Thread by @mabecker17

Well that didn't take long. After #Armenia initiated an #ICJ case against #Azerbaijan last week re #CERD violations, Azerbaijan said it would respond in kind. Yesterday, Azerbaijan filed its own case against Armenia, also under the CERD and also seeking provisional measures. 1/35

https://twitter.com/CIJ_ICJ/status/1441111210821251077

Since I summarized #Armenia’s claims last week, it seems only fair to provide an overview of #Azerbaijan’s claims now. Another #CERD case, another long thread from me (sorry). 2/35

Azerbaijan’s application attributes a “policy of ethnic cleansing and systematic violations of CERD” to Armenia—namely, discrimination based on national or ethnic origin aimed at achieving a mono-ethnic state. 3/35

Azerbaijan recounts how in the 1990s, by its telling, Armenia unlawfully seized #NagornoKarabakh and engaged in ethnic cleansing against Azerbaijanis and destruction of cultural heritage in that territory, until it was recaptured by Azerbaijan in 2020. 4/35

Azerbaijan asserts that Armenia’s ethnic cleansing policy nonetheless continues (eg, through preventing displaced persons from returning to their homes, failing to disclose landmines, and fomenting hate speech that stokes anti-Azerbaijani sentiment). 5/35

Azerbaijan overall argument is that ethnic cleansing, cultural erasure, and fomenting of hatred against Azerbaijanis amount to violations of the #CERD that require Armenia to redress the harms it is alleged to have caused. 6/35

On jurisdiction Azerbaijan relies on CERD Art 22, asserts that it has made CERD claims that Armenia has opposed, and points to eight rounds of negotiations since Dec 2020 which show that negotiations have failed, thus meeting the threshold for ICJ jurisdiction. 7/35

Much of Azerbaijan’s application (which clearly was not assembled only within the last week) sets out detailed factual allegations in support of its claims within the three broad headings noted above. 8/35

A somewhat novel aspect of the submission is how it links environmental damage attributed to Armenia to cultural heritage destruction (eg, habitat destruction threatens the extinction of the Xari Bulbul, a culturally significant flower variety). 9/35

In recounting recent episodes of armed conflict, including indiscriminate attacks that resulted in civilian deaths and execution /torture of POWs, Azerbaijan claims that Armenia has committed war crimes motivated specifically by ethnic hatred. 10/35

#Azerbaijan further contends that #Armenia has failed to investigate these incidents or prosecute anyone, and that, in addition to fomenting anti-Azerbaijani hatred, has failed to act against “racist hate groups”. 11/35

On the basis of this broad set of factual allegations, Azerbaijan claims that Armenia is in violation of CERD arts 2-7 (the same articles invoked by Armenia against Azerbaijan). 12/35

Claimed violations of arts 2-3, 5 are based on alleged expulsion of Azerbaijanis from territories seized by Armenia, cultural property destruction, unlawful targeting/killing of Azerbaijani civilians during hostilities, and mistreatment of POWs and civilian detainees. 13/35

Azerbaijan frames the unlawful exploitation/depredation of natural resources as violations of CERD arts 2 & 5, hate speech/incitement as violations of arts 2, 4-5, & 7, and failures to investigate or provide redress for war crimes/discrimination as art 6 violations. 14/35

In terms of relief, Azerbaijan asks the ICJ to order Armenia to end the ethnic cleansing directed against Azerbaijanis and to find—and this, I’d suggest, is novel—that compliance with the CERD requires Armenia to cooperate with #landmine removal operations in Azerbaijan. 15/35

The relief sought also extends to Armenia refraining from cultural heritage destruction, ending dissemination/support for anti-Azerbaijani hate speech, adopting positive measures to prevent ethnic discrimination, and a public apology & acknowledgement of CERD violations. 16/35

Finally, Azerbaijan askes the #ICJ to require Armenia to make full reparation, including financial compensation, for the harms suffered based on the alleged CERD violations. 17/35

As for provisional measures, Azerbaijan focuses on Armenia’s refusal to cooperate in efforts to identify/remove #landmines, cyber disinformation efforts aimed at inciting ethnic hatred, and failures to preserve evidence of violent crimes linked to ethnic discrimination. 18/35

The provisional measures requested go to these three points, including that Armenia provide info about landmine locations and refrain from laying new #landmines in Azerbaijan. Another measure would have Armenia crackdown on public & private hate speech on social media. 19/35

Finally, Azerbaijan asks for a provisional measure requiring Armenia to prevent the destruction of evidence relating to allegations of ethnically-motivated crimes against Azerbaijanis. 20/35

Just as #Armenia did in its request for provisional measures last week, #Azerbaijan also asks the #ICJ to require Armenia to report back periodically to explain the steps taken to implement whatever measures may be indicated, a request that is becoming commonplace. 21/35

So where does this leave us? As in last week’s case, we see an applicant working hard to fit a broad range of claims, especially those which appear to concern IHL and use of force (rather than discrimination, strictly speaking), within the specific contours of the #CERD. 22/35

This is especially apparent in Azerbaijan’s effort to describe alleged war crimes (e.g. indiscriminate shelling, prisoner abuse) as motivated by ethnic hatred, such that these allegations might be framed as CERD violations. These claims likely face an uphill battle. 23/35

On provisional measures, the argument about Armenia’s alleged refusal to cooperate in landmine removal may struggle to meet the ICJ’s #plausibility test. Is it plausible that such allegations, as serious as they may be, potentially amount to violations of the CERD? 24/35

Notably, #Azerbaijan’s application is not a response or defense to the claims that #Armenia has made. It raises a distinct set of claims. This means, in theory, that the two cases need not and should not be joined (they can still be handled together administratively). 25/35

Stepping back a bit, with these two separate #ICJ cases now on the docket between the same parties, the extent to which these cases signal efforts to “judicialize” a far broader dispute than can be encapsulated by the #CERD is blindingly obvious. 26/35

Both states have creatively come up with allegations & claims that, at least in part, may fall within the #CERD. But the cases also highlight an intense & long-standing dispute over territory and identity, which has led to significant bloodshed in the past on both sides. 27/35

There is also a ‘hidden’ dispute here about the 2020 armed conflict, including whether Azerbaijan’s actions fell within lawful self-defense under the circumstances (see ejiltalk.org/use-of-force-i….) 28/35

The Court can navigate these dueling #CERD disputes without necessarily having to stray into these other areas of the broader conflict (although there may be hard-to-avoid questions about extraterritorial scope of human rights obligations and extent of sovereignty/control). 29/35

But when it comes to each party’s #CERD claims, the #ICJ may well find that both states have failed to live up to their CERD obligations with respect to some claims, while finding that other claims—by both sides—are unproven or fall beyond its jurisdiction ratione materiae. 30/35

The cases may provide another opportunity (in the wake of Qatar v UAE) for the Court to indicate how much weight—or not—it is willing to give to factual determinations or legal interpretations by the CERD Committee. On that issue: ejiltalk.org/who-is-the-fin…. 31/35

To perhaps a large extent, both #Armenia and #Azerbaijan will likely take advantage of the #ICJ forum to make a range of arguments that the Court cannot address and that are not genuinely aimed at peaceful dispute settlement in the first place, for better or for worse. 32/35

As Filippo Fontanelli (@cometoblame) argues in a new paper, a trend towards using compromissory clauses in subject-specific treaties to fight bigger battles at the #ICJ is contributing to the decline (or extinction?) of such clauses in new treaties: docdroid.net/IRJefby/rdi-20… 33/35

As for the #Armenia and #Azerbaijan cases, it may be doubtful whether a pair of #ICJ judgments that end up confirming the human rights failures of both sides—if that is what happens—will contribute to peace or resolving the broader conflict. 34/35

But it's often unhelpful to think of #ICJ litigation as a silver bullet--or as a mere political cudgel. Instead we might recall its potential to be part of a broader process of dispute settlement, but one that requires political commitment from many different players to work. END