The Republic of Armenia instituted proceedings against the Republic of Azerbaijan, on 14 September 2021, before the International Court of Justice, the principal judicial organ of the United Nations, with regard to alleged violations of the International Convention on the Elimination of All Forms of Racial Discrimination (CERD), including Articles 2, 3, 4, 5, 6 and 7.
Armenia contended that for decades, Azerbaijan had subjected Armenians to racial discrimination and that, as a result of this State-sponsored policy of Armenian hatred, Armenians had been subjected to systemic discrimination, mass killings, torture, and other abuse, which were directed at individuals of Armenian ethnic or national origin, regardless of their actual nationality.
Armenia also filed for the indication of provisional measures in order to “protect and preserve Armenia’s rights from further harm”. After Armenia made its claim, Azerbaijan filed a counterclaim a week later, accusing Armenia of violating the same treaty, and also filed for the indication for provisional measures, accusing Armenia of carrying out ethnic discrimination against Azerbaijanis.
Public hearings were held on 14 and 15 October 2021 at the Peace Palace at The Hague concerning the case brought by Armenia and were devoted to the request for the indication of provisional measures.
During the opening arguments before the ICJ, the Armenian representative, Yeghishe Kirakosyan asked the court to order the release and repatriation of prisoners of war taken during the conflict in late 2020 and to issue an order to halt hate speech.
The feud between Azerbaijan and Armenia, over the disputed region of Nagorno-Karabakh, escalated into a war in 2020, which left over 6000 people dead. War originally broke out in 1991 between the two countries, and tensions and violence have been on and off ever since.
What is the history of the armed conflict over the region of Nagorno-Karabakh between Azerbaijan and Armenia?
A former province of the Kingdom of Greater Armenia, Nagorno Karabakh (NK) was annexed to the Czarist Empire under the Treaty of Gulistan in 1813. In the 19th century the region underwent many border changes aimed at blocking the formation of a homogenous ethnic entity.
With the 1917 Russian Revolution, Azerbaijan and Armenia each declared independence and control over NK during the Russian Civil War. In 1923, after the Bolshevik takeover of the Caucasus, NK was made an autonomous region within the Azerbaijani Soviet Republic with the majority of the population being Armenian. The reason behind this was to maintain an ethnic balance between the Muslims and the Armenians and underline the economic links between Baku and NK.
Under Soviet rule, NK got autonomy, although its ethnic Armenian minority claimed discrimination by the Azeri public authorities. In the meantime, the 300,000 Azeris, an ethnic minority population in Armenia, were refused similar autonomous rights. This contributed to mass deportations in Armenia from 1948 to 1952. In addition, the Bolsheviks annexed Azeri territories to Armenia on several occasions and as a consequence, the territory of Azerbaijan was reduced from 113,900 square km to 86,000 square km in 1920.
The present conflict began in 1988. By the late 1980s, the population of NK was about 75 per cent ethnic Armenian, with most Azerbaijanis living in the district of Susha. After the glasnost of the late 1980s, there was a push for a change in NK’s status. The Region Soviet of NK submitted an official request to the Supreme Soviet of the USSR for incorporation into Armenia. This request was refused by the Soviet of Azerbaijan but supported by the Soviet of Armenia. The request was finally rejected by the Supreme Soviet in accordance with the principle that the territory of a republic [namely Azerbaijan] cannot be modified without its consent. On 1 December 1989 the Supreme Soviet of the Armenian SSR issued a decree stating the ‘reunification of the Armenian SSR and the Mountainous Karabakh region’, which was referred to in the preamble of the constitution of Armenia. This decree caused major confrontations between Armenia and Azerbaijan and resulted in hostilities from 1991 to 1994. The second decision of the Supreme Soviet of the Republic of Armenia of 8 July 1992 further aggravated the situation, which declared it was unacceptable for the Republic of Armenia to recognize any international or intergovernmental documents specifying “the Mountainous Karabakh Republic” as a part of Azerbaijan.
At the end of 1991 the parties were at war after Azerbaijan abolished NK’s autonomous status, causing the latter to declare independence with a ‘referendum’ in 1991. The fighting intensified and NK proclaimed independence on 18 January 1992. NK is a self-proclaimed republic and not recognized by any state. It enjoys significant support from Armenia. The OSCE MINSK Group is in charge of the peace process. However, despite several peace proposals and considerable efforts by the international community, up until today no breakthrough has been achieved.
What is the position of international organizations concerning the conflict of Nagorno-Karabakh?
The Council of Europe’s Parliamentary Assembly (PACE) Resolution 1119 (1997) on the conflicts in Transcaucasia stated the principle of inviolability of borders and called for extensive autonomy status for Nagorno-Karabakh. The Declaration of the OSCE Lisbon Summit in 1996 confirmed the territorial integrity of Armenia and Azerbaijan as well as the autonomous status of NK within Azerbaijan. The principle of inviolability of borders was also reaffirmed in different United Nations (UN) Security Council Resolutions 822 (1193), 853 (1993), 874 (1993), 884 (1993). The three latter documents explicitly confirmed the territorial integrity of the Azerbaijani Republic and also the inadmissibility of the use of force for the acquisition of territory. In addition, UN Security Council Resolution 853 (1993) also condemned “the seizure of the […] recently occupied areas of the Azerbaijani Republic.” By joining the Council of Europe in January 2001, both countries undertook an obligation to settle this conflict by peaceful means only, although these obligations have not been fulfilled.
International negotiations under the auspices of the OSCE MINSK Group, co-chaired by Russia, the United States and France, which is in charge of the resolution of the conflict of Nagorno-Karabakh, have been unable to produce a lasting settlement of the conflict so far.
In the field, the situation is rather complicated. Nagorno-Karabakh is internationally recognized as being part of Azerbaijan. It used to be an enclave in the territory of Azerbaijan without any access to Armenia. Armenia occupied not only the NK region but also seven additional Azeri regions, providing direct access to and from Armenia. The occupied areas constitute 20 percent of the entire territory of the Azerbaijani Republic. By achieving this, Armenia provided significant military and financial support to this region. The Azeri authorities were defending the principle of their country’s territorial integrity. Meanwhile Armenia wanted to protect the interests of the Armenian population in NK, referring to the principle of self-determination.
As a summary, there have been two overlapping issues over the last two decades. The first issue is the inviolability of borders, according to which, the status of Nagorno-Karabakh remains in the Republic of Azerbaijan. Secondly, the status of the region must be settled. However, Azerbaijan has not shown any willingness to grant autonomy to Nagorno-Karabakh in the last three decades. Meanwhile, Armenia has not shown any willingness to stop financially and militarily supporting the ethnic minorities living in Nagorno-Karabakh. This is the story behind this frozen armed conflict, which has blocked the Caucasus from potential economic growth.
What are the recent political developments over the conflict of Nagorno-Karabakh that resulted in proceedings before the International Court of Justice?
Both claims brought by both Armenia and Azerbaijan before the ICJ arose from the armed conflict in September 2020, when Azerbaijan, backed by Turkey, launched a full-scale armed attack to reclaim the Nagorno-Karabakh region. Armenia and Azerbaijan signed a Russian-brokered cease-fire on Nov. 10, 2020, to end six weeks of heavy fighting, which left 6000 people dead, and which gave Azerbaijan a clear military victory. Russian peacekeepers have been in Nagorno-Karabakh since the cease-fire in November 2020, and this is the first time in the history of Russia‘s “peacekeeping” missions that its military personnel have taken charge of civil affairs in its operation. The Russian peacekeeping mission amounts to 1960 people, including doctors and nurses.
During the 6-week war in 2020, Azerbaijan regained the seven territories surrounding Nagorno-Karabakh that it had lost during the first war in the early 1990s and also now occupies approximately one-third of Nagorno-Karabakh itself, including the Hadrut region and the city of Shushi. Yet there is still no peace agreement or definitive resolution to the ongoing conflict.
The recent war in 2021, at the Armenia–Azerbaijan border, started on May 12, 2021 when Azerbaijani soldiers crossed several kilometers into the sovereign territory of Armenia in the provinces of Syunik and Gegharkunik, occupying said areas. As of July 2021, Azerbaijan has not withdrawn its troops from internationally recognized Armenian territory despite calls to do so by the European Parliament, and the United States and France – two of the three Co-Chairs of the OSCE Minsk Group.
Azerbaijan now seems to have set its sights on more Armenian sovereign territory with further creeping encroachments since May 12 2021, and continues to hold Armenian civilians and prisoners of war hostage as bargaining tools in exchange for minefield maps and territorial concessions.
What is the merit of the case at the International Court of Justice between Armenia and Azerbaijan?
The merit of the case is NEITHER about territorial dispute NOR the status of the region of Nagorno-Karabakh, but about the provisions of the Convention on Racial Discrimination that, according to both Armenia and Azerbaijan respectively, the other country has violated during the war in 2020.
It will likely take years before the ICJ reaches a final judgment in this case, but a ruling on provisional measures could come in weeks.
The International Court of Justice is going to rule about the provisional measures in a few weeks. However, the question remains open and non-answered as to what is going to happen to the status of the region of Nagorno-Karabakh.
Despite international pressure and many attempts by international organizations, such as the OSCE MINSK Group, the Council of Europe and even the UN Security Council, no breakthrough has been achieved concerning the status of Nagorno-Karabakh. Without the settlement of the final status of Nagorno-Karabakh, no lasting peace can be achieved in the region. Let’s hope that whatever the ruling of the ICJ will be, both Parties will respect the ruling of provisional measures, bringing at least temporary peace to the troubled region.