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 his speech, Sean D. Murphy Professor of International Law, George Washington University Law School in Washington, D.C., in particular, said:
Madam President, Members of the Court, we have addressed this morning the essential facts underlying Armenia’s request for provisional measures, and explained why the Court’s legal standard for issuing such measures has been met.
My task is to explain why Armenia’s first nine requests are all necessary to preserve the rights of ethnic Armenians under the CERD, leaving to my colleague, Professor d’Argent, to explain why the tenth measure is equally necessary. I will conclude by explaining why issuance of these measures would not require the Court to resolve any facts prejudicial to a decision on jurisdiction or the merits in this case.
Each Provisional Measure Requested by Armenia is Necessary to Preserve the Rights of Ethnic Armenians under the CERD
The Members of the Court may wish to refer to Tab 2 in your Judge’s Folder where you will find the ten measures that Armenia requests.
The first measure is that “Azerbaijan shall refrain from taking any measures which might entail breaches of its obligations under the CERD.” This broad measure does not seek to address a specific type of conduct, but it is warranted given the diversity of Azerbaijan’s acts that have severely jeopardized the CERD rights of ethnic Armenians.
The second measure we request is that Azerbaijan shall refrain from taking any actions aimed at, or having the effect of: first, displacing the remaining ethnic Armenians from Nagorno-Karabakh; second, preventing displaced persons from returning to their homes in Nagorno-Karabakh; or third, preventing those who wish to leave Nagorno-Karabakh from doing so.
This measure is, in essence, about the freedom of movement of ethnic Armenians in relation to Nagorno-Karabakh. The Court has ordered similar measures in the past, including in the Georgia v. Russia CERD case, where it ordered that the government controlling territory must ensure to the local citizens of that State the right “of persons to freedom of movement and residence within the border of the State”.
Azerbaijan has already taken numerous adverse steps that have promoted the displacement of ethnic Armenians and prevented their return. As Mr. Martin explained, following the nine-month long blockade that caused a humanitarian crisis in Nagorno-Karabakh, Azerbaijan attacked the enclave, targeting numerous civilian structures, including homes and schools. That attack, combined with the fear of inevitable atrocities that would follow, and with the history of extreme discrimination against ethnic Armenians, forced the displacement of more than 100,0000 ethnic Armenians residing in Nagorno-Karabakh at the time of the attack, including more than 30,000 children. Azerbaijan must be ordered to refrain from any such conduct.
At the same time, Azerbaijan has not taken meaningful steps to allow any possibility of return. Azerbaijan assures us that it will afford ethnic Armenians in Nagorno-Karabakh “all rights and freedoms in line with its Constitution and relevant international human rights mechanisms,” Yet such vague assurances are simply not enough to bring about the necessary conditions for return in this context, given the long-standing and well-documented hatred towards ethnic Armenians and given the lack of any assurances: that civilians will not be prosecuted if they return; that ethnic Armenians will enjoy meaningful political representation; that homes which were destroyed will be rebuilt or repaired; or that those homes remaining intact will not be reassigned to Azerbaijanis. Moreover, a promise of “reintegration” does not respect Nagorno-Karabakh’s unique historical status, including as an autonomous oblast within the Soviet Union. To the contrary, President Aliyev has promised that “Armenians living in Karabakh will have no status, no independence, and no special privilege”. Azerbaijan’s vague assurances and unhelpful promises also ring hollow in the face of Azerbaijan’s conduct on-the-ground, such as threatening Armenian cultural heritage in areas newly under Azerbaijan’s control. Of course, future steps by Azerbaijan must also allow any ethnic Armenians in Nagorno-Karabakh to leave if they are able and willing to do so.
The third measure we request is that “Azerbaijan shall withdraw all military and law-enforcement personnel from all civilian establishments in Nagorno-Karabakh occupied as a result of its armed attack on 19 September 2023.”
The Court will note we are only requesting that the Azerbaijan military and law enforcement personnel withdraw from “civilian establishments” in Nagorno-Karabakh, meaning establishments that are not military or law-enforcement installations. This request is intimately related to the circumstances that led to the massive displacement of ethnic Armenians and any possibility for their return. Unless such personnel are withdrawn from the civilian establishments of Nagorno-Karabakh—to include its residential communities, civic buildings, schools, medical facilities, and places of worship—ethnic Armenian civilians, all too familiar with the past atrocities committed by Azerbaijani government personnel, will continue to feel afraid of living in or returning to Nagorno-Karabakh.
Indeed, reports and videos have now emerged of Azerbaijani personnel shooting at civilian homes, ransacking those homes, and looting private belongings —these being the same military personnel previously seen on video and photographs beheading, torturing and otherwise abusing ethnic Armenians. And sadly, these are the same military personnel that, instead of being prosecuted by Azerbaijan, are rewarded and their acts glorified.
The fourth measure we request is that Azerbaijan refrain from impeding the access of the United Nations to the ethnic Armenians of Nagorno-Karabakh, or otherwise interfering in UN activities.
The only way to guarantee that ethnic Armenians will feel safe in returning and remaining in Nagorno-Karabakh is for a UN monitoring mission to be granted ongoing, unfettered and unimpeded access to the entirety of the region and to the ethnic Armenian community found there. Moreover, such a mission should include representatives from UNESCO, which Azerbaijan has previously blocked from visiting Armenian cultural sites. In fact, a proposal for such a UN monitoring mission has received wide support from the international community over the past two weeks but, as Ms. Macdonald explained Azerbaijan has failed to commit to it.
Azerbaijan will surely make much this afternoon of its consent since the September attack to very limited and very brief access to Nagorno-Karabakh by a few UN personnel. But as Mr. Martin noted, this is not the type of UN mission that the international community insists is required. To ensure full protection of the rights of ethnic Armenians under the CERD, what is needed is an ongoing and unhindered UN mission, one that is allowed full transparency as to what is happening in the region, and not limited scope visits.
The fifth measure we request is that Azerbaijan likewise refrain from taking any steps that impede humanitarian assistance by the ICRC to ethnic Armenians in Nagorno-Karabakh, and instead actively cooperate with the ICRC to that end. As Ms. Macdonald indicated, the ICRC plays a pivotal role in three key areas: first, ensuring that the few ethnic Armenians remaining in Nagorno-Karabakh are located, provided for, and, if needed, transported to Armenia for safety; second, finding missing persons and retrieving the remains of deceased individuals; and third, visiting detained Armenians in Azerbaijan, which thus far it has not been permitted or able to do. Yet Azerbaijan has a demonstrated practice of impeding the work of the ICRC, including during the aftermath of the 2020 War, when it hindered the ICRC’s access to the detained civilians and POWs, and more recently, when it impeded the ICRC from transporting humanitarian aid, and even kidnapped ethnic Armenians who were being transported by the ICRC to Armenia during the blockade. Given this history, while there is some evidence of limited ICRC access to Nagorno-Karabakh today, an unequivocal provisional measure from the Court on this issue is essential.
The sixth measure we request is that Azerbaijan immediately restore public utilities to Nagorno-Karabakh and refrain from disrupting them in the future.
As Mr. Martin noted, the ethnic Armenians of Nagorno-Karabakh were exposed to darkness and frigid temperatures for months, as Azerbaijan interrupted and at times completely suspended the provision of gas and electricity from Armenia to the region. While supply of both gas and electricity to the region has begun to be restored, the electricity and the gas pipelines are now supplied from Azerbaijan, and not from Armenia. Thus, Azerbaijan now has complete control over their provision of these public utilities to Nagorno-Karabakh, and yet there is nothing to assure ethnic Armenians that Azerbaijan will not once again arbitrarily cut them off.
The seventh measure we request is that Azerbaijan refrain from taking punitive actions against the current or former political representatives of Nagorno-Karabakh, as well as its military personnel. By not taking punitive actions, Armenia means actions that seek to punish such individuals simply because they sought to represent and protect the ethnic Armenians of Nagorno-Karabakh, or to punish them through the denial of CERD-protected rights, including the rights under Article 5(b) discussed by Professor Sicilianos.
As noted by Professor Sicilianos and Ms. Macdonald, Azerbaijan has already detained at least eight high-ranking current and former leaders of Nagorno-Karabakh, as well as an unspecified number of former and current military personnel. Moreover, Azerbaijan has purportedly identified hundreds of other ethnic Armenians that it plans to arrest.
There is, as the Court is well aware, a long-standing and well-documented history of mistreatment by Azerbaijan of ethnic Armenian detainees and prisoners of war. Azerbaijan must thus be ordered to refrain from any action that targets these individuals simply based on their role as democratically-elected representatives or as persons charged with the maintenance of security, and further to respect and protect their fundamental human rights.
The eighth measure we request is that Azerbaijan “shall not alter or destroy any monument commemorating the 1915 Armenian genocide or any other monument or Armenian cultural artefact or site present in Nagorno-Karabakh”.
Despite the Court’s December 2021 Order, Azerbaijan continued to vandalize and destroy Armenian cultural sites in areas they took control of after the 2020 War. There is every reason to believe that Azerbaijan will proceed in the same way now that it has taken control of the entirety of Nagorno-Karabakh. In fact, as you heard from Mr. Martin, just two weeks ago Azerbaijani military forces opened fire on the 13th century Charektar Monastery and dismantled a large Armenian cross overlooking Stepanakert. Of particular concern, as Armenia noted in its Memorial, Azerbaijan does not consider any of the hundreds of ethnic Armenian cultural sites in Nagorno-Karabakh to be Armenian. As such, there is nothing suggesting that Azerbaijan will refrain from altering the character of these sites, or from destroying them altogether. A Court Order in this regard is thus imperative to protect the remaining Armenian cultural artefacts and sites in Nagorno-Karabakh.
The ninth measure we request is that Azerbaijan give effect to, and not destroy, civil registers, identity documents and property titles and registers established by the authorities of Nagorno-Karabakh.
Azerbaijan has made no secret of its “Great Return” plan, which seeks to resettle Azerbaijanis to the parts of Nagorno-Karabakh now controlled by Azerbaijan. This plan is already in motion in places Azerbaijan took over after the 2020 War, and there is every reason to believe that Azerbaijan will now expand it to the whole region.
In pursuing this goal of resettling Azerbaijanis, Azerbaijan must ensure that it does not prevent the return of ethnic Armenians who were forced to flee their homes and businesses, yet this would occur if Azerbaijan destroys property records and civil registers, or—as Professor d’Argent will discuss—if Azerbaijan supersedes such records though some new registration process. Armenia has detailed in its Memorial the difficulties ethnic Armenians have experienced historically throughout Azerbaijan in having their property rights respected.
As previously noted, I leave the presentation on the tenth measure that Armenia requests to Professor d’Argent. But I wish to stress that all of the measures we seek are necessary notwithstanding the Court’s prior Orders in this case. Virtually all of the measures we now request have no express analogue in the December 2021 Order, such as those addressing the return of ethnic Armenians to Nagorno-Karabakh or the taking into custody of high-ranking civilian leaders during this past month.
Our request concerning protection of cultural heritage is the one exception in this regard. In 2021, the Court ordered Azerbaijan to “[t]ake all necessary measures to prevent and punish acts of vandalism and desecration affecting Armenian cultural heritage”. Our current request, in essence, asks the Court to reaffirm the meaning of its previous Order, a necessary step given that Azerbaijan has resisted that Order, claiming that it does not cover any “alteration” or “reconstruction” of Armenian cultural heritage sites. And, for the avoidance of doubt, it is important to stress in this measure that Azerbaijan not “alter or destroy any monument commemorating the 1915 Armenian genocide”, given the presence of such monuments in the areas now under Azerbaijani control. This is all the more so given that Azerbaijan is one of the few countries that denies the Armenian Genocide and has previously destroyed Armenian monuments commemorating the Genocide. The new circumstances and the irreversible nature of destroying cultural heritage makes it imperative the Court issue a provisional measure on this issue.
Indeed, the new circumstances that have now unfolded make imperative all of the measures we request, so as to clearly target and reinforce Azerbaijan’s obligations in the context of the present crisis. The Court has viewed the existence of “new circumstances” to warrant issuance of new or supplementary provisional measures, as you found when issuing further measures in this case to address Azerbaijan’s conduct concerning the Lachin Corridor. The context in which Armenia comes before you today is dramatically different from what existed when the Court issued its Orders in 2021 and early 2023, thereby necessitating the issuance of the targeted and updated measures that we seek.
Moreover, if Azerbaijan is to be believed when it says no harm will come to the ethnic Armenians of Nagorno-Karabakh – which this past month some 100,000 of them have sadly and painfully demonstrated they do not believe – then Azerbaijan should have no concern with the Court’s issuance of these provisional measures. Rather, it is Azerbaijan’s protestations as to such measures that demonstrates why they are so desperately needed.
The Issuance of the Provisional Measures Requested Does Not Require Resolving Any Facts Prejudicial to Decisions on Jurisdiction or the Merits in This Case
Madam President, Members of the Court, my last point is that the Court’s issuance of the measures that Armenia requests would not require the Court to resolve any facts that would be prejudicial to decisions on jurisdiction or the merits in this case.
After you hear from Azerbaijan’s counsel this afternoon – with references no doubt to the many exhibits they produced just two days ago – you may conclude that there are disputed facts that should not be resolved at this stage in the proceeding. Yet the core facts relevant to the measures we request are not in dispute. More than 100,000 ethnic Armenians have fled Nagorno-Karabakh. They are not on vacation. And there can be no dispute that they would like to be able to return to their homes and live their lives peacefully, in a land that their ancestors have indigenously occupied for millennia, if their rights and security can be assured.
Armenia has demonstrated that they fled because they fear for their lives, fear for their homes, and fear being taken into custody. While Azerbaijan will certainly dispute the reasons for its military actions, there can be no dispute that more than 100,000 ethnic Armenians are currently displaced, still others remain highly vulnerable, and that measures must be put in place to ensure respect for their rights under the CERD.
Given those undisputed facts, it matters not how Azerbaijan justifies its actions, for today what we are facing is a massive crisis of displaced persons and other tragedies. This is precisely the type of situation where the Court must issue provisional measures, so as to protect an ethnic group from any denial of their CERD rights, pending the Court’s disposition of this case on the merits.
