09 Nov Warfare to Lawfare under CERD: Armenia v. Azerbaijan and Azerbaijan v. Armenia
[Yilin Wang is a PhD candidate in International Law at the Graduate Institute and a research assistant of the China, Law and Development Project at the University of Oxford.]
On 16 September 2021, Armenia instituted proceedings against Azerbaijan before the ICJ on the grounds of racial discrimination, hatred and ethnic cleansing against individuals of Armenian ethnic or national origin in light of the International Convention on the Elimination of All Forms of Racial Discrimination (CERD). A week later, Azerbaijan raised a counterclaim against Armenia before the Court for its continued ethnic cleansing, cultural erasure and fomenting of hatred against Azerbaijanis on the basis of their national or ethnic origin. Both countries claimed that the other side had violated Articles 2-7 of the CERD. At the current stage, both sides are applying for provisional measures from the Court.
Summary of the Cases
As noted in the applications of both parties, the war between Armenia and Azerbaijan in September 2020 in the Nagorno-Karabakh area formed the background for these disputes. Both sides contended that the 2020 war was due to the others’ long-term policies of racial discrimination against individuals, and these policies were implemented at a high-level by the governments systematically. In President Aliyev’s words, the 2020 war was the “war of salvation.” Armenia claimed seven items of violations of the CERD: hate speech, atrocities and a policy of ethnic cleansing, condoning and rewarding of atrocities against Armenians, denial of other individual rights and daily discrimination against Armenians, destruction of Armenian cultural heritage, failure to take necessary and effective measures to eliminate racial discrimination, and failure to provide Armenians with equal treatment, effective protection and remedies. Armenia cited several European Court of Human Rights (ECtHR) cases (e.g. Makuchyan and Minasyan v. Azerbaijan and Hungary; Mirgadirov v. Azerbaijan and Turkey…) to certify that “Azerbaijan has a well-documented history of murdering and torturing Armenians in areas under its control” (Armenia’s application, para. 104). Armenia further referred to the Universal Postal Union’s rejection of registering a commemorative stamp produced by Azerbaijan after the 2020 war “depicting Nagorno-Karabakh being chemically ‘disinfected’,” as an evidence of ethnic cleansing (Armenia’s application, para. 50).
On the other side, Azerbaijan counterclaimed that Armenia had a long-term policy of creating a mono-ethnic State, including a systematic practice of ethnic cleansing against and expelling of Azerbaijanis in Armenia throughout the 20th century. Azerbaijan condemned the illegal occupation of some territories by Armenia in the first Garabagh war (between 1988 and 1994). Azerbaijan additionally claimed that the capture of Khojaly in the first Garabagh war and attacks on its residents were condemned by the Organization of Islamic Cooperation as genocide, and by the ECtHR as “acts of particular gravity which may amount to war crimes or crimes against humanity” (Azerbaijan’s application, para. 32). In Azerbaijan’s words, Azerbaijan only “liberated the formerly Occupied Territories” in the 2020 war and the 2020 war was provoked by destructive activities by Armenia in Azerbaijan (Azerbaijan’s application, paras. 14 and 70). Azerbaijan also argued that Armenia destroyed its mosques and shrines during the war, conducted operations of cyber disinformation, created hate speech accounts on twitter, deprived Azerbaijanis of essential resources and pillaged Azerbaijan’s environment, amongst other allegations.
Prior to these two cases, three disputes have previously been litigated at the ICJ under the CERD, namely Georgia v. Russia (2008), Ukraine v. Russia (2017) and Qatar v. UAE (2018). Through the years, the Court has developed some principles relating to the application of the CERD as concerning the Court’s jurisdiction.
In this case, the Court’s jurisdiction would be based on two provisions: Article 36.1 of the ICJ statute and Article 22 of the CERD. Article 22 provides that “any dispute between two or more states parties with respect to the interpretation or application of the Convention, which is not settled by negotiation or by the procedures expressly provided for in the Convention, can be referred to the ICJ for decision.” Both Armenia and Azerbaijan are members to the CERD and did not make any reservations to Article 22. As both sides seem to agree that they have a dispute about the interpretation and application of the CERD, the next contemplated steps would be the negotiation and/or complaint procedures expressly provided in the CERD. Articles 11-13 prescribe the rules for complaints to the CERD Committee, including establishing an ad hoc conciliation committee to reach an amicable solution or the issuance of recommendations by the Chairperson of the CERD Committee.
Several previous cases before the ICJ have addressed the procedural preconditions of negotiations and Articles 11-13 as contemplated by the CERD. In Georgia v Russia, the Court upheld the preliminary objection of Russia because these procedural preconditions (i.e. the negotiations and/or Articles 11-13 procedures) were not satisfied. The same issue was raised in Qatar v. UAE, in which the UAE argued that the case remained under consideration at the CERD Committee and Articles 11-13 procedures were cumulative, therefore requesting that the Court reject jurisdiction based on lis pendens. However, at the oral proceedings, the UAE dropped this line of argument. In Ukraine v. Russia, Ukraine appeared to have learned from the mistakes of previous litigants and had conducted several rounds of negotiations with Russia before commencing proceedings before the Court. The Court therefore had to decide whether negotiations were sufficient or whether Articles 11-13 were cumulative requirements. The Court held that these were alternative procedures because both negotiations and Articles 11-13 procedures are to reach agreed settlement and the object and purpose of the CERD demands a speedy resolution “without delay” as to racial discrimination issues.
In the cases of Armenia v. Azerbaijan and Azerbaijan v. Armenia, both sides agree that they have conducted forty pieces of correspondence and rounds of negotiation since December 2020, and no agreed settlement was reached, which brought them to the Court. Based on the jurisprudence in Georgia v. Russia, “negotiation” refers to a “genuine attempt by one of the disputing parties to engage in discussions with the other disputing party, with a view to resolving the dispute” (para. 157). Also, “to meet the precondition of negotiation in the compromissory clause of a treaty, these negotiations must relate to the subject-matter of the treaty containing the compromissory clause” (para. 161). According to the experiences in Ukraine v. Russia (paras. 114-121) where the negotiations between the parties lasted for two years through diplomatic correspondence and face-to-face meetings and these negotiations were made with specific references to the CERD, in the current cases between Armenia and Azerbaijan, the Court would likely to agree that the preconditions required by the treaty were satisfied.
In the applications by both Armenia and Azerbaijan, both sides have also stressed that the racial discrimination was based on the national origin or ethnic origin of the other, irrespective of nationality. This emphasis on national/ethnic origin rather than nationality is obviously attempting to avoid the failure of Qatar in Qatar v. UAE, in which the Court denied jurisdiction on the ground that the UAE’s sanctioning measures were based on the nationality of Qataris, rather than the national/ethnic origin of Qataris in the sense of CERD Article 1. The Court’s disregard of indirect discrimination through nationality as compared to national origin was largely criticized (see here and here). Yet the approaches taken in the current cases were to emphasize national/ethnic origin: Armenian claimed that Azerbaijan considered Armenians to be dogs, and what they had done in the 2020 war to be equivalent to dog chasers; Azerbaijan said that the Armenian government portrayed Azerbaijanis to be barbarians, rootless nomads with no ethnic/historical ties to their lands, or turks with no ethnic identity of their own. To litigate based on national origin, irrespective of nationality, also makes sense in view of the jurisprudence developed by the Court about legal interests with obligations erga omnes partes in the Belgium v. Senegal case. By making this argument, Armenia and Azerbaijan do not have to justify whether individuals living in Nagorno-Karabakh area are of Armenian or Azerbaijan nationalities, avoid the Court having to make any judgment on any territorial dispute.
Strategy and Purpose
Despite the focus on racial discrimination and ethnic cleansing in Armenia’s case, one may speculate that the strategy taken by Armenia was designed to strengthen the ground for an argument of legitimate self-determination for the Republic of Artsakh. This is consistent with an upswing in employing human rights treaties for disputes about sovereign and intervention issues, likely in view of the fact that fewer and fewer countries are bound by the Court’s compulsory jurisdiction on issues of general international law. This shift is evinced by an increasing usage of human rights treaties via the inter-State application procedure (not only in the three previously cited cases under the CERD, but also under the Genocide Convention). This was also evidenced by parallel proceedings at the ECtHR between Armenian and Azerbaijan regarding human rights violations (see discussion here). The maturing of using the CERD to package litigations of territorial disputes and wars into human rights violations has become an important trend in international litigation. The comparatively lower threshold established by human rights treaties allows issues of aggression/use of force (e.g. Georgia v. Russia in Abkhazia and South Osseti, and for Ukraine v. Russia in Crimea) and issues of non-intervention (e.g. Qatar v. UAE on sanctions and travel bans against Qataris) to be complained of under the cover of racial discrimination, ethnic cleansing, cultural erasure, targeted murders and torture as well as other human rights protected by the CERD.
The strategy is to cleverly re-characterize the dispute around racial discrimination in order to pass the step of jurisdiction ratione materiae. A clear example of this reformulation would be Ukraine’s argument in the Ukraine v. Russia case that “while it is obliged to refer to the Russian Federation’s ‘intervention’ in Crimea in describing the alleged campaign of racial discrimination against the Crimean Tatar and Ukrainian communities in Crimea, neither the substance of Ukraine’s claims, nor the relief requested, concern the status of Crimea” (para. 87). It is yet unclear whether the Court will touch upon the use of force issue in Ukraine v. Russia during the merits phase. One may recall that in the US Staff in Tehran case, the Court rejected the preliminary objection raised by Iran that its hostage of US staff was a marginal and secondary problem embedded in a wider context in which the US had committed continued interference in the internal affairs of Iran (para. 81). The Court relied on the argument that diplomatic law has its “necessary means of defence against, and sanctions for, illicit activities by other states,” and did not address the wider context of the US’s interference, except for calling such interference as “illicit activities”(para. 83). With this in mind, it is likely that the Court would not provide an express standing about the legality of intervention issues in the Ukraine v. Russia case, nor in the two cases between Azerbaijan and Armenia.