The International Court of Justice (ICJ), the principal judicial organ of the UN, held public hearings on the request for the indication of provisional measures submitted by the Republic of Armenia in the case concerning Application of the International Convention on the Elimination of All Forms of Racial Discrimination, in the frameworks of “Armenia v. Azerbaijan” case on Thursday 12 October 2023, at the Peace Palace in The Hague, the seat of the Court. Session held under the presidency of Judge Joan E. Donoghue, President of the Court.
In her speech, Ms. Alison Macdonald KC, Barrister, Essex Court Chambers in particular said:
Madam President, distinguished Members of the Court, it is an honour to appear before you on behalf of the Republic of Armenia. I will explain the ongoing urgency and the risk of irreparable harm faced by the ethnic Armenians of Nagorno-Karabakh.
The brutal assault that Azerbaijan launched on 19 September has been described by the European Parliament as a “pre-planned, unjustified military attack” which “represents a gross violation of human rights and international law, and a clear infringement of the trilateral ceasefire statement of 9 November 2020”. This onslaught caused hundreds of deaths and injuries to civilians, including to children. As you have heard, over 100,000 frightened people have fled their homes, taking only what they could pack in a few minutes. In the words of one of those people, “It was so difficult to leave… I packed a handful of soil from my homeland, a photo album and some warm clothes.”
The tragedy of this displacement has barely begun to sink in. The harm caused is appalling. But we are here today because further—irreparable—harm is likely to be caused unless the Court takes immediate action. It is still possible to change how this story unfolds. The ethnic cleansing of Nagorno-Karabakh is happening as we speak. It must not be allowed to set in stone.
I. The Requirements of Urgency and Irreparable Prejudice
Starting with the law, I need not repeat the Court’s well-established case-law on the requirements of urgency and irreparable prejudice. I will only note that the Court found those conditions to be met in a previous case of forced displacement, Georgia v. Russia, where it held that “individuals forced to leave their own place of residence and deprived of their right of return could, depending on the circumstances, be subject to a serious risk of irreparable prejudice”.
The Court in that case was “of the opinion that the ethnic Georgian population in the areas affected by the recent conflict remains vulnerable”, words which could just as well refer to the 100,000 recently-displaced Armenians.
The Court went on to note “the ongoing tension and the absence of an overall settlement to the conflict in this region”, observing that “while the problems of refugees and internally displaced persons in this region are currently being addressed, they have not yet been resolved in their entirety.” As you have already heard, this would be a considerable understatement in the present case.
And all these factors led the Court in that case to conclude that “there exists an imminent risk that the rights at issue in this case mentioned in the previous paragraph may suffer irreparable prejudice”.
The same is true here.
II. Azerbaijan’s Conduct Entails Ongoing and Imminent Irreparable Prejudice to the Rights which Armenia’s Request Seeks to Protect
Mr Martin has taken you through the facts in detail, leading up to the situation on the ground today. It is truly grim.
For generations to leave their historic homeland in the space of days speaks volumes about the desperation that they felt. Heartrending accounts abound. They have travelled, crowded into cars and trucks, with the few belongings they could pack in the minutes available to them. They have lost their ancestral homes, their land, virtually everything they own. The grief and anguish of their accounts is palpable. And the shock is all the greater because, despite the grinding months of the blockade, the final attack was so swift. The fact that, quite clearly, this was Azerbaijan’s plan all along is no comfort to those who had to leave at a moment’s notice.
This afternoon, you may hear the argument that those who have fled are in Armenia now and so their rights are secure. Of course, Armenia and its people will welcome them, will help and support them as far as humanly possible, along with support from the international community.
But the point is that whatever help is given within Armenia to this vulnerable group of people, their CERD rights that are in jeopardy concern Azerbaijan. Those CERD rights depend on their ability to return safely to their homeland in Nagorno-Karabakh. To live as a community. To enjoy their culture, their language and their religion, in their ancestral homeland. And Azerbaijan is in the process of jeopardizing these rights in every way possible.
The process of ethnic cleansing is being consolidated day by day. You heard from Mr. Martin how Nagorno-Karabakh is being politically, physically and culturally swallowed up by Azerbaijan. This poses an imminent risk of irreparable harm to the whole range of CERD rights enjoyed by the ethnic Armenian population native to the region. Quite simply, the Armenian character of Nagorno-Karabakh is being destroyed, with the aim of ensuring that there is no way they can ever return.
As part of this process, Azerbaijan has a list of some 300 ‘wanted persons’, whom it seeks to hunt down. It has so far detained at least eight high-ranking persons associated with the institutions of Nagorno-Karabakh, including three former Presidents, a former State Minister, and a former Foreign Minister. They now, apparently, await trial on whatever criminal charges have been concocted against them, in circumstances where President Aliyev has described the democratically elected officials of Nagorno-Karabakh as a “criminal junta” and a “den of poison”. None of these prisoners, to Armenia’s knowledge, have been allowed access to any independent international observers, including the ICRC. And Armenia has reason to believe that Azerbaijan has detained an unspecified number of others.
The ethnic cleansing also involves a continuing attack on Armenian cultural heritage and religion, as Mr Martin pointed out. Again, this is all part of eradicating Armenian culture from the area—as though the Armenians were, quite simply, never there.
The hatred extends to the Armenian language. In a speech to members of the Azerbaijan armed forces in Shushi in 2021, President Aliyev described Armenian as an “alien language”, saying that: “From now on, no songs will be sung here in an alien language ... From now on, it will be the Azerbaijani language that will dominate this land.” And in this spirit, Azerbaijan has already begun to remove Armenian-language signs from the roads.
Against this background, Azerbaijan vaguely claims that the displaced Armenians—at least some of them, at least on conditions that Azerbaijan would set, at some unspecified future date—are free to come back and live in the multi-ethnic “paradise” that it will create.
But are the displaced to believe the claims of a regime that has displaced them, chronically discriminated against them, and has one of the worst human rights records in the world? The endemic hate speech, from the President down, along with widespread murder and torture of ethnic Armenians , are notorious. Azerbaijan’s president himself previously boasted, when he ordered the army to attack in 2020, “if they do not leave our lands of their own free will, we will chase them away like dogs”. No wonder that, in its Resolution last week, the European Parliament referred to Azerbaijan’s “alarming human rights record”, describing it as “a country that blatantly violates principles of international law as well as its international obligations.” Likewise, the European Court of Human Rights yesterday confirmed the interim measures which it indicated on 22 September, rejecting a whole range of arguments by Azerbaijan that you will likely hear this afternoon.
When you hear those arguments, we ask you to listen also to what is not being said by Azerbaijan.
There is no firm commitment to an ongoing presence of international monitors to guarantee the safe return of the displaced persons, even though this is clearly essential to their security. You may hear about the heavily stage-managed visit of the UN last week—Mr Martin has already addressed its obvious deficiencies. In any event, a brief visit cannot substitute for the ongoing presence that is so badly needed. As the UN OCHA stated on Monday, “confidence and trust are critical before the conditions for any voluntary returns to Karabakh can meaningfully be achieved.” And yet Azerbaijan claims that Armenians could simply turn up and register with the Azerbaijani authorities without any credible guarantee of their safety, supposedly trusting the very people who drove them out in the first place.
There is no mention, let alone acknowledgment, of the autonomous status which Nagorno-Karabakh has enjoyed for a century, as the Court recorded in its Order of 7 December 2021. On the contrary, and directly contrary to what it accepted in the Minsk Accords, Azerbaijan has compelled the total abolition of all of Nagorno-Karabakh’s institutions, its very existence as a legal entity, which will take effect on 1 January 2024.
There is no explanation for how ethnic Armenians are supposed to fit into Azerbaijan’s ‘Great Return’ programme, by which it intends to resettle the area with Azerbaijanis. Just two days ago, President Aliyev affirmed that “The program of the Great Return to the de-occupied territories is among our national priorities”, and announced that the next three years will see the settlement of “nearly 100,000” Azerbaijanis – yes, around the same number as the Armenians who have just been displaced.
And finally, let us not forget those who remain in Nagorno-Karabakh. The ICRC plays a critical role in assisting such individuals, as well as in locating missing persons and in identifying and retrieving the remains of the deceased. While Azerbaijan has impeded ICRC access over the past year, some access has recently occurred, and it makes a real difference. For example, earlier this month the ICRC located and assisted in Stepanakert an elderly female cancer patient who was confined to her bed. Armenia has no way of knowing how many others there may be, isolated and frightened. Given the obvious, urgent threats, as Professor Murphy will explain, Armenia seeks measures which will also protect the rights of those people from irreparable harm.
But ultimately, the fundamental need for those people is the same as for the 100,000 who have been displaced—the need for their CERD rights to be protected by ensuring that they can live lives of dignity, in their homeland, with their community, speaking their language, enjoying their property, exercising their culture. With every day that passes, the risk of irreparable harm to those rights grows greater.
III. Conclusion
In conclusion, Madam President, Azerbaijan, whose President boasted of driving ethnic Armenians out of Nagorno-Karabakh “like dogs”, now asks the Court to trust it to protect those very people. People against whom it has committed numerous atrocities, whose cultural heritage it seeks to erase, whose language it says should never be spoken. It has starved these people into submission for the past nine months, and now it claims to have their best interests at heart.
The Armenians of Nagorno-Karabakh need more than Azerbaijan’s hollow assurances-they need the protection of this Court. They need it today, not in a few years’ time when we argue these events on the merits. If events are simply left to unfold, then judging from Azerbaijan’s conduct to date, the right to return, and all that goes with it, will be worthless by the time you decide this case on the merits. By that time, the ethnic cleansing of Nagorno-Karabakh will be set in stone. But that does not need to be how this story ends. The Court’s provisional measures jurisdiction plays a vital role in ensuring that justice does not come too late. We urge you to exercise it.
