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In its Order of 7 December 2021, the International Court of Justice (ICJ) indicated provisional measures in Armenia v Azerbaijan: a case that examines whether Azerbaijan violated its obligations under the Convention on the Elimination of All Forms of Racial Discrimination (CERD) during the Second Nagorno-Karabakh War (2020) and whether it continues to do so following the Ceasefire Agreement of 9 November 2020. At the crux of the adjudication are allegations that Azerbaijan has imperilled the lives and safety of Armenian Prisoners of War (POWs) and civilian detainees; incited racial hatred against persons of Armenian national or ethnic origin; and vandalised or desecrated Armenian cultural heritage sites in Nagorno-Karabakh. Pending adjudication on the merits, the Order indicating provisional measures gives rise to positive legal obligations on Azerbaijan, including that it takes “all necessary measures to prevent and punish acts of vandalism and desecration affecting Armenian cultural heritage, including but not limited to churches and other places of worship, monuments, landmarks, cemeteries and artefacts.” In this article, I assess the ICJ’s construction of desecration as ‘racial discrimination’ and how it effectively contrived a plausible right which has no grounding in the CERD. The more sound view, expressed by Judge Yusuf in his Dissenting Opinion, is that the protection of cultural heritage is in fact the province of international humanitarian law. In my view, it is to this orthodox position that the ICJ should return.
Nagorno-Karabakh (literally the “Black Garden Highlands”) has a complex history. Landlocked in the Lesser Caucasus, it was from 1921-1991 an autonomous administrative division (“oblast”) within the Azerbaijan Soviet Socialist Republic (“AzSSR”), albeit with an ethnic Armenian majority. When the USSR was dissolved in 1991, so too were its satellite republics, and from the ashes rose the independent sovereign states, inter alia, of Armenia and Azerbaijan. Both laid claim to the old oblast and several skirmishes and two armed conflicts since ensued, the most recent being the Second Nagorno-Karabakh War (2020), which lasted forty-four days before a ceasefire brokered by Russia was trilaterally agreed. It is against this backdrop that Armenia initiated ICJ proceedings in September 2021, alleging violations of CEDR by Azerbaijan in respect of, inter alia, its alleged erasure of Armenian cultural heritage.
The transference of swathes of Nagorno-Karabakh to Azerbaijan following the Ceasefire means that hundreds of historic Armenian Orthodox churches now lie in Azerbaijani sovereign territory. These include the architectural jewels of the Holy Saviour Cathedral and the Churches of Saint John the Baptist and Saint Yesghishe. Yerevan alleges that Baku has deliberately desecrated these sites, sometimes under the pretence of restoration, as part of its ‘Albanisation’ agenda aimed at expunging the historical footprint of Armenians in Nagorno-Karabakh.
Armenia’s legal submissions were framed in terms of Article 5(d)(vii) of CERD, prohibiting racial discrimination in the enjoyment of freedom of thought, conscience and religion; and Article 5(e)(vi) of CERD, providing for ‘the right to equal participation in cultural activities.’ Its argument can be deconstructed as follows:
- Azerbaijan’s destruction of Armenian cultural heritage constitutes ‘racial discrimination’;
- Azerbaijan’s actions prevent persons of Armenian national or ethnic origin from accessing and enjoying, without discrimination, their historic, cultural and religious heritage;
- Articles 2 and 5(d)(vii) and 5(e)(vi) are therefore engaged;
- Armenia has ‘plausible rights’ in these provisions insofar as they are ‘grounded in a possible interpretation of the Convention’;
- Azerbaijan’s actions may entail irreparable prejudice to those rights;
- There is urgency; and therefore
- Provisional measures should be indicated in the terms sought.
In response, Azerbaijan acknowledged its obligation to protect and uphold cultural heritage in the liberated territories and submitted that its domestic law already adequately criminalises the desecration of such sites, including those identified as at risk by Armenia. It further submitted that persons of Armenian national or ethnic origin within Azerbaijan-controlled territory “must be able to visit on an equal basis historic, cultural and religious sites that are safely open to the public in its territory”, although those sites are neither safe nor secure at this time owing to the placement of landmines by Armenia during the last military engagement. Accordingly, all persons, whether Armenian or not, are restricted from accessing those sites: this is not ‘racial discrimination’, but is instead a public protection measure. Therefore, it cannot conceivably give rise to a plausible right under CERD,
The Court received evidence from both parties and ultimately granted Armenia’s request, deploying the following reasoning:
- The alleged desecration of Armenian cultural heritage sites by Azerbaijan gives rise to plausible rights under CERD;
- It is established jurisprudence that cultural heritage sites can be subject to a serious risk of irreparable prejudice where such heritage has “been the scene of armed clashes between the parties” and “such clashes may reoccur”;
- There is an urgency “in the sense that there is a real and imminent risk that such prejudice will be caused before the Court makes a final decision in the case.”
- Accordingly, Azerbaijan must “take all necessary measures to prevent and punish acts of vandalism and desecration affecting Armenian cultural heritage, including but not limited to churches and other places of worship, monuments, landmarks, cemeteries and artefacts.”
It is a matter of considerable concern that the Court did not set out its reasons for determining the initial issue from which its conclusions flow: we are effectively left in the dark as to how, and by what means, the Court identifies the desecration of cultural heritage as giving rise to plausible rights under CERD. Is it because cultural desecration driven by racial prejudice is itself an act of ‘racial discrimination’? Or is that the act of desecration causes a kind of indirect harm to individuals who belong to, or identify with, the same overarching culture as the object or site desecrated? It remains unclear, but this degree of ambiguity does not bode well for future decision-making because it risks hollowing out a deliberately restrictive regime.
The Order has nonetheless been hailed as a milestone in the domain of cultural conservation. It is felt in some quarters that it creates a new remedy under CERD for descendant communities seeking to prevent successor states from desecrating their cultural heritage. According to this school of thought, displaced communities may now challenge the destruction or even the re-purposing of their religio-cultural heritage sites post-conflict by pleading racial discrimination under CERD. To some, this comes as a relief given UNESCO’s underperformance in this key arena. But is it really right to construe cultural desecration as ‘racial discrimination’? In his blistering dissent, Judge Yusuf makes clear that it is not. His opposition is built on four pillars:
- CERD protects the basic rights and fundamental freedoms of human beings. Monuments, buildings, sites and artefacts plainly cannot be racially discriminated against.
- The right to equal participation in cultural activities is not a stand-alone right. For the Article 5 to be engaged, the interference with the right to equal participation in cultural activities must be due to racial discrimination. The Order does not set out how Azerbaijan’s alleged actions amount to racial discrimination.
- Religious discrimination is to be distinguished from racial discrimination. The protection of religious heritage from desecration is the province of international humanitarian law, not CERD.
- The Court’s reliance on its previous jurisprudence in support of the proposition that there can be a risk of irreparable damage to cultural heritage is misplaced. In the Temple case, the Court enjoyed a much wider jurisdictional basis following the parties’ declarations recognising its compulsory jurisdiction, which naturally extended to an authority to consider the applicability of different cultural heritage protection instruments.
Drawing these strands together, Judge Yusuf concludes that the Court was unjustified in indicating provisional measures against Azerbaijan. Armenia’s desire to safeguard its civilizational treasures is important and its allegations warrant judicial determination – but it is erroneous to seek remedies under CEDR. To do so is unprecedented and ‘risks transforming the Convention into a “fourre-tout”; a receptacle in which all sorts of asserted rights may be stuffed.” It is an inexplicable and counter-intuitive decision given the protection extended to cultural heritage in various instruments of international humanitarian law, for example, the Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict of 1954 and its two additional protocols of 1954 and 1999, to which both Armenia and Azerbaijan are incidentally parties.
I agree with the dissent. The Court has not provided its reasons for deeming the desecration of cultural sites ‘racial discrimination’ capable of giving rise to plausible rights under CERD. In the absence of these reasons, it is difficult to contemplate a departure from the ordinary principles of application of CERD. In my view, the Court has contrived plausible rights on receiving preliminary inculpatory evidence of desecration by Azerbaijan. However, to do so without a basis in the provisions of the specific legal instrument in which the claim is grounded is fundamentally misplaced. It is simply an exercise in legal acrobatics and risks legitimising more lopsided decisions in the future.
Fahrid Chishty is a Barrister at Libertas Chambers in London. He practises criminal, regulatory and international law.