The release and return of captives is an internationally mandated requirement, not an act of “good will” or “kindness” of the Azerbaijani authorities

At a press conference pertaining to the March 15, 2021 meeting with the OSCE Chairman-in-Office, the Minister of Foreign Affairs of Azerbaijan stated: “Azerbaijan has returned all the captives to Armenia in accordance with its obligations.” The statement said that “on November 26, armed men from the Shirak province of Armenia (…) are not prisoners of war.” These statements of the Azerbaijani authorities are made regularly.

Considering that the issue concerns the protection of the rights of Armenian servicemen and civilians held captive in Azerbaijan and the fact that distorted presentation of facts to international organizations should not be allowed, Armenia’s Human Rights Defender considers it necessary to address the referenced statements in detail.

1. Both before and after the November 9 announcement, there is an ongoing armed conflict on the ground.

This conclusion follows directly from international humanitarian law, in as much as all servicemen and civilians of the Armenian side detained in Azerbaijan are prisoners of war are subject to be protected by international law, and they must be immediately released and returned safely.

2. The release and return of prisoners of war is a mandatory international requirement, not an act of “goodwill” or “kindness” of the Azerbaijani authorities.

This requirement applies in international law, regardless of whether it is enshrined in specific conflict resolution documents, and must be met without preconditions.

3. The behavior and statements of the Azerbaijani authorities, at a minimum, attest to the following:

1) they artificially delay the release and return of the Armenian captives;

2) abuse legal procedures, falsify the requirements of international law, prosecute prisoners, and use deprivation of liberty as punishment;

The special report of the RA Human Rights Defender proves with concrete examples that this practice grossly violates international human rights requirements (https://ombuds.am/…/1138b156720bec6ae0fd88dc709eb62c.pdf);

3) they use the issue for political purposes. This refers, for example, to reports in the independent media that the Azerbaijani authorities are using the issue of the return of prisoners for the exchange of territories in Artsakh, bargaining and other political purposes.

4) they abuse Clause 8 of the tripartite declaration of November 9, 2020 as it relates to the return of captives, and they link it to other points in the declaration, clearly taking advantage of the fact that it does not specify the date of fulfillment of that obligation.

5) they deliberately cause continuous mental suffering to the families of captives and missing persons, and hey blatantly toy with the feelings of the Armenia and Artsakh societies;

6) they create public tension in Armenia and Artsakh with their behavior;

7) they do not publish the true number of captives of the Armenian side held in Azerbaijan, and do so without any legal grounds and in gross violation of human rights requirements.

4. Consequently, calling any of the Armenian servicemen and civilians captured by the Azerbaijani armed forces “terrorists” is a gross violation of international humanitarian law and international human rights law in general.

This assertion is particularly relevant given the requirements of the Third Geneva Convention of 1949.

5. The statements of the President of Azerbaijan and the Minister of Foreign Affairs about the captives directly contradict the intentions of the signatory parties to the tripartite statement of November 9, 2020 and the practical application of that announcement.

In particular, based on the requirement of clause 8 of that statement, the Republic of Armenia has already transferred to Azerbaijan perpetrators of crimes in Artsakh, including two convicted Azerbaijani murderers of Armenian civilians. Azerbaijan handed over Armenians formally convicted in that country on the same principle.

Moreover, there took place a return of captives after the November 9 trilateral announcement.

6. Therefore, the said statement should be applied to all situations arising from before as well as after November 9, and so long as there is an objective need for the protection of human rights and the humanitarian process due to the aftermath of hostilities.

In principle, it is improper to condition the issue of prisoners based only on the date of the trilateral declaration.

We emphasize once again that, regardless of the date of captivity, all servicemen of the Armenian side held in Azerbaijan, including civilians, are prisoners of war by their current status.

Such a mechanical approach is unacceptable.

7. In addition to the foregoing, the credible evidence collected by the Human Rights Defender’s Office of the Republic of Armenia confirms that the number of detainees is higher than confirmed by the Azerbaijani authorities. This assertion takes into account the return of 44 prisoners of war in a single group, including those captured during the hostilities prior to the November 9 tripartite declaration.

The Human Rights Defender has registered numerous cases when, despite the evidence confirmed by videos and other evidence, the Azerbaijani authorities deny the fact that those people are within their custody and control, or delay the approval and processing of their release.

8. The absolute urgency of the issue of the release of prisoners should be considered in the context of the Azerbaijani state supported policy of hatred towards Armenians which has been repeatedly confirmed and based on objective evidence contained in the reports of Armenia’s Human Rights Defender.

This fact is confirmed by a number of judgments of the European Court of Human Rights.

9. Therefore, the Human Rights Defender of the Republic of Armenia once again draws the attention of the international community and especially the international organizations with a mandate to protect human rights to the statement of the Azerbaijani authorities, and in this instance, the Minister of Foreign Affairs of Azerbaijan.

It is necessary to ensure the absolute implementation of international humanitarian and human rights requirements and, immediate release and return of the captives of Armenian side without preconditions.