Author: Emma Jilavian

HUMAN RIGHTS

In October 2021, the International Court of Justice, the principal judicial organ of the United Nations, heard from both Armenia and Azerbaijan in cases each brought against the other for alleged violations of the International Convention on the Elimination of All Forms of Racial Discrimination (CERD). Armenia has accused Azerbaijan of violating the convention with its ongoing campaign of ethnic persecution and violence against Armenians, which has included arbitrary detention, torture, and murder. Azerbaijan has accused Armenia of ethnic cleansing in violation of the convention by refusing to provide Azerbaijan maps of land mines on its territory and allegedly continuing to plant land mines in the territory. The court heard arguments from the parties in mid October 2021 and issued notable rulings on Dec. 7, 2021, installing provisional measures to protect certain rights of both parties under the CERD. 

However, since those measures were issued, renewed fighting has broken out as Azerbaijan has shifted troops into Armenian villages in Nagorno-Karabakh—a move the U.S. State Department has said is “unnecessarily provocative.” Azerbaijani forces were observed approaching Armenian villages with loudspeakers urging the inhabitants to evacuate and then advancing into the area under the control of Russian peacekeepers. The Azerbaijani advance killed three local Armenian servicemen and wounded 15 others in a reported drone strike, forced the evacuation of one Armenian village, and allowed Azerbaijani forces to take strategic heights overlooking others. Further, a crucial pipeline supplying gas to the Armenian population in Karabakh was cut off on Azerbaijani-held territory, leaving residents without heat for two weeks. Most recently, on May 28, Azerbaijani units invaded the sovereign territory of Armenia, occupying an area of more than 17 square miles in the Sotk-Khoznavar section.

The parallel cases have the potential to shift negotiations in a conflict that has long been stalemated, but it could also set a new precedent for how to adjudicate human rights disputes. How it will affect diplomacy between Armenia and Azerbaijan, and how it will affect international human rights and humanitarian law, will depend on how the cases proceed. Armenia and Azerbaijan have now each presented their allegations regarding the other’s violations of the CERD, and the court has responded to their initial requests for provisional measures—court orders interceding to prevent potential further abuses. Final judgments in the case, though, are likely years away and the conflict will not wait for the ICJ’s deliberations. Recent escalation along the Armenia-Azerbaijan border is already changing the context in which the cases are being decided.

The ICJ’s Role 

The cases between Armenia and Azerbaijan began in fall 2021. Armenia submitted its application on Sept. 16, 2021; Azerbaijan followed suit a few days later, filing its own application on Sept. 23, 2021. Both allege violations of the CERD stemming from the ongoing conflict between the two states.

The conflict has complex historical roots. In fall 2020, Armenia and Azerbaijan engaged in 44 days of fighting in the disputed territory of Nagorno-Karabakh (known to Armenians as Artsakh). Armenia places its death toll at 3,773 Armenian servicemen, with the fate of 243 soldiers unknown and many prisoners yet to return home from Azerbaijan. Azerbaijan has reported that 2,783 of its soldiers were killed during that time. Now, both countries allege that the other violated the CERD by engaging in ethnically motivated violence and persecution. The two countries signed a cease-fire agreement in November 2020, but both allege that violations of the CERD are ongoing. 

While the conflict between the two states was ripe with alleged violations under other international conventions, such as the Geneva Conventions (which regulate wartime conduct, including the treatment of prisoners of war) and the International Covenant on Civil and Political Rights (which includes the right to life), the CERD provides ICJ jurisdiction whereas the others do not. The CERD is meant to deter and punish racial discrimination and demands that each state party engages in no act of racial discrimination against any group, refrains from sponsoring or defending racial discrimination by any persons, takes effective measures to ensure no policy or law perpetuates racial discrimination, and prohibits and terminates racial discrimination by any person or organization.

According to Articles 36 and 37 of the statute that established the ICJ’s powers, the ICJ has jurisdiction to hear cases referred to it by parties to the ICJ statute, and all matters specially provided for in the U.N. Charter or in treaties and conventions in force, including the CERD. Proceedings for cases may be initiated in two ways: through the notification of a special agreement or by means of an application. Special agreements are bilateral in nature, whereas applications are unilateral documents submitted to the court by one state against another. 

The procedure for ICJ cases is laid out in Chapter III of the ICJ statute. As an initial matter, the court, which comprises 15 judges, hears the states’ arguments requesting “provisional measures”—much like preliminary injunctions in U.S. courts—to preserve the rights of either party. Because the court’s ultimate decisions usually take years to reach, provisional measures are granted if the court determines there is a need to preserve the respective rights under the treaty if there is a risk of irreparable harm to either party during the pendency of the case. The court grants provisional measures more quickly, typically taking between a few weeks and a few months to reach a decision. 

Before issuing provisional measures, the court must decide whether it has prima facie jurisdiction over a case. Particularly for the CERD, to establish the court’s prima facie jurisdiction at the provisional measures stage, the parties must show two things: that there is a prima facie dispute between them regarding the proper interpretation or application of the CERD, and that they engaged in good-faith negotiations to attempt to resolve the dispute as required under Article 22 of the CERD. If these conditions are met, the parties are allowed to seek recourse at the ICJ, and the ICJ can issue provisional measures and then assess the merits of the case. 

Consideration of the merits of the case consists of two parts: written and oral. Unlike other court systems, the ICJ’s decision is binding only between the parties before it, and only with respect to that particular case. The judgments of the ICJ are final, and there is no mechanism for appeal.

The ICJ is not the only place to resolve disputes arising under the CERD. Articles 11 through 13 of the CERD detail processes to resolve disputes within the mechanisms of the CERD through the appointment of an ad hoc conciliation commission. Recent cases before the ICJ for CERD violations have occurred simultaneously with ongoing committee proceedings. Three cases have gone to the ICJ for violations of the CERD: Ukraine v. Russia, Georgia v. Russia, and Qatar v. UAE. In each of these cases, the court had the opportunity to throw out the cases because they had not been brought before the CERD’s dispute resolution mechanisms, the U.N. body that monitors state implementation of the CERD, but in each case, the ICJ chose to proceed anyway. This should not be surprising; the CERD committee itself has ruled that a state can bring a case to the ICJ and the CERD committee at the same time. 

But none of these cases offers much of a hint about what might happen in the cases between Azerbaijan and Armenia. Georgia v. Russia was dismissed on fact-specific grounds—namely, because Georgia had not engaged in the required negotiations with Russia before bringing the case to the ICJ. And in Qatar v. UAE, the court held, again based on facts specific to that dispute, that the ICJ did not have jurisdiction over the case. Ukraine v. Russia might be the most similar, but the case is still pending; at present, the court has established provisional measures for Russia to take to prevent any risk of irreparable harm in the interim before a decision on the merits is reached. 

Armenia’s and Azerbaijan’s Cases

In October 2021, the ICJ heard from both Armenia and Azerbaijan in cases each brought against the other for alleged violations of the CERD, particularly Articles 2 through 7. 

Armenia accused Azerbaijan of violating the convention through its continued campaign of ethnic persecution and violence targeting Armenians, including arbitrary detention, torture, and murder. Armenia’s allegations include that Azerbaijan:

• Engaged in ethnic cleansing of Armenians (a violation of CERD Articles 2-7).
• Glorified, rewarded, and condoned acts of racism against and inhumane treatment of Armenians (Articles 2, 4, and 5(b)).
• Disseminated ideas based on racial superiority and promoted propaganda that included racial discrimination and incitement to racial hatred (Article 4). 
• Facilitated, tolerated, and failed to punish and prevent hate speech targeting Armenians (Articles 2 and 4),
• Systematically destroyed and falsified Armenian cultural sites and heritage (Articles 2, 4, 5, and 7).
• Restricted the operation of nongovernment organizations and arrested, detained, and sentenced human rights activists working toward reconciliation with Armenia and Armenians (Articles 2(1)(c) and 2(1)(e)).
• Failed to take necessary and effective measures to eliminate racial discrimination and combat prejudices (Article 2(1)(d), 2(2), and 7).
• Deprived Armenians, including Armenian prisoners of war, hostages, and other detained persons, of the equal enjoyment of their individual rights (Articles 2 and 5).
• Failed to provide Armenians with equal treatment and effective protection and remedies through competent national tribunals and other state institutions, or to uphold the right to seek just and adequate reparation or satisfaction for damage caused by acts of racial discrimination (Articles 2, 5(a), and 6). 

In its case, Azerbaijan leveled its own slate of allegations against Armenia. In particular, it accused Armenia of:

• Ethnic cleansing by denying Azerbaijan maps of land mines on its territory and allegedly continuing to plant land mines in Nagorno-Karabakh (Articles 2-7). 
• Engaging in an ongoing campaign to incite ethnic violence against Azerbaijanis through cyber disinformation, support of anti-Azerbaijani hate groups, and government-orchestrated anti-Azerbaijani propaganda and hate speech (Articles 2, 3, and 5). 
• Engaging in a “systematic campaign of ethnic cleansing to purge Azerbaijanis and any trace of Azerbaijani history or cultural heritage,” including blocking Azerbaijani return and facilitating the settlement of Armenians in disputed territory (Articles 2 and 5). 

Based on these allegations, both Armenia and Azerbaijan have filed requests for provisional measures, arguing that they are at risk of irreparable harm without the court’s intervention. 

In the proceedings for Armenia’s request for provisional measures, Armenia made three requests. First, Armenia requested that Azerbaijan release all Armenian prisoners of war and detainees, and ensure that all detainees are treated in compliance with the CERD until their release. In support of this request, Armenia maintained that Azerbaijan continues to detain 42 Armenian prisoners of war and three Armenian civilians in violation of the CERD’s provisions that protect persons against bodily harm or violence by the state. (A few days after this proceeding, Azerbaijan released five Armenian prisoners of war.) Armenia offered evidence that a large number of detainees had been subjected to torture, degrading treatment, and abuse by Azerbaijan, and referenced numerous corroborating reports by independent organizations that the prisoners of war and civilian detainees have been subjected to to stabbings, beatings, burnings, and electric shocks. Such treatment, Armenia stated, was often accompanied by ethnic slurs and other hate speech. 

Azerbaijan countered that these individuals are properly detained because they have been charged with crimes in Azerbaijan under Azerbaijani law, such as espionage, illegal border crossing, and terrorism. It further argued that Armenia cannot prove a violation of the CERD because it cannot provide evidence of ethnic discrimination. However, Armenia preemptively responded to this argument by suggesting that all the evidence points toward ethnic discrimination and that, on the basis of that evidence, no other body considers the Armenian prisoners to be legitimately held by Azerbaijan, citing to U.N. human rights experts, the Parliamentary Assembly of the Council of Europe, and the European Parliament, among others.

In its second request, Armenia asked that Azerbaijan be required to shut down the Military Trophies Park, which Azerbaijan created after the 2020 round of conflict to glorify Armenia’s defeat. Armenia alleged that the park, which contained helmets of deceased Armenian soldiers and mannequins that depicted Armenians as ugly and cowardly, is a violation of the CERD. During the hearings in mid-October, Azerbaijan removed the mannequins and helmets from the park. But the rest of the display remains, which Armenia has argued is representative of the kind of hate speech prohibited by the CERD.

In its third request, Armenia said there is an urgent need to preserve Armenian cultural heritage, monuments, and landmarks on territory under Azerbaijani control, which should be protected by the CERD. Armenia stressed that the provisional measures were urgently needed, citing Azerbaijani President Ilham Aliyev’s anti-Armenian remarks before the U.N. General Assembly in September and Azerbaijan’s destruction of Armenian cultural heritage sites. Azerbaijani government officials have denied such acts on the grounds that “non-existing sites or cemeteries cannot be destroyed.” The fact that Azerbaijan has not allowed UNESCO access to the cultural heritage sites under its control has further fueled Armenia’s insistence that provisional measures are perhaps the only potential safeguard at this point. 

Azerbaijan also requested that the ICJ implement provisional measures. In the proceedings for Azerbaijan’s request, Azerbaijan (like Armenia) made three central requests. The first request was that Armenia be compelled to enable Azerbaijan to remove land mines laid in Azerbaijan’s territory. Azerbaijan suggested that this could be made possible by Armenia providing land mine maps for the regions newly under Azerbaijan’s control since the cease-fire agreement in late 2020. Armenia and Azerbaijan placed land mines in Nagorno-Karabakh, and Azerbaijan is now requesting the maps of where Armenia’s were placed. Azerbaijan further requested that Armenia be barred from planting additional mines in Azerbaijan’s territory. Azerbaijan argued that this is relevant to the CERD because Armenia’s use of land mines is intended to target Azerbaijanis. 

Azerbaijan next requested that Armenia be obligated to prevent organizations, specifically the volunteer civil defense and paramilitary training organization VOMA, from engaging in the incitement of racial hatred against Azerbaijanis. VOMA is, per its website, “a non-governmental militant nationalist movement that aims to strengthen the defences of the Republic of Armenia and raise the spirits of the Armenian people.” Azerbaijan asked that any statement of racial discrimination by VOMA be suppressed or condemned by Armenia, or at least not sponsored or supported by the government. 

Finally, Azerbaijan presented evidence to the ICJ of abuses against Azerbaijanis by Armenians motivated by ethnic hatred.

Additionally, both countries requested that the other provide a report to the court about measures taken to give effect to the provisional measures, prevent the destruction of evidence, and refrain from any measure that might aggravate, extend, or make more difficult the dispute’s resolution.

The ICJ’s Decisions

In early December, after ruling prima facie jurisdiction was proper, the court issued its judgments in both cases. 

In its judgment for Armenia v. Azerbaijan, the court held that at least some of the alleged acts by Azerbaijan may violate the CERD and therefore ordered Azerbaijan to take certain actions while the case is being adjudicated. Specifically, the court held that Azerbaijan must (a) prevent any harm to individuals captured in 2020 who remain in detention, and ensure their security and equality before the law; (b) take all necessary measures to prevent the incitement and promotion of racial hatred and discrimination, including by its officials and public institutions, targeted at persons of Armenian national or ethnic origin; and (c) take all necessary measures to prevent and punish acts of vandalism and desecration affecting Armenian cultural heritage, including but not limited to churches and other places of worship, monuments, landmarks, cemeteries, and artifacts.

With regard to the first measure, Judge Abdulqawi Ahmed Yusuf issued a dissent expressing his doubt that such a measure could be indicated under the CERD without evidence that these persons continue to be detained because of their national or ethnic origin. Yusuf also expressed his dissent with regard to the third measure, explaining that the CERD does not protect cultural property and worrying that this decision would set a precedent for turning the CERD “into a receptacle in which all sorts of asserted rights may be stuffed.” Judge ad hoc Kenneth Keith joined in Yusuf’s dissent on the last point, asserting that considerations of race and racial discrimination cannot and do not apply to the protection of monuments, groups of buildings, sites, and artifacts. 

With regard to the Military Trophies Park exhibits, the court did not issue a measure, instead taking cognizance of Azerbaijan’s representations at oral argument that it would close the park. The court concluded this judgment by reiterating that both parties should ensure the non-aggravation of their dispute. 

In its judgment for Azerbaijan v. Armenia, the court held that Armenia must “take all necessary measures to prevent the incitement and promotion of racial hatred, including by organizations and private persons in its territory, targeted at persons of Azerbaijani national or ethnic origin.”

The court found that Azerbaijan’s request for Armenia to stop laying land mines and to hand over maps of mines fell outside the scope of the CERD. Similarly to its judgment in Armenia v. Azerbaijan, the court found unwarranted the provisional measures requested by Azerbaijan to direct Armenia to prevent the destruction and ensure the preservation of evidence and to provide regular reports on the implementation of provisional measures. The court also concluded this judgment with another indication that both parties should ensure the non-aggravation of the dispute. Armenia and Azerbaijan were both mandated to refrain from any further potential violations of the CERD as the court moves into the merits phase of the proceedings. 

The Conflict Won’t Wait for the ICJ

This initial order deals only with prima facie jurisdiction and provisional measures. Now the discussion will turn to the remedies requested and relief sought. Azerbaijan’s request for relief asked that Armenia “make full reparation to Azerbaijan, including compensation in an amount to be determined in a later phase in these proceedings, for the harm suffered as a result of Armenia’s actions in violation of the CERD.” Armenia also presented a similar request, suggesting that Azerbaijan be obliged to make reparation for the injury caused by any intentionally wrongful act, including:

(1) by way of restitution, allowing the safe and dignified return of displaced Armenians to their homes, and restoring or returning any Armenian cultural and religious buildings and sites, artefacts or objects; (2) providing additional forms of reparation for any harm, loss or injury suffered by Armenians that is not capable of full reparation by restitution, including by providing compensation to displaced Armenians until such time as it becomes safe for them to return to their homes.

Further, Armenia requested that Azerbaijan acknowledge its violations of the CERD and provide an apology to Armenia and Armenian victims of Azerbaijan’s racial discrimination. 

The merits stage of the procedure, which entails written memorials submitted to the court, has now begun and is the phase in which the requests for relief and remedies will be addressed. This stage is likely to take years, and it is unclear what will happen in the interim. While the court has asked Azerbaijan and Armenia not to further aggravate the conflict, the situation has continued to evolve. On Nov. 16, 2021—a month after oral arguments—fighting broke out along the Armenia-Azerbaijan border, prompting talks convened by Russia in Sochi to try to restore stability. In December, Azerbaijan released two tranches of Armenian prisoners of war—20 soldiers in total—in exchange for Armenia providing maps of minefields in Nagorno-Karabakh. 

The conflict has escalated again since the start of Russia’s invasion of Ukraine. Violations of the cease-fire agreement became prevalent in early March. By the end of the month, Russia condemned Azerbaijan’s violations of the agreement, particularly with regard to Azerbaijan’s incursion into areas under the responsibility of Russian peacekeepers. In response, Azerbaijan declined to leave, claiming the village as part of its sovereign territory. Armenians from Parukh and the surrounding areas reported that Azerbaijani forces had begun broadcasting orders in Armenian on loudspeakers, instructing the Armenian population to leave. Around the same time, the main gas pipeline supplying fuel to Armenian villages in Karabakh stopped functioning due to damage that occurred in a section of the pipeline in Azerbaijani territory, halting the flow of gas used for heating in Armenian towns during a period of freezing temperatures. The pipeline was restored, but natural gas supply stopped a few weeks later, reportedly due to damage to the gas pipeline in the same area. The Armenian Ministry of Foreign Affairs estimated that 120,000 residents of Karabakh were left in freezing temperatures without heat. 

Azerbaijaini forces also made physical incursions into areas of independent Karabakh, briefly occupying the village of Parukh, which was evacuated. Three Armenian soldiers reportedly died in the fighting, with many more wounded. Azerbaijani forces also carried out four drone strikes against Karabakh forces near Parukh using Turkish Bayraktar drones and shelled other areas in Karabakh.

The resumption of armed clashes has coincided with new allegations of destruction of Armenian cultural sites. In late March, Azerbaijani forces destroyed a historic Armenian church in contravention of the provisional measure to prevent such acts of vandalism or destruction. Then, in April, Azerbaijan removed the dome of a historic Armenian cathedral and, in May, announced plans to convert a historic Armenian church into a mosque. The European Parliament responded in April by condemning Azerbaijan’s erasure of Armenian heritage. Most recently, Azerbaijan has allegedly advanced significantly into Armenia proper and further threatened Armenia’s border security and sovereignty, although Azerbaijan denied this the next day. Azerbaijan has reported fewer potential breaches of the provisional measures but has claimed that Armenia has violated the terms by attempting to provoke Azerbaijani troops and illegally invade Azerbaijani regions in Nagorno-Karabakh. Additionally, Azerbaijan has accused Armenia of trying to aggravate the border situation by firing on the Azerbaijani cities of Tovuz and Kalbajar.

Despite this pace of events, there has been little news from the ICJ. The most recent announcement about the case was in late January, when the court set deadlines for the submissions of memorials and counter-memorials for the next phase. These deadlines demonstrate how prolonged the process will be—memorials will not be due until Jan. 23, 2023, and counter-memorials, not until Jan. 23, 2024. There may be news sooner than 2023, though, if the parties bring a claim of breach before the court. Article 41 of the ICJ statute indicates that provisional measures create legal obligations. According to Article 78 of the ICJ rules, the court can assess compliance with provisional measures to decide if there was a breach of an obligation derived from the measures. The ICJ statute then requires a notification to the Security Council, and the court could eventually find a state responsible for noncompliance. Additionally, in 2020 the court adopted a new Article 11 that establishes an ad hoc committee composed of three judges that will assist the court in monitoring the compliance with and implementation of provisional measures. To take advantage of this new provision, Armenia and/or Azerbaijan would need to supply information to the committee for review, and the committee would then recommend potential options to the court in its periodic reports. It is possible that either party could bring claims regarding alleged breaches of compliance with indicated provisional measures before the committee for review. 

Precedents and Potential Breakthroughs 

Despite the continued hostilities, the decision to issue provisional measures in these cases (and the potential decision adjudicating new claims about violations of provisional measures, as well as the prospect of an overall decision in these cases) is important not only for, it is hoped, mitigating an intractable conflict but also for the future of the ICJ as a forum for adjudicating human rights violations and enforcing human rights obligations. The ICJ is typically known for resolving disputes between states that arise from bilateral agreements under ICJ jurisdiction that countries voluntarily submitted to the court for dispute resolution. For example, two pending cases at the ICJ focus on matters of territory—the delimitation of the continental shelf between Nicaragua and Colombia beyond 200 nautical miles from the Nicaraguan coast (Nicaragua v. Colombia) and a dispute over the status and use of the waters of the Silala River (Chile v. Bolivia). The ICJ is certainly able to hear disputes over human rights treaties, like the CERD, but that has been less common at the ICJ because states often don’t agree to ICJ jurisdiction. One reason a state might not want to bring a case before the ICJ for breaches of international human rights law or international humanitarian law in a conflict to which they were party is the fear of reciprocal claims being hurled at them. The cases brought by Armenia and Azerbaijan are noteworthy because they seem to be opening the door to a new avenue for enforcement of human rights treaties. While treaty bodies like the CERD have their own dispute resolution mechanisms, they are rarely used, and when they are, they offer only communications to states or quasi-judicial judgments that have no binding effect. The ICJ could become a more regular forum for these kinds of disputes when states want binding decisions and remedies. 

As for the protracted conflict between Armenia and Azerbaijan, the conflict has been at a stalemate for almost 30 years. Although Turkey has intervened through informal processes, like providing arms and mercenaries to Azerbaijan, and countries such as France, Russia, and the United States have contributed through more formal processes—including engaging in diplomacy through the OSCE Minsk Group and Russia’s placing troops on the ground and participating in trilateral cease-fire agreements—there has been little to no improvement in the situation on the ground or in the relations between the countries for more than 30 years. The situation is fragile, but at least a binding decision from the ICJ might bring a more neutral third party into the diplomatic process, changing the actors from the current deadlock among Azerbaijan (along with Turkey), Armenia, and Russia. If nothing else, the ICJ’s actions will bring international attention to the conflict. The provisional measures have been promising for both countries, and the opportunity to resolve claims through formal international legal means is an avenue neither country has yet explored but that potentially has something new to offer.

• @Anoush_B

https://www.lawfareblog.com/nagorno-karabakh-conflict-goes-court-0