Combatant Immunity for Members of the Nagorno-Karabakh Army: A Case Study

After Azerbaijan regained control over the territory of the Nagorno-Karabakh region, it detained a number of officials of the Nagorno-Karabakh Republic (hereinafter — NKR) and members of the Nagorno-Karabakh Defence Army (hereinafter — NKDA). The detainees face charges of participating in illegal armed formations and/or terrorism financing. The present case study explores whether the detainees might benefit from combatant immunity and whether Azerbaijan’s prosecution of those who fought for the NKR complies with international humanitarian law. Referencing the rules on prisoner of war status specified in Article 4(2) of the Third Geneva Convention, this paper concludes that members of the NKDA indeed fell into the hands of the “enemy”, NKDA prima facie complied with the “four requirements” for irregular armed formations per Article 4(2) and “belonged” to Armenia, that for these purposes can be deemed to have been engaged in an international armed conflict with Azerbaijan. If evidence available to the Azerbaijani authorities supports the view that NKDA members fit the requirements of Article 4(2) of the Third Geneva Convention, members of the NKDA should be treated as prisoners of war and lawful combatants. Therefore, being a member of the NKDA or supporting its activities should not be criminally punishable.