Even after Putin's warning, would Armenia gain by joining the ICC?

Last week Russia warned of serious consequences for Armenia if it becomes a member of the International Criminal Court (ICC). Back in December, Armenia’s cabinet had approved draft laws to ratify the Rome Statute, the treaty that established the ICC. However, since then, the court has issued an arrest warrant for Vladimir Putin for war crimes committed in Ukraine.

It puts Yerevan in a difficult position. Armenia, though a member of Russia’s economic and military alliances would, after joining the ICC, be required to arrest the leader of its security patron if he visited their country. Senior Armenian officials now claim they would simply not implement an arrest: but this is hardly an auspicious start or way to endear Armenia to the court.

This matters, because Armenia seeks to join order to pursue specific legal action for international crimes allegedly committed by its neighbour Azerbaijan in a 30-year territorial dispute over Karabakh – an Azerbaijani region held by ethnic Armenian separatists since the collapse of the Soviet Union. Yet even before the ICC issued its warrant for Putin, it was questionable whether the benefits of joining the court outweighed the risks for Armenia.

Certainly, the ICC would open a new front in the legal tussles between Azerbaijan and Armenia. Karabakh had been held by Armenia since the early 90s, but Baku regained significant amounts of the territory during a 44-day conflict in 2020. Since a Moscow-brokered ceasefire put an end to hostilities, a raft of cases has been brought by both nations before various international courts. In February, the International Court of Justice (ICJ) ordered unimpeded movement along a highway connecting Armenia to Karabakh. The month before, Azerbaijan launched a case against Armenia for environmental destruction at an international tribunal – the first inter-State arbitration sought under the Bern Convention on the Conservation of European Wildlife and Natural Habitats.

Such courts and tribunals only adjudicate claims between states. In contrast, the ICC was established to prosecute the individuals behind humanity’s gravest crimes – raising the prospect of sitting politicians and military leaders in the dock. However, the international jurisdiction for this individual criminal liability is a complicated matter.

In disputes between states, the parameters are relatively clear: both are party to an international treaty and a relevant international body of rules on the matter. Bar rare referrals from the Security Council, the ICC has two jurisdictional bases: one covers the crimes committed in a territory of a member state to the court; another the crimes of a member state’s nationals committed anywhere. In signing up to the court, in the hope of holding individuals in Azerbaijan to account under this jurisdiction, the Armenian government has also opened its own forces to international scrutiny and potential prosecution.

Armenia has taken the explicit step of backdating its accession to the court to permit the ICC to apply its statute retrospectively. That date is 12 May, 2021. Tellingly, Armenia did not opt for one that would encompass the 2020 conflict. The government reasoned that the date chosen would enable Armenia to hold Azerbaijan accountable for alleged incursions into Armenia from May 2021. The specific scope of the selected jurisdiction raises three important issues.

First, Armenia seems to accept that the ICC will recognise potential crimes committed in Karabakh as Azerbaijani territory – undermining its claims it is either part of Armenia or an independent country. The 44 day-conflict in 2020 happened exclusively in Karabakh and surrounding regions in Azerbaijan, which is not a party to the ICC. Had Armenia agreed to retrospective application going back to the 2020 conflict, unless Baku voluntarily submitted to its jurisdiction, only crimes committed during this conflict by Armenian personnel would fall under the Court’s purview.

Second, and relatedly, the start date is a tacit admission that Armenia probably did commit crimes during that conflict that the court was established to deal with – which include war crimes and crimes against humanity – and is protecting its personnel from those charges. Amnesty International and Human Rights Watch gathered credible evidence of crimes by both sides during the conflict. If Armenia assumed its personnel are at risk, it also highlights the government has not taken any steps to investigate them. The ICC’s jurisdiction is complementary: it only steps in if states are unwilling or unable genuinely to investigate. Through its selective commencement date, Armenia appears to admit to both. Whilst embracing the ICC, Armenia has simultaneously acted as if it is skirting justice.

Third, whilst striving for such jurisdictional contortion, Armenia may not have achieved its objective. The Armenian Minister of Justice states that the retrospective application is to deal with the alleged military aggression and occupation of territories by Azerbaijan in May 2021 and September 2022, the consequences of which 'are still present'. But Armenia opens itself up to the exact same charge.

Armenia still occupies a significant portion of Azerbaijani territory, guarded by Russian peacekeepers, despite losses in the 2020 war. Skirmishes and outbreaks of violence have occurred in Karabakh since the ceasefire. Any crimes committed by Armenian personnel could potentially be investigated. Moreover, Azerbaijan would even be permitted, despite not being a party to the ICC, to engage the court, requesting that crimes that fall within its jurisdiction are investigated and prosecuted where there is sufficient probative evidence.

The peculiarities of Armenia’s drive to join the ICC may end up backfiring. In aiming to bring charges solely against Azerbaijan it risks looking like it is cherry picking justice and requesting uneven application of the law. If Putin visited and was not arrested as required by the Rome Statute, this would be further substantiated. In reality, Armenia may end up the subject of investigation they wished upon their adversary.

Rodney Dixon KC is an international lawyer specialising in international justice. He is co-author of the book ‘International Courts: Practice, Procedure & Evidence’ which is published by Sweet & Maxwell