Decision of the International Court of Justice in The Hague on Azerbaijan’s violation of the Convention of 1965 on the Elimination of All Forms of Racial Discrimination

On December 7, 2021, the International Court of Justice in The Hague (Netherlands) filed a lawsuit against Azerbaijan for violating the International Convention on the Elimination of All Forms of Racial Discrimination (hereinafter referred to as the Convention), adopted by the UN in 1965, which included a request for provisional measures.

The International Court of Justice, in its full report on the publication of the Order, presented the essence of the Armenian-Azerbaijani conflict as follows: “Armenia and Azerbaijan, both former Soviet republics, declared independence on September 21, 1991, and October 18, 1991, respectively”.

In Soviet times, the Nagorno-Karabakh Autonomous Region, the majority of whose inhabitants were ethnic Armenians, was located on the territory of the Azerbaijan Soviet Socialist Republic. The demands of the parties to the region led to hostilities that resulted in a ceasefire in May 1994. Further hostilities broke out in September 2020 and continued for 44 days. On November 9, 2020, the President of the Republic of Azerbaijan, the Prime Minister of the Republic of Armenia, and the President of the Russian Federation signed the "Trilateral Statement", according to which, from November 10, 2020, "a complete ceasefire and a cessation of all hostilities in the zone of the Nagorno-Karabakh conflict" have been declared.

As for the Convention, it should be recalled that both Armenia and Azerbaijan are parties to  "The International Convention on the Elimination of All Forms of Racial Discrimination", and therefore recognize the fact of the Universal Declaration of Human Rights that all people are born free and equal in dignity and rights, regardless of race, color or national origin (The International Convention on the Elimination of All Forms of Racial Discrimination, introduction).

A number of articles of the Convention state that any distinction, exclusion, restriction or preference based on race, color, descent, or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life are condemned (The International Convention on the Elimination of All Forms of Racial Discrimination, Article 1.1).

In its Order, the Court notes that Armenia claims that Azerbaijan continues to violate its obligations under Articles 2, 3, 4, 5, 6, and 7 of the Convention, that, as a result of its policy of ethnic cleansing, Azerbaijan violated the rights of the captured prisoners of war, as well as civilians of the Armenian nationality or ethnic Armenians, inciting racial hatred. As an example, they cite the mannequins of the “Military Park” that opened in Baku after the war conflict of 2020, which present Armenian soldiers in a humiliating way. Azerbaijan also continues to pursue a policy of systematic destruction and falsification of Armenian cultural sites and heritage.

The Court considered the claim of Armenia and in its Order, which has a binding effect, noted the following interim measures:

The decision was made by 15 judges - fourteen votes in favor and one against. However, this Order is not unequivocal, since, firstly, the court is limited to articles 22 and 11 of the Convention on the Elimination of All Forms of Racial Discrimination, therefore it could only impose provisional measures if the provisions justified by the applicant were prima facie (accepted as correct until proved otherwise).

The Court notes that, according to Armenia, Azerbaijan violated its obligations under the Convention in various ways, while Azerbaijan denied having committed any of the alleged violations.

The Court found that not all of the rights claimed by Armenia are credible, only two of them can be considered prima facie: the right to repatriation, the right to be protected from the inhuman and degrading treatment of Armenians. Moreover, Armenia did not provide the court with evidence that these people continue to be in captivity in Azerbaijan on the basis of their national or ethnic origin.

Azerbaijan objects that these people are detained as alleged criminals as a result of the military conflict. However, the Court considers reasonable the right of such detainees not to be subjected to inhuman or degrading treatment or punishment on the basis of their national or ethnic origin. The Court also considers credible the rights allegedly violated by high-ranking Azerbaijani officials through inciting racial hatred, discrimination against persons of Armenian or ethnic origin, as well as acts of vandalism affecting the Armenian cultural heritage.

The Court concludes that Azerbaijan must refrain from the propaganda of hatred against persons of Armenian national or ethnic origin, prevent vandalism, destruction or alteration of the Armenian historical, cultural and religious heritage, and protect the right to enter and use the territory of this heritage.

The Court notes that the request for provisional measures is also related to the fact that irreparable damage may be caused to cultural heritage. In particular, the alleged disregard of the rights recognized by the court and worthy of trust may cause irreparable damage to the Armenian heritage. And this is a real danger that requires an urgent solution. In addition, the court recalls that Armenia applied to the court with a request to take measures that would help not aggravate the dispute with Azerbaijan.

The only person who voted against Azerbaijan's ban on vandalism, desecration and the use of other provisional measures against the Armenian cultural heritage was the judge of the International Court of Justice ad hoc Keith. He is from Somalia (Africa) and was appointed for 2018-2021.

He justified his negative vote as follows: The Convention does not provide the protection of cultural property. In addition, even if Armenian cultural property is protected by the "Convention for the Protection against All Forms of Racial Discrimination", access to the places where they are located is difficult due to mines and the existing military danger, and not because of the unwillingness to ensure access of Armenians to the objects of cultural heritage due to their national or ethnic origin. After all, Judge Keith cannot find evidence of a real, immediate risk that would cause irreparable damage to the relevant law.