Mine mayhem: Legal review and diplomatic bargaining chips

By Orkhan Amashov

The question of the issuance of mine maps by Yerevan to Baku remains unresolved. Since the end of last year’s war, this has been the subject of a protracted tug-of-war between the sides.

Armenia stubbornly refuses to view the matter purely in light of the relevant provisions of customary international humanitarian law, which are sufficiently, albeit not abundantly, clear as to specifying the way forward. Instead, Yerevan has so far pursued the policy, which one may call tergiversation, which, at the first stage, manifested itself in stonewalling through the disputation of unanswerable legal arguments presented by Azerbaijan.

Later, once all imaginable legal protestations exhausted themselves, Yerevan openly declared that the subject pertaining to minefield maps must be tied with the issue of Armenian detainees, to which Yerevan refers to as "prisoners of war" (PoWs), the definition firmly and vehemently being rejected by Baku for very sound legal reasons.

However, the subject has not yet completely moved from the realm of law to diplomacy, as there is an ongoing case at the International Court of Justice (ICJ) concerning the Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Azerbaijan v. Armenia), in which Azerbaijan requested that provisional measures should be urgently implemented to prevent further irreparable harm posed by Armenia’s refusal to hand over the maps.

The Hague-based court will deliver its order on December 7, 2021. However, irrespective of the content of the decision, this is unlikely to put a decisive end to the mine quagmire. The impression given is that, although all legal avenues are to be explored, the issue will be mostly decided within a diplomatic sphere, and the comparative merits of the bargaining chips at the disposal of the sides will be pivotal.

Bare facts

The view well-established in Baku, and propounded in the ICJ case, is that Armenia’s rejection to return minefield maps marks the continuation of the campaign of ethnic cleansing and incitement to violence against Azerbaijan. In the course of the Armenian 30-year occupation, Karabakh was turned into a ticking time bomb, with the aggressor planting hundreds of thousands of landmines. Substantial chunks of the liberated lands had been carpeted with mines. These documented facts speak for themselves. Since the war ended, about 180 Azerbaijani citizens have been killed or seriously injured by landmines. Out of the civilians, 49 have been injured, and 24 sadly died. As long as the de-mining process is not over, these figures will continue to rise.

Mine clearance is an incredibly costly activity, and it is particularly difficult to carry out de-mining when maps are not available. It is calculated that even if all the relevant accurate maps are at Baku’s disposal, it still will take at least a decade to cleanse the formerly occupied lands.

Three lines of Armenian defence

There is, however, some unavoidable difficulty in terms of forcing Armenia’s hand, because neither of the disputing countries is a signatory to the 1980 Convention on Certain Conventional Weapons and the 1997 Ottawa Convention, to which Azerbaijan would have ordinarily had recourse. However, there is an established body of the norms of customary international humanitarian law, which is a set of unwritten rules derived from common practices acknowledged as law, containing relevant provisions as to the subject. Some of these customary law norms were codified in Protocol II of the 1980 convention, and the provisions of that particular protocol could be resorted to for the purpose of raising the question of Armenian responsibility as to returning maps or their general obligation with regard to the mines laid in the liberated lands.

The trilateral ceasefire deal did not incorporate any clause on the exchange of mine maps, and Armenia snatched at this opportunity to use this legal void so as to avoid its obligations. The first line of the Armenian recalcitrance could be described as being based on the argument that, since Yerevan no longer controls the areas mined, it is not obliged to do anything about them. This was based on an incomplete, outdated and inherently flawed interpretation of the relevant law.

It is true that, until the 1990s, there was a very limited number of cases in which it was clearly specified that those laying mines had to remove them; in general, the expectation was that it was up to the State with mines on its territory to decide what to do. The original Protocol II to the Convention on Certain Conventional Weapons “merely encourages” some form of cooperation between the sides so as to remove or render mines ineffective.

However, this was changed later, in light of the wording of Article 3(2) of Amended Protocol II, whereby the principle was established that “states laying mines are responsible for them”, or in other words, “it is no longer permissible for a party to the conflict to abandon landmines they have laid”. The latter formulation was also included in the UN Secretary-General’s Report on Assistance in Mine Clearance.

The second line of Armenian defence is based on a possible get-out clause on the grounds of suggesting that relevant maps do not exist. Again, the customary international law is clear on the subject. Article 9 of the 1980 Protocol II to the 1980 Convention provides that, amongst other things, after the cessation of active hostilities, the parties shall endeavour to reach an agreement on the provision of information, technical and material assistance. The practical implications of this for the purpose of our case is that Yerevan, inter alia, is to provide minefield maps, as this only viable form of assistance referred to above.

In addition, when the Armenian authorities claim the non-existence of relevant maps, they are effectively committing an act of self-discreditation, as placing minefields without marking and recording them for later removal is considered a war crime under Protocol II of the Convention on Certain Conventional Weapons, which is also an annexe to the Geneva Conventions.

On a practical level, most military experts agree that, since it is also within the best interests of the party laying landmines to have necessary information about them, at least, for their own security, the probability of the non-existence of maps is miniscule. In June 2021, this proved to be the case, when a few days after claiming that such maps were a figment of a deluded imagination, the Armenians provided some of the aforementioned schematics in exchange for the release of detainees.

At last, the third element within Yerevan’s defence, which was, in fact, their initial assumption, is to resort to tying the delivery of the maps to the issue of so-called Armenian PoWs. Baku begs to differ. The Azerbaijani view is that those detained are not PoWs, and they have entered the liberated territories, with the purpose of sabotage, and are thus subject to be treated and dealt with in line the national legislation. In June of this year, Azerbaijan released 15 Armenian detainees in exchange for maps of land mines. The same goodwill, this time without reciprocity, was demonstrated prior to the recent Sochi meeting, before which two more Armenian detainees were handed over to Yerevan.

In Sochi, although Azerbaijan and Armenia discussed a range of humanitarian issues, the final trilateral statement failed to incorporate any particular point about the issuance of mine maps by Yerevan to Baku. The expectation is that the subject will be discussed in Brussels and possibly there will be some deal struck, which is undoubtedly going to be a partial solution only, in accordance with the logic of “maps for detainees”.