The Fate of POWs in the Shadow of the Peace Treaty
After the initialing of the agreement between Armenia and Azerbaijan, Nikol Pashinyan delivered a message in which he also spoke about the Armenian hostages held in Baku, stating: "We have made serious efforts to include this issue in the agreement. But as the negotiations dragged on, we realized that including the issue of our compatriots held captive in Azerbaijan in the text of the agreement could be interpreted as their return being a matter for after the agreement is signed and ratified. And we have not been and are not guided by that assumption."
Siranush Sahakyan, head of the Center for International and Comparative Law, believes that the real reasons for not including the issue of prisoners in the document are different: the humanitarian issue of the prisoners has been politicized, becoming part of a political agenda. Azerbaijan has turned it into an additional lever to extract a peace agreement on terms it desires. "Essentially, with this agreement, Armenia does not secure any real, tangible result besides the promise of peace. In this context, the only truly solvable issue could have been the return of the prisoners. I see a certain artificiality and believe that by politicizing the issue of prisoners, they have made it contingent on the peace process, so that in the event of a positive outcome, they can present certain solutions in favor of the Republic of Armenia, or in favor of the citizens of the Republic of Armenia," Sahakyan said during the "Oragir" program on Channel 5.
The interviewer asked if the return of Armenian prisoners would be complete, if a return were to happen at all. Sahakyan first noted that the initialing of the agreement would not yet lead to a complete solution to the problem because the initialing must be followed by final processes, and Azerbaijan will not show haste, avoiding the resolution of the prisoner issue in the early, initial stages of the process. "On the other hand, a phased approach to a solution has always been characteristic of the Azerbaijani side. We have always noted that a limited number of people are repatriated within the framework of specific agreements. Therefore, I do not rule out that Azerbaijan will again adopt a phased approach. It is more predictable that first, the individuals captured as a result of the September 2023 aggression, who were participants in the combat operations and acted in self-defense, will be repatriated, followed by the prisoners held since 2020, and finally, the military-political leadership of Artsakh will be addressed. In my prediction, if the process is completed as planned and with the same American efforts, it is possible to establish peace and Western influence in the South Caucasus, then Trump, with his authority, can fully ensure the repatriation of all 23 people."
The agreement contains a very specific provision on the mutual waiver of interstate claims. Although there is a provision for joint efforts to clarify the fate of missing persons, there is no specific deadline. According to Siranush Sahakyan, when it comes to waiving interstate claims, a clear deadline is specified, and it begins to be calculated. A short one-month deadline is set from the moment the document enters into force, there is a mechanism, as well as clear time limitations to stop legal disputes and prevent issues related to Armenian-Azerbaijani relations from receiving a legal resolution by any international body. "But when we look at the humanitarian issues, which are fragmentarily localized in this document, there are simply no deadlines, while every uncertain minute, every uncertain day is a huge mental suffering and pain for families and loved ones," the human rights defender noted.
An objective question arises: what will happen if the parties cannot reach peace and new escalations occur, while both sides have undertaken an obligation that any possible future disputes also cannot be submitted to international bodies? In other words, the Republic of Armenia not only renounces already submitted claims but also commits to not resorting to international mechanisms of judicial protection when the rights of Armenia are violated again. "Domestic legislation, which is more accessible to every citizen, has a directly enshrined provision that an agreement to renounce judicial protection is null and void. Now, in essence, the Republic of Armenia is also renouncing its right to legal protection. In my assessment, this provision is inherently unconstitutional and cannot have the right to exist," Sahakyan informed.
And what will happen when both sides renounce international claims? After all, it's about war crimes and genocidal acts. According to the human rights defender, as a result, a cessation of the legal process will be announced, and all the groups whose rights have been violated will continue to maintain their victim status, being deprived of even those theoretical opportunities for legal protection.
In his August 19 message, Pashinyan also addressed the issue of the collective return to Artsakh. He specifically said: "As for our compatriots displaced from Karabakh, I have publicly stated more than once that I do not consider their ideas about a return to be realistic. And in general, I consider the bilateral discussion of the topic of the return of persons who became refugees since the beginning of the conflict in Armenia and Azerbaijan to be a dangerous factor that harms the peace established between Armenia and Azerbaijan."
The human rights defender emphasizes: "Here, it is necessary to clearly distinguish that the right of Artsakh to self-determination and the path of state-building are in no way connected with the right of return. "The right of return is currently even being relied on by Azerbaijanis who wish to return to the sovereign territories of the Republic of Armenia. Moreover, these territories are qualified as 'Western Azerbaijan.' In other words, the Azerbaijani side keeps the right of return on the international agenda, while the Armenian side in no way raises the right of return for the same Armenians who lived in Baku, Sumgait, Shahumyan. A clearly directed state policy is absent, especially in the case of the right of Artsakh Armenians to return to Artsakh, which, I think, is also a diplomatic omission, regardless of whether that return will be possible or not. Armenia is obligated to bring this issue to the agenda even from the standpoint of counterbalancing the return of Azerbaijanis."