Over the past several months, the Foreign Policy has published two articles, first one by Shella Paylan on allegations of wars crimes by Azerbaijan and later a second by Simon Maghakyan on whether Azerbaijan’s “cultural desecration is racial discrimination,” about recent developments in the ongoing “lawfare” between Armenia and Azerbaijan. These two articles unfortunately cherry-pick both events and the language of legal decisions. The result is a biased presentation that purports to be an objective analysis.
The two articles center on the International Convention on the Elimination of All Forms of Racial Discrimination (CERD), over which Armenia and Azerbaijan filed, before the International Court of Justice (ICJ), reciprocal briefs, each charging that the other engaged in racial discrimination through various acts. I will concentrate on the more recent article, concerning cultural destruction, although this is not entirely unrelated to the question of war crimes, since the destruction of cultural heritage is often part of the same policy as, for example, the targeted killing of civilians, whether racially motivated or not.
It is remarkable that the second article discusses the ICJ’s provisional measures in the case of Armenia v. Azerbaijan but barely if at all mentions the case of Azerbaijan v. Armenia, which the court considered simultaneously. For the sake of equity and objectivity, it should be noted that the ICJ granted Azerbaijan’s request that Armenia must 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.”
Armenia’s pleadings before the ICJ were mainly dedicated to convincing the court to oblige Azerbaijan to release immediately “all Armenian prisoners of war, hostages and other detainees in its custody who were made captive during the September-November 2020 armed hostilities or their aftermath.” The ICJ rejected this request.
In particular, the ICJ declined to use the term “prisoners of war/hostages” favored by the Armenian side. Instead, using instead the word “persons,” the ICJ further rejected Armenia’s request for “independent medial and physiological evaluations” of such persons. By rejecting Armenia’s pleadings, any manipulation or politicization of the “prisoner of war” issue is open to be construed as anti-Azerbaijani speech.
One would not know it from Maghakyan’s article, but the ICJ rejected a whole series of Armenia’s pleadings. It rejected the request for “right of access and enjoyment” of Armenia’s claimed heritage in Azerbaijan’s liberated territories. It rejected the request to oblige Azerbaijan “to facilitate, and refrain from placing any impediment on, efforts to protect and preserve Armenian historic, cultural and religious heritage.”
Additionally, the ICJ rejected Armenia’s request to prevent and prohibit “alteration” of that “heritage.” Such a request, if granted, would have halted all ongoing and future works to restore Azerbaijani monuments located in the recently liberated territories. The ICJ limited itself to ordering the prevention and punishment of acts of vandalism and desecration of Armenian heritage.
For its part, Azerbaijan contends that it has always had such a commitment as part of its treaty obligations. Azerbaijan stated that it would comply with the ICJ’s “measures ... related to preventing racial discrimination, which reaffirm existing treaty obligations that Azerbaijan takes seriously and is committed to upholding.”
It is noteworthy that Azerbaijan did not make a similar request to the ICJ to protect cultural heritage. That is because it already has numerous claims against Armenia for the destruction of cultural and religious monuments in the formerly occupied territories. The claims have been lodged both at the ICJ and at the European Court on Human Rights.
The recent ICJ rulings are only provisional, and the court will consider Azerbaijan’s claims at the “merits” stage of adjudication. It is instructive to note that all provisional orders are temporary and do not prejudge the merits of the case itself, which the ICJ has yet to consider.
The Republic of Armenia’s arguments may turn against it as they are open to counteraccusations of cultural destruction and racial discrimination. It is well documented that Armenian forces devastated the cultural heritage of all the eight districts that they occupied until 2020, including but not limited to the territory of the Soviet-era Nagorno-Karabakh Autonomous Oblast (NKAO).
Indeed, Azerbaijan’s own case formally accuses Armenia of racial discrimination and ethnic cleansing. According to President Ilham Aliyev, for example, sixty-five out of sixty-seven mosques in the formerly occupied territories were destroyed and desecrated, and “the graveyards have been vandalized.” The destruction and desecration are not limited to Muslim sites. There is, in addition, a credible video report of the destruction of an Orthodox church in the Karabakh region, indeed perhaps dozens.
According to the ICJ summary, Azerbaijan said in its filing before the court that “Armenia has engaged and is continuing to engage in a series of discriminatory acts against Azerbaijanis on the basis of their ‘national or ethnic’ origin,” and that through “both direct and indirect means, Armenia continues its policy of ethnic cleansing” while inciting “hatred and ethnic violence against Azerbaijanis by engaging in hate speech and disseminating racist propaganda, including at the highest levels of its government.”
A cursory and preliminary evaluation of the facts suggests that this filing should succeed at the merits phase of the proceedings. The ethnic cleansing of approximately 700,000 indigenous Azerbaijanis from the Karabakh region and adjacent districts during the early 1990s, who were forced to leave their lands in the 1990s when Armenia occupied them, is well documented.
It may be reasonably expected that Azerbaijan might argue that this ethnic cleansing, not to mention the Khojaly massacre, is also a form of racism. Paylan’s earlier article on war crimes studiously omits mention of this, which was only the worst in a series of such incidents that give every appearance of targeting Azerbaijanis racially. Not only prima facie acts of racism, but these acts (and others) would also then prima facie represent war crimes by the Armenian armed forces.
It might be further argued that such ethnic cleansing is part of a pattern. This is because it is less generally recognized, but equally well documented, that approximately 200,000 Azerbaijanis were ethnically cleansed from their lands in southern Armenia in the late 1980s, which became part of Armenia only a century ago when the Bolshevik Party handed them over to Armenia. (Indeed, in the last five years of Josef Stalin’s rule, about 150,000 ethnic Azerbaijanis were forcibly relocated from the Armenian to the Azerbaijani Soviet Socialist Republic.)
Notwithstanding the ICJ’s provisional judgments, full litigation of the cases before the court will take years. More likely to show important results sooner, and too often overlooked, are equally recent developments at the Parliamentary Assembly of the Council of Europe (PACE) and United Nations Educational, Scientific, and Cultural Organization (UNESCO). Indeed, some of the ICJ proceedings may well to some degree depend on them.
In September 2021, Irish senator Paul Gavan submitted his report, “Humanitarian Consequences of the Conflict between Armenia and Azerbaijan,” to the Council of Europe, acting as rapporteur for its Committee on Migration, Refugees, and Displaced Persons. It is not clear why Western commentators rarely, if ever, mention the PACE report, which was the product of visits by PACE delegations in the field and extremely wide consultations.
Gavan’s report is an even-handed document. It repeats the words “both sides” multiple times. It also makes clear that “Nagorno-Karabakh” is a geographic region, not a self-governing entity, and that it is not a party to the conflict, which is exclusively between the states of Armenia and Azerbaijan. It clarifies that the borders of Azerbaijan were “internationally recognised (including by the Council of Europe)” at the time of its independence in 1991, “while at the same time the Armenian population of the Nagorno-Karabakh region claimed the right to self-determination.” Here the word “claim” is key: in accord with the international law of self-determination, he does not take this claim for granted.
Gavan noted that, according to the Azerbaijani Ministry of Culture, “From 1988 to 1993 [alone], 900 settlements, 150 residential buildings, 7,000 public buildings, 693 schools, 855 kindergartens, 695 health-care facilities, 927 libraries, 44 temples, 9 mosques, 473 historical monuments, palaces and museums, 40,000 museum exhibits, 6,000 industrial and agricultural facilities, 160 bridges and other infrastructure facilities were destroyed in Karabakh.”
It seems unlikely that Azerbaijan would make such detailed claims without having an inventory of the destruction. As a report from a Baku think tank discusses, there are publicly available, detailed, and heavily-documented reports of a partial inventory of Armenian environmental destruction of the formerly occupied territories, including copious references to the relevant international humanitarian laws on environmental protection and international laws on belligerent occupation.
While Gavan’s report expressed concern about a “Caucasian Albanian” narrative on the part of Azerbaijan, he neglected to mention the “Persian” cultural narrative promoted by Armenia. This policy seeks to portray all actual Muslim and Turkic heritage in the region as Persian, and it has been implemented with Iranian help: the Blue Mosque in Yerevan is the most obvious example.