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Article originally published in 2021 – updated version published in November 2022
A war and its consequences can rarely find full redress before an institution of justice, however great and prestigious it may be. However, the International Court of Justice, a judicial body of the United Nations, can allow states to limit the consequences of conflicts by following the jurisdiction of this institution. Armenia and Azerbaijan have chosen, on the 16th and 23rd of September 2021, to make a modest appeal to the ICJ judges to reduce the scale of the war through justice. The so-called Nagorno-Karabakh conflict, which began in September 2020 and has not yet reached its conclusion, will unfortunately not find a complete legal solution before 2025. However, through the system of orders indicating provisional measures, the Court is trying to freeze a situation for the time being to legislate. This it did in September 2021.
Notwithstanding Carl Von Clausewitz’s view that war was the continuation of diplomacy by other means, the case at hand shows that the use of law can appear to be a continuation of war by other means. The situation between Armenia and Azerbaijan is far from settled, but it would seem that the aftermath of this conflict is taking place in the bright wooded halls of the Peace Palace in The Hague rather than on the mountainous plateaus of Karabakh. Almost a year after the Moscow-brokered ceasefire agreement between Baku and Yerevan, the Armenian government filed a lawsuit with the International Court of Justice (ICJ) on 16 September 2021 against Azerbaijan, alleging violations by Azerbaijan of the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD), claiming that Azerbaijan pursues a “state policy of hatred against Armenians, who are victims of widespread discrimination, massacres, torture and other abuses“. In response, Azerbaijan filed a case against Armenia on the same allegations on 23 September 2021, considering that “Armenia is pursuing, by both direct and indirect means, its policy of ethnic cleansing”.
These two filings are accompanied by requests for provisional measures, which, under Article 41 of the Court’s Statute, allow the Court to preserve the law and stop manifest violations pending a final judgment.
If we look at the requests for provisional measures, we can see some similarities, but also many differences, symptomatic of the balance of power that was established following the armed conflict in 2020. Indeed, we can see that Azerbaijan is asking for the demining of its territory, and the implementation of actions to prevent certain groups operating from Armenia from engaging in racial violence and hatred against Azeris, as well as the need for Armenia to keep evidence of actions contrary to the ICERD. Armenia, in addition to requesting more or less the same measures, is asking for the release of the prisoners of war and also, before that, for respect for their rights and dignity.
The Court will likely take provisional measures that do not satisfy either side and also recall the need to respect the ceasefire agreement. Once these provisional measures have been taken, the Court will turn to the merits of the case, i.e. the alleged violation of the ICERD, and possibly beyond, depending on the course of the proceedings, which may last for years. It will probably recall the obligations of international humanitarian law, applicable in situations of armed conflict and occupation. In this kind of situation, to avoid any diplomatic excitement, the Court is reluctant to take decisions attributing exclusive blame to one party. It is likely to acknowledge the various violations on both sides. But it will also be interesting to see what characterisation the Court will use to define the situation and also the legal regime for it. Indeed, none of the parties mentioned international humanitarian law governing relations during an armed conflict or situations of military occupation. We will therefore see whether the Court will take a position on this and attribute obligations to Azerbaijan over the occupied territories.
One thing is certain, the transition of the conflict to international legal institutions can be seen in a sense as the willingness of the parties to respect the ceasefire agreements, and a return to, let’s not say peaceful, but less conflictual relations.
Update, as of 19 October 2022:
As expected, the Court issued its provisional measures orders relatively quickly, namely on 7 December 2021. A common feature of these orders is that the Court ordered both parties to: “Take all necessary measures to prevent incitement and promotion of racial hatred and discrimination, including by its agents and public institutions, against persons of Armenian/Azerbaijani national or ethnic origin“. Also that “both Parties shall refrain from any action which might aggravate or extend the dispute before the Court or make its settlement more difficult“. However, the Court placed greater obligations on Baku to “protect from assault and abuse all persons arrested in connection with the 2020 conflict who are still in detention and to ensure their safety and right to equality before the law” and also to “take all necessary measures to prevent and punish acts of degradation and desecration of the Armenian cultural heritage, including, but not limited to, churches and other places of worship, monuments, sites, cemeteries and artefacts“.
November 16, 2021, marked a downturn in the conflict with the signing of a ceasefire between the two states under the aegis of the Russian Federation, the conflict shifted for ten months into a low-intensity phase and thus allowed for some compliance with the ICJ’s orders, which were established a month later. However, in early September 2022, the conflict resumed in full force, prompting Armenia to request an amendment to these requests for provisional measures to “expressly enjoin Azerbaijan to protect from assault and abuse all persons arrested in connection with the 2020 conflict or any armed conflict since then between the Parties, at the time of their arrest and thereafter, including if still in detention, and to guarantee their safety and right to equality before the law“. These requests are in the realm of urgency, so it is to be hoped that the ICJ will react quickly to adapt its requests for provisional measures. Especially since the ICJ has set a deadline of 21 January 2022 for the filing of briefs and counter-briefs for the judgment. With these deadlines set at twelve months of preparation per party, we will therefore see the filing of the plaintiffs’ briefs in both cases on 23 January 2023, and the filing of the defendants’ counter-briefs on 23 January 2024. By the time the ICJ deliberates and issues a cross-judgment on the situation, more than two years will have passed. It is therefore to be hoped that the parties will comply with the provisional measures and have the wisdom to resolve this situation diplomatically, if only temporarily, before a final response from International Justice is obtained.
Communiqué de presse de la CIJ No 2021/21 Le 23 septembre 2021 : La République d’Azerbaïdjan introduit une instance contre la République d’Arménie et prie la Cour d’indiquer des mesures conservatoires (icj-cij.org)
Communiqué de presse de la CIJ No 2021/20 Le 16 septembre 2021 : La République d’Arménie introduit une instance contre la République d’Azerbaïdjan et prie la Cour d’indiquer des mesures conservatoires (icj-cij.org)
INTERPRETATION AND APPLICATION OF THE INTERNATIONAL CONVENTION ON THE ELIMINATION OF ALL FORMS OF RACIAL DISCRIMINATION (REPUBLIC OF AZERBAIJAN v. REPUBLIC OF ARMENIA) APPLICATION INSTITUTING PROCEEDINGS filed in the Registry of the Court on 23 September 2021: 181-20210923-APP-01-00-BI.pdf (icj-cij.org)
INTERPRETATION AND APPLICATION OF THE INTERNATIONAL CONVENTION ON THE ELIMINATION OF ALL FORMS OF RACIAL DISCRIMINATION (REPUBLIC OF AZERBAIJAN v. REPUBLIC OF ARMENIA) REQUEST FOR THE INDICATION OF PROVISIONAL MEASURES OF PROTECTION 23 September 2021 : 181-20210923-REQ-01-00-EN.pdf (icj-cij.org)
APPLICATION INSTITUTING PROCEEDINGS AND REQUEST FOR PROVISIONAL MEASURES REPUBLIC OF ARMENIA v. REPUBLIC OF AZERBAIJAN 16 September 2021 : Application instituting proceedings and Request for provisional measures (Armenia v. Azerbaijan) (icj-cij.org)
APPLICATION DE LA CONVENTION INTERNATIONALE SUR L’ÉLIMINATION DE TOUTES LES FORMES DE DISCRIMINATION RACIALE (AZERBAÏDJAN c. ARMÉNIE) ORDONNANCE 21 Janvier 2022 : Ordonnance fixation délais (icj-cij.org)
APPLICATION DE LA CONVENTION INTERNATIONALE SUR L’ÉLIMINATION DE TOUTES LES FORMES DE DISCRIMINATION RACIALE (ARMÉNIE c. AZERBAÏDJAN) 21 Janvier 2022 : Ordonnance fixation délais (icj-cij.org)
APPLICATION DE LA CONVENTION INTERNATIONALE SUR L’ELIMINATION DE TOUTES LES FORMES DE DISCRIMINATION RACIALE (ARMENIE C. AZERBAÏDJAN). Demande tendant à la modification de l’ordonnance en indication de mesures conservatoires rendue par la Cour 19 Septembre 2022: Demande tendant à la modification de l’ordonnance en indication de mesures conservatoires rendue par la Cour (icj-cij.org)