From the point of view of international principles of protection of cultural property during war
Armine H. Tigranyan
Since the start of the war on September 27, 2020, the Azerbaijani armed forces have openly targeted the Armenian cultural heritage of Artsakh, violating not only its international obligations, imposed by various conventions, but also the generally accepted customary international norms for the protection of cultural heritage.
In this article, on the example of the shelling of the St. Ghazanchetsots Church in Shushi by Azerbaijan, an analysis of the principles of protecting cultural heritage during the war, military necessity, differentiation, prevention and proportionality is presented.
The international protection of cultural heritage from the dangers of war refers not only to the protection of territories occupied after armed conflict or in
peacetime, but also to not harming during the hostilities themselves. The problem is that despite the fact that cultural monuments are considered inviolable in time of war and their destruction by the enemy is not permissible, international law provides some counterarguments, therefore, as there are “permissible” rules that “legitimize” attacks on heritage during war.
Azerbaijan, referring to these norms, is trying to “justify” the attack on the Ghazanchetsots Church on October 8, 2020, even shifting the blame to the Armenian side.
The analysis of the four principles for the protection of cultural property in the event of armed conflict, considered in this article, led to the conclusion that the armed forces of Azerbaijan were obliged to ensure that the object to be attacked was not a cultural property, and would refrain from attacking the Ghazanchetsots Church and others values. Moreover, the principle has also become customary, according to which cultural heritage is the property of humankind, and regardless the fact of its origin, and religious and cultural significance, it must be protected. The Azerbaijani armed forces were required to take precautionary measures when attacking Ghazanchetsots, which would allow to remove the valuable objects of movable heritage, as well as to relocate people to a safe place.
It is obvious that Azerbaijan did not give advance warnings and required time before the start of the attack, which it was obliged to do in accordance with
customary international law or in accordance with the principles of The Second Hague Protocol of 1999 and the Geneva Convention, which it accepted as a nation state. Azerbaijan was obliged to assess in advance even the possible accidental damage to valuables, the loss of which could be much significant compared to the expected military advantage.
In addition, according to the laws of wartime, the principles of differentiation and proportionality were to be applied, which were also violated. In
this sense, the shelling of the church could not have been an urgent military necessity and the only way to be carried out at that time. And besides, it could not
provide Azerbaijan with such a military advantage that could adequately neutralize the criminal attack.
We can say with confidence that the destruction of the church, of course, could not give Azerbaijan any military benefit. Instead, its cultural overtones were
taken into account here, which was a blow to the Armenian identity since the damage to the cultural structure cannot be assessed only in terms of material
damage – internal ideological value is also important. With this step, Azerbaijan manifested intolerance towards the inalienable right to cultural rights, and that step was aimed at cultural alienation.
Two accurate blows inflicted by the armed forces of Azerbaijan on the dome of the church proved that this was a targeted attack. We can say with confidence that according to the Second Protocol to The Hague Convention of 1954, the attack is regarded as a war crime, where both the initiator and the perpetrator, as well as those who did not prevent it, are subject to criminal prosecution and can be condemned both at the international and national levels.
The Azerbaijani side still continues to deny the reality, even after the case of shelling of the Ghazanchetsots Church was recognized as an illegal attack motivated by intolerance and racial hatred and has already been condemned by the International Court of Justice in The Hague on December 7, 2021. Decisions
adopted in Strasbourg, No. 2391 “On the humanitarian consequences of the Nagorno-Karabakh conflict” of PACE of September 27 and No. 2582 “On the destruction of the objects of cultural heritage in Nagorno-Karabakh” of March 10, 2006, also characterized this attack as a part of an ongoing state policy based on deliberate illegal ethnic cleansing.