Armenia Joins ICC, Angers Moscow
The move has widened the rift with the Kremlin, but Yerevan stated that its motivation was its national security vis-à-vis Azerbaijan.
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Armenia has joined the International Criminal Court (ICC) and ratified the Rome Statute, its founding treaty, in a move that risks further strain on ties with its longtime ally Russia.
Moscow, for decades Yerevan’s security guarantor in the region, labelled the move “unfriendly” and warned it could harm bilateral relations. The ratification also triggered a debate among constitutional law experts about whether the treaty was contrary to the country’s constitution.
On October 3, the National Assembly voted 60 to 22 for the “retroactive recognition” of the court jurisdiction to May 2021, in accordance to the treaty’s Article 12, Part 3. On October 13, President Vahagn Khachaturyan signed the vote into law, making Armenia the 124th member of the ICC.
By subjecting itself to the jurisdiction of the Hague court, Armenia is vexing Russia, whose president Vladimir Putin, has an arrest warrant issued by the ICC. Yerevan now has an obligation to arrest Putin should he travel to Armenia.
The vote has widened the rift between Moscow and Yerevan, which has grown since Azerbaijan regained control of Nagorny Karabakh, a region controlled for three decades by ethnic Armenians, most of whom have now fled. The recapture followed a nine-month blockade of food and fuel supplies to the enclave that Russian peacekeepers did nothing to relieve.
Armenia has long said joining the Rome Statute would not be a move against Russia, but rather one conditioned by its own security interests and prompted by Azerbaijan’s actions. In May 2021, Azerbaijan’s army crossed into Armenia’s southern provinces of Syunik and Gegharkunik; similarly, in September 2022, clashes broke out along the border between the two countries. Azerbaijan soldiers remain in about 215 square kilometres of Armenian territory.
Some analysts also see the ratification in the context of Armenia’s relations with the West.
“[It is] more a political step than a legal one, because the number one target [behind] this decision is our relations with the West. We are trying to improve those relations,” political scientist Davit Stepanyan told IWPR, adding that political fallout with Moscow was inevitable.
“If the ICC starts to examine the crimes Azerbaijan committed in Armenia in 2021-2022 and in Artsakh [as Armenians call Karabakh] in 2020 and 2023, Russia will also be affected because its military contingents both on the border and in Artsakh had a direct connection with all this,” Stepanyan continued, referring to Russia’s peacekeeping troops. “Russia's real fears come from here, rather than Putin’s possible arrest. Everyone understands that Armenia is not a country in a position to arrest Putin and declare war on Russia.”
CONSTITUTIONAL COURT
The debates over the ratification also revolve around the potential conflict between the Rome Statute and Armenia’s constitution.
Armenia signed the Rome Statute on October 1, 1999 but in 2004 the Constitutional Court declared that the treaty contradicted the country’s founding charter at that time, so ratification stalled. Since then, the constitution has been amended twice, in 2005 and 2015.
Discussions resumed in 2020. On September 12, Pashinyan stated that after the 2020 war, the government started looking into what tools other than defence mechanism “were out there that can contribute to increasing our security level”. He added that ICC membership could be such a tool “when the CSTO has not fulfilled and is not fulfilling its obligations towards Armenia”. Armenia, but not Azerbaijan, is a member of the Moscow-led Collective Security Treaty Organisation that failed to intervene to support Armenia against Azerbaijan’s incursions in its sovereign territory.
On March 24, 2023, the constitutional court ruled that the obligations for signatories under the treaty were in line with the existing constitution. Pashinyan claimed that the date coincidence of the ruling with the ICC warrant against Putin was an accident, stressing the fact that “the process began much earlier”. Armenia’s envoy on international legal matters, Yegishe Kirakosyan, said Yerevan decided to resume the process of joining the ICC because of Azerbaijan’s alleged moves against Armenia.
Some constitutional law experts, however, consider the decision unlawful. They note that in 2004 the constitutional court’s key point was that the founding charter stipulated that only Armenian courts had the mandate to administer justice in accordance with the country’s constitution and laws.
“This point [the mandate] has not changed and is fixed in both constitutional amendments of 2005 and 2015. It means that the adoption of the Rome Statute was exclusively the result of a political decision and was a process contrary to the law,” constitutional scholar Gohar Meloyan told IWPR, stressing that ruling a document as unconstitutional cannot be revised and reversed.
Other experts disagree.
“The 2015 revisions are called amendments to the constitution adopted in 1995, but the current charter is actually a new constitution, because the changes are fundamental and substantive,” constitutional law specialist Artashes Khalatyan told IWPR.
“It is a new constitutional reality and it was [then] possible to revisit the constitutionality of the Rome Statute accordingly. The constitutional court’s ruling on the treaty is inviolable and it complies with our constitution.”
AN UNFRIENDLY DECISION
Moscow labelled the move as “unfriendly” and stated that the ratification was “unacceptable” in the current situation and could harm bilateral relations.
Yerevan replied that it offered Moscow to sign a bilateral agreement in spring 2023, but did not receive a response.
“Our Russian partner were offered solutions based on [the treaty’s] Article 96, paragraph 2 which foresee the signing of a bilateral agreement, creating certain guarantees [to address] concerns that some partners may have… The text was submitted to Russia several months ago, in April,” Kirakosyan said in parliament on October 3 ahead of the vote. While not stating openly that Putin would not be arrested on Armenian soil he said that “even if there is a problem, there are solutions”.
Meloyan agreed that ratification was “a hostile step”.
“We depend on Russia in many ways,” she told IWPR. “[Consider] the risks of possible pressure on the large Armenian community there to economic factors [like] increasing gas prices and associated inflation or the suspension of economic relations.”
For Khalatyan, however, the key question is whether Armenia is, as an independent state, free to take its own decisions for its national security.
“There is a clear threat to Armenia; it could be subjected to disproportionate aggression [from Azerbaijan], there is an opportunity to defend against it and there is a possibility of certain negative side effects, which, however, are less important compared to the value [of sovereignty and territorial integrity] that we want to protect,” the lawyer told IWPR.
Echoing Pashinyan, he added that “if Russia had provided us with the necessary political, legal and military assistance within the framework of bilateral agreements or collectively within the CSTO, ratification of the Rome Statute may not have been so significant at this point”.
Armenian authorities also see the ICC membership as a deterrent to crimes on Armenian territory. However, Azerbaijan and its key ally in the region, Turkey, are not signatories of the Rome Statute.
“We already have examples of specific decisions by international bodies that are ignored and not implemented by Azerbaijan,” noted Meloyan.
“Most international legal documents address the international responsibility of a state as a political subject and a subject of international law,” Khalatyan argued. “[Here] we are dealing with individual criminal liability, which means bringing specific individuals to criminal liability with specific charges for committing specific crimes.”
He continued, “This will mean political isolation of this person and the leadership of this state,” referring to Azerbaijan’s President Ilham Aliyev who, should the ICC issue a warrant against him, could be arrested by one of the court members.
In addition, Khalatyan said, the ratification provided Yerevan with a potentially powerful political advantage in the peace process over Karabakh and the border demarcation between Armenia and Azerbaijan.
This publication was prepared under the "Amplify, Verify, Engage (AVE) Project" implemented with the financial support of the Ministry of Foreign Affairs, Norway.
