On December 7, 2021, the International Court of Justice (ICJ) announced its decision regarding the request for provisional measures by Armenia and Azerbaijan, marking the next stage in the ongoing conflict between the two states.
As a refresher, Armenia applied to the ICJ on September 16, and Azerbaijan followed suit on September 23. Both states claim violations of the Convention on the Elimination of Racial Discrimination (CERD). The reason both states brought claims under that treaty is because that treaty has a unique method which provides the Court jurisdiction over the parties. This is discussed in detail in my previous article.
In both states’ applications, they requested provisional measures. Provisional measures are orders the Court can issue during a court case to “preserve the respective rights of either party.” The same tool is called a preliminary injunction in the U.S. and U.K. and a preliminary legal protection order in continental Europe. Importantly, provisional measure orders by the Court are binding on the parties; if a party doesn’t comply with them, then it’s possible the non-compliance could become a matter before the UN Security Council due to Article 94.2 of the UN Charter.
Yesterday’s order is the Court’s decision on both requests for provisional measures. Despite Armenia’s and Azerbaijan’s cases technically being different, the Court decided to respond to both at the same time, likely because of the very similar factual concerns in both.
Here are the specific provisional measures requested by the parties in a summarized fashion.
Armenia’s requests for Azerbaijan:
1- Release all Armenian POWs and detainees
2- Pending release, treat all POWs and detainees with respect and protect them from harm
3- Refrain from espousing hatred of people of Armenian ethnicity, including by closing the Military Trophies Park
4- Protect the right to access and enjoy Armenian cultural sites by prohibiting and punishing their destruction and alteration.
5- Facilitate efforts to protect and preserve Armenian cultural sites
6- Preserve evidence related to allegations of acts within the scope of CERD
7- Do not aggravate the existing dispute
8- Regularly report to the Court on all measures taken
Azerbaijan’s requests for Armenia:
(a) Enable the demining of landmines laid by Armenia in Azerbaijani territory, including by providing maps of landmine locations.
(b) Do not plant any new landmines in Azerbaijani territory
(c) Prevent organizations, including VoMA, from inciting racial hatred against Azerbaijanis and stop incitement based on false statements attributed to Azerbaijanis
(d) Preserve evidence related to allegations of ethnically-motivated crimes against Azerbaijanis
(e) Do not aggravate the existing dispute
(f) Regularly report to the Court on all measures taken
In my previous article, I bundled the specific requests into thematic groups. For this article, I’m keeping them separate to better illustrate the thinking of the Court.
To get to the end goal of issuing provisional measures, there are several procedural steps that are required. Some of these were obvious to succeed, some not so much. Here is a concise list:
First, the Court found that there was a dispute. Both countries made allegations saying the other country was violating their obligations under CERD, which the other country denied. This is essentially enough to find a dispute.
Second, the Court found that negotiations were attempted but failed. This obligation comes directly from Article 22 of CERD. The burden here is higher in that the Court looks to see whether the party bringing the claim genuinely attempted to engage in negotiations. This is ultimately what sunk Georgia in Georgia v. Russia. The Court had granted Georgia its provisional measures but ultimately found that there hadn’t been genuine negotiations relating to the dispute about CERD. Negotiating another dispute isn’t enough. For Armenia and Azerbaijan, the Court found that both engaged in sincere negotiations relating to CERD obligations. Furthermore, since the parties were not budging in their positions, the negotiations had failed.
Third, due to the previous two points, the Court found that it had prima facie jurisdiction in the case, i.e. that the case could continue.
The three findings above apply to both Armenia’s case and Azerbaijan’s case. Logically speaking, it would be difficult for the Court to find that there was a dispute in one case but not in the other or that negotiations had failed in one case but not another.
The Provisional Measures Ordered
The Court issued five different provisional measures, four against Azerbaijan, one against Armenia, and one against both states. Here is a summary of them.
The three unique provisional measures imposed on Azerbaijan are:
(a) Protect from violence and bodily harm all persons captured in relation to the 2020 Conflict who remain in detention, and ensure their security and equality before the law;
(b) Take all necessary measures to prevent the incitement and promotion of racial hatred and discrimination, including by its officials and public institutions, targeted at persons of Armenian national or ethnic origin; and
(c) Take all necessary measures to prevent and punish acts of vandalism and desecration affecting Armenian cultural heritage, including but not limited to churches and other places of worship, monuments, landmarks, cemeteries and artefacts.
You can see a direct connection between the measures and the requests made by Armenia. Provisional measure (a) aligns with Armenia’s 2nd request. Provisional measure (b) aligns with Armenia’s 3rd request, except for the lack of the closing of the Military Trophies Park. That is discussed below. And, Provisional measure (c) aligns with Armenia’s 4th request, excluding the request’s “right to access”.
The one unique provisional measure imposed on Armenia is:
The Republic of Armenia shall, in accordance with its obligations under the International Convention on the Elimination of All Forms of Racial Discrimination, take all necessary measures to prevent the incitement and promotion of racial hatred, including by organizations and private persons in its territory, targeted at persons of Azerbaijani national or ethnic origin.
This measure aligns with Azerbaijan’s request (c).
Finally, the common provisional measure imposed on both parties is:
Both Parties shall refrain from any action which might aggravate or extend the dispute before the Court or make it more difficult to resolve.
This measure aligns with Armenia’s 7th request and Azerbaijan’s request (e).
Dissecting the Orders
The biggest result from these orders is that Armenia received two of its requests that could make a meaningful impact on the conflict. Those are the protection of POWs from harm and the protection of cultural sites. There was no order to release the POWs as explained in the section below. Both of these orders were likely because they both fit within CERD and there is evidence available to show that there is an urgent threat.
The protection of the POWs is important because it puts extra emphasis on Azerbaijan to ensure the POWs are well-treated. While the well-treatment of POWs is a standard requirement in international humanitarian law, there is no court where a state can easily bring allegations of violations of international humanitarian law. Now, if Armenia has evidence of further maltreatment of POWs, it can present that evidence to the Court, showing that Azerbaijan is not complying with the order.
The second order of protecting cultural sites is also impactful because it provides another avenue to protect cultural heritage. Typically, UNESCO is held as the body tasked with protecting cultural sites, but UNESCO has been considered ineffective at protecting cultural sites within the region, criticism that only escalated after the recent war. This is in part because UNESCO operates only with the consent of the receiving state. This order now provides another avenue, a stronger one, to ensure the protection of Armenian cultural sites under Azerbaijani control.
The third order against Azerbaijan, regarding preventing the incitement of racial hatred, is almost identical to the single order against Armenia. Both orders come directly from Article 4 of CERD, which aims to prevent racial propaganda and incitement to racial discrimination (commonly referred to as hate speech). There is a subtle but notable difference in the language used in each of the orders: the order against Armenia refers to incitement of racial hatred “including by organizations and private persons” while the order against Azerbaijan says incitement of racial hatred or racial discrimination “including by its officials and public institutions.” The main difference here is that the order for Armenia connotes that the hate speech is coming from private organizations, while the one for Azerbaijan connotes that the hate speech is coming from the government. There is also a difference in that the Azerbaijani order covers racial hatred and racial discrimination, while the Armenian one only covers racial hatred.
The final order, the one applied to both sides, is a routine order from the Court. Contrary to what I wrote in the earlier article, this order is regularly issued by the Court to parties requesting provisional measures. Due to its routine usage and the fact that both Armenia and Azerbaijan requested this order, it's not surprising that the Court issued the order against both states.
The Plausibility Test: Why the POWs Were Not Released Nor Landmine Maps Handed Over
While both sides made multiple requests, they each put their biggest issue within their first request. For Armenia, it was a request for the release of the POWs. For Azerbaijan, it was for Armenia to hand over landmine maps of the areas Armenia controlled prior to last year’s war. The Court rejected both requests. Neither request was likely to succeed, but many Armenians were still surprised that the POWs were not ordered released. The previous article described why more generally, here I will explain specifically why neither request had a chance to become a provisional measure.
For a request to be a provisional measure, it must be plausibly connected with a right provided by the treaty. Plausibility means that there must be a link between the right aiming to be protected (e.g., Art 2 of the treaty) and the provisional measure being requested (e.g., landmine maps being handed over). This test requires the party to show two things: first to provide sufficient evidence that their factual claims are plausible and second that their request is plausibly connected to the underlying treaty. As a reminder, since the Court has jurisdiction only because of CERD, that means any rights aiming to be protected must be within CERD. The overall purpose of CERD is listed in its Article 1: to prevent the distinction based on national or ethnic origin that have the effect of impairing someone’s rights.
Focusing on releasing POWs, the Court did not find that “CERD Plausibly requires Azerbaijan to repatriate all persons identified by Armenia as prisoners of war and civilian detainees” (Azerbaijan v. Armenia, para. 60). First the Court notes that it’s international humanitarian law that governs the release of POWs, not CERD. Regardless, there is still a theoretical possibility that CERD could apply if the detention was due to their national or ethnic origin. However, Armenia did not (because it could not) provide evidence that the POWs were detained because of their national or ethnic origin.
Focusing on the landmine maps, the Court did not find that “CERD plausibly imposes any obligation on Armenia to take measures to enable Azerbaijan to undertake demining or to cease and desist from planting landmines” (Armenia v. Azerbaijan, para. 53). The Court notes that military means could implicate CERD if used as part of “a policy of driving persons of a certain national or ethnic origin from a particular area” but there is no evidence of that here. Azerbaijan would have to show that Armenia was targeting people of Azerbaijani nationality or ethnic origin (not just Azerbaijani citizenship) due to their nationality or ethnic origin. Azerbaijan did not (because it could not) present evidence of this to the Court, so this request failed the plausibility requirement.
Everything Else That Didn’t Make the Cut
The release of the POWs and the handing over of the landmine maps were not the only requests that the Court rejected, simply the most important ones. Here is a brief description of other requests and the rationale of the Court.
Armenia’s request to close the Military Trophies Park: The Court took “full cognizance” of Azerbaijan’s statement that they have removed the mannequins depicting Armenians and helmets from fallen Armenian soldiers. It’s not said explicitly, but likely their removal was sufficient for the Court to no longer consider the request of closing the park as being plausibly related to CERD. (Armenia v. Azerbaijan, para. 93)
Azerbaijan’s request to prevent hate speech by VoMA: The Court essentially agreed with this request in its single unique provisional order against Armenia but without referencing any organization. Azerbaijan portrays VoMA and POGA as “anti-Azerbaijani paramilitary groups” (Azerbaijan v. Armenia, para. 45) The Court does not use the language of Azerbaijan and instead focuses on the language used in Article 4 of CERD.
Both states’ requests to preserve evidence of racially motivated crimes and for regular reporting: The Court considered that these requests were not warranted in the particular circumstances (Armenia v. Azerbaijan, para. 95; Azerbaijan v. Armenia, para. 73).
How the Judges Voted, Dissents and Declarations
One notable result of these orders is how every provisional measure ordered was either unanimous or nearly unanimous. As a comparison, Georgia’s provisional measures in Georgia v. Russia were very controversial within the Court, with eight votes in favor and seven against.
The orders to not incite racial hatred and to not aggravate the dispute were all unanimous.
The two substantive orders against Azerbaijan, regarding protecting POWs from harm and Armenian cultural sites, were nearly unanimous, with two judges writing explanations for their thinking.
Judge Yusuf voted against both orders and wrote in his dissent that he believes none of the requests fall within CERD. He views CERD as a much narrower treaty than the Court does. He’s concerned that now “all kinds of claims that have nothing to do with” the treaty will be allowed by the Court (Armenia v. Azerbaijan, Dissenting Opinion of Judge Yusuf, para. 1). He even acknowledges that the two rights “are certainly worthy of protection” (para. 4), but since he does not believe they fall within CERD, he believes the Court should not make the orders.
Judge ad hoc Keith voted against the order for the protection of Armenian cultural sites and wrote in his declaration that he did so because of Armenia’s inclusion of the right to access (see Armenia’s 4th provisional measure request above). He noted that it’s not necessary to access cultural sites to practice cultural activities, and for those that do, he does not see evidence of denial of access based on national or ethnic origin (Armenia v. Azerbaijan, Declaration of Judge ad hoc Keith, para. 4). It is unclear why Judge ad hoc Keith emphasized that because the Court’s final order does not include any mention of a right to access the cites. Note that he is referred to an ad hoc judge because he was one of the two judges appointed by one of the parties. He was appointed by Azerbaijan.
Finally, Judge Iwasana wrote a declaration for both Armenia’s and Azerbaijan’s cases saying the same thing. While he agreed with all of the Court’s orders, he recognized that any understanding of incitement to racial hatred must take into account the context of the conflict. He mentions how “[s]tatements made by organizations and private persons need to be understood in” the context of the open hostilities between the parties existing in 1991-94 and in 2020 (para. 2 in both declarations).
What Comes Next in the Case
The next step of both cases is to continue to the merits stage. That’s where the Court fully assesses the claims and evidence presented by the parties. This step will take years. For example, the Court took 2.5 years between issuing its provisional measures in Georgia v. Russia and the final judgment.
In theory, these orders for provisional measures resolved very little. In theory, everything is still possible. For example, the Court found that it had prima facie jurisdiction. It might find in the end that it does not have jurisdiction after all. This is what happened in Georgia v. Russia. It’s also theoretically possible that the Court will ultimately find that releasing the POWs or requiring the handing over of landmine maps are the only methods to protect CERD rights. While these are all possible, they all are very unlikely to occur.
Armenia and Azerbaijan will continue presenting their cases to the Court, including providing further evidence and arguments regarding the merits. It’s also possible that the parties might amend their initial requests in light of the provisional measures granted; while the provisional measures don’t directly impact any of the Court’s analysis on the merits, they direct the parties in the direction that the Court is thinking. In the meantime, both states will also monitor the compliance of the other with the orders for provisional measures.
Because of the potential changes in facts and arguments by the parties over the next few years, it’s premature to analyze what the Court’s final judgment on the merits will be.
Consequences on the Conflict
These orders are likely to shape a dimension of the conflict for the near term. A new player has entered the conflict and that is the ICJ. Both parties have a new conduit through which they can channel complaints, as long as the complaints are aligned with one of the provisional measure orders. And since the orders will be in place for years, both sides will need to adjust their actions to ensure they don’t violate them. For Armenia, that means being more proactive in restricting incitement to racial hatred by private persons and organizations. For Azerbaijan, that means ensuring the well-treatment of the POWs, not vandalize or desecrate any further Armenian cultural sites (which can include certain types of renovations), and to be more proactive on restricting incitement to racial hatred or discrimination, especially by state actors.
Ideally, these orders will help bring about more respectful actions and language by both sides. For Armenians, the orders could help remove two (of the many) emotional aspects of the conflict: the welfare of the POWs and the ongoing destruction of cultural sites. A reduction of hate speech would also soothe some of the animosity on both sides. However, the final point made in the previous article still stands: it’s extremely unlikely that an ICJ judgment, especially one only looking at a small part of the conflict, will resolve the overall conflict between the states.