Nagorno-Karabakh, a disputed enclave in the Caucasus, was ethnically cleansed of its Armenian population in September 2023. In the space of a week, almost all the more than 110,000 Armenians who lived there fled a lightning assault by Azerbaijani forces and what had been a nine-month blockade of the enclave by Azerbaijan. The blockade had resulted in food shortages and, from June 2023, the prevention of humanitarian aid (including medical supplies) entering Nagorno-Karabakh, including from the International Committee of the Red Cross. The first death from starvation had been reported. International lawyers, current UN officials, former UN officials and academics argued that genocide was taking place (inflicting conditions designed to bring about physical destruction) or at least there was a serious risk of genocide.

The blockade ended in late September 2023, when Azerbaijan bombed Nagorno-Karabakh, killing more than 200 people, injuring more than 400, and ultimately forcing the Armenian population to flee in fear from the blockade and the bombing, into Armenia. Those refugees remain in Armenia today, their right of return denied by Azerbaijan.

The fear of invasion and/or war by Azerbaijan also now has forced the Armenian government to give up other territory to Azerbaijan. Recent protests in Armenia demonstrate that this territorial exchange is very unpopular with the Armenian people and that the issue remains live and concerning. Meanwhile, Azerbaijan’s President Ilham Aliyev has made clear his intentions to resettle Nagorno-Karabakh with Azeris.

All of this takes place in the context of a history of anti-Armenian hate speech and expressions of genocidal intent from Azerbaijani leadership and media, as well as the destruction of Armenian cultural property in Nagorno-Karabakh. These are clearly serious violations of international law, but they capture little attention in the media or academic writings. However, understanding this conflict and the connected legal proceedings in international courts is essential for international lawyers, because there are myriad issues relating to accountability for violations of human rights law, international humanitarian law and international criminal law, alongside issues of public international law (e.g. self-determination and territory).

Who Cares About Nagorno-Karabakh?

As I have previously written, much about the conflict and atrocities that are part of the dispute between Armenia and Azerbaijan over the territory of Nagorno-Karabakh goes underreported and therefore relatively unknown outside of the region. Exceptions exist, such as Swedish journalist Rasmus Canbäck, who continues to report on the issue in long-form, investigative pieces (see, e.g., his multi-part series in Blankspot magazine); and Armenian-American photographer Scout Tufankjian, who has crafted beautiful and moving photo essays on the Armenian culture of Nagorno-Karabakh and more recently, the refugees who fled the enclave. The list of human rights violations and international crimes that have arisen in the Nagorno-Karabakh conflicts are long, as documented regularly by Human Rights Watch and Amnesty International, as well as in the work of the Tatoyan Foundation and the Centre for Truth and Justice, which collate evidence of crimes related to Nagorno-Karabakh.

Accountability for any crimes committed is sorely lacking. Armenia is a small country. Azerbaijan has gas that other countries want (including the U.K., through British Petroleum), but Armenia lacks such a resource. Thus, despite some remaining support for Armenia proper, especially due to the influence of its extensive diaspora in the United States and France, the Armenians of Nagorno-Karabakh have struggled for recognition of their plight.

Armenia, however, is actively engaging with international law and its enforcement, turning to international institutions to seek some form of accountability —  in the European Court of Human Rights, the International Court of Justice (ICJ), and the International Criminal Court. The ICJ cases are worthy of an exploration here, as they deal with some substantial questions of human rights law, but also as the cases are running parallel at the ICJ, making them challenging to follow and distinguish.

The ICJ CERD Cases

Two cases brought under the Convention on the Elimination of Racial Discrimination (CERD), Armenia v Azerbaijan and Azerbaijan v Armenia, are relevant, both of which center on Nagorno-Karabakh.

On Sept. 16, 2021, Armenia instituted proceedings against Azerbaijan in the ICJ for violations of CERD, requesting provisional measures. Armenia alleges Azerbaijan has engaged in anti-Armenian racial discrimination and hate, prejudice, systemic discrimination, mass killings, torture and other abuse, and cultural property destruction.

On Sept. 23, 2021, Azerbaijan instituted counter-proceedings under CERD, also requesting provisional measures. This case makes allegations of a “campaign of ethnic cleansing” by Armenia in the 1990s and 2020, including “war crimes motivated by ethnic hatred” and cultural property destruction, along with anti-Azerbaijani hate speech and disinformation.

There is a stark contrast between the provisional measures the Court issued in the two cases.

In Armenia v Azerbaijan, five provisional measures orders  were issued from Dec. 7, 2021 to Nov. 17, 2023, a period when there was significant conflict-related activity in Nagorno-Karabakh. The orders reflect the changing conditions, such as the armed conflict and the blockade. Substantive provisional measures are found in the orders of Dec. 7, 2021, Feb. 22, 2023, and Nov. 17, 2023. In the orders of Oct. 12, 2022, and July 6, 2023, the Court declined to issue new provisional measures, reaffirming previous orders. Highlights of the provisional measures include:

  • December 2021: The Court ordered Azerbaijan to cease incitement and promotion of racial hatred and discrimination targeted at national or ethnic Armenians; and to prevent and punish destruction of Armenian cultural heritage.
  • February 2023 (during the blockade): The Court declared Azerbaijan’s blockade of Nagorno-Karabakh, including the closure of the Lachin Corridor, “may have a serious detrimental impact on the health and lives of individuals” (para. 55) and ordered Azerbaijan to “take all measures at its disposal to ensure unimpeded movement of persons, vehicles and cargo along the Lachin Corridor in both directions” (para. 67).
  • November 2023 (after the exodus): The Court instructed Azerbaijan to ensure the safe, unimpeded and expeditious return of those who wish to return to Nagorno-Karabakh, and the protection of persons in Nagorno-Karabakh.

In Azerbaijan v Armenia, there have been two provisional measures orders,  on Dec. 7, 2021, and Feb. 22, 2023. Not all Azerbaijan’s requests for provisional measures were granted, with the Court deciding some were not warranted. The only order to Armenia was to “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” (para. 76). In February 2023, the Court declined to issue additional provisional measures in that case.

In both cases, the Court ordered both parties to “refrain from any action which might aggravate or extend the dispute before the Court or make it more difficult to resolve.” Azerbaijan has not complied with any of the provisional measures ordered by the Court (although it may have submitted a report of steps taken to give effect to the measures, as required under the November 2023 order; if so, this has not been made public).

In April 2024, the Court held hearings on preliminary objections for both cases. (Written submissions are linked below; but see also the verbatim records of the oral hearings at those case pages.)

Armenia v Azerbaijan Preliminary Objections Arguments

Azerbaijan argued:

  • The Court lacks jurisdiction because Armenia made no genuine attempt to settle the dispute through negotiations;
  • Wartime misconduct is not covered under Article 22 (the compromissory clause) of CERD; as such, any misconduct falls under international humanitarian law (IHL, the laws of war);
  • Armenia’s allegations of misconduct during armed conflict (such as enforced disappearance, wrongful detention and mistreatment) do not raise issues of racial discrimination under CERD, for example, because anti-Armenian statements made by soldiers are “derogatory insults” and not racial discrimination; and
  • General Armenophobia in Azerbaijan is mere “background context” and not relevant.

Armenia responded that:

  • Negotiation preconditions have been fulfilled;
  • International law claims may exist under more than one treaty (i.e. that CERD and IHL may apply simultaneously);
  • The scope of Armenia’s claims of misconduct (murder, torture, inhumane treatment, arbitrary detention, and enforced disappearances) fall under CERD, as these actions were carried out because the victims were ethnic Armenians; and
  • General Armenophobia from Azerbaijan leaders is relevant because it influences the behavior of those carrying out actions against ethnic Armenians.

Azerbaijan v Armenia Preliminary Objections Arguments

Armenia argued the ICJ lacks jurisdiction:

  • Over Azerbaijan’s claims relating to the First Nagorno-Karabakh War being events prior to Sept. 15, 1996, the date of CERD’s entry into force for Azerbaijan, as historical claims are inadmissible;
  • Over the subject matter (ratione materiae) under CERD over allegations of planting landmines and booby traps, (including that Armenia does not plant booby traps, and that landmines are indiscriminate by nature); and
  • Ratione materiae under CERD over allegations of environmental harm as the alleged conduct does not constitute racial discrimination, and certain acts do not fall within the scope of rights under CERD.

Azerbaijan responded that the ICJ has jurisdiction:

  • During the relevant time period, (ratione temporis) over all of Azerbaijan’s claims because the relevant date is July 23, 1993, when CERD entered into force in Armenia, and regardless, Azerbaijan’s claims are based on acts that continued beyond or occurred after Sept. 15, 1996; and
  • Ratione materiae because Armenia’s environmental destruction impaired Azerbaijanis’ rights on the basis of ethnic or national origin; and
  • Ratione materiae because Azerbaijan’s claims relating to landmines and booby traps are not an independent violation of CERD but rather a tool in Armenia’s campaign of ethnic cleansing.

Potential Impact on International Law

These ICJ cases are important for the enforcement of state accountability for international law violations, particularly the extensive number committed by Azerbaijan. However, they also offer the potential to contribute to international law jurisprudence on some interesting and pertinent legal issues, including the relationship between human rights law — specifically, racial discrimination — and IHL, through the question of whether acts of war can also amount to racial discrimination.

Neither Armenia nor Azerbaijan have made a declaration under Article 36(2) of the ICJ Statute, agreeing to general ICJ jurisdiction over any international law disputes, which would allow a case to be brought under IHL. That has left Armenia with limited avenues for State responsibility, hence the targeted case connecting specific conduct with racial discrimination under CERD. Another possible avenue is that Armenia could potentially bring a case under the Genocide Convention against Azerbaijan based on the blockade (both states have agreed to ICJ jurisdiction under this Convention).

Cases relating to Nagorno-Karabakh may fall under the radar because it is a small region that elicits less interest in the global legal world than some larger conflicts. But the conflict over this enclave has already produced — and will continue to yield — cases in various international fora that offer significant contributions to the development of international jurisprudence. These cases, then, should be of interest for international law practitioners and scholars to watch.

IMAGE: Azerbaijan’s border guards are seen on May 28, 2024, in Ghizilhajili, one of four villages Armenia recently returned to Azerbaijani control under a border demarcation deal between the Caucasus rivals. This area was in Armenia’s northeast. The two countries separately have fought two wars for control of the Nagorno-Karabakh region in Azerbaijan, which retook control of that territory in a lightning assault in September 2023 that forced out the vast majority of Armenian residents. (Photo by STRINGER/AFP via Getty Images)