For example, let’s look at how the right to self-defense granted to states under Article 51 of the UN Charter changed over time and in what form it was applied. Until the 21st century, the Nicaragua case was generally accepted as the Bible of the Jus ad Bellum (Just War) concept in the analysis of the boundaries of a state’s right to self-defense. However, in the aftermath of the September 11 terrorist attacks on the United States, there was a significant change in the approach to this concept and, thereby, to Article 51 of the UN Charter, which establishes the legal framework for starting a just war. This article examines the concept of the just war, Article 51 of the UN Charter that establishes its legal framework, and legal possibilities of applying Article 51 of the UN Charter and the principles of the just war to the Nagorno-Karabakh war between Armenia and Azerbaijan.
The concept of the just war
Can a war that causes mass casualties and destruction be just? What can justify these inhumane actions? Different philosophers, historians, and theorists of international relations gave different answers to this question. The first mentions of the concept of the just war (Justum Bellum) can be found in ancient Roman law. Aristotle, Plato, St. Augustine’s views on the subject are almost in line with the modern interpretations. This concept was further developed in the Middle Ages by St. Thomas Aquinas, eventually arriving at three sets of criteria:
Jus ad Bellum (right to war: conditions under which states may resort to war)
Jus in Bello (right conduct in war: fair treatment, abidance by ethical norms)
Jus post Bellum (justice after war: fair treatment in the post-war period).
According to St. Thomas Aquinas, “true religion looks upon as peaceful those wars that are waged not for motives of aggrandizement, or cruelty, but with the object of securing peace, of punishing evil-doers, and of uplifting the good.”
In general, there are 7 principles, i.e., conditions, of a just war:
- Legitimate authority: Illegitimate authorities, illegitimate groups or organizations do not have the right to start a war. Only states and their official bodies can declare war.
- Just cause: A state must have a just cause to declare war. By a just cause, modern international law recognizes only the right of states to self-defense, as enshrined in Article 51 of the UN Charter. The Abrahamic religions in particular have a peculiar approach to this issue. For example, the concepts of jihad in Islam and holy war in Christianity are used to justify war. However, from a modern point of view, a war started on religious grounds alone cannot be considered just and fair. For a just and rightful cause, it is important that the rights of the people are violated and that oppression prevails in the area, so that it is just to start a war against these conditions. For example, the Crusades to Jerusalem in 1192 were for economic and political reasons, did not abide by any ethical norms, and did not even have a legitimate cause to start a war (since there was absolute peace in the area at that time), although the Christian clergy called the war “holy”.
- Right intention: When starting a war, the intention should always be to ensure peace. Otherwise, the war cannot be considered just. Moreover, a party that has started a war for a just cause may become unjust if it continues and prolongs the war unnecessarily by changing its goals and action plan. Therefore, the limits of intentions and plans set at the start of the war should not be exceeded.
- Last resort: A war may start only after all diplomatic means are exhausted. Otherwise, it is an unjust war.
- Probability of success: Allowing mass casualties is unjust if the party starting the war knows in advance that it will be defeated.
- Proportionality: The violence used in the war must be proportional to the injury suffered. For example, the atomic bombs dropped on Japan in 1945 were a disproportionate response.
- Discrimination: Parties to war must discriminate between combatants and civilians and treat them accordingly. Civilians and third-party peacekeepers who help war victims must never be a direct military target.
Thus, we can say that injustice is a prerequisite of a just war. Therefore, everything that is unjust, including unjust war itself, must be condemned.
Article 51 of the UN Charter
Modern international law generally prohibits one state from declaring war on another. Article 2(4) of the UN Charter also calls any aggression against the territorial integrity and sovereignty of states illegal and calls on states to refrain from aggression. However, Article 51, by contrast, recognizes the right of states to resort to aggression; on one condition: if the state is defending itself from any act of aggression. That is, according to Article 51 of the UN Charter, a state that has been subjected to aggression may declare war on another state. However, it does not specify what aggression is and by whom it is committed.
Various UN committees worked for a long time to interpret it, until finally, the General Assembly Resolution No. 3314 of 1974 gave the definition of the term “aggression”. According to the statement, aggression means attack by the armed forces of one state on another state, occupation or annexation of its territory, bombardment and blockade of its territory, sending mercenaries and extremists to its territory, not withdrawing from the territory of the country after the expiration of operation period of a military base located in its territory. That is, the interpretation of the relevant expression here is based on the fact of aggression committed by a state.
That is why, in 1986, when Nicaragua filed a lawsuit against the United States in the International Court of Justice, citing Article 2(4) of the UN Charter, the court ruled against the United States, but this decision did not grant Nicaragua the right to self-defense under Article 51. The essence of the case was that the United States supported extremist guerrillas (contra guerrillas) against the Sandinista government that had come to power in Nicaragua after the 1979 leftist revolution, and there was a serious civil war in the country. The United States mined Nicaraguan ports because of military aid and weapons from the USSR, damaging both domestic and international ships and commercial activity. Nicaragua, in turn, sued the United States, demanding punishment and compensation for their actions. Although the court confirmed the fact that the United States supported the perpetrators of violence in Nicaragua and obliged the US to make reparation (note that the United States did not pay the reparation and later forced the new Nicaraguan government to give it up and withdraw the case in 1992). As a result, the US support for the guerrillas was deemed as not constituting a direct armed attack on Nicaragua.
Thus, since the support of a country’s terrorist and extremist activities in another country was not interpreted an act of direct attack on that country by international law, it did not entitle the injured party to invoke Article 51 of the Charter. Until 2001…
Following the terrorist attacks on the United States on September 11, 2001, the perspective on the notion of aggression/armed attack in international law changed completely. UN Security Council Resolutions 1368 and 1373, adopted immediately after 9/11, condemned terrorist activities and supporters of terrorist groups globally and recognized the right of a state to defend itself individually or collectively in the event of such an attack by a non-state actor. That is, these resolutions assert the right of states to invoke Article 51 of the UN Charter, albeit indirectly. Thus began the debate over the legitimacy of the wars US started against Afghanistan in 2001 and Iraq in 2003 under international law. If we take the outcome of the Nicaraguan case as a precedent, the US attack on these countries was illegal. If we take as a basis the 2001 UNSC resolutions, then these actions of the United States are controversial, although not illegal: neither Afghanistan nor Iraq had directly attacked the United States, but they were accused by the United States of supporting terrorism.
Thus, the United States justified the use of military force against the states concerned, citing Article 51 of the UN Charter. As a result, in today’s new international environment, a state, which is under attack by irregular forces, i.e., by a non-state actor, became entitled to invoke the relevant article.
Justness of the Second Nagorno-Karabakh War from the Azerbaijani position and its compliance with international law
Debates erupted between various political analysts and thinkers on the new outbreak of the Nagorno-Karabakh conflict on September 27, 2020, its transformation into a full-scale war that we now refer to as the Second Nagorno-Karabakh War, and, after Azerbaijan’s military victory, on whether it was just to start this war. Hans Gutbrod, a political analyst and professor at Ilia State University in Tbilisi, in his article “Assembling the Moral Puzzle – Just War Tradition and Karabakh” assessed Azerbaijan’s position on the Nagorno-Karabakh conflict within the framework of the just war tradition and concluded that Azerbaijan was unjust in this war, with the exception of two principles. He described Azerbaijan’s decision to start a war to repatriate hundreds of thousands of refugees and IDPs as a “just cause” (Principle 2), but stressed that Azerbaijan was unjust on a number of other issues.
For example, according to the first principle, a war may only be started by a legitimate authority. Gutbrod calls the legitimacy of Ilham Aliyev’s administration “questionable” based on Freedom House reports. It is very absurd. Moreover, Azerbaijan started the war not because of Aliyev’s personal ambitions and desires, but because of the desire and long-standing demands of the entire Azerbaijani people. Mr. Gutbrod should be reminded that immediately after the Armenian-Azerbaijani military clashes on the Tovuz-Tavush border in July 2020, on the night of July 14-15, thousands of people flocked to Azadlig (Freedom) Square, the city’s central square, demanding that the state start a war and even attacked the Parliament building to force that decision.
Mr. Gutbrod also claims that Aliyev’s intention to start the war was simply to force a humiliating peace on the Armenians, as he constantly humiliated the Armenians in his speeches, and he essentially calls Aliyev’s proposal of an Aland Islands or South Tyrol style autonomy insincere. Thus, Azerbaijan is allegedly unjust on the third principle. This is Mr. Gutbrod’s personal opinion and is far from reality.
Given the lack of progress in the negotiations for nearly 30 years and the provocative behavior of Pashinyan in recent years, Gutbrod, who considers Azerbaijan just on the fourth (last resort) principle, condemns both sides on the sixth and seventh principles. In other words, neither Armenia nor Azerbaijan complied with the principles of proportionality and discrimination during the war, and the author finds the Azerbaijanis more cruel in this regard. But let’s see what the situation really is.
First, it should be noted that shortly before the start of the Second Karabakh War, between July 12-23, 2020, there were bloody clashes between the two countries on the border of Tovuz (Azerbaijan) and Tavush (Armenia) far from the borders of Nagorno-Karabakh. Even former Armenian President Serzh Sargsyan admitted in an interview to ArmNews TV that the conflict had been started by the Armenian side. Azerbaijan also asserted before all international and legal authorities that it was a state under attack and thus entitled to self-defense under Article 51 of the UN Charter. In fact, some of our political scientists (anonymously) claim that Azerbaijan has the right to restore its territorial integrity at any time, citing Article 51. However, Article 51 recognizes a state’s right to counter-attack upon notifying the UN Security Council immediately after the attack and before the Council’s decision comes into effect, not thirty years after the attack. That being said, the events of July 2020, i.e., Armenia’s attack on Azerbaijan, re-legitimized Azerbaijan’s right to invoke Article 51. The Armenians’ claim that the Azerbaijanis were first to attack on September 27 is nothing more than an attempt to deprive Azerbaijan of its right to invoke Article 51 and to absolve Armenia of responsibility.
As for the first justum bellum principle, the war in Azerbaijan was waged by a completely legitimate government and a legitimate army. Any claim to the contrary is simply absurd and slanderous. On the second principle, Azerbaijan has many just causes for war, including Armenia’s violation of Azerbaijan’s internationally recognized borders for nearly 30 years, its occupation of Azerbaijani territory, the banishment of over 800,000 people condemned to live as refugees and internally displaced persons, the illegal activities in the occupied territories, and environmental terrorism. On the third principle, Azerbaijan’s intention is to right the injustice caused by the First Karabakh War, to ensure peace and security for both ethnic groups in the region. To create these conditions, Azerbaijan has repeatedly put forward “highest autonomy” proposals on various platforms and in bilateral meetings. The Armenian side said that the surrounding areas would be returned only if the independence of Nagorno-Karabakh was recognized. However, Armenia’s settlement and production activities in the regions around Nagorno-Karabakh, as well as attempts to promote the so-called Artsakh within the borders including the seven districts surrounding Nagorno-Karabakh, prove that their proposals were insincere and were put forward only to play for time. The constant provocation of Azerbaijan by the Armenian side, attempts to inflame the conflict with local skirmishes and occupy more territory are another indication of their true intentions. On the fourth principle, Azerbaijan indeed had no choice but to start a war.
Thus, neither the activity of the Minsk Group continuing since 1992, be it the “Package Deal” proposal of 1996, or the “Step-by-Step Deal” proposal of 1997, or the “Common State Deal” proposal of 1998, or the Madrid Principles proposed in 2007, nor the multilateral or bilateral talks became the means of finding a common solution. On the contrary, during his visit to Shusha, Pashinyan blatantly undermined all these attempts, saying, “Karabakh is Armenia, period.” On the fifth principle, the probability of Azerbaijan’s success was really high, and the Armenian side knew and understood as well that it would be defeated if a war broke out. However, the Armenian side provoked the war, causing many casualties. On the sixth principle, Azerbaijan had the right to counter-attack in accordance with the manner and form of the Armenian attacks. However, although the Armenians bombed Azerbaijani cities and civilian settlements far from the war zone, the Azerbaijani side did not take proportional action and, as Ilham Aliyev repeatedly stressed, revenge was sought on the battlefield. Principle 7 was violated by Armenia to a greater extent than by Azerbaijan. According to official data, 100 Azerbaijani civilians were killed and 416 were injured during the war, while 65 civilians were killed and 165 were injured on the Armenian side. The reason for the civilian injuries and deaths on the Armenian side is that they were directly in active combat zones (there is even evidence of children participating in combat operations), and the injuries and deaths of Azerbaijani civilians were caused by intentional Armenian shelling and bombing. The Armenian missile attacks on Ganja (October 4 and 11) and Barda (October 27-28) had particularly tragic consequences. Thus, it can be argued that the Armenian side grossly violated the seventh principle during the war.
As a result, Azerbaijan can be considered justified not only in terms of compliance with international law (i.e., the legitimacy of invoking Article 51 of the UN Charter), but also in terms of adherence to the principles of the just war tradition. The greatest right and justice are the liberation of our lands from occupation. A trilateral (Azerbaijan-Russia-Armenia) ceasefire agreement was signed on November 9, 2020, restoring historical justice and formalizing the liberation of seven districts of Azerbaijan and the city of Shusha from occupation. The day when the Azerbaijani flag is raised in the territories currently controlled by Russian peacekeepers but de facto governed by the Armenians and lasting peace in the region is ensured will be a true holiday. On that day, everyone will accept as true with all their heart that right and justice always prevail in the end.