There is a constructivist scholarly consensus that memory has become less about the retention of information and more about constructing a "shared pool of memories" to help nation-state projects present their pasts today. For Armenians and Azerbaijanis, this shared pool over Nagorno-Karabakh is filled with thousands of atrocities — varying in form and scale — that constitute the legacy of over 30 years old armed conflict.
How to bring justice to societies that have experienced so many atrocities, war crimes, as well as socio-economic burdens caused by the conflict occasionally becomes a heated topic in the Armenian-Azerbaijani space. Yet these debates often deepen the divide, as they resonate with utterly merciless denialism and revisionism. Avoiding this Pandora’s box might be the most comforting and potentially reconciliation-prone approach, but then what is the endpoint? Should the Armenian-Azerbaijani past always be "constructively ignored," or is there room to move forward? Perhaps there is a space to make Armenian-Azerbaijani transitional justice a reality, but this path is certainly fraught with challenges.
Before asking the instrumentalist question of what to do with this past, there needs to be a descriptive overview of those atrocities, not as if there is a need for repeating already known tragedies but rather to provide a legal perspective to categorize the crimes that need to be addressed.
Some voices might call the war-period atrocities "crimes against humanity," but I would rather avoid this label for one primary legal reason: this post-1945 legal concept has yet to be fully defined, and its critical questions remain unanswered: there has never been a comprehensive international legal framework on crimes against humanity, nor is there a consensus whether crimes against humanity are derogable or non-derogable in international law. Although eleven international documents refer to crimes against humanity, they fail to bring anything to the consensus to describe legally which crime could fall into this category.
Instead, "war crimes" would be the best legal umbrella term for covering the Karabakh war-era atrocities, as it at least passes the operational threshold: for there to be a war crime, there must be a war. Armenia and Azerbaijan have experienced at least two such major wars.
This does not mean, however, that the non-war period of this conflict was somehow devoid of atrocities. The early onset of this conflict, from 1988 to 1991 – which could be conceptualized as the "inter-communal clashes" era – was full of close-range violent acts. Violent pogroms and other crimes, such as attacks on transport vehicles, led to one of the largest forced displacements in this part of the world. In just four years, between 1988 and 1991, half a million Armenians and Azerbaijanis lost their homes and became refugees.
Put into numerical figures, the scale of this conflict becomes much clearer: it has caused the death of as many as 20-25 thousand people from both sides. Its direct impact is felt acutely when one looks at the displacement numbers: more than 1 million Armenians and Azerbaijanis have been forcefully displaced from their homes throughout the past 36 years. For these two countries, which are small in terms of demographics, it could very well mean that 1 out of 5 individuals in specific communities is a displaced person. To continue with the numbers, there is also another gruesome figure – around 4000 Armenians and Azerbaijanis are still missing.
Numbers and definitions can always be a matter of discussion, but the central question remains: what to do? A conventional and often echoed approach would be to go for international intervention when dealing with this past. For nationalist discourse in both countries, having Nuremberg-like tribunals where "the rival is faced with justice" has been the long-desired utopian goal; but international criminal law and its legal conundrum leave little room for an Armenian-Azerbaijani Nuremberg to emerge for many reasons.
First, for there to exist an international tribunal under which grave crimes could be investigated, there has to be unanimous approval from all permanent members (Russia, China, France, the UK, and the US) of the UN Security Council. The world, as some call it the "new Cold War," in which there are almost diametrically opposed positions among global powers on how to legally address the ongoing atrocities in the Middle East, is far from conducive to the Armenian-Azerbaijani quest for "truth" in an international tribunal.
Another legal way of having an inter-state file opened in front of the International Court of Justice exists, but neither Armenia nor Azerbaijan has recognized the Court’s jurisdiction, making such a file legally impossible unless both parties fully pursue this path. The third way could very well involve the International Criminal Court – which is the top international institution tasked with giving a legal appraisal to serious crimes. However, the very legal threshold that it has – only crimes committed after 2001 could be investigated – makes this option non-operational as well, as it would bypass the majority of crimes committed before 2001.
The last international legal resort could be to ask countries such as Belgium and the Netherlands, which have universal jurisdiction, to open files investigating Armenian and Azerbaijani crimes. How this would be possible, given the largely determinant geopolitics, and whether there is such a willingness on both ends are major critical questions. But even before asking them, there has to be a much more nuanced discussion about whether there is a need for internationalized Armenian-Azerbaijani transitional justice.
Perhaps Kosovo’s path of internationalized transitional justice process could be our critical lighthouse. The long-awaited desire to receive full legal appraisal for crimes committed in Kosovo was cut short when the International Tribunal for the Former Yugoslavia (ICTY) ceased to exist in 2017, leaving the vast majority of cases open and unaddressed. A sort of local substitute for this – Kosovo’s Specialist Chambers - which was created partly because of pressure from Kosovo’s Western partners, has not only failed to make transitional justice work but has widened the divide across the communities in Kosovo. To put it simply, internationalized transitional justice has brought many unaddressed cases, increased public scepticism, and deepened conflict divides.
Our memory gives us a slight hint into similar patterns from the Armenian-Azerbaijani context. Both Armenia and Azerbaijan have largely (mis)used the “International Convention on the Elimination of All Forms of Racial Discrimination (CERD)” in front of the ICJ since 2021 to make performative points in diplomatic negotiations. The Court's preliminary decisions – which were largely ambiguous and inconclusive – have been instrumentalized to create another wave of national ecstasy. These court cases have hardly contributed to bridging the gap between Armenians and Azerbaijanis.
So, one alternative is to find a local solution. However, expecting an Armenian-Azerbaijani interstate tribunal seems nonviable in the current political context, as "arrest warrants for alleged criminals" would surely challenge local dynamics and make any bilateral agreement far too risky for political elites to pursue. Instead, there could be certain areas over which an Armenian-Azerbaijani agreement could materialize.
An example of such an issue-based process could be the Joint Commission on the Fate of Missing Persons to come together to locate and repatriate the whereabouts of around 4000 individuals. There is a body of international examples – from Colombia, where around 100,000 people are missing, to the Balkans, where more than 40,000 people are missing – from which the operationalization of a similar Armenian-Azerbaijani process could be drawn.
The problem with transitional justice agreements is that the more detailed they are, the less likely they are to be agreed upon. But since more than 100 peace agreements have incorporated transitional justice mechanisms into their body in the past three decades, one could also be an Armenian-Azerbaijani deal if general terms are adopted first, leaving details for later. On this end, one general term could be "guarantees for non-repetition," which is the key international responsibility of all states. As bilateral as this conflict is, there have also to be separate in-country efforts to make these guarantees workable. This should include ensuring that the in-country space is conducive to having critical debates about what has happened in the past. And the re-construction of hegemonic national discourses has yet to start.
Down the road, there will surely be enough topics of financial reparations, never-ending court cases, and war crimes popping up. A liberal post-1945 acumen would opt for having full-fledged internationalized trials to ensure that the Armenian and Azerbaijani past is "addressed." However, perhaps moving beyond a liberal framework and having a rather local settlement could be much more helpful. For example, Armenia and Azerbaijan ceasing their multinational efforts of "atoning for the guilty" could be much more powerful than trials, reparations, and other legal mechanisms, the realization of which is becoming less likely with each passing day.
And if there is a question of why, then the answer is simpler. How the past is framed continues to be present in how the very meaning is attached to national identities. It is this instrumentalization that largely takes agency from the direct victims and creates an imaginary traumatic bond around the tragedies, so ethnopolitical mobilization could always be possible for achieving various political goals. Transitional justice is what returns this agency to the victims, not for demonizing the culprit further, but for making a ground for its repetition not being possible anymore.
*The cover image was captured by Rena Efendi for National Geographic.