Armenian National Institute
e-mail: info@ani-dc.org @ArmNatInstitute
Copyright © 1998-2024 Armenian National Institute. Read copyright notice and disclaimer.
June 7, 2023
Organisations such as the Lemkin Institute and Genocide Watch have issued warnings about the severe deterioration of human rights in the region.
The 44-day war of 2020 between Armenia and Azerbaijan, over the contested territory of Nagorno-Karabakh, which ended with a tripartite agreement on a ceasefire between Armenia, Azerbaijan, and Russia, generated renewed interest in this long-standing conflict. The legal debates revolved around the law of occupation, the right to (delayed) self-defence, questions around territorial integrity and the right to self-determination of Armenians of Nagorno-Karabakh, as well as around the commission of international crimes. Beyond those questions, moreover, scholars have analysed broader aspects of the conflict, including its environmental impacts and the politicisation of science by the two sides.
The issue of human rights violations has also received significant attention, and has formed the basis of various cases brought by Armenia and Azerbaijan before the European Court of Human Rights and the International Court of Justice (ICJ). With respect to the latter, the ICJ has so far made three orders for provisional measures in relation to the application of the International Convention on the Elimination of All Forms of Racial Discrimination (CERD). It also rejected a request for additional orders and a request for modification of an order. This post will focus on the ongoing implementation of those orders by the two parties.
From one perspective, the war of 2020 and the fragile ceasefire that ensued has been characterised as Azerbaijan ‘liberating’ a significant part of its occupied territories. From another perspective, however, the events of 2020 have been characterised as the illegal use of force by Azerbaijan not only against the disputed areas of Nagorno-Karabakh but also against the sovereign territory of Armenia using artillery, heavy weapons and drones and targeting provinces, that, suddenly and as a result of the 44-day war of 2020, found themselves bordering with Azerbaijan, including the Syunik, Gegharkunik, and Vayots Dzor provinces.
For the ethnic Armenian majority of around 120,000 living in Nagorno-Karabakh, moreover, the war had the significant effect of confining them to this landlocked mountainous region, leaving open only one entry/exit corridor between Nagorno-Karabakh and the outside world through Armenia, the Lachin Corridor. And since 12 December 2022, even that single and vital corridor has been blockaded by a group of persons who present themselves as ‘eco-activists’ (ICJ Order of 22 February 2023, para. 30). According to Azerbaijan, this blockade was not orchestrated by Azerbaijan and the eco-activists constituted genuine environmental protests (para 33). However, according to Armenia, many of the activists were well known for ‘posting anti-Armenian hate speech publicly on social media, and for having ‘direct ties to the Government [of Azerbaijan]’ (para 30).
The ongoing blockade of the Lachin Corridor, moreover, has separated many families and has violated the right to public health, medical care, social security and social services, by preventing critically ill ethnic Armenians hospitalized in Nagorno-Karabakh to be transferred to medical facilities in Armenia for urgent medical care and for life-saving treatment. The blockade has also prevented the importation of essential goods, foodstuffs, medical and medicine supplies into Nagorno-Karabakh (para. 31).
These worrying developments led the Lemkin Institute for Genocide Prevention to issue a ‘Red Flag Alert for Genocide’, making the following observation: this blockade is part of the broader genocidal aims of the Azeri leadership, supported by its staunch ally Turkey, as well as a continuation of genocidal acts carried out by the Baku regime against the Armenian community. The blockade is, therefore, not an isolated act but one occurring in the context of a war, at times latent, that Azerbaijan unilaterally began in September 2020 and that has as its aim the takeover of historic Armenian lands in the Republic of Artsakh and in the Republic of Armenia along with the forced displacement (“ethnic cleansing”) of the Armenian populations in Azeri-acquired territory. The Lemkin Institute takes the position that such aims are genocidal in that they seek to permanently destroy the Armenian identity in these regions.
While this alert was dismissed by some Azeri websites, it is significant that the Lemkin Institute is not alone in warning that the serious situation in Nagorno-Karabakh is in danger of descending into genocide. In September 2022, Genocide Watch also issued a Genocide Warning, noting that ‘due to its unprovoked attacks and genocidal rhetoric against ethnic Armenians, Genocide Watch considers Azerbaijan’s assault on Armenia and Artsakh to be at Stage 4: Dehumanization, Stage 7: Preparation, Stage 8: Persecution, and Stage 10: Denial.’ Moreover, the rhetoric of dehumanization, threats and denial has continued to increase on the part of the President of Azerbaijan and recently this has been accompanied by specific threats of use of force.
Moreover, it is significant that, in the ongoing ICJ cases, the Court deemed it fit, on three occasions, to indicate provisional measures to the parties, with two orders addressed to Azerbaijan and one addressed to Armenia. It should be recalled that provisional measures are only issued when the ICJ considers that irreparable prejudice could be caused to rights which are the subject of judicial proceedings or when the alleged disregard of such rights may entail irreparable consequences. While at this stage of proceedings, the ICJ has not made any definitive findings, these provisional measures suggest that, on the basis of evidence before it, the Court found it urgently necessary to order such measures for the protection of rights under CERD. The next part of this post will review the implementation of those measures by the two parties.
In an Order of 7 December 2021, the ICJ made the following three indications for provisional measures addressed specifically to Azerbaijan:
Subsequently, in an Order of 22 February 2023, the ICJ added the following provisional measure addressed to Azerbaijan:
On the same day that the ICJ delivered its Order indicating provisional measures against Azerbaijan (7 December 2021), the Court also indicated a provisional measure against Armenia, namely:
In addition, another provisional measure was addressed to both Armenia and Azerbaijan, namely: ‘Both Parties shall refrain from any action which might aggravate or extend the dispute before the Court or make it more difficult to resolve.’
Since Russia’s invasion of Ukraine, the Russia-Ukraine conflict has tended to overshadow other conflicts in the region. However, it would be dangerous for the international community to overlook the recent developments in Nagorno-Karabakh and the blatant and systematic non-compliance of Azerbaijan with the ICJ’s orders for provisional measures.
It would be dangerous not only because of the terrible precedent such non-compliance sets, which undermines the ICJ Statute and erodes trust in the ICJ’s legal authority. But in the particular case of Nagorno-Karabakh, it would be dangerous also because such non-compliance is leading to a severe deterioration of the human rights situation, which organisations such as the Lemkin Institute and Genocide Watch have warned may descend to genocide.
Given that, under the Genocide Convention, all State Parties have a duty to prevent genocide, the international community therefore has not only a political and ethical, but a legal, duty to act in this case. In the Genocide case, the ICJ was clear that ‘a State’s obligation to prevent, and the corresponding duty to act, arise at the instant that the State learns of, or should normally have learned of, the existence of a serious risk that genocide will be committed’ (para 431). From that moment onwards, if the State has available to it means likely to have a deterrent effect on those suspected of preparing genocide, or reasonably suspected of harbouring specific intent (dolus specialis), it is under a duty to make such use of these means as the circumstances permit.
A growing number of reports have shown that Azerbaijan’s continued non-compliance with the ICJ’s orders has given rise to the existence of a serious risk that genocide will be committed. As noted above, since the end of the 2020 conflict, denialist rhetoric at the highest echelons of Azerbaijan is on the increase. According to that rhetoric, Armenia and the Armenian people have been written out of history. In their place, the Azerbaijani President has referred to ‘Western Azerbaijan [Armenia]’, insisting that this is Azerbaijan’s historical land, making reference to many purported ‘historical documents, historical maps, and our history.’
The international community needs to take heed of these serious developments. States Parties to the Genocide Convention need to act now to prevent the situation from descending into another genocide.