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, Professor Linos-Alexandre Sicilianos, Former President of the European Court of Human Rights; Professor of International Law said:
I will be addressing three issues: the prima facie jurisdiction of the Court; the plausibility of the rights whose protection is sought; and the link between those rights and the measures requested.
I. Prima Facie Jurisdiction of the Court
The first point, concerning the jurisdiction of the Court, does not need an extensive analysis.
In its Order of 7 December 2021 on the indication of provisional measures in the present case, the Court “conclude[d] that, prima facie, it has jurisdiction pursuant to Article 22 of CERD to entertain the case”. The Court saw no reason to revisit this conclusion in its Order of 22 February 2023 on Armenia’s second Request for Provisional Measures. There is no reason to revisit this conclusion now.
II. The Plausibility of the Rights Whose Protection Is Sought
This brings me to the second issue, the plausibility of the rights whose protection is sought. I need not remind the Court of its jurisprudence concerning that condition for the exercise of its power under Article 41.
In the context of the present case, the Court has already found that CERD rights Armenia sought to protect in its previous provisional measures requests were plausible.
The Court is asked to do the same here.
The present Request seeks the preservation and protection of a number of rights under Articles 2, 3, 5, 6 and 7 of CERD for the benefit of the ethnic Armenians of Nagorno-Karabakh, including: (1) the more than 100,000 who were forced to flee to Armenia; (2) the few who have remained in Nagorno-Karabakh; and (3) those who have been unlawfully detained by Azerbaijan. The myriad forms of discrimination against all these categories of ethnic Armenians are based, precisely, on their ethnicity. As such, they fall squarely within the scope of application of the Convention as defined in Article 1.
Importantly, Armenia seeks to protect the ethnic Armenians of Nagorno-Karabakh from ethnic cleansing, which plausibly implicates every substantive obligation under the CERD. I will thus address the plausible right not to be subjected to ethnic cleansing generally before discussing, for the avoidance of doubt, the particular rights under the CERD for which protection is sought individually.
A. The Right Not To Be Subjected To Ethnic Cleansing Is Plausible and the Practice Is Prohibited by All Provisions of the CERD
As recognized by the Court, the term “ethnic cleansing” is used to mean “rendering an area ethnically homogeneous by using force or intimidation to remove persons of given groups from the area”. The practice of ethnic cleansing encompasses a wide range of underlying acts, including “murder, torture, arbitrary arrest and detention, [and] extra-judicial executions”, as well as the “forcible removal, displacement and deportation of civilian population[s], deliberate military attacks or threats of attacks on civilians and civilian areas, and wanton destruction of property”. It may also be perpetrated through the destruction of “cultural and religious monuments and symbols”, or other acts of “intimidation”, for instance through the creation of adverse living conditions.
The CERD Committee itself has affirmed that practices of ethnic cleansing are “completely contrary to the spirit and the principles of the Convention”. They “constitute a grave violation of all the basic principles underlying” the CERD.
As Mr. Martin has demonstrated, nearly every ethnic Armenian has been forced out of Nagorno-Karabakh on plainly racial grounds. Azerbaijan’s history of murdering and torturing ethnic Armenians, including civilians, leaves no room for doubt. Before, during, and in the wake of Azerbaijan’s most recent attack, it espoused hatred of ethnic Armenians, created adverse living conditions in Nagorno-Karabakh, targeted civilians and civilian infrastructure, destroyed cultural and religious monuments, symbols and graveyards, arbitrarily detained ethnic Armenians, and otherwise used force and intimidation to remove them from the area. Furthermore, there are currently insufficient protections for ethnic Armenians to return, and the CERD rights of those who are still in Nagorno-Karabakh—mainly elderly and sick persons—are at imminent risk. This is also true for those of the people who have already been detained, especially leading political figures.
Because ethnic cleansing constitutes a grave violation of all the principles underlying the CERD, and because Azerbaijan is in the process of consolidating this violation, the CERD rights Armenia seeks to protect are necessarily all plausible.
B. An Examination of Each Right Claimed Individually Confirms That Each Is Plausibly Protected by the CERD
For the avoidance of doubt, however, I will now individually discuss each of the CERD rights Armenia invokes and briefly explain why they are all plausible.
First and foremost, Armenia invokes the general prohibition of discrimination contained in the chapeau of Article 2(1), together with sub-paragraphs (a), (b) and (e).
The violation of the general prohibition of discrimination under Article 2(1) is obvious. The ongoing forced displacement of nearly the entire ethnic Armenian population from Nagorno-Karabakh, including more than 30,000 children, and the lack of sufficient protections for their return is the very negation of the obligation “to engage in no act or practice of racial discrimination against persons, groups of persons or institutions”. Likewise, by perpetrating and consolidating its forced displacement of ethnic Armenians, Azerbaijan continues to “sponsor, defend or support racial discrimination” in violation of Article 2(1)(b), and strengthens racial division in violation of Article 2(1)(e).
Azerbaijan’s ongoing violation of the obligation under Article 2(2) to adopt special measures to advance effective equality is equally manifest. Despite the obvious need for special protection, President Aliyev has stated that ethnic Armenians living in Nagorno-Karabakh “will have no status, no independence and no special privilege”.
Article 3 of the Convention, for its part, prohibits “all forms of racial segregation in all countries”, as well as “all practices of this nature”. The practice of ethnic cleansing of Nagorno-Karabakh is of the same “nature” as racial segregation. Because ethnic cleansing is characterised by a level of gravity that is more severe than segregation, the right to be protected from ethnic cleansing is therefore a fortiori plausible under Article 3.
I turn now to the plausible rights of ethnic Armenians under Article 5.
Article 5(a) protects the right of equal treatment before tribunals and other organs administering justice. All ex-presidents, other high ranking officials as well as military personnel of Nagorno-Karabakh, remain in detention as we speak, on the basis of false accusations. Azerbaijan has also identified many other ethnic Armenians it plans on arresting.
Article 5(b) protects the right to security of person and protection by the State against violence or bodily harm. Yet violence and bodily harm are the trademark of Azerbaijan’s treatment of ethnic Armenians, sadly attested to by several judgments of the European Court of Human Rights, the most recent one rendered on 5 October. In the absence of an independent international monitoring mission, are they to entrust their fate on the word of the very authorities that have tortured and extrajudicially killed them for decades? There is thus an ongoing risk that ethnic Armenians will be subjected to violence and bodily harm in violation of plausible rights under Article 5(b).
Article 5(d)(i) protects the equal enjoyment of the right to freedom of movement within the borders of the State. Similarly, Article 5(d)(ii) protects the equal enjoyment of the “right to leave any country, including one’s own, and to return to one’s country”. Today, as Ms. Macdonald will develop, Azerbaijan is also taking active steps to make the right to return meaningless for the displaced. In so doing, Azerbaijan violates plausible rights under Article 5(d)(i) and 5(d)(ii).
Article 5 (d)(vii) protects the right to freedom of thought, conscience and religion. You heard from Mr. Martin about Azerbaijan’s destruction of the large cross on a hill overlooking Stepanakert. Azerbaijan has also prevented Armenians from visiting the graves of their relatives. And as explained in detail in Armenia’s Memorial, Azerbaijan has repeatedly falsified or destroyed Armenian graveyards, churches and other monuments. In so doing, Azerbaijan violates plausible rights under Article 5 (d)(vii).
I continue now with social rights and more particularly with the right to housing and the right to public health, medical care, social security, and social services, protected in Article 5(e) of the Convention.
Mr Martin referred to immediate effects of Azerbaijan’s attack on Nagorno-Karabakh’s civilian settlements, healthcare system, and other social services. As Ms. Macdonald will develop, the displaced ethnic Armenians remain in an extremely vulnerable position. The right to housing in particular is also infringed by Azerbaijan’s intention to soon begin resettling ethnic Azerbaijanis to areas previously inhabited by ethnic Armenians, as it has already done in other areas acquired during the Second Nagorno-Karabakh War. Furthermore, in the past, Armenians in Azerbaijan have not had their property rights protected, and there is every reason to believe the same is true now.
Article 6 of the Convention implies the right to a remedy for acts of racial discrimination. As amply documented in the Memorial of Armenia in the present case, and recently confirmed by the European Commission against Racism and Intolerance, effective remedies for ethnic Armenians have never been given in the past, and there is therefore a very real risk—if not a virtual certainty—that they will not be given now.
Finally, Article 7 requires States parties to take immediate and effective measures to combat prejudices which lead to racial discrimination and to promote understanding, tolerance, and friendship among nations and racial or ethnical groups, especially through teaching, education, and information. Azerbaijan has made no such efforts. On the contrary, it has continuously promoted hatred and intolerance against ethnic Armenians.
III. The Link Between the Above Rights and the Measures Requested
Let me briefly turn now to my final point: the link between all the above rights under Articles 2, 3, 5, 6 and 7 of CERD and the measures requested.
The provisional measures requested—to be analysed by Professors Murphy and d'Argent— are obviously linked to the rights whose protection is sought because the measures, if indicated, would safeguard these very rights. Stopping the ongoing forced exodus of ethnic Armenians and creating the conditions for their safe return would end the ethnic cleansing and its consolidation, which are completely contrary to the very object and purpose of the Convention. Refraining from taking punitive actions against the current or former political representatives or military personnel of Nagorno-Karabakh would also put an end to a series of flagrant and ongoing violations of article 5(b).
In a nutshell, the measures requested are all linked to the plausible rights to be adjudicated on the merits.
May I kindly ask you, Madam President, to give the floor to my colleague Ms. Alison Macdonald. I thank you for your kind attention.