“Both Sides” and Interim Measures for the Armenian Captives from the Nagorno-Karabakh Conflict

This post engages critically with the response of the European Court of Human Rights (“ECtHR”) to the ongoing detention of Armenian prisoners of war and civilians captured by Azerbaijani authorities during and following the 2020 Nagorno-Karabakh conflict. It posits that the “both sides” approach to this topic is inappropriate, and that the ECtHR’s refusal to order the Armenian captives’ release as an interim measure is problematic in the light of their mistreatment by Azerbaijan.

On 22 July 2021, the ECtHR delivered its judgment in the case of Badalyan v. Azerbaijan, finding that Azerbaijan illegally detained and tortured an Armenian national who had accidentally wandered into Azerbaijani territory while foraging for mushrooms. Badalyan, who was wrongly deemed a prisoner of war by Azerbaijan and held captive for 22 months, was awarded 30,000 euros in damages.

The Nagorno-Karabakh conflict

This judgment is the latest in a series of ECtHR verdicts rendered in the context of the 30-year Nagorno-Karabakh conflict that reached a new zenith starting 27 September 2020 and re-froze 44 days later on 10 November with a Russian-brokered ceasefire. The ceasefire has been losing its hold since 12 May 2021, however, when Azerbaijan invaded Armenia proper (see e.g. here and here), with recently escalating border incidents prompting the EU to jump into conflict resolution ring.

The ECtHR has been seized by both Armenia and Azerbaijan in interstate cases against one another to resolve their respective disputes about alleged human rights violations committed in the context of the 44-day war. Armenia has also filed an interstate application against Turkey alleging the latter’s essential role in providing material assistance to Azerbaijan during the conflict, including with the supply of drones and mercenaries.

At the outbreak of hostilities, interim measures were immediately sought by Armenia and granted the next day when the ECtHR “called upon both Azerbaijan and Armenia to refrain from taking any measures, in particular military action, which might entail breaches of the Convention rights of the civilian population, including putting their life and health at risk, and to comply with their engagements under the Convention, notably in respect of Article 2 (right to life) and Article 3 (prohibition of torture and inhuman or degrading treatment or punishment) of the Convention”. The value of such vague and broad measures, particular in the context of armed conflicts, has been aptly debated by, inter alios, Istrefi and Buyse, Dzehtsiarou, and Tzevelekos.

Interim measures

On 3 November 2020, the ECtHR clarified that these interim measures also apply to “those who were captured during the conflict”, and noted with approbation on 15 December “that the mutual exchange of captives had started on 14 December 2020”. In reality, Armenia had not only started, but also completed its end of the mutual exchange by returning all Azerbaijani military and/or civilian captives in its custody soon after the cessation of hostilities, a fact confirmed by Russian Foreign Minister Sergei Lavrov on 18 January 2021.

Azerbaijan, by contrast, continues to detain many Armenian prisoners of war and civilians who were captured during and after the 44-day war, amid reports of abuse and executions, long after their return was required by Article 8 of the ceasefire, and in violation of international humanitarian law (see e.g. Article 118 GCIII, Articles 132 & 133 GCIV, Article 85(4)(b) AP(I), and Rule 128 Customary IHL) as well as Azerbaijan’s criminal code (see Article 116.0.15).

Despite the lopsided nature of this situation, some States and organizations have still taken to “bothsidesing” their calls for the release of captives from last year’s 44-day war. One example is when, on 1 February, three UN Special Procedures mandate holders jointly stated: “We note that both parties have commenced the return of prisoners of war and other captives [from the recent Nagorno-Karabakh conflict], and we call on them to complete the all for all exchange, to clarify the fate and whereabouts of the disappeared, and to treat dead bodies with dignity”.

Or, when the Co-Chairs of the OSCE Minsk Group mandated to bring a peaceful resolution to the Nagorno-Karabakh conflict stated on 5 May that they “welcome Azerbaijan’s release of [three] Armenian detainees […] and call on both parties to fully and expeditiously complete the exchange process for all prisoners, detainees, and remains, and to respect their obligations to ensure the humane treatment of detainees”.

Such language erroneously implies that Armenia is still delinquent in its obligations to repatriate persons or remains from last year’s war. By attempting to appear fair to each side, engaging in such false equivalences risks lending credibility to a side or objectionable idea that has none and could thus have the perverse effect of emboldening the perpetrator. Meanwhile, Azerbaijan seems undaunted as evidence mounts of it concealing information on Armenian captives – some of them having been killed after the ECtHR extended interim measures in their regard – and using the Armenian captives as bargaining tools in exchange for minefield maps and territorial concessions. Such acts are illicit under international law and may amount to the crime of hostage-taking.

The Armenian captives

The ECtHR, for its part, has since acknowledged that there is no evidence of any Azerbaijanis remaining in Armenian custody and specified on 16 March 2021 that the interim measures already indicated remain in force only with respect to Armenians captured by Azerbaijan. It noted as early as 15 December 2020 that “[t]he Azerbaijani Government have frequently failed to provide the information [on the captives] requested by the Court”. By 9 March 2021, Azerbaijan’s persistent refusal to abide by the ECtHR’s requests for information had become so problematic that it decided to refer the matter to the Committee of Ministers. Such referral has unfortunately led nowhere in trying to compel Azerbaijan to execute the ECtHR’s orders. It is therefore difficult to detect what, if any, supervisory deterrent effect mere requests for factual clarification might be having on Azerbaijan to protect the Armenian captives from imminent risk of irreparable harm to their fundamental rights.

The Armenian captives’ legal representatives before the ECtHR have accordingly sought more robust measures in line with other, bolder calls for their immediate and unconditional release. The ECtHR has, to date, rejected all requests for interim measures to order the release of the Armenian captives, regrettably without providing any reasons for so rejecting. It is to be noted that the ECtHR has previously indicated that, in general, it will not order provisional measures “to obtain the release of an applicant who is in prison pending the Court’s decision as to the fairness of the proceedings”.

Moreover, the ECtHR does not, in practice, publish its interim measures decisions. In some exceptional cases, it may issue a press release concerning the adoption of interim measures which may also contain a statement of relevant facts and underlying legal issues. Interim measures are communicated by a letter of the Registry informing the parties of the ECtHR’s decision to grant or refuse the measures requested. This practice has long been decried by legal practitioners, and has no equal before any other international court.

That being said, on 16 February 2021, the ECtHR made an exception to its rule by ordering the release of Alexsey Navalnyy, specifying that it “had regard to the nature and extent of the risk to the applicant’s life, demonstrated prima facie for the purposes of applying the interim measure, and seen in the light of the overall circumstances of the applicant’s current detention”. In the absence of reasons for rejecting the request to release the Armenian captives, it remains unclear what distinctive standards the ECtHR applied to make an exception in Navalnyy’s case or why the ECtHR might consider the captives’ situation to be less dire or deserving of similar intervention.

Meanwhile, the captives are being tried and convicted in Azerbaijan on various charges including “terrorism”, “sabotage”, and/or “illegal border crossing”. These charges have been criticized as being fabricated and forming the basis for sham trials as part of Azerbaijan’s justification for continuing to hold the captives hostage so as to exert pressure on Armenia to concede to its demands. Such a reproach is not necessarily without merit. Reputable NGOs, such as the International Commission of Jurists, Amnesty International, and Freedom House, have characterised trials in Azerbaijan as systemically unfair, especially when they are politically motivated.

The trials of the captives may also be seen as part an ongoing effort in Baku to vilify Armenians, as exemplified by Azerbaijan’s recent creation of a “Military Trophy Park” exhibiting deliberately grotesque wax figures of dying, suffering Armenian soldiers. It also issued a commemorative stamp in the war’s aftermath showing a disinfection specialist standing over a map of Azerbaijan and fumigating the area of Nagorno-Karabakh–suggesting that ethnic Armenians in the area were a virus in need of eradicating.

To appreciate the context of extreme state-sponsored anti-Armenian hatred in Azerbaijan (see eg here and here), the ECtHR need look no further than its own jurisprudence. Most memorable remains the case of Makuchyan and Minasyan v. Azerbaijan and Hungary (see especially paras 163, 214-221), in which Azerbaijani authorities pardoned, released, promoted and glorified Ramil Safarov in 2012, who had been sentenced in Budapest to life imprisonment for murdering an Armenian army officer (and attempting to kill another) during a NATO English-language program by delivering at least 12 blows to his body with an axe and decapitating him in his sleep.

The circumstances of the Saribekyan and Balyan v Azerbaijan case, and now the Badalyan v Azerbaijan case, as well as a number of still pending cases (see eg Petrosyan v Azerbaijan; Ghazaryan and Bayramyan v Azerbaijan; Khojoyan and Vardazaryan v Azerbaijan), are disturbingly similar to those of the Armenian captives, with nearly identical allegations such as “sabotage” and “illegal border crossing”, occurrences of hostage-taking, and refusal to communicate crucial information, ending in torture and/or murder of Armenians detained by Azerbaijan. The case of Lapshin v Azerbaijan is equally instructive, whereby even non‑Armenians viewed as sympathetic to Armenians, especially in the context of the Nagorno‑Karabakh conflict, are in grave danger of being unlawfully detained, convicted and killed in Azerbaijani custody.

Concluding remarks

Based on the foregoing, it is reasonable to infer that the chances for the Armenian captives to be granted fair trials in Azerbaijan is unlikely, and that judicially labeling them as criminals or terrorists in the context of the Nagorno-Karabakh war exposes them to heightened danger to life and limb. Despite this, a request for interim measures filed on 30 June 2021 before the ECtHR to compel Azerbaijan to suspend the ongoing trials of the Armenian captives has reportedly been rejected.

It is important to recall, however, that the ECtHR’s decisions on requests for interim measures are without prejudice to their decisions on the merits of the main proceedings. Whether or to what extent the ECtHR will consider the Armenian captives’ rights to have been violated, be it through the interstate cases or individual applications, remains to be seen.


Sheila Paylan is a public international law and human rights/gender expert based in The Netherlands, who regularly consults for a variety of international organizations, NGOs, think tanks and governments. The views expressed in this post are those of the author and do not necessarily reflect those of any organization or government with which she may be or has been affiliated.