This post was meant to be a response to the response to my response (sheesh) on EurasiaNet regarding whether international law allowed Azerbaijan to shoot down civilian aircraft flying into Khojaly airport. EurasiaNet did not want to publish it in part to end the discussion and because they felt that the other party and I were talking past each other. I can’t say I disagree with them.
I appreciate your response to my response but believe you have missed the reasoning behind my conclusion. The collection of law known as “international law” is vast and almost all states are in violation of some international law in some manner while upholding the majority of it the majority of the time. Simply because one state violates one international law doesn’t mean other laws don’t hold or that a victimized state can respond however they please. Assuming that Armenia violates the 1946 Chicago Convention, Azerbaijan can respond in certain ways, but it cannot shoot down a civil aircraft.
If the Convention applies, responses to violations of the Convention are listed in chapter 18:disputes and default. If Armenia violates the Convention, Azerbaijan is fully allowed to go to the Convention’s Council and respond within the options listed in that section. As I mentioned in my previous post, the Convention explicitly excludes the use of force in Article 3a bis.
If the plane is not purely civil (as you argue using the quote from Gen. Ohanyan), then the laws of war apply as lex specialis, including international humanitarian law. Your mention of the Convention’s Article 89 reinforces my lex specialis argument in section three of my previous response.
Because of the laws of war, any use of force by Azerbaijan must be proportional and must be against a military target. If Azerbaijan believes it is under an imminent attack, it is allowed to defend itself. This could be the case if armed military aircraft fly towards Azerbaijan. An unarmed civilian aircraft, even when the military provides the “operation” of the aircraft, cannot physically harm Azerbaijan. As there is no material harm—only symbolic or moral harm—shooting down the plane would be a disproportional response to the violation, and thus unallowed under humanitarian law.
Your argument of perfidy may be relevant in the future but is inapt as of now. One of the examples of perfidy mentioned in Article 37 is exactly what you’re arguing: (c) the feigning of civilian, non-combatant status. You’re assuming that Armenia is planning on disguising military personnel and aircraft as civilian personnel and aircraft. One is entitled to believe what one likes, but without evidence, this is merely an assumption. This argument of perfidy would be valid with evidence of Armenia engaging in it but not when based purely on speculation. Regardless, even if you disagree with this specific point of my response, it doesn’t change my conclusion that shooting down an unarmed civil aircraft would be a violation.
“International law” is on no state’s side. In fact, it’s better to believe there is no monolithic entity known as “international law.” Instead, there is a vast array of international agreements that bind state action. Each state action must be evaluated distinctly to determine whether it violates one of these agreements, i.e. it violates an international law. The long history of violations during the Nagorno-Karabakh war by both sides go beyond the scope of these replies. Focusing on the issue at hand, Armenia flying unarmed civilian planes to the Khojaly airport may violate an international law regarding aviation law. I’m not an aviation law expert, so I can’t comment. If it is a violation, international law legitimizes Azerbaijan to respond in certain ways. Shooting down an unarmed civilian plane is not one of those ways.