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, Pierre d'Argent, Professor at the University of Louvain, in particular said:
I would like to return to three factual realities that these pleadings have already highlighted and which are decisive in this case, including for the indication of the tenth and final provisional measure requested by Armenia.
Refugees from Nagorno-Karabakh are victims of ethnic cleansing
The first factual reality to bear in mind is that the refugees from Nagorno-Karabakh have indeed been the victims of ethnic cleansing. Whether Azerbaijan likes it or not, there are no other words to describe what has just happened. Azerbaijan will tell you that the Armenian "residents" of Nagorno-Karabakh left of their own free will. This fable is obviously untenable. Even President Aliyev realises this, which has led him to invent another fable. In keeping with his habit of blaming others, he now maintains that "it was the so-called regime that had forced Armenians to leave the territory" . Madam President, in the fable of the executioner accusing his victim of being responsible for his own suffering, it is difficult to be more abject-but it is likely that you will have to suffer this new fable later on. Fortunately, as Professor Murphy has just explained, you don't have to rule on the merits in this respect, but this reality cannot be ignored.
Azerbaijan seeks to consolidate its ethnic cleansing, creating an imminent risk of irreparable harm
The second reality that must be borne in mind is also obvious: Azerbaijan is doing everything it can to ensure that the current situation continues, in other words that it seeks to consolidate its ethnic cleansing. The day after the mass attack on 19 September, President Aliyev proclaimed: "Azerbaijan regained its sovereignty" . At the same time, Nagorno-Karabakh was being emptied of its inhabitants and President Aliyev praised their freedom to leave. Since then, as in 2020, Azerbaijan has begun to implement what it calls its "great return" plan.
This is deeply shocking.
At the time of the first census in 1886, 85% of the population of Nagorno-Karabakh was Armenian . At the time of the creation of the Soviet oblast, this percentage was over 89% . At the end of the Soviet era, there were still some 77% Armenians in Nagorno-Karabakh . Only a handful remain today.
Applied to Nagorno-Karabakh, the so-called "great return" of the Azerbaijanis is, purely and simply, a racist project. It consists of replacing the Armenians uprooted from their ancestral land, where they have always been in the majority, with Azerbaijanis. Azerbaijan is only waiting for one thing: for the Court not to be an obstacle to the consolidation of its major discriminatory project carried out under the guise of territorial sovereignty . This project involves not only the ethnic cleansing that the world has just witnessed, but also the denial and alteration of the Armenian character of towns, villages, monuments, churches and all Armenian cultural artefacts .
Ladies and gentlemen of the Court, do you think that destroying the monument commemorating the Armenian genocide of 1915 in Shushi as soon as the town is supposedly "liberated" is merely a lapse of taste ? Do you think that what was done in Shushi at the beginning of 2021 was exceptional, fortuitous, and will not be repeated elsewhere in Nagorno-Karabakh while the regime in Baku denies en bloc the existence of the Armenian genocide ? Do you think that, more recently, the felling of the great cross overhanging Stepanakert , or the machine-gunning of a 13th century Armenian monastery ème , is the result of a regrettable cultural insensitivity on the part of soldiers drunk with victory? Do you think that when the Azerbaijani Ministry of Culture claimed on 4 October that the Gandzasar monastery was founded in the 13ème century by the Albanian Caucasians and then falsified by the Armenians during their "occupation" of Nagorno-Karabakh, this was the result of an archaeological error by a trainee ? Of course not! None of this is accidental, none of it is clumsy. It has all been calculated, thought through, meticulously and progressively implemented with the sole aim of consolidating the ethnic cleansing of Nagorno-Karabakh and making it clear to the Armenians that they no longer belong there.
President Aliyev's diplomatic adviser recently stated: "We are deliberately refraining from putting up Azerbaijani flags, we know that there are still civilians and we know their fears" . What a fine admission that Azerbaijan is indeed feared by the Armenians of Nagorno-Karabakh, including those who have remained there. But there's more: this admission contains a shameful lie-as the images on the screen show [SLIDE UP], since 19 September, Azerbaijan has loved planting its flag in Nagorno-Karabakh . And there is more: in a letter addressed to the European Court of Human Rights on 2 October, which we have submitted to you as Appendix 140, knowing that its presidential adviser was talking nonsense, Azerbaijan amended its declaration to restrict its scope to Stepanakert, renamed "Xankəndi" . Not only did Azerbaijan try to deceive the Strasbourg Court in this way, but it lied once again because, as the image on your screen [SLIDE UP] shows, the Azerbaijani flag was even placed on the most symbolic monument in the capital of Nagorno-Karabakh. [SLIDE DOWN]
Ladies and Gentlemen, the protection of rights under the Convention requires that the Armenian character of Nagorno-Karabakh be preserved and Armenia asks you to ensure the legal conditions for the safe return of the ethnic Armenian population to their ancestral lands. These conditions are set out in the precautionary measures which Armenia asks you to indicate and which Professor Murphy has detailed.
Armenia believes that it is particularly well placed to understand the need for security of the traumatised refugees from Nagorno-Karabakh and to know what measures are necessary to ensure their effective return. In this respect, the measures requested are also intended to anticipate all the tricks Azerbaijan is capable of pulling to prevent this return, including the pretext that the refugees' identity or property documents are non-existent since they were issued by the authorities of the "so-called regime", which Azerbaijan considers illegal, and that consequently, in the absence of valid proof, the said refugees have no right to return to Nagorno-Karabakh.
I would also like to remind you that, as the recent past has taught us, any measure requested by Armenia that you do not indicate will be triumphantly brandished by Azerbaijan as a green light on your part. Azerbaijan will read your order as an alleged "rejection" of this or that Armenian request and, therefore, as an encouragement to do what the measure was intended to avoid, even though the measure actually ordered by the Court, read and executed in good faith, necessarily but only implicitly prohibits the same conduct . Thus, if you indicate ambiguous measures whose loopholes Baku will exploit, ethnic cleansing will be definitively consolidated.
Furthermore, Ladies and Gentlemen of the Court, if you wait until you have ruled on the merits to thwart the ongoing consolidation of ethnic cleansing on the pretext that this is a request for restitution - which our opponents may argue later, out of legal chicanery - it will be too late .
Azerbaijan's promises and assurances are hollow; to give credence to them would be to consolidate ethnic cleansing.
Madam President, this brings me to the third factual reality that must be borne in mind when ruling. It concerns the promises and assurances presented by Azerbaijan in an attempt to convince you that there is no need to indicate provisional measures.
The first reason why Azerbaijan cannot be taken at its word is that its word alone is incapable of ensuring the return of the traumatised refugees in Nagorno-Karabakh. If you think that this word is enough, you will have made an unfortunate contribution to President Aliyev's great work.
The second reason why Azerbaijan cannot be taken at its word is that its word is totally inadequate and that what it says does not actually commit it to anything. Let's take a closer look at Azerbaijan's so-called commitments. Do they concern the safety of Armenian political prisoners and the few dozen Armenians who remain in Nagorno-Karabakh? Not a word. Do they concern the preservation of the Armenian character of Nagorno-Karabakh? Not a word on the subject. Does Azerbaijan promise not to populate Nagorno-Karabakh en masse with Azerbaijanis? Not a word in this regard; on the contrary, the acceleration of the "great return" is announced . Finally, with regard to the right of return, Azerbaijan wrote the following in its letter to you of 2 October: "Azerbaijan further guarantees that Armenian residents of Garabagh who decide to leave will have a right to return to Garabagh" . The words used and the conjugation of the verbs in this sentence are obviously important: on 2 October, when Nagorno-Karabakh had been emptied of its inhabitants, Azerbaijan claims to guarantee that the few Armenian residents of Karabakh who decide to leave their homeland will have a right to return. That's all there is to it. Is this an unconditional and secure guarantee of the right to return for all those who fled on 19 September? Absolutely not, and Azerbaijan is well aware of this, as it never chooses its words at random.
Similarly, the "reintegration" procedure proposed for the Armenian residents of Nagorno-Karabakh, which you will no doubt be hearing about this afternoon, very explicitly concerns only those Armenian residents still living in the Karabakh region. Azerbaijan maintains that this registration procedure is purely voluntary, but the documents it has submitted to you indicate that this registration is "necessary to join the reintegration process" . And then, what does "reintegration" mean for the Armenians of Nagorno-Karabakh who are still there? And above all: how does this registration procedure with a view to "reintegration" enable the return of refugees now in Armenia or the protection of the rights, particularly property rights, of those who decide not to return? In particular, the ninth protective measure requested by Armenia is in no way superseded by this registration procedure. In fact, after presenting the registration as voluntary, Azerbaijan will have no problem considering unregistered places of residence and property titles as voluntarily abandoned, and therefore at the disposal of the Azerbaijanis.
No matter what he says or will say to you later, Azerbaijan simply cannot be taken at its word. In the context of the present dispute, one need only recall the numerous statements made before you by the Agent of Azerbaijan, which have been contradicted by the facts, as the Agent of Armenia recalled at the beginning of the hearing. Moreover, you have already considered the Azerbaijani statements made at the hearing to be insufficient to completely eliminate the risk of irreparable harm . The same is a fortiori true here.
The tenth protective measure requested
Madam President, Ladies and Gentlemen of the Court, all this leads Armenia to ask you to order the tenth provisional measure requested, namely to require Azerbaijan to report regularly on the implementation of your future Order.
Armenia is well aware that in December 2021 you considered that such a request was not justified "in the particular circumstances of the case" . Since then, however, Azerbaijan has on several occasions defied your authority , and I would remind you that it considers that your order of 6 July validated its checkpoint closing the Latchine corridor , which is quite incredible. Above all, since then, the particular circumstances of the case have changed completely.
If you wish to reassure the Armenian men and women who have fled their homeland, you must require Azerbaijan, pursuant to Rule 78 of the Rules of Procedure, to report regularly to you on the implementation of your future Order, in the same way that you required Myanmar to do so . The gravity of the situation, what is at stake in your future Order and the preservation of your authority require this. In addition, Armenia has been obliged to alert the Court every time Azerbaijan has taken initiatives contrary to its international obligations. This has led to bitter exchanges that have wearied Armenia, and no doubt also the Court. We therefore believe that such a measure will also contribute to the proper administration of justice.
