President of the Bar Association Appeals to the Speaker of Parliament Regarding the Lifting of Martial Law

The President of the Bar Association of Armenia, Ara Zohrabyan, has appealed to the Speaker of the National Assembly of Armenia, Ararat Mirzoyan, requesting the lifting of the martial law declared by the Government of Armenia through Decision No. 1586-N dated September 27, 2020.

In the letter, the following is presented as factual and legal justification: “On November 10, 2020, a declaration of written agreement was made by the Prime Minister of the Republic of Armenia, the President of the Russian Federation, and the President of the Republic of Azerbaijan (hereinafter referred to as the Declaration), according to which a complete ceasefire and all military operations in the Nagorno-Karabakh conflict zone was declared to take effect from 00:00 Moscow time on November 10, 2020. According to point 8 of the Declaration, ‘The exchange of prisoners of war and other detainees and the bodies of the deceased will be carried out.’ Since November 10, 2020, until now, the declared martial law has not been lifted.

Since November 10, 2020, the issue of repatriating prisoners of war has not been resolved. According to Article 119, part 1 of the Constitution of the Republic of Armenia, in the case of armed attack on the Republic of Armenia, the presence of direct danger or declaration of war, the Government declares martial law, addresses the people, and may declare general or partial mobilization. It follows from the mentioned norm that martial law is a regime different from the normal rhythm and conditions of the state and society that the state transitions to in order to neutralize threats more effectively.

Without addressing the justification for the Government's decision to declare martial law, it is evident that there are no grounds for maintaining martial law in the Republic of Armenia at this moment. Under Article 14 of the Constitution, the Armed Forces of the Republic of Armenia provide for the defense, security, territorial integrity, and inviolability of the borders of the Republic of Armenia, regardless of whether martial law has been declared or not.

At present, the regime of martial law not only harms citizens in the context of fully exercising their rights but may also jeopardize the resolution of the issue of repatriation of prisoners of war. The Declaration’s point 8 regarding the exchange of prisoners does not specify any deadline, which Azerbaijan may exploit formally.

In our opinion, Article 118 of the Convention on the Treatment of Prisoners of War (hereinafter referred to as the Convention) can be cited, stating that ‘PRISONERS OF WAR ARE RELEASED AND REPATRIATED IMMEDIATELY AFTER THE HOSTILITIES HAVE CEASED.’ The Republic of Armenia joined the Convention by the legislative body (Supreme Council) Decision No. H.N-0790-I dated March 31, 1993, while Azerbaijan joined the Convention by the legislative body (Milli Majlis) Decision No. 573 dated April 21, 1993; thus, the Convention creates rights and obligations for both states.

The Republic of Armenia can argue by citing point 8 of the Declaration and Article 118 of the Convention that the issue of prisoners of war must be resolved immediately, as the specified condition of the Convention exists, namely that hostilities have ceased. In this regard, in order for Azerbaijan to be deprived of its right to object, martial law must be lifted; otherwise, Azerbaijan can formally cite this fact as a reason for not fulfilling its obligation.