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, Lawrence H. Martin, Senior Counsel at Foley Hoag's International Litigation & Arbitration department, said:
It is a privilege to appear before you on behalf of the Republic of Armenia. As our Agent just said, I will be explaining the facts compelling Armenia’s request for provisional measures.
The Background to Azerbaijan’s 19 September Assault
To understand the urgency of the situation before you, to understand the very grave risk of irreparable prejudice resulting from Azerbaijan’s 19 September assault on Nagorno-Karabakh, some context is necessary. None of this is happening in a vacuum. Virtually the entire ethnic Armenian population of Nagorno-Karabakh—more than a hundred thousand people—have been forced to abandon their homes. They did not simply pick up and leave everything they have ever known—everything their ancestors have ever known—without good reason. And here, they had very compelling reasons to flee their ancestral homeland rather than risk their lives under Baku’s iron fist.
To understand these reasons, we have to look back even beyond the start of the blockade last December. As we explained in Armenia’s Memorial, anti-Armenian hate is engrained in official State policy in Azerbaijan. It has created a society where ethnic Armenians hide their identity and to call someone Armenian is considered an insult. This deep hatred has motivated countless atrocities against ethnic Armenians, in Nagorno-Karabakh and elsewhere. To use President Aliyev’s words, the “Armenians of the world” are Azerbaijan’s enemy. They are “dogs” to be chased out of Nagorno Karabakh and even Armenia itself. They are “vandals”, “savages” and “barbarians”.
The ethnic Armenians of Nagorno-Karabakh know only too well that this hatred is fostered and inculcated at every level of Azerbaijani society. Children in Azerbaijan are taught to hate ethnic Armenians from the cradle. Just by way of example, a middle school textbook, approved by the Azerbaijani Ministry of Education, refers to Armenia as “a nation that pours all kinds of filth from its veins, is of mixed blood, with no future, dead spirituality, maliciousness, [and] hatefulness”, and to Armenians “as scoundrels, who have the blood of the devil in their veins”.
There is also the story found on a recommended reading list for secondary school students, “The Armenian”. This tells the tale of a boy named Chingiz. It refers to “[t]he impudent, fierce and bloodthirsty Armenians” and says “Chingiz hated them and that hatred made him stronger. His hatred became stronger as he grew up. Chingiz promised himself that the day would come when he would exterminate all Armenians. ... Every night in his dream he attacked Armenian villages and set fire to their houses. He shot Armenian men, raped women and throttled children. When meeting his friends, he called on them to wage a holy war”.
And then there is the case of Ramil Safarov. In 2004, he brutally murdered an Armenian co-participant, and tried to kill another, at a NATO training course with an axe in his sleep. President Aliyev pardoned Safarov upon his extradition to Azerbaijan, promoted him to major and given him eight years of back pay. He is now idolized and hailed as a hero of the State.
Nor can the ethnic Armenians of Nagorno-Karabakh forget the experience of the 44-day war in 2020 and its aftermath. The Court will no doubt recall the gruesome videos that were celebrated on Azerbaijani social media showing Azerbaijani troops abusing and executing defenseless Armenians—civilians and servicemen alike—and desecrating their corpses while spewing vile racist language. The Court will also recall the so-called Military Trophies Park with its racist and humiliating depictions of Armenian servicemen.
As a result of the 2020 war, tens of thousands of ethnic Armenians were displaced from their homes in areas of Nagorno-Karabakh that Azerbaijan seized. Under the 2020 Trilateral Statement, Azerbaijan committed to allow them to return. Not a single person has been able to do so. To the contrary, Azerbaijan cleansed still more villages in the Lachin corridor in August 2022.
The Court has seen this before but it is worth looking at again. It is all the more troubling now in retrospect. This is the now infamous Azerbaijani stamp issued in the aftermath of the 2020 war depicting—and clearly advocating—the disinfection of Nagorno-Karabakh. You can see in it a depiction of an ethnic cleansing foretold.
Azerbaijan’s 19 September attack was thus the culmination of a well-considered plan. But before that there was the blockade. As you well know, on 12 December last year, Azerbaijan orchestrated the blocking of the Lachin Corridor by so-called “eco-protestors”. Before the blockade, roughly 900 vehicles, 2500 people, and 400 tonnes of goods a day passed freely back and forth between Armenia and Nagorno-Karabakh. Afterwards, only a trickle made it through, and then only with the assistance of the Russian Federation Peacekeepers and the ICRC.
Last February, you ordered Azerbaijan to “take all measures at its disposal to ensure unimpeded movement of persons, vehicles and cargo along the Lachin Corridor in both directions”. But nothing happened. Azerbaijan refused to comply, even as it claimed with its usual “up is down” double-speak that it was complying. Despite wide-spread condemnation from across the international community and the intense suffering of the ethnic Armenians of Nagorno-Karabakh, Azerbaijan left the so-called “eco-protestors” in place for more than another two months. Azerbaijan sent them home immediately after it installed a government checkpoint at the Hakari border bridge at the entrance to the Lachin corridor.
In the Court’s subsequent Order of 6 July, you made clear that “[t]he measure that the Court imposed in that Order applies without limitation to the cause of the impediment of such movement.” But again, Azerbaijan did not comply and ethnic Armenians continued to suffer. It even portrayed the Court’s order as a vindication of the checkpoint because you did not expressly order it dismantled. And again, the international community condemned. It nevertheless persisted. Between 23 April and 14 June it continued to allow only a trickle of goods carried by the Russian Federation Peacekeepers and the ICRC to pass.
Then, on 15 June, it stopped allowing any goods of any kind through. Why? Well, first because Armenia thwarted an Azerbaijani attempt to plant a flag on the Armenian side of the border. And then later because Azerbaijan claimed that the drivers hired by the ICRC were trying to smuggle contraband into Nagorno-Karabakh. This “contraband” consisted of a small amount of cigarettes, fuel, mobile phones—and a single screen protector. Azerbaijan choked off the ethnic Armenian population of Nagorno-Karabakh—Armenians it purports to consider its own citizens—over cigarettes, mobile phones and a single screen protector, all at a time when it was under a binding obligation not to impede traffic, including cargo, along the Corridor.
The result was that between the middle of June and the middle of September, the ethnic Armenian population of Nagorno-Karabakh did not receive any food, any medicine, any hygiene supplies, or any anything. As observed by a group of UN experts in a 7 August 2023 statement: “The blockade … has left the population facing acute shortages of food staples, medication, and hygiene products, impacted the functioning of medical and educational institutions, and placed the lives of the residents – especially children, persons with disabilities, older persons, pregnant women, and the sick – at significant risk”.
That was bad enough, but there was more to the plan to “disinfect” Nagorno-Karabakh of its ethnic Armenian population. Azerbaijan also disrupted the supply of gas and electricity. Those steps too significantly increased the suffering of the ethnic Armenians and were widely acknowledged and condemned across the international community.
And there was more still. For years, Azerbaijani soldiers had been shooting at, and even killing, farmers trying to work their fields near the line of contact. In the busy agricultural months leading up to the 19 September attack, and after blocking even the meagre humanitarian aid coming through, Azerbaijani soldiers opened fire at agricultural workers and their equipment dozens of time for no apparent reason other than to intimidate them, and to keep them from harvesting even their own local crops to feed themselves.
As of September 18, the day before Azerbaijan’s attack, the situation was thus grim. Some ethnic Armenians had already starved to death. The remaining food was strictly rationed. People queued for hours for their once-daily bit of bread, often only to find that none was left by the time their turn arrived. Medicines and medical treatment were virtually non-existent. Patients died without necessary treatment. Miscarriages were rampant. Public transportation stopped running. Schools and business closed.
Ironically, on September 18, after months of negotiations, the ICRC and Russian Red Cross were allowed to bring in some limited humanitarian goods via both the Lachin Corridor and Aghdam road. The move was greeted with relief across the world, as it seemed like the crisis might be ebbing. But it was just a ruse.
The Assault
The assault came the next day. Azerbaijan billed its 19 September attack as a “local anti-terrorist operation”, justified in part by the same claims about landmines that it has previously peddled before the Court. We will hear this afternoon that the attack was preceded by a military build-up and other provocations by the local ethnic Armenian population. As reflected in the footnotes of my speech, however, in the two months prior to the 19 September attack, every time the Azerbaijani Ministry of Defense made a claim to that effect, the local authorities quickly refuted it. Armenia also knowingly warned against buying into Azerbaijan’s disinformation campaign and saw it as laying the groundwork for an attack. There also appears to be no mention of any such activities in the Russian Federation Peacekeeper bulletins.
The reality is that the attack was clearly a premediated assault. It was preceded by a weeks-long build-up of troops and heavy military equipment along the line of contact and the border with Armenia. Azerbaijan’s claims about it being a limited “anti-terrorist operation” are also belied by the scale and outcome of the assault. Does an “anti-terrorist operation” necessitate the wholesale invasion and capture of Nagorno-Karabakh? Does it necessitate compelling the dissolution of the local administration? Of course not.
The international community swiftly condemned Azerbaijan’s renewed resort to force despite its pretexts.
The main attack began around 1 pm and quickly overpowered the tired, malnourished people of Nagorno-Karabakh. The next day, Azerbaijan declared victory and imposed its terms on the local population. They had to lay down and surrender all arms. They had to say that, as a part of the agreement, non-existent troops from the Republic of Armenia would be withdrawn. And they had to agree to dissolve their democratically elected government and other local institutions by the end of the year.
Azerbaijan claims that it targeted only military positions and equipment during its offensive. That is not true. Azerbaijan also attacked civilian settlements, including the capital Stepanakert. [SLIDES3] Although information is hard to come by, in large part because Azerbaijan had banned independent media on the ground and turned Nagorno-Karabakh into an information vacuum, there are nonetheless numerous images of damage to civilian structures, some of which you can see on your screens now. Moreover, a number of civilians, including children, are reported to have been killed during the attack. And according to a report issued just days ago by the Human Rights Defender of Armenia, there are also credible reports of atrocities, including torture and mutilations.
The Aftermath
The effects of the devastating attack were immediate. Tens of thousands of ethnic Armenians were internally displaced inside Nagorno-Karabakh. Families were separated. Many thousands were forced to sleep in basements, on the streets or in other make-shift shelters. Thousands more initially sought shelter and the protection of the Russian Peacekeepers at their base at the disused airport in Stepanakert.
Amidst the chaos and separations, calls for violence against ethnic Armenians, including children, proliferated. Just by way of example, these posts appeared on aN Azerbaijani Telegram channel in response to a posting about two missing 11 and 9 year-old children in Stepanakert. You can see the texts for yourselves. They are too offensive to read in this Great Hall, but you have the PowerPoint slide in your Judges’ Folders.
Fearing for their lives, the ethnic Armenians of Nagorno-Karabakh were compelled to flee. The Lachin corridor, all but sealed shut for the previous nine months, was now thrown open. Azerbaijan cynically announced that it opened “corridors … on the Lachin road and in other directions to ensure the evacuation of the population from the danger zone”—a danger zone of its own making and totally under its control. In the days that followed, the Lachin Corridor, referred to by many ethnic Armenians as the “Road of Life”, became an escape route.
This afternoon, we will probably hear Azerbaijan make much out of the Armenian Prime Minister’s 21 September statement that “[t]oday, at this moment, our assessment is that there is no direct threat to the civilian population of Nagorno Karabakh”. It is hard to see what Azerbaijan gets from this statement. On its face, it was specific to the moment in time at which it was made: “today”, “at this moment”—a moment when reliable information was virtually impossible to come by. Moreover, it did not purport to speak to everything that has come to light and happened since. Prime Minister Pashinyan subsequently explained the purpose of his statement. Speaking before Armenia’s Parliament on 4 October, Mr Pashinyan stated that the motivation of his statement was to avoid exacerbating the situation and intensifying the threats against ethnic Armenians in Nagorno-Karabakh. He added: “I am happy that maybe thanks to my statement as well, more than 105 thousand people in difficult, suffering, in a dire psychological state have come and reached the Republic of Armenia.”
The escape was chaotic. Most people left with only what they could carry. At one point, the back up along the Lachin Corridor stretched more than 75 km from the Armenian border back into Nagorno-Karabakh. Some, mostly elderly, died along the route; too weak and exhausted—and undoubtedly heartbroken—to survive the ordeal. The preliminary Armenian Human Rights Defender Report tells of the mistreatment many suffered at the hand of Azerbaijanis upon crossing the border. According to the report: “Interviewees unanimously reported that members of the Azerbaijani armed forces directed verbal abuse at displaced persons at the checkpoints, cursing at civilians, and urging them to leave and never come back with such statements as ‘go, get lost, clean our land.’ Azerbaijani soldiers performed the salute of [the ultranationalist group] the Grey Wolves”.
On 25 September, amidst the chaos of the exodus, there was a large explosion at a fuel depot as people were desperately queuing up to get some of the remaining supplies of gas. Reports indicate that at least 170 people were killed in the explosion and hundreds of others injured. Because of the lack of medical supplies at local hospitals as a result of the blockade, the worst of the injured had to be treated either at the hospital of the Russian Federation peacekeepers or evacuated by helicopter to Armenia. Many died before receiving treatment.
According to the latest available information, more than 100,500 ethnic Armenians from Nagorno-Karabakh have fled to Armenia. It is unclear how many remain or are currently in Azerbaijan’s custody. Those that have fled face an uncertain future. Armenia itself has a population of less than three million. Caring for, let alone absorbing, another 100,000 souls is a massive challenge. The refugees, many of whom are women, children, and elderly who have also been displaced during previous episodes of fighting, now find themselves without a home, struggling to find a place to live, exhausted, scared and apprehensive about their future and the future of their homeland. As UNICEF recently reported, the more than 30,000 children displaced from Nagorno-Karabakh show “signs of severe psychological distress”. Some “are dealing with intense feelings of sadness, anxiety, fear and anger, manifesting in nightmares, bedwetting, and inconsolable crying”, while others “have shut down and become detached, leaving them unable to express emotions or connect with the situation around them”.
Azerbaijan claims that these 100,000 ethnic Armenians left voluntarily. We will probably be told this afternoon that they did so because they had been indoctrinated to hate and not to trust Azerbaijanis. As always with Azerbaijan, every accusation is a confession. More than a 100,000 people suddenly got up, left everything they had ever known and for which they fought so hard for decades because they voluntarily chose to? Preposterous.
Azerbaijan had spent the better part of a year laying a siege against the ethnic Armenian population of Nagorno-Karabakh trying to strangle them out in flagrant violation of the Court’s orders. Then it invaded. Would any rational person choose to stay to live without meaningful international protections under the rule of a regime that virtually defines itself by its hatred of ethnic Armenians?
Azerbaijan is also fond of citing a recent address by President Aliyev in which he asserted: “All their rights will be guaranteed: educational rights, cultural rights, religious rights, and municipal electoral rights because Azerbaijan is a free society”. In the same address he also claimed: “We intend to build a life together based on peace, mutual understanding, and mutual respect. We have no problems with the Armenian people. We have no enmity.”
Madam President, distinguished members of the Court, I don’t use this word lightly but this is just laughable. “We have no problems with the Armenian people”? “We have no enmity”? This is a man who has literally called “Armenians of the world” the “enemy”. The world could thus be excused for not taking President Aliyev at his word.
Events during and since the exodus only show that ethnic Armenians were right to flee Nagorno-Karabakh. Days after the attack, Azerbaijan started illegally rounding up prominent political and military figures in Nagorno-Karabakh on trumped-up charges. To date, eight such figures are known to have been arrested, including three of the former Presidents of Nagorno Karabakh. It has also issued a wanted list for some 300 more.
Azerbaijan is also moving swiftly to de-Armenianize Nagorno-Karabakh. Among other things, it has already re-issued a map that, among other things, renames the streets of Stepanakert in Azerbaijani. Among the changes is the renaming of a main thoroughfare, formerly named after Armenian playwright Vagharsh Vagharshyan, to Enver Pasha Street. Enver Pasha, you may recall, was an Ottoman military officer who was one of the main architects of the Armenian genocide in the early 20th century. You may also recall that Azerbaijani servicemen are fond of wearing this patch of Pasha that reads: “Armenian, don’t run! You’ll die anyway, just exhausted.” You may hear this afternoon about recent news reports in which organs of the Azerbaijani government disclaim knowledge of this name change but as you can see here, the website on which the map appears contains the imprint of Azerbaijan’s Ministry of Culture.
Symbols of the Armenian presence are also being destroyed. Until 29 September, Stepanakert was home to the second tallest cross in Europe, a 50-metre structure erected on a hill overlooking the city. You can see it on the screen now. At night it was illuminated and visible for miles around. [Then, even as the exodus was ongoing, Azerbaijani forces toppled it to the ground, apparently with explosives. You can see that now.
Other Armenian cultural heritage has also been targeted. A video online shows Azerbaijani servicemen firing indiscriminately at the 13th century Charektar Monastery in the Martakert region. These actions, of course, are entirely in keeping with Azerbaijan’s well-documented and long-standing practice of destroying Armenians’ cultural heritage in all areas under its control. And given the dearth of reliable information, these actions are likely also just the tip of the iceberg.
Even as it has driven out virtually the entire ethnic Armenian population of Nagorno-Karabakh, Azerbaijan is already moving swiftly to settle Azerbaijanis in the territory. And Azerbaijan is aggressively pushing its so-called “Great Return” program pursuant to which it is “relocating” Azerbaijanis to parts of Nagorno-Karabakh it has recaptured. As you will hear from Ms Macdonald, it is now getting ready to implement the same plan in the rest of the now largely deserted Nagorno-Karabakh too.
One final point, Madam President. This afternoon we will probably also hear about the so-called “United Nations Mission” that visited parts of Stepanakert and surrounding areas on 1 October to make it seem like everything is just fine. According to Azerbaijan in its 2 October 2023 letter to the Court, the group “confirmed that it received no reports ‘of violence against civilians following the latest ceasefire’, observed ‘no damage to civilian public infrastructure, including hospitals, schools and housing, or to cultural and religious structures’ or to ‘agricultural infrastructure’”.
There is a lot one could say about Azerbaijan’s characterization of this “mission”. In the first place, to call it a “mission”, especially insofar as Nagorno-Karabakh is concerned, rather overstates the point. It was not an inter-agency team charged with conducting any kind of formal investigation. It was also in Nagorno-Karabakh for less than a day.
Moreover, the very limited extent to which they had an opportunity to inspect anything clearly comes through throughout the text of the initial statement issued in Baku by the UN resident coordinator in Azerbaijan. It reads, for example, “[i]n parts of the city that the team visited, they saw no damage to civilian public infrastructure”. But how were those parts of the city chosen? And what about other parts? As I showed you earlier there is clear evidence of damage to civilian structures in Stepanakert.
Nor does the group appear to have been given meaningful access to places outside Stepanakert. The resident coordinator’s initial statement explicitly states that they had “limited access to rural areas” and could do no more than observe the situation “from the road”. Indeed, a subsequent statement expressly states: “The mission did not visit any rural villages during this first trip”.
Finally, on the issue of violence against civilians, the statement says only that the “mission did not come across any reports … of incidences of violence against civilians following the latest ceasefire”. But what about before the ceasefire? And in any event, even if they did manage to speak to any remaining ethnic Armenians, it is impossible to believe they would have been forthcoming with a team escorted by Azerbaijani soldiers.
Tellingly, after this 1 October “mission”, international actors have called for a truly independent, long-term mission. On 5 October, for example, the European Parliament called for “the establishment of an international presence in Nagorno-Karabakh under the auspices of the United Nations, in order to monitor the situation on the ground”. The same day, the U.S. Mission to the OSCE called for “an independent, international mission to provide transparency, reassurance, and confidence to the residents of Nagorno-Karabakh”.
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Madam President, distinguished members of the Court, in its 5 October Resolution, the European Parliament saw this situation for what it is. In the words of the Resolution: “there is a pressing need to stop and reverse the ongoing forced exodus of the local Armenian population, which amounts to ethnic cleansing, and to ensure the conditions for their safe return to Nagorno-Karabakh”.
