Why Armenia is Not Referring the Situation to the ICC
It has been a year since Armenia acceded to the Rome Statute, marking a new institutional chapter for the country. Significant work remains to ensure full compliance with the Statute’s provisions. Discussions about joining the Rome Statute began in December 2022, when the Prime Minister announced intentions to accede and revisit the Constitutional Court’s 2005 decision. Following the Court’s review in 2023, which approved the ratification process, debates emerged regarding the ICC’s effectiveness. The path to accession was not without challenges, particularly as the review coincided with the ICC’s decision to issue an arrest warrant for Vladimir Putin. Pro-Russian media channels targeted Armenia for its intention to join the Statute, issuing threats and heavy criticism over the decision.
Despite these challenges, Armenia’s decision to join the ICC reflects its desire to align with international standards of justice and accountability. However, Armenia has yet to refer the situation regarding crimes committed against Armenians from the second Nagorno-Karabakh war to the ICC, largely due to significant political pressure from Russia, Azerbaijan, and Turkey. These pressures complicate Armenia’s ability to act independently, despite its clear willingness to pursue justice.
Why Armenia decided to join the ICC
Since the 2020 war in Nagorno-Karabakh, Armenia has faced ongoing threats and aggression from Azerbaijan, including the occupation of border regions and the deportation of Armenians from Nagorno-Karabakh. Prior to joining the ICC, Armenia lacked the international legal framework to address war crimes and crimes against humanity through international mechanisms. The primary motivation for joining the ICC was to establish legal safeguards for its borders and people against international crimes.
The Armenian people’s historical experiences, particularly the Armenian Genocide during World War I, have also shaped their commitment to preventing international crimes and supporting the global fight against impunity. By acceding to the ICC, Armenia aims to strengthen the institution during challenging times and reinforce international efforts to combat impunity for such crimes. Additionally, Armenia’s accession signals its commitment to international norms and its willingness to cooperate with global institutions in pursuit of justice.
The status of the Rome Statute implementation
In 2022, Armenia incorporated the international crimes outlined in the Rome Statute into its Criminal Code. This marked a departure from the post-Soviet tradition of addressing war crimes solely under the Geneva Conventions (see e.g. Article 438 of the Ukrainian Criminal Code cf. §§ 8-12 VStGB). The updated Armenian Criminal Code adopts an approach similar to Germany’s International Crimes Code, demonstrating Armenia’s intent to modernize its legal framework and specify the types of war crimes according to the Rome Statute.
Currently, Armenia is drafting a law on cooperation with the ICC to streamline communication and coordination between national institutions. Over the past year, several training programs for Armenian State institutions organized by international and local NGOs have enhanced the capacities of Armenian prosecutors, investigators, and judges, equipping them with a better understanding of the ICC’s unique system. Universities have also integrated international criminal law into their curricula, addressing a longstanding gap in legal education. Furthermore, exchanges between Armenian delegates and ICC representatives in The Hague and Yerevan have underscored Armenia’s commitment to deepening its institutional understanding of the Court (here and here).
How Armenia addresses crimes committed during the conflict with Azerbaijan
Since 2020, Armenia has launched investigations under its old criminal code into crimes committed during the Second Nagorno-Karabakh War (see the crimes here and here). However, it remains highly unlikely that Azerbaijani alleged perpetrators will face prosecution in Armenia, as they are not expected to travel to the country. As a result, such cases typically fall under the principle of universal jurisdiction exercised by states, as international crimes affect the international community as a whole. Universal jurisdiction allows states to prosecute perpetrators of international crimes regardless of where the crimes were committed (see e.g. § 1 VStGB). In Germany, criminal complaints have been submitted to the Federal Public Prosecutor General of Germany concerning crimes committed during the 2020 war (including killing and execution of civilians and prisoners of war, wounded and sick persons, torture and mistreatment of civilians and prisoners of war, mutilation of bodies of civilians and fallen soldiers, taking civilians hostage, enforced disappearance of civilians). However, under Section 153f of the German Criminal Procedural Code, initiating an investigation is at the prosecutor’s discretion and thus not a mandatory requirement, unless the alleged perpetrator is present in Germany. This creates a significant obstacle to arresting suspects, as the lack of an initiated investigation by the prosecutor means that criminal complaints do not result in arrest, effectively allowing such individuals to freely enter and exit the country.
In one case, an alleged perpetrator, captured on video beheading an elderly Armenian man, was arrested in Moscow based on Armenia’s request under bilateral agreements on criminal cooperation (after previously visiting Germany). However, due to strong political pressure from the Azerbaijani embassy in Moscow, the suspect was released and repatriated to Azerbaijan. This incident is reminiscent of the case of Ramil Safarov, who beheaded an Armenian in 2006, was convicted of murder, and later transferred (see ECtHR, Makuchyan, Minasyan v. Hungary and Azerbaijan) to Azerbaijan to serve his sentence. Upon his return, he was promptly released and celebrated as a national hero.
Under the current circumstances, it is unrealistic to expect Azerbaijan to prosecute its nationals for international crimes committed against Armenians. Armenia has retroactively accepted the jurisdiction of the ICC starting from 10 May 2022, allowing the Court to have jurisdiction over the crime of deportation and persecution similar to the Myanmar/Bangladesh case. The mere existence of jurisdiction is insufficient to initiate proceedings; the situation must be triggered either by the ICC Prosecutor under Article 15 of the Rome Statute, based on submitted reports, or by a State Party or the UN Security Council. Several NGOs (here and here) have submitted communications to the ICC under Article 15 of the Rome Statute. However, the ICC Prosecutor is unlikely to initiate proceedings proprio motu due to the Court’s current financial constraints. This highlights the need for other ICC State Parties to step in and refer the situation, as the principle of erga omnes obligates states to address crimes that concern the international community as a whole. A referral by a State will compel the Prosecutor to initiate an investigation and eliminate the need for authorization from a Chamber, which would otherwise be required in the case of Article 15 of the Rome Statute.
Peace negotiations with Azerbaijan
Since 2020, Azerbaijan and Armenia have been engaged in peace negotiations. However, these negotiations cannot be considered equal, as Azerbaijan frequently exerts pressure on Armenia, demanding increasing concessions, whether territorial or political (here and here). One of Azerbaijan’s key demands is the withdrawal of all legal proceedings initiated by Armenia before the International Court of Justice (ICJ) or the European Court of Human Rights (ECtHR).
True peace, however, cannot be achieved without justice. While Armenia has so far successfully continued its legal proceedings, it faces significant constraints in addressing critical issues such as referring the situation of Nagorno-Karabakh to the ICC according to the Article 14 of the Rome Statute. Due to Azerbaijani pressure, the negotiations have not addressed the Nagorno-Karabakh question or the return of Armenians to the region. As a result, Armenians deported from Nagorno-Karabakh following Azerbaijan’s so-called “anti-terror” operation have been left without meaningful support or recourse.
While states are indeed free to determine their preferred means of resolving disputes through negotiations, the current challenging political circumstances and the significant pressure on Armenia make it unlikely that Armenia, as the defeated party, is negotiating with Azerbaijan on equal footing. International justice remains the sole foundation for peace negotiations and serves as the basis upon which a peace treaty can be established.
The role of the ICC and the international community
The ICC is a vital institution for upholding international law, in particular human rights, and State Parties have a responsibility under the principle of erga omnes to refer situation involving international crimes to the Court. While Armenia faces significant political pressures that prevent it from making such a referral, other ICC State Parties could take this step.
The international community, particularly ICC State Parties, must recognize the broader implications of inaction. The deportation of Armenians and the systematic denial of their rights by Azerbaijan constitute international crimes that demand accountability. A referral by another State Party would not only uphold the principle of justice but also signal strong international opposition to impunity, as any referral by Armenia to the ICC is likely to result in Azerbaijan asserting that such an action constitutes a breach of Armenia’s obligations under ongoing negotiation processes, potentially undermining the spirit of good faith required for diplomatic resolutions and legitimizing any aggression against Armenia. However, the ICC’s jurisdiction will be limited to war crimes committed on Armenian territory, as well as crimes of deportation and persecution as crimes against humanity. This leaves room for addressing war crimes committed in Nagorno-Karabakh since 2020 under universal jurisdiction cases.
Conclusion
Armenia’s accession to the Rome Statute represents a significant step towards justice and accountability for the crimes committed after the 2020 Nagorno-Karabakh war. Geopolitical pressures from Azerbaijan, Turkey, and Russia, combined with Armenia’s limited capacity, hinder its ability to act independently in seeking justice for victims. These obstacles highlight the critical role of the international community in addressing impunity. Justice must remain the cornerstone of any peace process, as sustainable peace cannot be achieved without addressing the root causes of conflict and ensuring justice for all victims.