Thread by @mabecker17

An overview (w/some preliminary observations) of the new #ICJ case by #Armenia against #Azerbaijan based on alleged violations of the Convention on the Elimination of All Forms of Racial Discrimination (#CERD). This is the fourth CERD-based case at the ICJ since 2008. 1/20

https://twitter.com/CIJ_ICJ/status/1438573019350327302

#Armenia alleges that #Azerbaijan has subjected individuals of Armenian ethnic/national origin to racial discrimination for decades and fosters hatred towards Armenians as a matter of state policy. (Both parties acceded to the CERD in the 1990s.) 2/20

Armenia further alleges systemic discrimination, mass killings, and torture directed at ethnic Armenians by Azerbaijan, and specifically alleges grave CERD violations during the 2020 armed conflict re #NagarnoKarabakh 3/20

Since the end of that armed conflict, #Azerbaijan has allegedly subjected Armenian prisoners and detainees to abuse and mistreatment, and has created a ‘military trophy park’ in Baku that perpetrates racial hatred and anti-Armenian sentiment. 4/20

Armenia bases #ICJ jurisdiction on CERD art 22 (a provision now very familiar to ICJ-followers) & points to extensive evidence that the requirement of attempted (and failed) negotiations is met. It also describes CERD obligations as having an erga omnes partes character. 5/20

On the merits, #Armenia claims that #Azerbaijan has violated CERD arts 2-7 based on evidence of hate speech, atrocities and abuses, discrimination in access to justice, employment, housing, health and education, and destruction of cultural heritage sites. 6/20

The recently opened “military trophies park” in Baku receives particular attention for its “degrading and humiliating” depiction of Armenian soldiers. Here's a BBC piece about the park from April (bbc.com/news/world-eur…). 7/20

In addition to initiating the case, #Armernia requests provisional (i.e. emergency) measures from the #ICJ on the ground that Armenians under Azerbaijan's jurisdiction face a continuing risk of murder, torture or inhuman treatment on the basis of ethnic/national origin. 8/20

The PM request emphasizes alleged risks faced by Armenian soldiers who remain in Azerbaijani custody, including execution, torture, abuse, or rigged prosecutions. It also refers to the on-going destruction of cultural heritage sites, citing several examples. 9/20

To support the PM request, Armenia draws upon, in particular, the Court’s 2008 order in Georgia v Russia to argue that a situation of ongoing tension and instability, with a risk of CERD violations involving death or bodily harm, justifies the indication of PMs. 10/20

Armenia also invokes the PM order in #Jadhav (#India v #Pakistan) to support the proposition that protecting prisoners from a risk of irreparable harm, a risk exacerbated here by the hateful rhetoric described as state policy, is a proper basis for the indication of PMs. 11/20

Among the PMs requested, Armenia asks the #ICJ to order the immediate release of all Armenian POWs dating to the Sept 2020 war. This seems extremely unlikely. An order requiring prisoners to be treated in accordance with CERD arts 5-6 is more plausible. 12/20

Other requested measures include closure of the military trophies park (again, unlikely) and a broader request that Azerbaijan be ordered to refrain from espousing hatred towards people of Armenian ethnic/nat’l origin (vague but more plausible). 13/20

Further requested PMs relate to access to and protection of Armenian cultural and religious sites and venues in Azerbaijan. Measures along these lines seem plausible (and easier to monitor)—if the Court gets this far. 14/20

Following recent practice (see the 2020 Order in #TheGambia v #Myanmar), #Armenia also asks the #ICJ to require #Azerbaijan to make periodic reports to the Court on the implementation of whatever measures the Court may decide to indicate. 15/20

For reasons similar to those that @bruno_faucher, @AbbottKingsley and I spelled out in a different context (opiniojuris.org/2020/08/25/roh…), Armenia might want to consider asking the Court to require that such reports, if ordered, also be made available to public scrutiny. 16/20

In sum, it seems fair to describe #Armenia as seeking to channel its broader dispute with #Azerbaijan through the CERD—in order to access the #ICJ—by framing a broad range of grievances as #CERD violations, an approach we’ve seen before (#Ukraine v #Russia; #Qatar v #UAE). 17/20

In particular, #Armenia reframes various allegations of apparent IHL violations as CERD violations & seeks to fold a dispute about the Nov. 2020 ceasefire agreement (the provisions on prisoner exchange) into the case by portraying detainee mistreatment as a CERD violation. 18/20

To date no #CERD case at the #ICJ has been decided on the merits (Georgia v Russia, Qatar v UAE were dismissed; Ukraine v Russia is pending). It’s unclear whether any of those litigations could be deemed “successful” (a win on the merits is not the only measure of success). 19/20

But #CERD, with its compromissory clause & broadly-worded obligations, has certainly become an attractive option for states seeking to litigate. Will this #ICJ action contribute to a lasting peace b/w #Armenia & #Azerbaijan, or might it, regrettably, have the opposite effect? END