Frozen Conflicts in International Law

III.Intensity

Following the analysis of the core issue and the time factor, this chapter addresses frozen conflicts’ violence and intensity. It is another focal characteristic because what has been described as frozen conflicts’ ‘low intensity’⁶⁴³ — S. 92 —distinguishes them both from full-scale war or armed conflict in the sense of common article 2 of the Geneva Conventions⁶⁴⁴ and from peace. Because armed hostilities and attacks are no longer ongoing, frozen conflicts do not meet the criteria of an armed conflict for most of the time. However, if violence were extremely unlikely or entirely absent, they might be called ‘frozen’ but not a ‘conflict’.⁶⁴⁵ This subchapter aims to analyse the quality of frozen conflicts by distinguishing them both from full-scale war or armed conflict and from true peace. Subsequently, this low intensity will be defined by military presence and occupation, the human rights situation, and the displacement of people.

A.Distinguishing Frozen Conflicts from Full-Scale Wars or Armed Conflicts

Whether a situation qualifies as an armed conflict depends on factual criteria. Although the Geneva Conventions do not contain any definition of the concept, the ICTY Appeal Chamber stated in Tadić that an armed conflict exists whenever there is a resort to armed force between states or protracted armed violence between governmental authorities and organized armed groups or between such groups within a state.⁶⁴⁶ In the aftermath of the attacks of 9/11 in 2001 and the US’s subsequent ‘war on terror’, the ILA produced a report on the meaning of war and armed conflict in international law that further outlined the concept.⁶⁴⁷ First, the report found that the term ‘war’, although still used, has in general been replaced by the broader concept of ‘armed conflict’.⁶⁴⁸ Two criteria are required for a situation to be classified as an armed conflict: first, the existence of organized armed groups, and second, the engagement in fighting of some intensity.⁶⁴⁹ These are the basic criteria of an — S. 93 —armed conflict, determining the application of IHL. There is a further distinction between international and non-international armed conflicts. For the purpose of this work, it is not necessary to consider this distinction. Both types of conflict are present in the four cases, depending on which aspect one considers. It suffices to briefly look at the two basic criteria of armed conflicts.

First, the criterion of organization indicates that armed conflicts involve two or more organized armed groups.⁶⁵⁰ Such groups need to show a sufficient level of organization through an ‘official joint command structure, headquarters, designated zones of operation, and the ability to procure, transport, and distribute arms.’⁶⁵¹ These are some of the ‘indicative factors, none of which are, in themselves, essential to establish whether the “organization” criterion is fulfilled.’⁶⁵² In contrast, violence perpetrated by an assassin or terrorist acting alone or the disorganized mob violence of a riot do not meet the criterion of an organization.⁶⁵³

Second, the criterion of intensity requires that the hostilities reach a certain level of intensity.⁶⁵⁴ The following factors were identified by the ICTY when it summarized case law relevant to the Boskoski and Tarculovski judgement:⁶⁵⁵

These include the seriousness of attacks and whether there has been an increase in armed clashes, the spread of clashes over territory and over a period of time, any increase in the number of government forces and mobilisation and the distribution of weapons among both parties to the conflict, as well as whether the conflict has attracted the attention of the UN Security Council, and whether any resolutions on the matter have been passed. Trial Chambers have also taken into account in this respect the number of civilians forced to flee from the combat zones; the type of weapons used, in particular the use of heavy weapons, and other military equipment, such as tanks and other heavy vehicles; the blocking or besieging of towns and the heavy shelling of these towns; the extent of destruction and the number of casualties caused by shelling or fighting; the quantity of troops and units deployed; existence and change of front lines between the parties; the occupation of territory, and towns and villages; the deployment of government forces to the crisis area; the closure of roads; cease fire — S. 94 —orders and agreements, and the attempts of representatives from international organisations to broker and enforce cease fire agreements.⁶⁵⁶

Again, these factors are merely indicative of the intensity; none of them are essential for the criterion of intensity to be met.⁶⁵⁷

The two basic criteria of armed conflicts were met in the four cases of South Ossetia, Abkhazia, Transnistria, and Nagorno-Karabakh during some periods. South Ossetia experienced a full-scale conflict in 1991 before the ceasefire agreement between Russia and Georgia was signed in Sochi in 1992. A second armed conflict in South Ossetia lasted for five days in August 2008. Abkhazia experienced armed hostilities from 1992 until 1994, with several short-lived armistices, until they were terminated by the Moscow Agreement.⁶⁵⁸ In Transnistria, the armed conflict started at the end of 1990 and ended in 1992.⁶⁵⁹ Nagorno-Karabakh experienced full-scale war from 1992 to 1994,⁶⁶⁰ in the second Karabakh war in 2020⁶⁶¹, and again in 2023 when Azerbaijan established control. These phases did not raise discussions as to whether the criteria of an armed conflict were met, since the level of organization and the intensity of violence can clearly be affirmed. Regarding organization, all four cases involved military forces of the parent state, troops of the de facto state, and troops of the patron state.⁶⁶² Regarding intensity, the criterion has also been met regarding attacks by distinct actors, the numbers of deaths and refugees, and the international attention the situations received.

Yet, apart from these rare ‘hot’ phases, there have been few or no armed confrontations for most of the time. The question arises as to how these ‘calmer’ periods are to be classified in a binary framework of armed conflict or no armed conflict. For instance, the IIFFCG described the situation in South Ossetia and Abkhazia before the war in August 2008 as ‘low-intensity conflicts in the break-away territories’ that ‘risked developing into large-scale hostilities’.⁶⁶³ The ECtHR described the relations between Georgia and Russia after the war in August 2008 as an ‘extended period of ever-mounting tensions, — S. 95 —provocations and incidents’.⁶⁶⁴ Similarly, the situation in Nagorno-Karabakh was shaped by tensions and recurring breaches of ceasefire agreements,⁶⁶⁵ but only three periods were characterised as wars: the first Karabakh war in the early 1990s, the second Karabakh war in 2020, and the war in September 2023.⁶⁶⁶ In Transnistria, there has not been an armed conflict since the war that ended in 1992.⁶⁶⁷ In short, the frozen phases of the conflicts are not considered armed conflicts. But can these phases, then, be categorized as peace?

B.Distinguishing Frozen Conflicts from Peace

Peace might even be a more elusive concept in international law than armed conflict. Although according to Lauterpacht the establishment of peace and the protection of human rights are key aims of international law,⁶⁶⁸‘legal literature largely abandoned promoting the establishment of peace as a public good or independent, overarching aim of international law’.⁶⁶⁹ Therefore, this concept also lacks clear definitions and boundaries. Galtung introduced two components of peace: negative peace and positive peace.⁶⁷⁰ Negative peace simply means the absence of war or armed conflict and can be traced back to Grotius’s dichotomy of the law of war and the law of peace. By contrast, positive peace is a broader concept. Instead of referring to the absence of war or armed conflict, it refers to the presence of something, particularly of social justice.⁶⁷¹ In a more modern interpretation, it refers to equal opportunity, enjoyment of social justice, human dignity, respect for human rights, and the elimination of poverty, inequality, exclusion, death, or disability that result from inequitable distribution of resources addressing basic human needs.⁶⁷² In other words, according to Galtung, negative peace implies the absence of personal violence, and positive peace the absence of structural — S. 96 —violence.⁶⁷³ Therefore, for the purpose of international law, peace is defined as the absence of aggression, armed conflict, or the use—or threat of the use—of force in violation of the UN Charter, and as the presence of conditions under which fundamental human rights are maintained.⁶⁷⁴ Similarly, article 55 UN Charter calls for higher living standards, economic and social progress and development, and respect for human rights as conditions for peaceful and friendly international relations.

Frozen conflicts can be distinguished from peace in several respects. Concerning the absence of war or armed conflict, these situations remain ambiguous. Although most of the time there is no active warfare, there is still a permanent, at least implicit threat of the use of force. All the regions have experienced wars at some point, and the relations between the parties remain tense, as the question of the status of the break-away regions remains unresolved. The territorial integrity of Georgia and Moldova is constantly violated, as was Azerbaijan’s before 2023, by the existence of the de facto states. The risk of renewed violence is always present, not only because of the ongoing dispute on the status question but also due to the military presence in the regions. Additionally, the conflicts are embedded in wider geopolitical dynamics involving external powers that control the de facto states, which intensifies the tensions and increases the risk of active conflict. These regions are thus permanently unstable and face an uncertain future. They also face shortcomings concerning fundamental human rights, equal opportunities, living standards, and economic and social progress. Violations of human rights, restrictions on freedom of movement, and economic and social disruption continue. The following subchapter will assess exactly how frozen conflicts differ from both armed conflict and peace.

C.Manifestations of the Low Intensity

1.Military Presence and Occupation

The low intensity of frozen conflicts is manifest in the absence of full-scale war; however, the continued presence of military forces entails a constant risk of renewed armed hostilities.⁶⁷⁵ The presence of foreign military forces without the parent state’s consent constitutes a belligerent occupation.⁶⁷⁶

Belligerent occupation is enshrined in article 42 Hague Convention IV, which states that territory is considered occupied when it is actually placed under the authority of the hostile army and that the occupation extends only to the territory where such authority has been established and can be exercised. Three elements are required: 1) the armed forces of a foreign state are physically present without the consent of the effective local government in place at the time of the invasion; 2) the local sovereign is unable to exercise authority due to the presence of foreign forces; 3) the occupying forces impose their own authority over the territory.⁶⁷⁷ Usually, the hostile army that occupies a territory is of a foreign state; nevertheless, situations of occupation by proxies have become more frequent in recent years. In such cases, the principal belligerent has control over another actor, a subordinated de facto administration that controls the territory.⁶⁷⁸ Occupation by proxy is relevant to frozen conflicts due to the dependence of separatists on a patron state:⁶⁷⁹ Russia in South Ossetia, Abkhazia, and Transnistria, and Armenia in Nagorno-Karabakh before 2023. Furthermore, the concept of occupation has three limitations: it is presumed to be temporary, it does not transfer sovereignty, and it does not grant title over the occupied territory. Since the outlawing of the use of force and prohibition of territorial conquest, the law of occupation has developed as the legal framework governing the limits of a state’s power over territories seized during war.⁶⁸⁰ Occupation is assumed in all the four cases.

Regarding Georgia, the ICC examined the crimes against ethnic Georgians committed by forces of the de facto administration in South Ossetia and mentioned ‘the context of an occupation by the Russian armed forces’.⁶⁸¹ In its application for arrest warrants against three individuals, in March 2022, the ICC stated that Russian forces continued to occupy South Ossetia ‘until this day’.⁶⁸² It described how Russian forces had substituted the Georgian authorities in the occupied territory by appointing zone commanders, controlling — S. 98 —access to the territory, negotiating prisoner exchanges, repatriating the corpses of Georgian soldiers, and implementing measures to prevent looting.⁶⁸³ In Georgia v Russia (II), the ECtHR also ruled that Russia exercised effective control over South Ossetia and Abkhazia and the buffer zone from the signature of the ceasefire agreement on 12 August 2008 to 10 October 2008, the date of the withdrawal of the Russian troops from the buffer zone, and beyond, pointing to the strong Russian presence and the dependency of the South Ossetian and Abkhazian authorities on Russia.⁶⁸⁴ Thereby, the ECtHR established Russia’s extraterritorial jurisdiction over Georgian territory under article 1 ECHR.⁶⁸⁵ Even though the notion of ‘effective control’ in the ECHR is broader than the ‘overall control’ of the law of occupation,⁶⁸⁶ the overall considerations of the ECtHR indicate that Russia was the occupier after 12 August 2008.⁶⁸⁷ The Council of Europe also considered South Ossetia and Abkhazia to be occupied by Russia.⁶⁸⁸ Georgia for its part adopted the ‘Law of Georgia on Occupied Territories’ in 2008.⁶⁸⁹

Regarding Transnistria, the situation is similar, and thus it is also considered an occupied territory.⁶⁹⁰ The ECtHR has consistently held that Transnistria can only exist because of Russia’s military, economic, and political support.⁶⁹¹ In several cases, the ECtHR has ruled that Russia has effective control over Transnistria and thus has extraterritorial jurisdiction in the sense of article 1 ECHR.⁶⁹² Again, although the concept of effective control in the ECHR differs from overall control in belligerent occupation, effective control can — S. 99 —nevertheless be an indicator. The UN, the EU, and the Council of Europe have repeatedly urged Russia to completely and unconditionally withdraw its troops from Moldovan territory.693 According to the Council of Europe, a belligerent occupation of Transnistria by Russia exists.694 Regarding Nagorno-Karabakh, no belligerent occupation has occurred since September 2023. In its own territory, Azerbaijan does not qualify as a hostile army in the sense of article 42 Hague Convention IV of 1907. In 2020, the ceasefire agreement already initiated a process of de-occupation by returning control of seven surrounding districts and parts of Nagorno-Karabakh to Azerbaijan.695 However, prior to this development, Armenia had repeatedly been considered the occupying power of Nagorno-Karabakh.696 For example, the UNSC addressed the occupation as early as 1993,697 the Parliamentary Assembly of the Council of Europe did so in 2005,698 and the UNGA in 2008.699 Similarly to the other cases, the ECtHR has consistently stressed the significant and decisive influence of Armenia over Nagorno-Karabakh and the deep interconnections between the two entities in nearly all significant matters, leading to Armenia’s effective control over Nagorno-Karabakh and the surrounding territories.700 In general, however, the law of occupation has rarely been applied.701 This holds true for frozen conflicts as well. International tribunals have not applied the law of occupation to any of the four frozen conflict cases. In the 693 PACE, ‘The Honouring of Obligations and Commitments by the Russian Federation, Res 1896 (2 October 2012)’ n 25.2; PACE, ‘The Honouring of Obligations and Commitments by the Republic of Moldova, Res 1955 (2 October 2013)’ (n 381) n 27; UNGA, ‘Res A/72/282 (26 June 2018), UN Doc A/RES/72/282’ (n 380), para 2; European Parliament, ‘Res P9_ TA(2022)0205 of 5 May 2022 on the State of Play of EU-Moldova, OJ C 465/151’, para 24.

694 PACE, ‘Consequences of the Russian Federation’s Aggression against Ukraine, Opin-

ion 300 (2022) (15 March 2022)’ n 5; PACE, ‘The Progress of the Assembly’s Monitoring Procedure (January-December 2022), Doc 15682 Report (9 January 2023)’ (n 688) 31 (Apendix); See also RULAC, ‘Military Occupation of Moldova by Russia’ (n 171).

695 Berkes, ‘International Law and De-Occupation Legislation’ (n 566) 15; RULAC, ‘Mili-

tary Occupation of Azerbaijan by Armenia’ (n 171).

696 See e.g. Vité (n 154) 74–75.

697 UNSC, ‘Res 884 (12 November 1993), UN Doc S/RES/884’ (n 431).

698 PACE, ‘The Conflict over the Nagorno-Karabakh Region Dealt with by the OSCE Minsk

Conference, Res 1416 (25 January 2005)’ (n 447).

699 UNGA, ‘Res 62/243 (14 March 2008) UN Doc A/RES/62/243’.

700 Chiragov and Others v Armenia (n 417), paras 169-186; Zalyan and Others v Armenia App

Nos 36894/04 and 3521/07 ECtHR 17 March 2016, para 214; Nana Muradyan v Armenia App No 69517/11 ECtHR 5 April 2022, paras 88, 91.

701 Lieblich and Benvenisti (n 173) 2; David J Scheffer, ‘Beyond Occupation Law’ (2003) 97

American Journal of International Law 842, 847.

Chiragov case, the ECtHR addressed the law of occupation but remained ambiguous as to whether Armenia’s responsibility derives from it being an occupying power in Nagorno-Karabakh or from other forms of control.⁷⁰² Typically, international tribunals addressing frozen conflicts do not deal with questions concerning the law of occupation and focus instead on other issues within their jurisdiction. The ICJ, for example, has adjudicated claims filed by Georgia against Russia and mutual claims from Armenia and Azerbaijan. The jurisdiction in these cases was based on the CERD; hence, the ICJ could only rule on breaches of obligations stemming from the CERD but not on breaches of the law of occupation. Moldova for its part has never filed a claim against Russia at the ICJ. Similarly, the ECtHR adjudicated cases within its jurisdiction under the ECHR, not under the Hague Conventions or Geneva Conventions, and therefore did not deal directly with questions of the law of occupation, but with questions of human rights law instead.⁷⁰³ Finally, the ICC, when dealing with the situation in Georgia and requesting that arrest warrants be issued for individuals, also applied IHL in the context of an international armed conflict in August 2008, not in the context of a subsequent occupation.⁷⁰⁴ Thus, no international tribunal has clarified whether and at which times precisely occupation occurred in the four frozen conflicts. Additionally, South Ossetia, Abkhazia, Transnistria, and Nagorno-Karabakh are not considered typical cases of occupation; they rarely appear in standard textbooks on occupation.⁷⁰⁵ However, for the purpose of this thesis, exploring issues related to the application of the law of occupation is unnecessary. The emphasis is on understanding that the military presence and occupation continuously violate international law. According to the UNGA’s definition of aggression, unlawful occupation is considered a form of aggression.⁷⁰⁶ The situations analysed here therefore imply a persistent threat of violence that helps characterize the low intensity of frozen conflicts as differing both from full-scale war and from peace.

2.Human Rights

The low intensity of frozen conflicts is further manifested in the human rights situation in the regions. Violations occur frequently, and the number of cases before the ECtHR dealing with these European human rights trouble spots is increasing.⁷⁰⁷ Human rights claims can serve as proxies for adjudicating underlying territorial disputes.⁷⁰⁸ Individuals can access the ECtHR by alleging human rights violations that are disconnected from the territorial issue, over which the court would have no jurisdiction.⁷⁰⁹ Nevertheless, beyond its effect on the human rights situation, it is extremely difficult for the ECtHR to influence or stabilize the overall situation around a territorial dispute.⁷¹⁰ As outlined in Part I, the use of the term ‘frozen conflicts’ by officials of the UN Commission on Human Rights and the UN Human Rights Council, such as Deng,⁷¹¹ Kälin,⁷¹² and Beyani,⁷¹³ implies a link between frozen conflicts and a precarious human rights situation. Although the issue of human rights in conflict zones is attracting increasing attention, their application during armed conflicts remains a debated issue.⁷¹⁴ In the case of Georgia v Russia (II), their application was strictly denied by the ECtHR in the ‘context of chaos’, meaning armed conflict;⁷¹⁵ only after the fighting are they intended to be applied, thus particularly during the frozen phase of the conflicts. There are two problematic aspects to human rights in frozen conflicts: procedural rights and substantive rights.

Procedural rights are problematic in frozen conflict zones because, under these conditions of weak institutions, it is unrealistic for victims of human rights violations to obtain effective remedies within the de facto states.⁷¹⁶ The four regions have therefore been described as legal ‘black holes’ for human rights.⁷¹⁷ In other words, the status quo deprives individuals of the rights and opportunities that they typically have in regular states.⁷¹⁸ Although the de — S. 102 —facto states often function similarly to regular states and have developed some legal and institutional structures, including some for human rights protection, in practice, these frameworks scarcely fulfil their purpose.⁷¹⁹ The de facto authorities are frequently unwilling to adequately uphold human rights and democratic freedoms and instead prioritise concerns for regime security.⁷²⁰ Even if they are inclined to do so, sometimes in order to better present their entity as a legitimate state, no mechanisms have been established.⁷²¹ Moreover, the de facto states cannot be subject to multinational human rights treaties, and the link has to be made through the parent state or the patron state.⁷²²

Yet, both the parent and the patron states typically deny their obligations to address alleged human rights violations in the regions concerned. The parent states of Georgia, Moldova, and Azerbaijan argue that the regions fall exclusively within the jurisdiction of the patron states. In the Chiragov case, for example, the government of Azerbaijan argued that the applicants had failed to exhaust domestic remedies because they had not applied to any judicial or administrative body in Armenia, which allegedly had jurisdiction over Nagorno-Karabakh.⁷²³ In the case of Ilaşcu and others against Moldova and Russia, the Moldovan government emphasized that when ratifying the ECHR, it had issued a declaration seeking to exempt itself from responsibility for acts committed in Transnistria, which it did not control; this was ultimately rejected by the Court.⁷²⁴ Georgia and Azerbaijan also attempted to exempt their jurisdictions in the break-away regions by unilateral declarations.⁷²⁵

In contrast, the patron states supporting and occupying the break-away regions argue that they do not execute effective control over the regions and that they do not have extraterritorial jurisdiction there. In the case of Ilaşcu, Russia denied any influence over Transnistria and asserted that it had never given the authorities ‘the slightest military, financial or other support’ and that it is an ‘integral part of the territory of the Republic of Moldova’.⁷²⁶ Consequently, Russia argued that no extraterritorial jurisdiction could be established.

Due to their lack of statehood, the de facto states cannot be held responsible for human rights violations; the responsibility is thus shared between the parent state and the patron state.⁷²⁷ The Ilaşcu case was the first case pertaining to one of the frozen conflicts to confirm the exceptional circumstances under which Russia’s extraterritorial jurisdiction can be invoked.⁷²⁸ Nevertheless, the ECtHR emphasized that even when a state is hindered from exercising its authority over its entire territory because of an established de facto state, and whether this is accompanied by military occupation or not, the territorial state still has jurisdiction in the sense of article 1 ECHR.⁷²⁹ Therefore, the ECtHR ruled that both Russia and Moldova had jurisdiction over Transnistria. This ruling set a precedent for similar cases arising from the four regions.

Substantive rights are equally problematic in frozen conflicts. All four frozen conflicts encompass a wide spectrum of human rights threats and violations. Not only is the right to life constantly challenged,⁷³⁰ but there are also frequent arbitrary detentions; incidents of torture and ill-treatment; restrictions on freedom of movement, including ‘passportization’ and special permits being required for border zones, ‘borderization’, closures of crossing points, and discrimination at de facto border crossings; limitations on the right to education, such as regulations restricting languages of instruction; restrictions on freedom of the media, expression, and freedom of religion, often intertwined with internal political dynamics and discrimination against minority religious groups; and ongoing challenges to political rights.⁷³¹

Regarding Transnistria, the European Parliament strongly deplored the lack of respect for human rights and human dignity in 2007, emphasizing that the right of access to information and education was being ignored, resulting in widespread human trafficking and organized crime.⁷³² Similarly, in 2021, the national report submitted to the UN Human Rights Council by Moldova underlined the serious and systematic human rights abuses in Transnistria carried out by the entities controlling the region: these violated the rights to liberty and security of person, to freedom of expression, to association, to free — S. 104 —movement, not to be arrested without cause, to health, to education, and to live free from torture.⁷³³ In its 2023 report, Freedom House rated Transnistria with a score of 18 out of 100 points for political rights and civil liberties and classified the region as ‘not free’.⁷³⁴

Regarding South Ossetia and Abkhazia, the human rights situation might be even more concerning and has been deteriorating. The ongoing process of ‘borderization’ along the administrative boundary lines involves the installation of barbed wire fences, border signs, and trenches combined with surveillance and strict controls that make some villages inaccessible.⁷³⁵ The national report submitted to the UN Human Rights Council by Georgia in 2020 addressed continuous human rights violations in South Ossetia and Abkhazia, including violations of the right to life, freedom of movement, and property rights, and reported on illegal detentions, kidnappings, and ethnic discrimination against Georgian citizens.⁷³⁶ The report stressed that under the occupation regime more of the crossing points between the regions and Georgia had been closed, resulting in the complete isolation of some districts.⁷³⁷ A documentary broadcast in 2023 showed how families are separated such that family members can see each other only through a barbed wire fence.⁷³⁸ Due to a lack of water supply, family members have to bring water to their relatives personally and hand it over the wire. What is particularly worrying is the lack of information on the human rights situation in the regions due to the denial of access for international institutions, even though, for example, the mandate of the European Union Monitoring Mission (EUMM) covers the entire territory of Georgia.⁷³⁹ Freedom House classified South Ossetia in 2023 as ‘not — S. 105 —free’, awarding it 12 of 100 points for overall freedom.⁷⁴⁰ In contrast, Abkhazia was rated as ‘partly free’ with a score of 39 out of 100 points.⁷⁴¹

Regarding Nagorno-Karabakh, the national report of Armenia submitted to the UN Human Rights Council 2019 stressed that the right to life was especially endangered in the region and that the existential security of the people remained the biggest sustained threat.⁷⁴² Freedom House assessed the situation in Nagorno-Karabakh in 2022 as ‘partly free’ with a score of 36 of 100 points,⁷⁴³ and the overall situation was compared to that in Abkhazia.⁷⁴⁴ The situation worsened at the end of 2022 when Azerbaijan blocked traffic between Armenia and Nagorno-Karabakh, causing shortages of food, medication, hygiene products, and so forth.⁷⁴⁵ A humanitarian crisis was looming before Azerbaijan’s reconquest in September 2023. During this period, Azerbaijan faced criticism for severe restrictions on humanitarian access, arrests, and limitations on freedom of expression, assembly, and media.⁷⁴⁶ Moreover, hundreds of thousands of Armenians were forced to flee, as will be outlined below.

3.Displaced Persons

Finally, the low intensity of frozen conflicts is manifest in the high number of displaced persons. Without intending to sound cynical, we address the issue of displaced persons as a characteristic of low-intensity conflicts because, unlike full-scale wars that result in a high number of casualties, frozen conflicts lead to displacement rather than direct loss of life. This is not only a consequence of the short ‘hot’ phases of the conflicts that forced people to flee violence, but also of subsequent discrimination and even ethnic cleansing during the long-lasting frozen phases of the conflicts. Most of the individuals who fled the frozen conflicts are internally displaced, as they did not leave their country of origin, but a region of their country that is under the control of separatists and their patron state. Georgians from South Ossetia and Abkhazia typically fled to undisputed Georgian territory, and Moldovans — S. 106 —fled from Transnistria to undisputed Moldovan territory. However, substantial international displacement happened in the conflict in Nagorno-Karabakh, from which ethnic Armenians fled to neighbouring Armenia. Simultaneously, Russians have immigrated to South Ossetia, Abkhazia, and Transnistria, and Armenians to Nagorno-Karabakh, at least until 2020.

The link between frozen conflicts and high numbers of displaced persons has been noted repeatedly. One author identified the number of forced displacements as a central and common characteristic of frozen conflicts.⁷⁴⁷ Deng, the UN Secretary General’s Representative on internally displaced persons, invoked the Guiding Principles on Internal Displacement in connection with frozen conflicts.⁷⁴⁸ Moreover, a number of human rights issues arising from frozen conflicts were presented to the ECtHR;⁷⁴⁹ these largely involved the rights of displaced persons and their inability to enjoy property rights. The Parliamentary Assembly of the Council of Europe has emphasized that enabling refugees and displaced persons to return voluntarily to the regions they came from remains one of the main aims of conflict settlement in Armenia, Azerbaijan, and Georgia.⁷⁵⁰

Moreover, forced displacements have impacted the demographic composition of the regions. In Abkhazia, as of 1989, the population was composed of 46% Georgians and 18% Abkhazians; the rest were Armenians, Russians, Greeks, and others.⁷⁵¹ Since then, the percentage of Georgians has gradually declined and they are no longer the largest group. The UNSC expressed the unacceptability of demographic changes in Abkhazia resulting from the conflict as early as 2003.⁷⁵² In South Ossetia, the population in 1989 was composed of 29% Georgians and 66% Ossetians; the remainder were Russians, Armenians, Jews, and others.⁷⁵³ Georgians were already a minority, and changes to the demographic composition have thus been less drastic than in Abkhazia.⁷⁵⁴ As a result of the armed conflict in 2008, 133,000 Georgians became displaced.⁷⁵⁵ The — S. 107 —UNGA has repeatedly stressed the importance of finding a solution to the problems arising from forced displacement in Georgia, stated its deep concern about ‘ethnic cleansing’⁷⁵⁶ in the disputed regions, and has repeatedly recognized the right of all internally displaced persons and refugees and their descendants to return to their homes in Abkhazia and South Ossetia regardless of their ethnicity.⁷⁵⁷ In Georgia v Russia (II), the ECtHR stressed that a large number of Georgian nationals who fled the conflict no longer reside in South Ossetia but in undisputed Georgian territory and moreover had been prevented from returning.⁷⁵⁸ It ruled that the freedom of movement of 32,000 Georgian nationals had been violated by Russia until the hearing on the merits of the case in 2018.⁷⁵⁹

In Nagorno-Karabakh, displacement has been bidirectional. The region’s pre-war population was overwhelmingly Azeri. Between 1988 and 1994, an estimated 750,000–800,000 Azeris were forced to flee the occupied regions as well as some bordering Armenian territory; they settled in undisputed Azerbaijani territory.⁷⁶⁰ At the same time, Armenian authorities registered 335,000 Armenian refugees from Azerbaijan and 78,000 internally displaced persons from regions in Armenia bordering Azerbaijan.⁷⁶¹ In 2015, the ECtHR estimated the population of Nagorno-Karabakh at between 120,000 and 145,000 people, 95% of whom were of Armenian ethnicity; for decades, hardly any Azeris resid- ed in the region.⁷⁶² The situation changed when Azerbaijan regained control over some of the occupied territory in the second Karabakh war in 2020 and total control over the region in September 2023: nearly all of the 120,000 ethnic Armenians fled, and settlement of Azeris into their former homes is planned.⁷⁶³

In Transnistria, the war in 1992 caused the internal or international displacement of approximately 130,000 persons.⁷⁶⁴ Some 80% of the prewar population were ethnic Moldovans, who had to flee, whereas those from other parts of the former USSR, especially Russians, stayed in Transnistria.⁷⁶⁵ However, — S. 108 —unlike in the other three regions, displacement in this area was temporary. People were able to return to their permanent homes, resulting in the absence of a large-scale problem.⁷⁶⁶ In the 2023 Global Report on Internal Displacement, Moldova is not mentioned, unlike Georgia and Azerbaijan.⁷⁶⁷

In summary, the military presence and occupation, the precarious human rights situation, and the displacement of hundreds of thousands of people characterise the quality of violence present in frozen conflicts. This quality of violence differs from a full-scale armed conflict, but it also differs from positive peace. The three aspects of occupation, precarity of human rights, and displaced persons thus illustrate the liminal state of frozen conflicts between war and peace. Yet, these aspects are closely linked to the involvement and activities of the patron states in these frozen conflicts: Russia in three instances and Armenia in Nagorno-Karabakh before the recent changes. It is therefore crucial to focus on Russia and analyse how its approaches to international law characterize frozen conflicts.