On 16 September 2021, the International Court of Justice (ICJ) announced that Armenia had started court proceedings against Azerbaijan. A week later the court announced that Azerbaijan had started its own proceedings against Armenia. Both states accuse the other of racial discrimination in violation of the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD). The lawsuits follow the 44-day war fought between the two states last year.

ARMENIA V AZERBAIJAN

Armenia accuses Azerbaijan of discriminating against ethnic Armenians. It asserts that “Anti-Armenian hate is [Azerbaijani] State policy” and has lead to “mass killings, torture and other abuse” of ethnic Armenians. Hundreds of thousands have fled Azerbaijan to escape persecution.

Armenia records the violent persecution of Armenians throughout the 20th Century in its court application. Between 1915-1917, one million Armenians were slaughtered by Turkish nationalists in what is now called the Armenian Genocide. In September 1918, Turkish and Azeri forces captured Baku—the capital of Azerbaijan, but then under Russian control. The invading forces massacred the city’s Armenian population, killing around 20,000.

Between 1988-1990, Azeri mobs lynched Armenians and looted their properties across Azerbaijan. The UN Committee on the Elimination of Discrimination against Women reported that “the Armenian community of Baku… were killed, tortured, robbed, and humiliated”. During the First Nagorno-Karabakh War (1988—1994) and the second (2020), Azerbaijani soldiers committed war crimes against civilians and soldiers alike.

Azerbaijani officials have described Armenians in dehumanising language. President Aliyev has publicly called them “animals”, “dogs”, “fascists”, and “barbarians”. The former mayor of Baku is alleged to have told a visiting German delegation “[o]ur goal is the complete elimination of Armenians. You, Nazis, already eliminated the Jews in the 1930s and 40s, right? You should be able to understand us.”[1]

AZERBAIJAN V ARMENIA

Azerbaijan accuses Armenia of ethnic cleansing in the Nagorno-Karabakh region. Though internationally recognised as part of Azerbaijan, the region is dominated by Armenians. It is governed independently as the Republic of Artsakh—a breakaway state helped (but unrecognised) by Armenia.

During the First Nagorno-Karabakh War, Artsakh Armenians beat, starved, mutilated, raped, and murdered local Azeris. On 26 February 1992, Armenian militia killed over 200 Azeris as they tried to flee the city of Khojaly. The Khojaly Massacre was the largest single massacre committed by either side in the war.

Azerbaijan says Armenia has since engaged in settler colonialism, and that Artsakh offers financial incentives to Armenians to settle in Nagorno-Karabakh. Azeri towns have been renamed. Azeri monuments have been vandalised, including mosques, cemeteries, and libraries. Thousands of Azeris have fled the region.

Like their Azerbaijani counterparts, Armenian officials have used derogatory language. The foreign minister of Artsakh said Azeris were “not human”. Officials and state press have described Azeris as “nomads,” “Turkish barbarians,” and a “cave tribe” who “do not belong on Earth”.

ICERD AND THE ICJ

Article 1 of the ICERD prohibits discrimination on the basis of “race, colour, descent, or national or ethnic origin”. Article 2 places an obligation on states to eliminate racial discrimination. If a state believes another is not complying with the convention, then the two states must negotiate under article 11. If negotiations fail, then either state can bring the dispute before the ICJ under article 22.

Armenia and Azerbaijan are parties to the ICERD. Both assert negotiations have failed and consent to the ICJ adjudicating. There is no guarantee the ICJ will take up either case. In 2008, Georgia started court proceedings against Russia, alleging violations of ICERD. The ICJ held that the case was not admissible because the parties had not engaged in negotiations. Armenia and Azerbaijan have exchanged over 40 letters and engaged in eight rounds (seven according to Armenia) of negotiations. Therefore, it is unlikely that the ICJ will decline to hear either case on the ground that the parties have not negotiated.

The ICJ has announced it shall hold preliminary public hearings on 14 and 15 October and 18 and 19 October 2021. The court will consider the provisional measures sought by each state.

[1] Committee on Foreign Affairs, House of Representatives, 110th Congress, Second Session, The Caucasus: Frozen Conflicts and Closed Borders, Serial No. 110-200 (18 June 2008), p. 50

Samuel is a trainee solicitor and postgraduate at Cardiff University. He is active in several U.K.-based organisations campaigning on behalf of Hong Kong and BNOs. His research interests include transitional justice and the rule of law.

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