State on the land, sea or air forces, or marine and air fleets of another State; 

(…). 

Simultaneously, the following acts shall be qualified as an act of Aggression regardless of a declaration of war. The Resolution clearly indicates that no consideration of whatever nature, whether political, economic, military or otherwise, may serve as a justification for aggression (Article 5).  The war of aggression is a crime against international peace and gives rise to international responsibility.

In the present case, the acts of Azerbaijan shall be qualified as acts of Aggression, in particular, Azerbaijan’s armed forces have attacked the land, air forces, air fleets of Artsakh, bombarded and tried to invade the territory of Artsakh. Each of these acts separately is the act of Aggression.

 Nevertheless, no state has been recognized as an Aggressor by the UN Security Council yet. The Security Council had only determined the existence of a breach of international peace and security as it did in the case of the Iraqi invasion of Kuwait.

Although the UN charter defines the principle of the prohibition of the use of force and the international responsibility for violation of that principle, however, The Charter also defines the exceptions of the principle. To determine whether in the present case Azerbaijan can invoke those exceptions that excludes the Crime of Aggression, it is necessary to address them. 

According to Article 51 of the UN Charter; 

“Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations until the Security Council has taken measures necessary to maintain international peace and security. Measures taken by Members in the exercise of this right of self-defence shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security.”

According to Article 41 of the UN Charter; 

 “Should the Security Council consider that measures provided for in Article 41 would be inadequate or have proved to be inadequate, it may take such action by air, sea, or land forces as may be necessary to maintain or restore international peace and security. Such action may include demonstrations, blockade, and other operations by air, sea, or land forces of Members of the United Nations.”

Thus, according to the UN Charter, the use of force is lawful only in case of self-defence and when the consent of the UN. In addition to the above grounds, the 56/83 Declaration of the UN General Assembly considers the consent given by a particular state among the circumstances excluding the unlawfulness of an act.

In the present case, the acts of Azerbaijan cannot be qualified as acts of self-defense as Azerbaijan attacked first and continues the bombardment of the territory of Artsakh and Armenia. Moreover, Azerbaijan attacked civilian population resulting the deaths of five civilians, therefore Azerbaijan shall be held responsible for war crimes as well. 

 

Gohar Gevorgyan