Tom Ruys Felipe Rodríguez Silvestre

The Nagorno-Karabakh Conflict and the Exercise of “Self-Defense” to Recover Occupied Land

The heavy fighting in Nagorno-Karabakh that erupted on the morning of Sept. 27 pitted troops of Azerbaijan, supported by Turkey, against the forces of the self-proclaimed “Republic of Artsakh” and Armenian forces. The conflict, which broke out along the line of contact established in the aftermath of the 1988-1994 war over the region, has included the deployment of drones and heavy artillery, with substantial casualties on both sides. Third States (Russia, France, and the United States) have brokered a number of ceasefires, including, most recently, yesterday’s agreement between the governments of Armenia, Azerbaijan, and Russia, which aims to put a lasting end to more than six weeks of hostilities.

In spite of the conflict’s intensity and inter-State dimension, very few States have commented on the compatibility of the protagonists’ conduct with the international law on the use of force (the jus ad bellum). Even the legal blogosphere has remained silent on the matter.

This silence may be due partly to the difficulty in ascertaining the facts on the ground – with both Armenia and Azerbaijan accusing each other of triggering hostilities. Still, the events raise a fundamental question of jus ad bellum – and one that is surprisingly overlooked in legal doctrine.

The question is: when part of a State’s territory is occupied by another State for a prolonged duration, can the former still invoke the right of self-defense to justify military operations aimed at recovering its land? Put differently: can unlawful occupation be regarded as a “continuing” armed attack permitting the recourse to self-defense at any given point in time — possibly years after the occupation commenced?

Read more here.