Preliminary objections of Azerbaijan

INTERNATIONAL COURT OF JUSTICE
INTERPRETATION AND APPLICATION OF THE
INTERNATIONAL CONVENTION ON THE ELIMINATION OF
ALL FORMS OF RACIAL DISCRIMINATION
(REPUBLIC OF ARMENIA v.
REPUBLIC OF AZERBAIJAN)
PRELIMANARY OBJECTIONS OF
THE REPUBLIC OF AZERBAIJAN
VOLUME I
21 APRIL 2023

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TABLE OF CONTENTS
I. Introduction......................................................................................................................1
II. The Court Lacks Jurisdiction Under Article 22 of CERD Because Armenia Made
No Genuine Attempt to Settle the Dispute Through Negotiations ............................7
III. The Subject Matter of Armenia’s Claims Alleging Wartime Misconduct Is Not
Within the Court’s Jurisdiction Under Article 22 of CERD....................................15
A. The Court’s Jurisdiction Under Article 22 of CERD Extends Only to
Claims of Racial Discrimination ..................................................................16
1. Claims Under International Humanitarian Law Do Not Fall
Within CERD in the Absence of Racial Discrimination ....................17
2. Armenia’s Attempt to Transform Claims Governed by IHL into
CERD Claims by Citing “Anti-Armenian Sentiment” Has No
Basis in CERD....................................................................................20
B. On the Face of Armenia’s Memorial, Armenia’s Claims of Misconduct
During Armed Conflict Raise No Issues of Racial Discrimination Under
CERD ...........................................................................................................26
1. Armenia’s Allegations of Unlawful Violence by Members of
Azerbaijan’s Armed Forces Do Not Fall Within CERD ....................28
(a) Alleged mistreatment of members of Armenia’s armed
forces ..........................................................................................29
(b) Alleged mistreatment of individuals who illegally crossed
borders or the line of contact......................................................36
(c) Alleged targeting or mistreatment of civilians ...........................37
2. Armenia’s Allegations of Wrongful Detention Do Not Fall
Within CERD .....................................................................................41
3. Armenia’s Allegations of Enforced Disappearances Do Not Fall
Within CERD .....................................................................................45
IV. Submissions.................................................................................................................46

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I.
INTRODUCTION
1. On 16 September 2021, the Republic of Armenia (“Armenia”) submitted
to the Court its Application Instituting Proceedings Containing a Request for
Provisional Measures (the “Application”), purporting to invoke the Court’s
jurisdiction pursuant to Article 22 of the International Convention on the
Elimination of All Forms of Racial Discrimination (“CERD”). Armenia
subsequently submitted its Memorial to the Court on 23 January 2023. In
accordance with Article 79bis of the Rules of Court, the Republic of Azerbaijan
(“Azerbaijan”) hereby submits preliminary objections to the jurisdiction of the
Court. Azerbaijan requests that the Court decide these objections before any
further proceedings on the merits.
2. Armenia purports to found the Court’s jurisdiction on the compromissory
clause in Article 22 of CERD, which allows a party to refer to the Court any
dispute “with respect to the interpretation or application of the Convention” which
“is not settled by negotiation”. Armenia, however, has failed to satisfy each of the
two relevant requirements of Article 22. First, Armenia did not make good-faith
efforts to resolve the dispute through negotiation before filing its Application.
Second, the subject matter of many of the claims raised by Armenia concerns
alleged conduct in wartime governed by international humanitarian law (“IHL”)
that fall outside the scope of CERD.
3. As to the first point, rather than seek a negotiated resolution, Armenia
abruptly broke off negotiations after just two meetings on the substance of the
dispute. After the parties had spent over six months negotiating only the
procedural modalities and schedule between December 2020 and July 2021 to
build a solid foundation for their first bilateral negotiations in nearly 30 years,
Armenia presented its claims in a first meeting on 15–16 July 2021. At the second
2
meeting on 30–31 August 2021, Azerbaijan presented its responses and proposed
13 concrete actions that the parties could take to begin to address their dispute.
Those proposed actions would have fully resolved many of the issues that
Armenia later raised in its original request for provisional measures or in its
Application on the merits. But rather than respond to Azerbaijan’s proposal or
offer a counterproposal of its own, Armenia simply declared unilaterally at a
meeting on 15 September 2021 that negotiations were at an impasse and, the very
next day, filed its Application with the Court.
4. Armenia’s refusal to respond to Azerbaijan’s proposals or to continue
discussions makes clear that Armenia was never serious about settling the dispute
through negotiations. Armenia rushed to file its Application and then falsely
depicted Azerbaijan’s own claims of racial discrimination filed a week later1 as a
“mirroring” tactic2. In this way, Armenia’s stratagem sought to distract public
attention from Armenia’s methodical ethnic cleansing and discrimination against
Azerbaijanis during its decades-long illegal military occupation, by dismissing
Azerbaijan’s claims as a litigation tactic. Since that time, Armenia has continued
to eschew discussions with Azerbaijan that could achieve actual solutions to the
parties’ disputes, instead preferring an aggressive political and media offensive to
air its complaints before the public while leaving the parties’ disputes unresolved.
5. The Court has made clear that a mere exchange of views is not sufficient
to satisfy Article 22. Rather, Article 22 requires a “genuine attempt . . . to engage
1 Application of the International Convention on the Elimination of All Forms of Racial
Discrimination (Azerbaijan v. Armenia) (Application Instituting Proceedings filed
23 September 2021) (hereinafter “Azerbaijan’s Application”).
2 CR 2021/25, p. 12, para. 3 (Kirakosyan).
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in discussions . . . with a view to resolving the dispute.”3 Because Armenia never
made such a genuine attempt, instead cutting off discussions as soon as the parties
had set out their respective positions on the substance of the claims, Armenia has
not satisfied the preconditions for bringing a claim before the Court under Article
22. Accordingly, the Court lacks jurisdiction of any of Armenia’s claims.
6. Turning to the second point, the Court also lacks jurisdiction of many of
Armenia’s claims on the independent basis that they do not concern CERD at all,
but are instead complaints of conduct that would, if proven, constitute alleged
violations of IHL. Armenia’s invasion of Azerbaijan, followed by its nearly 30-
year military occupation, was undoubtedly ethnically motivated, as Armenia was
carrying out a campaign to create an ethnically pure Armenian area within
Azerbaijan’s internationally recognized territory. But it does not follow that all
instances of misconduct in an armed conflict between Armenia and Azerbaijan fall
within the subject matter of CERD. Azerbaijan has been careful to confine its
complaints, in the Azerbaijan v. Armenia case, to those that properly engage
CERD. Armenia, in this case, has not.
7. A primary object of Armenia’s Memorial is to raise claims of misconduct
during armed conflict by members of Azerbaijan’s armed forces, which Armenia
alleges occurred mostly during the active hostilities that took place in 2016 and
over approximately six weeks in late 2020, when Azerbaijan exercised its
legitimate right of self-defense under international law to oust a foreign aggressor
from its sovereign territory (the “Second Garabagh War”). Armenia dedicates
around 130 pages in Parts III and IV of its Memorial to allegations of
3 Application of the International Convention on the Elimination of All Forms of Racial
Discrimination (Georgia v. Russian Federation), Preliminary Objections, Judgment of 1
April 2011, I.C.J. Reports 2011, p. 132, para. 157.
4
mistreatment of soldiers and civilians, attacks on civilians, wrongful detentions,
and enforced disappearances occurring during active hostilities in 2016 or during
the Second Garabagh War or subsequent skirmishes, which the Court has
characterized as a continuation of that conflict4, as well as a handful of alleged
wrongful detentions during Armenia’s nearly 30-year military occupation of
Azerbaijan’s territory. Armenia, however, offers no sound basis for linking these
claims to discrimination “based on” ethnic origin5 as required by Article 1(1) of
CERD.
8. Azerbaijan does not, in these Preliminary Objections, ask the Court to
evaluate the strength or weakness of Armenia’s evidence on the merits. Rather,
Azerbaijan objects to Armenia’s legal mischaracterization of certain of its claims
as involving questions of “racial discrimination”. On their face, the allegations in
question, concerning hostilities between two States engaged in armed conflict,
potentially raise questions under IHL, but not under CERD. To be sure, CERD
applies in armed conflict as well as in peacetime, and acts of war may implicate
CERD if they impair the fundamental rights of individuals or groups of
individuals based on their ethnic origin or other grounds enumerated in Article
1(1) of CERD. But the mere fact that the peoples of two States at war often are
primarily of different ethnic origins does not, without more, transform every act of
war into a distinction “based on” ethnic origin. Allowing Armenia to proceed
4 Application of the International Convention on the Elimination of All Forms of Racial
Discrimination (Armenia v. Azerbaijan), Order on the Request for the Modification of the
Order of 7 December 2021 Indicating Provisional Measures of 12 October 2022, I.C.J.
Reports 2022, p. 5, para. 18.
5 In its Memorial, Armenia asserts only claims of discrimination based on ethnic origin under
the International Convention on the Elimination of All Forms of Racial Discrimination
(“CERD”) and Azerbaijan accordingly addresses Armenia’s claims in those terms. See, e.g.,
Application of the International Convention on the Elimination of All Forms of Racial
Discrimination (Armenia v. Azerbaijan) (Armenia’s Memorial filed 23 January 2023), p. 4,
para 1.8; p. 9, para. 1.23; ibid., pp. 750–753 (hereinafter “Armenia’s Memorial”).
5
with these claims would only encourage other States to frame all kinds of alleged
unrelated grievances as claims of racial discrimination in order to bring them
before the Court under Article 22 of CERD.
9. To try to force its claims into the jurisdictional framework of CERD,
Armenia points to unrelated statements by Azerbaijani public officials and other
individuals that it says reflect generalized “anti-Armenian” sentiment in
Azerbaijan, and then refers back to such alleged hostility to try to recast its claims
of misconduct during active hostilities as racial discrimination6. Should the case
proceed to the merits, Azerbaijan will explain at that stage that these statements do
not constitute promotion of ethnic hatred or discrimination implicating CERD;
indeed, many of the statements, on their face, are criticism of the Armenian
government and military in the context of war and almost 30 years of military
occupation, and have nothing to do with Armenians as an ethnic group. For the
purposes of these Preliminary Objections, however, the decisive point is that the
alleged expressions of hostility have no connection to the alleged conduct of
which Armenia complains. The presence of generalized racially prejudiced
sentiment, even if Armenia could prove it, does not suffice to bring every claim of
alleged wartime misconduct within the subject matter of CERD.
10. Azerbaijan wishes to emphasize that it does not excuse violations of IHL,
and it remains committed to investigating—and where appropriate, prosecuting—
any credible allegations of war crimes committed within its jurisdiction. But
claims of misconduct in armed conflict, in the absence of grounds for claiming
different treatment on the basis of ethnic origin, do not fall within the category of
6 See, e.g., Armenia’s Memorial, Part III.1.I; ibid., p. 65, para. 3.4; ibid., p. 82, para. 3.33; ibid.,
Part III.2.I; ibid., p. 210, para. 3.217; ibid., pp. 215–216, para. 3.223; ibid., Part III.3.II; ibid.,
Part. IV.2.II.
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disputes that States parties agreed to submit to the Court under Article 22 of
CERD. These claims raise no issues of interpretation and application of CERD,
and Armenia’s theory of unrelated general “anti-Armenian” sentiment does not
transform its claims of conduct governed by IHL into CERD claims. Those
claims are therefore beyond the Court’s jurisdiction under CERD.
*
11. Part II of these Preliminary Objections, below, demonstrates that Armenia
failed to meet the precondition of negotiations as required by Article 22 of CERD.
12. Part III of these Preliminary Objections, below, demonstrates that each of
the claims within Part VI, Chapter 3, Sections I, III and IV of Armenia’s
Memorial falls outside the subject matter encompassed by Article 22 of CERD.
13. For each of these two independent reasons, as detailed in Azerbaijan’s
Submissions in Part IV below, Azerbaijan respectfully requests that the Court:
a) dismiss Armenia’s Application in its entirety for Armenia’s failure to
engage in genuine negotiations; or
b) dismiss all of the claims in Part VI, Chapter 3, Sections I, III and IV, of
Armenia’s Memorial for lack of jurisdiction ratione materiae.
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II.
THE COURT LACKS JURISDICTION UNDER ARTICLE 22 OF CERD
BECAUSE ARMENIA MADE NO GENUINE ATTEMPT TO SETTLE
THE DISPUTE THROUGH NEGOTIATIONS
14. Article 22 of CERD provides:
“Any dispute between two or more States Parties
with respect to the interpretation or application of
this Convention, which is not settled by negotiation
or by the procedures expressly provided for in this
Convention, shall, at the request of any of the
parties to the dispute, be referred to the International
Court of Justice for decision, unless the disputants
agree to another mode of settlement.”7
The Court has repeatedly observed that to satisfy the precondition of negotiation a
party may refer a dispute under CERD to the Court only after it has made a
genuine attempt to engage in discussions with the other disputing party, with a
view to resolving the dispute8 . The Court, moreover, has stated on several
occasions that the negotiation precondition is not a superficial box-ticking
exercise: “negotiations entail more than the plain opposition of legal views or
interests between two parties, or the existence of a series of accusations and
7 CERD, art. 22 (emphasis added). The two preconditions set out in Article 22—“negotiation”
or “procedures expressly provided for in this Convention”—are alternative. See Application
of the International Convention for the Suppression of the Financing of Terrorism and of the
International Convention on the Elimination of All Forms of Racial Discrimination (Ukraine
v. Russian Federation), Preliminary Objections, Judgment of 8 November 2019, I.C.J.
Reports 2019, p. 600, para. 113.
8 Application of the International Convention on the Elimination of All Forms of Racial
Discrimination (Georgia v. Russian Federation), Preliminary Objections, Judgment of 1
April 2011, I.C.J. Reports 2011, p. 132, para. 157; Application of the International
Convention for the Suppression of Terrorism and of the International Convention on the
Elimination of All Forms of Racial Discrimination (Ukraine v. Russian Federation),
Preliminary Objections, Judgment of 8 November 2019, I.C.J. Reports 2019, p. 602, para.
117; Questions Relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal),
Judgment of 20 July 2012, I.C.J. Reports 2012, pp. 445–446, para. 57.
8
rebuttals, or even the exchange of claims and directly opposed counter-claims”9.
To satisfy Article 22’s precondition, a party must make “a genuine attempt . . . to
engage in discussions with the other disputing party, with a view to resolving
the dispute”10.
15. Armenia has failed to satisfy this precondition because it did not seriously
engage with Azerbaijan with a view to resolving the dispute. In fact, Armenia
broke off negotiations after just two substantive meetings: one on 15–16 July 2021
for Armenia to present its claims, and one on 30–31 August 2021 for Azerbaijan
to respond. At that point, there had been effectively only an exchange of views
between the parties and no real effort at negotiations on Armenia’s part.
16. Armenia will no doubt cite the large number of letters exchanged between
the parties—principally in negotiating the procedure for their expected substantive
discussions—but the quantity of communications is not an indication of good-
9 Application of the International Convention on the Elimination of All Forms of Racial
Discrimination (Georgia v. Russian Federation), Preliminary Objections, Judgment of
1 April 2011, I.C.J. Reports 2011, p. 132, para. 157; Application of the International
Convention for the Suppression of Terrorism and of the International Convention on the
Elimination of All Forms of Racial Discrimination (Ukraine v. Russian Federation),
Preliminary Objections, Judgment of 8 November 2019, I.C.J. Reports 2019, pp. 601–602,
para. 116. See also Application of the International Convention on the Elimination of All
Forms of Racial Discrimination (Qatar v. United Arab Emirates), Order on Provisional
Measures of 23 July 2018, I.C.J. Reports 2018, pp. 419–420, para. 36 (“Where negotiations
are attempted or have commenced, the precondition of negotiation is only met when the
attempt to negotiate has been unsuccessful or where negotiations have failed, or become
futile or deadlocked.”); Questions Relating to the Obligation to Prosecute or Extradite
(Belgium v. Senegal), Judgment of 20 July 2012, I.C.J. Reports 2012, pp. 445–446, paras. 57-
59 (finding that despite “[s]everal exchanges of correspondence and various meetings”
between the Parties, “[t]he fact that … their basic positions have not subsequently evolved
confirms that negotiations did not and could not lead to the settlement of the dispute.”)
10 Application of the International Convention on the Elimination of All Forms of Racial
Discrimination (Georgia v. Russian Federation), Preliminary Objections, Judgment of
1 April 2011, I.C.J. Reports 2011, p. 132, para. 157.
9
faith engagement. Armenia first notified Azerbaijan of a potential dispute under
CERD on 11 November 2020 in a two-page note that summarily listed Armenia’s
allegations11. Azerbaijan responded promptly on 8 December 202012. The parties
then proceeded to negotiate the procedural modalities and schedule for their
upcoming substantive negotiations for over six months, through an extensive
exchange of correspondence in the course of late December 2020 to July 202113.
In this specific context, agreeing on negotiation procedures was a critical
confidence-building measure, as the CERD negotiations would mark the first time
Azerbaijan and Armenia met bilaterally, without a mediator, in nearly 30 years.
17. After the parties had agreed on the process, substantive negotiations
commenced in July 2021, but Armenia never allowed those negotiations to
progress. Armenia presented its claims and requests for remedies during virtual
meetings on 15–16 July 2021, and Azerbaijan presented its responses during
virtual meetings on 30–31 August 202114. Even though the parties’ discussions of
the substance of the claims were still at a very early stage, as part of its response
Azerbaijan presented Armenia with a list of 13 concrete actions that it proposed
11 Annex 1, Letter from Zohrab Mnatsakanyan, Minister of Foreign Affairs of the Republic of
Armenia, to Jeyhun Bayramov, Minister of Foreign Affairs of the Republic of Azerbaijan
dated 11 November 2020.
12 Annex 2, Letter from Jeyhun Bayramov, Minister of Foreign Affairs of the Republic of
Azerbaijan, to Ara Aivazian, Minister of Foreign Affairs of the Republic of Armenia, dated 8
December 2020, No. 0540/27/2022.
13 Annexes 3–42, correspondence between Armenia and Azerbaijan concerning procedures and
schedule for negotiation, dated 22 December 2020 to 14 July 2021.
14 Annex 43, Note Verbale from the Permanent Mission of the Republic of Azerbaijan to the
United Nations Office and other International Organizations in Geneva to the Permanent
Mission of the Republic of Armenia to the United Nations Office and other International
Organizations in Geneva, dated 2 September 2021, No. 0432/27/21/25.
10
the parties take jointly, as a starting point for further discussions15. Armenia did
not respond in writing, and instead of engaging with Azerbaijan’s proposals,
Armenia rejected them out of hand in a meeting on 14–15 September 2021.
Armenia made no counterproposals of its own and unilaterally declared that the
negotiations were at an end16. On the morning of the next day, Armenia filed with
the Court its Application and first Request for Provisional Measures, prematurely
claiming that the negotiations had run their course and that any further discussions
would be futile17.
18. As the timeline makes clear, negotiations were not at an impasse, contrary
to what Armenia has asserted. Negotiations on the substantive issues had barely
begun, and Azerbaijan had just made constructive proposals that demonstrated a
willingness to accommodate many of Armenia’s requests, and to which Armenia
never responded. Instead, Armenia rushed to the Court to file its Application and
Request Provisional Measures. Significantly, Armenia’s request for provisional
15 Annex 43, Note Verbale from the Permanent Mission of the Republic of Azerbaijan to the
United Nations Office and other International Organizations in Geneva to the Permanent
Mission of the Republic of Armenia to the United Nations Office and other International
Organizations in Geneva, dated 2 September 2021, No. 0432/27/21/25; Annex 45, Letter
from Vaqif Sadiqov, Head of Delegation of the Republic of Azerbaijan for negotiations under
CERD, to Elnur Mammadov, Deputy Minister of Foreign Affairs, dated 9 October 2021, No.
0612/04/21/01.
16 Annex 43, Note Verbale from the Permanent Mission of the Republic of Azerbaijan to the
United Nations Office and other International Organizations in Geneva to the Permanent
Mission of the Republic of Armenia to the United Nations Office and other International
Organizations in Geneva, dated 2 September 2021, No. 0432/27/21/25; Annex 45, Letter
from Vaqif Sadiqov, Head of Delegation of the Republic of Azerbaijan for negotiations under
CERD, to Elnur Mammadov, Deputy Minister of Foreign Affairs, dated 9 October 2021, No.
0612/04/21/01.
17 Application of the International Convention on the Elimination of All Forms of Racial
Discrimination (Armenia v. Azerbaijan) (Application Instituting Proceedings and Request for
Provisional Measures filed 16 September 2021), p. 10, para. 17 (“The Parties have been
unable to settle this dispute through negotiations or by the procedures expressly provided for
in the CERD.”) (hereinafter “Armenia’s Application”).
11
measures sought some of the very same measures that Azerbaijan had included in
its proposals, as the Court will see from Azerbaijan’s proposals, attached as
confidential Annex 45 to these Preliminary Objections. Further, many of the
proposals that Armenia rejected out of hand mirror some of Armenia’s own
demands in its case on the merits, again as shown by Annex 45. A comparison of
Azerbaijan’s proposals to Armenia’s demands shows that agreement remained
possible and could have rendered unnecessary many or all of the claims before the
Court if Armenia had been willing to give negotiations a chance.
19. Given that the parties had not engaged in any direct talks for nearly 30
years, any expectation that the fundamental issues would be resolved in just two
meetings would have been unrealistic. Armenia’s pro forma attendance at those
meetings fell far short of “a genuine attempt . . . to engage in discussions with the
other disputing party, with a view to resolving the dispute”18, as is required to
satisfy the negotiation precondition in CERD Article 22. The very next morning
after announcing the end of negotiations at the 15 September 2021 meeting,
Armenia filed its Application and Request for Provisional Measures. Azerbaijan,
by contrast, filed its Application in Azerbaijan v. Armenia only after Armenia had
declared negotiations at an end.
20. Armenia’s purpose for its precipitous termination of negotiations and
filing of its Application soon became clear: during provisional measures hearings
in October 2021 19 and thereafter 20 , Armenia proudly claimed to be the first
18 Application of the International Convention on the Elimination of All Forms of Racial
Discrimination (Georgia v. Russian Federation), Preliminary Objections, Judgment of 1
April 2011, I.C.J. Reports 2011, p. 132, para. 157.
19 CR 2021/25, p. 12, para. 2 (Kirakosyan).
20 See, e.g., CR 2023/4, p. 10, para. 2; p. 47, para. 2 (Kirakosyan).
12
through the Court’s door, disparaging Azerbaijan’s own claims in Azerbaijan v.
Armenia as a “mirroring” tactic. Thus, by prematurely breaking off negotiations
and rushing to file its Application, Armenia sought to use the Court as a platform
for advertising its claims. At the same time, it attempted to paint Azerbaijan’s
claims as purely tactical, to try to distract public attention from Armenia’s
methodical ethnic cleansing and discrimination alongside its decades-long illegal
military occupation of Azerbaijan’s territory, which underlie Azerbaijan’s claims.
From the outset, Armenia had its sights firmly set on the Court and the
opportunity to use high-profile legal proceedings to wage a public media
campaign against Azerbaijan, so it had no intention of participating in good faith
in negotiations that could have actually resolved the parties’ disputes. Unlike
Armenia, Azerbaijan remains ready to engage in a meaningful dialogue with
Armenia on any issue, including with respect to any allegations of wrongful
conduct under CERD21.
21 See, e.g., Azerbaijan’s Application, p. 24, para. 26 (“At all times during the negotiations,
Azerbaijan genuinely attempted to engage with Armenia, hoping for a constructive dialogue
that could lead to a negotiated resolution of the Parties’ dispute[.]”); CR 2021/21, p. 16, para.
7 (Lowe) (noting that “Azerbaijan put forward proposals for immediate steps to address the
very matters that are the subject of Armenia’s … Request” during negotiations); Letter from
Elnur Mammadov, Agent of the Republic of Azerbaijan, to Philippe Gautier, Registrar of the
International Court of Justice, dated 6 April 2022, pp. 1–2 (“Instead of making a genuine
attempt to engage with Azerbaijan to clarify the situation or resolve any questions, Armenia
has continued its pattern of seeking media soundbites over substance, and asserts a patchwork
of accusations that are unsupported by evidence, disregard without basis Azerbaijan’s
refutations provided weeks ago, or were never raised with Azerbaijan at all before being
asserted to the Court[.]”); Letter from Elnur Mammadov, Agent of the Republic of
Azerbaijan, to Philippe Gautier, Registrar of the International Court of Justice, dated 17 May
2022, pp. 1-2 (“Rather than continue in this course, Azerbaijan calls upon Armenia to agree
to jointly establish a mechanism by which Azerbaijan and Armenia each designate an official
to serve as a point of contact, so that either party can raise any issues related to the Court’s
Orders in Azerbaijan v. Armenia and Armenia v. Azerbaijan, in order to attempt to negotiate a
resolution before coming to the Court[.]”); Letter from Elnur Mammadov, Agent of the
Republic of Azerbaijan, to Philippe Gautier, Registrar of the International Court of Justice,
dated 12 January 2023, p. 4 (“Since the start of the protests, Azerbaijan has continuously
demonstrated its willingness to engage in dialogue with Armenia and the Russian Federation
13
21. Armenia’s consistent subsequent conduct only confirms that Armenia
never was interested in resolving the parties’ dispute through negotiation and
instead preferred to engage in political theatre. For instance, in September 2022,
Armenia filed a request to modify the provisional measures ordered by the Court
in December 2021 to encompass Armenian servicemen detained during hostilities
in September 202222; but when Armenia made its request, the parties were in
ongoing discussions about the detainees, Azerbaijan was already taking steps to
repatriate the detainees, and the process was completed shortly thereafter23. The
Court denied Armenia’s unnecessary request in October 202224. Not long after, in
December 2022, Armenia filed another provisional measures request25 urging the
Court to intervene in the Lachin Road protests, this time openly proclaiming its
refusal to negotiate with Azerbaijan on the issue26 . Since the start of these
with a view to facilitating the humanitarian needs of its Armenian citizens[.]”); CR 2023/2, p.
22, para. 30 (Mammadov) (“Azerbaijan has and undertakes to continue to take all steps
within its power to . . . engage with the local residents in Garabagh, and—if Armenia finally
decides that it is indeed its problem and agrees to come to the negotiating table—then with
Armenia as well.”).
22 Letter from Yeghishe Kirakosyan, Agent of the Republic of Armenia, to Philippe Gautier,
Registrar of the International Court of Justice, dated 16 September 2022.
23 Letter from Elnur Mammadov, Agent of the Republic of Azerbaijan, to Philippe Gautier,
Registrar of the International Court of Justice, dated 27 September 2022.
24 Application of the International Convention on the Elimination of All Forms of Racial
Discrimination (Armenia v. Azerbaijan), Order on the Request for the Modification of the
Order of 7 December 2021 Indicating Provisional Measures of 12 October 2022, I.C.J.
Reports 2022.
25 Application of the International Convention on the Elimination of All Forms of Racial
Discrimination (Armenia v. Azerbaijan) (Request for Provisional Measures filed 27
December 2022).
26 CR 2023/2, pp. 20–21, paras. 25–26 (Mammadov). The Court also will recall that on 26
January 2023, less than two business days before the hearing on its provisional measures
request, Armenia added a request for an additional provisional measure based on public
reports that it had orchestrated regarding alleged interruption of natural gas and other public
utilities without raising the issue with Azerbaijan beforehand and without actual evidence in
14
proceedings in September 2021, Armenia has publicly broadcast numerous false
allegations against Azerbaijan, and has used its public relations machinery and
political allies to create a sense of urgency and push through political declarations
in foreign parliaments and international bodies related to these allegations27 .
Armenia then relies on such declarations as “evidence” before the Court even
where there was no serious consideration of the underlying facts or any
opportunity for Azerbaijan to present its position.
22. Armenia’s mere pretense of participation in negotiations in July and
August 2021 is the opposite of the “genuine attempt … to engage in discussions
… with a view to resolving the dispute”28 that Article 22 of CERD requires. Even
if the Court has taken a somewhat permissive approach to Article 22’s negotiation
requirement in the past, Armenia’s failure to make any good-faith attempt to
resolve the parties’ dispute was egregious. Allowing Armenia to proceed in these
circumstances would render the negotiation requirement essentially meaningless.
support, causing the Court to find that Armenia had “not placed before it sufficient evidence
that Azerbaijan is disrupting the supply of natural gas and other utilities” and consequently
that the measure was “not warranted.” Application of the International Convention on the
Elimination of All Forms of Racial Discrimination (Armenia v. Azerbaijan), Order on
Provisional Measures dated 22 February 2023, I.C.J. Reports 2023, p. 13, para. 64.
27 See, e.g., Assemblée nationale, Proposition de résolution n°388 visant à exiger la fin de
l’agression de l’Azerbaïdjan à l’encontre de l’Arménie et à établir une paix durable dans le
Caucase du Sud (28 October 2022), https://www.assembleenationale.
fr/dyn/16/textes/l16b0388_propositionresolution?
fbclid=IwAR25fzm1bvHk9bujUh1idGlcP9CTKiT4z_T22TXxyUBo-
Wiqi7kN6IQfnwQ; European Parliament resolution 2023/2504(RSP), The Humanitarian
Consequences of the Blockade in Nagorno-Karabakh, document P9_TA(2023)0012 (19
January 2023); Letter from Elnur Mammadov, Agent of the Republic of Azerbaijan, to
Philippe Gautier, Registrar of the International Court of Justice, dated 6 April 2022, pp. 1–2.
28 Application of the International Convention on the Elimination of All Forms of Racial
Discrimination (Georgia v. Russian Federation), Preliminary Objections, Judgment of 1
April 2011, I.C.J. Reports 2011, p. 132, para. 157.
15
23. The legal consequence of Armenia’s failure to comply with either of the
preconditions required by Article 22 is that the Court is not properly seized of
Armenia’s claims. As the Court concluded in the Georgia v. Russian Federation
case, the Court lacks jurisdiction of a CERD claim if the negotiation precondition
in Article 22 is not satisfied29. Accordingly, Armenia’s Application should be
dismissed for want of jurisdiction because Armenia has failed to satisfy the
prerequisites for bringing a claim to the Court under Article 22.
III.
THE SUBJECT MATTER OF ARMENIA’S CLAIMS ALLEGING
WARTIME MISCONDUCT IS NOT WITHIN THE COURT’S
JURISDICTION UNDER ARTICLE 22 OF CERD
24. The sole basis on which Armenia invokes the Court’s jurisdiction is
Article 22 of CERD 30 , which is limited to disputes “with respect to the
interpretation or application of this Convention”31. Armenia, however, makes
multiple claims that do not fall within the scope of CERD. A significant portion
of the claims in Armenia’s Application and Memorial allege conduct during and
in the aftermath of Armenia’s military occupation and the Second Garabagh War
that are governed by IHL32 but have nothing to do with CERD.
29 Application of the International Convention on the Elimination of All Forms of Racial
Discrimination (Georgia v. Russian Federation), Preliminary Objections, Judgment of 1
April 2011, I.C.J. Reports 2011, p. 140, para. 184.
30 Armenia’s Application, para. 9.
31 CERD, art. 22.
32 See, e.g., Convention (III) relative to the Treatment of Prisoners of War (12 August 1949), art.
2; Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the
Protection of Victims of International Armed Conflicts (Protocol I) (8 June 1977), arts. 1, 3.
16
25. As discussed in Part A below, Armenia cannot transform every grievance
against Azerbaijan into a CERD claim merely because Armenia’s citizens are
nearly all ethnic Armenians, or merely by citing other alleged instances of racial
discrimination that have nothing to do with the acts of which Armenia is
complaining. As addressed in detail in Part B below, the claims in question are
outside the Court’s jurisdiction under CERD because they have no link to
discrimination on the basis of ethnic origin.
A. The Court’s Jurisdiction Under Article 22 of CERD Extends Only to
Claims of Racial Discrimination
26. To determine whether the Court has jurisdiction ratione materiae over
claims raised under Article 22 of CERD, “the Court will examine whether each of
[the] claims falls within the scope of CERD”33. CERD, in relevant part, prohibits
“racial discrimination”34, which is defined in Article 1(1) to mean:
“any distinction, exclusion, restriction or preference
based on race, colour, descent, or national or ethnic
origin which has the purpose or effect of nullifying
or impairing the recognition, enjoyment or exercise,
on an equal footing, of human rights and
fundamental freedoms in the political, economic,
social, cultural or any other field of public life.”35
33 Application of the International Convention on the Elimination of All Forms of Racial
Discrimination (Qatar v. United Arab Emirates), Preliminary Objections, Judgment of 4
February 2021, I.C.J. Reports 2021, p. 94, para. 72. See also Certain Iranian Assets (Islamic
Republic of Iran v. United States of America), Preliminary Objections, Judgment of 13
February 2019, I.C.J. Reports 2019, p. 17, para. 36
34 CERD, art. 2. See also CERD, arts. 3–7.
35 CERD, art. 1(1).
17
27. CERD does not extend to acts other than distinctions, exclusions,
restrictions or preferences based on the grounds enumerated in Article 1(1) and
having the purpose or effect of impairing human rights or fundamental freedoms.
As the Court has observed, “the scope of CERD … exclusively concerns the
prohibition of racial discrimination on the basis of race, colour, descent, or
national or ethnic origin” 36 . Accordingly, the Court has upheld preliminary
objections to its jurisdiction under CERD where the Court concluded that the
alleged discrimination was based on a characteristic other than those identified in
Article 1(1)37 or that the allegations did not support an inference of discrimination
based on one of the characteristics identified in Article 1(1)38.
1. Claims Under International Humanitarian Law Do Not Fall Within
CERD in the Absence of Racial Discrimination
28. To establish the Court’s jurisdiction over its claims, Armenia must show
that the acts it alleges are capable of constituting racial discrimination within the
meaning of CERD39. But Armenia provides no basis to conclude that its claims of
wartime misconduct or of mistreatment of individuals who illegally entered
Azerbaijan’s territory during the occupation period, even assuming they are true,
36 Application of the International Convention on the Elimination of All Forms of Racial
Discrimination (Qatar v. United Arab Emirates), Preliminary Objections, Judgment of 4
February 2021, I.C.J. Reports 2021, p. 105, para. 104 (emphasis added).
37 Application of the International Convention on the Elimination of All Forms of Racial
Discrimination (Qatar v. United Arab Emirates), Preliminary Objections, Judgment of 4
February 2021, I.C.J. Reports 2021, p. 106, para. 105.
38 Application of the International Convention on the Elimination of All Forms of Racial
Discrimination (Qatar v. United Arab Emirates), Preliminary Objections, Judgment of 4
February 2021, I.C.J. Reports 2021, pp. 108–109, para. 112.
39 Application of the International Convention for the Suppression of the Financing of
Terrorism and of the International Convention on the Elimination of All Forms of Racial
Discrimination (Ukraine v. Russian Federation), Preliminary Objections, Judgment of 8
November 2019, I.C.J. Reports 2019, p. 595, para. 95.
18
have anything to do with racial discrimination as defined in CERD. If proven,
those claims allege conduct potentially implicating questions of IHL.
29. Armed conflict frequently arises between States whose citizens are
predominantly of different ethnic origins, but not every act of armed hostility
against an enemy State is ipso facto an act of racial discrimination under CERD.
To establish the Court’s jurisdiction, Armenia must show that its allegations raise
an issue of treating individuals differently on the basis of ethnic origin with the
purpose or effect of depriving them of the exercise or enjoyment, on an equal
footing, of a human right or fundamental freedom. Armenia makes no serious
effort to do so.
30. On their face, Armenia’s Application and Memorial set forth claims that
have nothing to do with CERD but only involve allegations of misconduct in
armed conflict, that are governed by IHL40. This is not a question of evaluation of
Armenia’s claims on the merits. Rather, it is a question of Armenia’s mislabeling
of its claims as involving “racial discrimination” when on their face they involve
only hostility between two States involved in an armed conflict and raise no issues
of interpretation or application of CERD. Breaches of IHL can and do occur
during armed conflict without regard to the ethnic origin of the victims. Because
the claims in question are not capable of falling within the provisions of CERD,
they should be dismissed.
31. To be clear, Azerbaijan does not condone or excuse violations of IHL
regardless of whether the violations were committed by its own forces or by
40 See Application of the International Convention on the Elimination of All Forms of Racial
Discrimination (Armenia v. Azerbaijan), Order on Provisional Measures of 22 February
2023, Declaration of Judge Yusuf.
19
Armenia’s armed forces41. Azerbaijan remains committed to investigating and
responding appropriately to any credible allegations of war crimes committed
within its jurisdiction and has apprised the Court of its steps in that respect42, even
41 The Armed Forces of Armenia include a unit established on 9 May 1992, which is based in
Azerbaijan’s Garabagh Region and has called itself the “Defense Army”. References in this
Preliminary Objection to “Armenia’s armed forces” should be understood to include that
unit as well as other parts of Armenia’s armed forces.
42 See, e.g., Office of the Prosecutor General of the Republic of Azerbaijan, Detained Four
Servicemen Accused of Insulting Bodies of Armenian Servicemen and Tombstones Belonging
to Armenians (14 December 2020), https://genprosecutor.gov.az/az/post/3272 (“The
Prosecutor General's Office of the Republic of Azerbaijan declares that the above-mentioned
criminal acts committed by the servicemen of the Republic of Azerbaijan are unacceptable
and contradict the mentality of the Azerbaijani people, which is tolerant, highly appreciates
multicultural values and is historically distinguished by its humanism. Persons who have
committed similar violations will be brought to liability by taking measures provided by
law”); CR 2021/24, pp. 55–56, para. 13 (Reid) (“In response to similar allegations involving
Azerbaijani servicemen, the Azerbaijani authorities announced their intention to investigate
as early as November 2020. The very same month, the Azerbaijani Prosecutor General’s
Office announced the detention and charging of Azerbaijani servicemen for crimes”); Letter
from Elnur Mammadov, Agent of the Republic of Azerbaijan, to Philippe Gautier, Registrar
of the International Court of Justice, dated 27 September 2022, p. 1 (“Azerbaijan is already
actively investigating the allegations raised in Armenia’s letters of 16 and 19 September and
is committed to taking appropriate steps to prosecute and punish, in accordance with
domestic and international law, any individuals who are found to be responsible for the
alleged misconduct”); Letter from Elnur Mammadov, Agent of the Republic of Azerbaijan, to
Philippe Gautier, Registrar of the International Court of Justice, dated 4 October 2022, p. 3;
Letter from Elnur Mammadov, Agent of the Republic of Azerbaijan, to Philippe Gautier,
Registrar of the International Court of Justice, dated 7 October 2022, p. 1 (“Azerbaijan
reiterates that it has brought 11 prosecutions against Azerbaijani soldiers, resulting in 4
convictions to date, in connection with the 2020 conflict, and it has conducted trainings for its
armed forces designed to promote compliance with international humanitarian law”); Letter
dated 28 November 2022 from the Permanent Mission of Azerbaijan to the United Nations
addressed to the Special Procedures Mandate Holders, No. AL AZE 1/2022 (21 February
2023), https://spcommreports.ohchr.org/TMResultsBase/DownLoadFile?gId=37389
(“Azerbaijan affirms its commitment to upholding its international obligations, including
under international humanitarian and human rights law. . . . Where supported by evidence, . . .
Azerbaijan has initiated criminal cases against its servicemen.”).
20
as Armenia has taken no steps to comply with its international legal obligations to
investigate and prosecute war crimes against Azerbaijanis43.
2. Armenia’s Attempt to Transform Claims Governed by IHL into
CERD Claims by Citing “Anti-Armenian Sentiment” Has No Basis in
CERD
32. Armenia’s overall approach consists of an attempt to circumvent pleading
facts that show, claim by claim, that alleged actions were based on ethnic origin,
as CERD requires 44 , through generalized references to what it terms “anti-
Armenian sentiment”45. The very structure of its Memorial confirms this. The
first section of Part III of its Memorial, which sets out the facts that Armenia
believes are relevant to its Application, focuses on alleged “anti-Armenian
discourse” that purportedly “encouraged” unrelated acts of murder, torture and
other claimed violations of law by Azerbaijan’s forces46, as if such a general
showing would somehow suffice to show that all subsequent conduct was based
43 See, e.g., CR 2021/24, pp. 51–58, paras. 3–22 (Reid); United States Department of State,
Armenia 2022 Human Rights Report, p. 2, https://www.state.gov/wp-content/uploads/
2023/03/415610_ARMENIA-2022-HUMAN-RIGHTS-REPORT.pdf (“There was no
reported progress on government investigations of alleged abuses committed by Armenian
armed forces or individuals during the 2020 hostilities”); European Parliament resolution
2023/2504(RSP), The Humanitarian Consequences of the Blockade in Nagorno-Karabakh,
document P9_TA(2023)0012 (19 January 2023), para. 26 (“[C]all[ing] on Armenian
investigative authorities to continue the investigation into the 2020 footage of Azerbaijani
soldiers allegedly being subjected to war crimes and to identify the perpetrators and hold
them accountable”).
44 See Application of the International Convention on the Elimination of All Forms of Racial
Discrimination (Qatar v. United Arab Emirates), Preliminary Objections, Judgment of 4
February 2021, I.C.J. Reports 2021, p. 94, para. 72; M.M. v. Russian Federation,
Communication No. 55/2014, Decision dated 7 August 2015 (“In order to consider the
petitioner’s claims admissible, the Committee has to determine whether the petitioner has
alleged facts that constitute discrimination on the basis of race, colour, descent or national or
ethnic origin.”).
45 Armenia’s Memorial, p. 65, para. 3.4. See generally ibid., Part III, Chapters 1–2.
46 See Armenia’s Memorial, p. 65, para. 3.4; ibid., p. 82, para. 3.33.
21
on ethnic origin47. Many of the claims that follow notably contain no specific
allegations or citations to evidence that the actions alleged by Armenia were taken
on the basis of ethnic origin.
33. As Azerbaijan will address in its Counter-Memorial on the merits,
Armenia’s allegations of “anti-Armenian sentiment”, even if proven on the facts,
do not themselves give rise to valid claims under CERD. Criticism of a foreign
State or its government and its policies—which accounts for the great majority of
the instances of “anti-Armenian” sentiment in the excerpts selectively quoted by
Armenia—is not racial discrimination48. Nor does every expression of ethnic
prejudice by private individuals rise to the level of discrimination under CERD,
particularly in view of Azerbaijan’s repeated and public statements that ethnic
Armenians in Azerbaijan will be guaranteed the same rights as ethnic
Azerbaijanis49. But for the purpose of these Preliminary Objections, the relevant
point is that Armenia’s allegations of generalized antipathy—whether or not they
support independent claim(s) under CERD—do not transform each of Armenia’s
unrelated claims into claims that fall within CERD.
47 See Armenia’s Memorial, Part III.1.I.
48 Application of the International Convention on the Elimination of All Forms of Racial
Discrimination (Qatar v. United Arab Emirates), Preliminary Objections, Judgment, I.C.J.
Reports 2021, pp. 108–109, para. 112 (“[D]eclarations criticizing a State or its policies
cannot be characterized as racial discrimination within the meaning of CERD[.]”).
49 See, e.g., President of the Republic of Azerbaijan, Ilham Aliyev attended the international
conference themed “South Caucasus: Development and Cooperation” at ADA University (29
April 2022), available at https://president.az/en/articles/view/55909 (“I already said that
Armenians who live in Karabakh – we consider them our citizens. . . . [A]s citizens of
Azerbaijan, they will have all rights, and their security will be ensured. Azerbaijan, unlike
Armenia, is a multi-ethnic country and all ethnic groups who live here live in peace and
dignity, including Armenians.”); President of the Republic of Azerbaijan, Ilham Aliyev was
interviewed by local TV channels (10 January 2023), available at
https://president.az/en/articles/view/58555 (“[N]ecessary conditions will be created for those
who want to live there under the flag of Azerbaijan. Just like all the other citizens of
Azerbaijan, their rights and security will be provided.”).
22
34. In considering Armenia’s theory of “anti-Armenian sentiment”, it is
important to recall that this dispute arises in the context of Armenia’s brutal
invasion, ethnic cleansing campaign, and nearly 30-year-long occupation of
Azerbaijan’s sovereign territory from the late 1980s to late 2020, in the course of
which more than 700,000 Azerbaijanis were murdered or forcefully expelled from
their homes in the occupied territories by reason of their ethnic and national
origin50, in addition to more than 100,000 Azerbaijanis displaced from other areas
of Azerbaijan near the occupied territories and more than 200,000 refugees
expelled from Armenia. Unsurprisingly, these events—including Armenia’s
brutal massacre of 613 Azerbaijanis in the town of Khojaly over the course of one
night on 25 to 26 February 1992—shocked the national conscience and remain a
source of pain and outrage in the collective memory of Azerbaijanis, who
commemorate the victims of Armenia’s atrocities each year51. The subsequent
almost three decades of Armenia’s military occupation of Azerbaijan’s sovereign
territory, accompanied by intermittent active hostilities between the two States,
have understandably resulted in animosity between the parties and between
members of their populations. These deeply negative feelings are regrettable, but
they are hardly surprising when two States have experienced the tragedy of war,
particularly in a conflict that involves the invasion and 30-year occupation of one
State’s sovereign territory accompanied by the forceful expulsion of thousands of
50 CR 2021/21, p. 11, para. 4 (Mammadov) (“This dispute with Armenia under CERD arises in
the context of two wars of Armenian aggression and Armenia’s almost thirty-year occupation
of territory internationally recognized as Azerbaijan’s sovereign territory.”).
51 See, e.g., President of the Republic of Azerbaijan, Blood Memory,
https://president.az/en/pages/view/azerbaijan/memories; “How Azerbaijan kept the memory
of Khojaly alive”, Daily Sabah (14 October 2020), https://www.dailysabah.com/opinion/oped/
how-azerbaijan-kept-the-memory-of-khojaly-alive (“Khojaly, which emerged as the site
of Azerbaijani suffering during the war in the early 1990s, has been annually commemorated
since. . . . These atrocities have been a sorrowful wound in the Azerbaijani collective
memory”).
23
Azerbaijanis. As Judge Iwasawa has pointed out in regard to the conflict between
Armenia and Azerbaijan, “animosity appears to persist between the two States and
among some segments of their populations” as a result of “large-scale hostilities
between the parties”, and “[s]tatements made by organizations and private persons
need to be understood in this context.”52
35. In this regard, Armenia’s reference to certain allegedly wrongful acts as
committed during “peacetime” is willfully misleading53. For almost 30 years, as a
result of Armenia’s unlawful invasion of Azerbaijan’s internationally recognized
territory, a significant part of Azerbaijan’s territory was under continuing military
occupation by Armenia. It is in this context that President Aliyev and other
Azerbaijani officials made the statements that Armenia now seeks to classify as
hate speech—statements that, on their face, are clearly directed towards Armenia
as an occupying power, Armenian forces as a wartime enemy and the destruction
they wreaked upon Azerbaijani lands, and Armenia’s supporters around the world
endorsing the invasion and occupation—and not against Armenians as an ethnic
group54. Antipathy to a hostile State, which is experienced in any armed conflict,
52 Application of the International Convention on the Elimination of All Forms of Racial
Discrimination (Armenia v. Azerbaijan), Order on Provisional Measures of 7 December
2021, I.C.J. Reports 2021, Declaration of Judge Iwasawa, p. 401, para. 2.
53 See, e.g., Armenia’s Memorial, p. 83.
54 Compare, e.g., Armenia’s Memorial, p. 66, para. 3.7 (“He has long disparaged Armenians as
‘bandits’, ‘vandals’, ‘fascists’, and ‘barbarians’, and as having a ‘cowardly nature’”) with
President of the Republic of Azerbaijan Ilham Aliyev, Speech by Ilham Aliyev at the opening
of a new block for 1440 IDP families in Mushfigabad (27 December 2012) (cited at
Armenia’s Memorial, p. 66, para. 3.7, n.204) (“As you know, everything on the occupied
lands is destroyed. All our historical monuments have been destroyed by Armenian bandits
and vandals. . . .[M]ost of our material heritage items kept in museums there have been
looted, destroyed and burnt by the Armenians. Our mosques and cemeteries are in ruins. This
was done by the Armenians, Armenian fascists.”) (emphasis added) and President of the
Republic of Azerbaijan, Speech by Ilham Aliyev at the opening of Balakan regional ‘ASAN
xidmət” center (29 July 2020) (cited at Armenia’s Memorial, p. 66, para. 3.7, n.206) (“You
know these events have once again exposed the fascist essence of Armenia, their cowardly
24
is not the same as racial discrimination. And as the Court has held, “declarations
criticizing a State or its policies cannot be characterized as racial discrimination
within the meaning of CERD”55, whether in time of war or time of peace.
36. Armenia also cites other statements by public officials, some of which are
over a decade old56, as well as statements made by anonymous individuals on
nature, because it wasn’t the first time when an aggressor, after being defeated on the
battlefield, proceeds to take action against the civilian population”) (emphasis added);
Armenia’s Memorial, p. 210, para. 3217 (“He also promised that the Azerbaijani army would
chase Armenians out of Nagorno-Karabakh like ‘dogs’”) with “President Ilham Aliyev was
interviewed by BBC News”, AZERTAC English (9 November 2020), at 3:58,
https://youtu.be/eP98bXyWBdc (clarifying that he was referring to “the Armenian militarypolitical
leadership. I meant so-called ‘authorities of Nagorno-Karabakh.’ . . . I meant them, I
didn’t mean Armenian people”); Armenia’s Memorial, p. 209, para. 3.215 (“[President
Aliyev] often contrasted the alleged moral superiority of Azerbaijanis with the cruelty and
savagery of ethnic Armenians”) with President of the Republic of Azerbaijan, Speech by
Ilham Aliyev at the Security Council meeting (27 September 2020),
https://president.az/en/articles/view/42459 (cited at Armenia’s Memorial, p. 209, para. 3.215,
n.735) (“Because such atrocities against the civilian population can only be attributed to
fascist states, and this is not the first time . . . People who were forcibly driven out of their
ancestral lands by Armenians – by Armenia’s leadership want to return to their native lands
even though savages have already destroyed their homes.”) and “Chronicles of Victory:
President Ilham Aliyev addresses the nation, AzerNews (17 October 2021),
https://www.azernews.az/nation/184462.html (cited at Armenia’s Memorial, p. 209, para.
3.215, n.735) (“I am confident that the Armenian people will also bring the leaders of their
criminal junta to justice.”) and President of the Republic of Azerbaijan, Speech by
Commander-in-Chief Ilham Aliyev at the operational meeting of the Central Command Post
of Ministry of Defense (25 October 2020) (cited at Armenia’s Memorial, p. 209, para. 3.215,
n.735) (“The Armenian state is responsible for these crimes and will be held accountable
for them.”).
55 Application of the International Convention on the Elimination of All Forms of Racial
Discrimination (Qatar v. United Arab Emirates), Preliminary Objections, Judgment, I.C.J.
Reports 2021, p. 109, para. 112. Indeed, President Ilham Aliyev and Foreign Minister
Jeyhun Bayramov have both gone out of their way to publicly clarify that any remarks about
getting “the Armenians” out of Garabagh refer only to “those who continue to occupy our
territories”, including the Armenian political leadership, not to “Armenian people”. CR
2021/21, p. 14, para. 13 (Boisson de Chazournes).
56 See, e.g., Armenia’s Memorial, p. 66, para. 3.7, n.207; ibid., pp. 68–69 paras. 3.11–3.12.
25
social media57. Azerbaijan’s policy, however, is that for ethnic Armenian citizens
of Azerbaijan, “just like all the other citizens of Azerbaijan, their rights and
security will be provided”58. Even to the extent that Armenia has alleged some
examples of actual racially discriminatory language, either by government
officials or private parties, Armenia does not explain how the mere existence of
statements made independently of the wartime misconduct Armenia alleges in its
Memorial allows Armenia to characterize each of those completely unrelated
incidents as CERD claims. Armenia does not contend that the alleged
perpetrators of the putative misconduct during armed conflict were even aware of
the alleged discriminatory comments, much less influenced by them.
37. Allowing Armenia’s claims of wartime misconduct to stand would invite
parties to other armed conflicts to bring their claims before the Court under CERD
despite the lack of any real connection to racial discrimination, contrary to the
intent of CERD Article 22. Given that armed conflicts frequently arise between
States whose populations are predominantly of different ethnic origins, Armenia’s
approach, if accepted, would allow nearly all parties to armed conflict to
recharacterize alleged violations of wartime misconduct governed by IHL as
CERD claims within the Court’s jurisdiction. But conduct during the course of
armed conflict, even if motivated by animus or hostility towards the enemy State,
the enemy armed forces, or citizens of the enemy State, will not constitute racial
discrimination under CERD unless it has the purpose or effect of impairing the
57 See, e.g., Armenia’s Memorial, pp. 227–229, paras. 3.234–3.236.
58 President of the Republic of Azerbaijan, Ilham Aliyev was interviewed by local TV channels
(10 January 2023), https://president.az/en/articles/view/58555. See also, e.g., “President of
the Republic of Azerbaijan, Speech by Ilham Aliyev at the Extraordinary Summit of Heads of
State of Organization of Turkic States (16 March 2023),
https://president.az/en/articles/view/59195 (“[W]e, the state of Azerbaijan, will guarantee the
individual rights and security of the Armenian residents living in Karabakh.”).
26
equal exercise of human rights and fundamental freedoms based on ethnic origin
or one of the other protected grounds identified in Article 1(1) of CERD59. As
discussed in Part B below, Armenia has failed to identify any grounds on which it
could claim that each of the alleged acts was “based on” ethnic origin.
Accordingly, the Court need not evaluate any evidence or any part of the merits to
conclude that these claims do not raise any issue of the interpretation or
application of CERD. Those claims are therefore beyond the Court’s jurisdiction
under Article 22.
B. On the Face of Armenia’s Memorial, Armenia’s Claims of Misconduct
During Armed Conflict Raise No Issues of Racial Discrimination Under
CERD
38. As detailed below, a significant portion of the claims in Armenia’s
Memorial, on their face, allege discrimination not on the basis of ethnic origin but
of an individual’s actual or perceived status as a member of Armenia’s armed
forces or involvement in illegal activity. Neither of these is a protected category
under Article 1(1) of CERD.
39. Of course, most if not all members of Armenia’s armed forces will be
ethnic Armenians because Armenia’s population is almost exclusively of
Armenian ethnic origin—due in large part to Armenia’s ethnic cleansing of
Azerbaijanis from Armenia and its deliberate policies to exclude other
ethnicities60. But this does not transform every act taken in a war with Armenia
into a CERD violation or every claim of such an act into a question of
interpretation or application of CERD. The Court held in its judgment on
59 CERD, art. 1(1).
60 See Azerbaijan’s Application, paras. 6, 10; Application of the International Convention on
the Elimination of All Forms of Racial Discrimination (Azerbaijan v. Armenia) (Azerbaijan’s
Memorial filed 23 January 2023), paras. 82–92 (hereinafter “Azerbaijan’s Memorial”).
27
preliminary objections in Qatar v. United Arab Emirates that “collateral or
secondary effects” on persons of a particular national or ethnic origin, arising in
the context of measures against a foreign State, do “not constitute racial
discrimination within the meaning of the Convention.” 61 The Committee
established by CERD to monitor its implementation and application 62 has
similarly found that a complaint “is not compatible with the provisions of the
Convention” and is therefore inadmissible where the alleged acts of discrimination
can be explained on grounds other than one of the categories protected under
Article 1(1) of CERD63.
40. Although Armenia has not taken care to particularize its claims and
supporting evidence, Armenia asserts in its Memorial that Azerbaijan “engag[ed]
in and fail[ed] to prevent the murder, torture, inhuman and degrading treatment
and other abuse of ethnic Armenians as well as the mutilation of their dead
bodies”, in violation of Articles 2(1), 4(a) and 5(b); that Azerbaijan
“discriminatorily . . . detain[ed] ethnic Armenians” in breach of Articles 2 and
5(a); and that Azerbaijan “discriminatorily subject[ed] ethnic Armenians to
61 Application of the International Convention on the Elimination of All Forms of Racial
Discrimination (Qatar v. United Arab Emirates), Preliminary Objections, Judgment of 4
February 2021, I.C.J. Reports 2021, p. 109, para. 112.
62 CERD art. 8(1).
63 See, e.g., M.M. v. Russian Federation, Communication No. 55/2014, Opinion, document
CERD/C/87/D/55/2014 (2015), p. 5, para. 6.3 (“In order to consider the petitioner’s claims
admissible, the Committee has to determine whether the petitioner has alleged facts that
constitute discrimination on the basis of race, colour, descent or national or ethnic origin. . . .
[A]ccording to the petitioner, the acts of discrimination against him were manifested in the
extension of the duration of the preliminary investigation. . .[T]he State party has claimed in
response that the extension of the preliminary investigation was necessitated by the
complexity of the case . . . in the view of the Committee, [these claims] amount to a
reasonable explanation of the duration of the preliminary investigation and . . . rebuts the
petitioner’s claims of intentional discrimination.”).
28
enforced disappearances” in breach of Articles 2 and 5 64 . But nothing in
Armenia’s Application or Memorial, other than bare assertion, connects these
allegations to racial discrimination. As addressed in detail below in Sections 1, 2,
and 3, which address Armenia’s allegations relating to unlawful violence,
arbitrary detention, and enforced disappearances, respectively, Armenia’s
allegations in support of these claims under Articles 2, 4, and/or 5 of CERD do
not “allege[] facts that constitute discrimination on the basis of . . . ethnic origin”
or any other protected ground and so are outside the Court’s jurisdiction ratione
materiae.
41. The Court’s lack of jurisdiction over Armenia’s claimed violations based
on these three categories of allegations is particularly suitable for resolution on
preliminary objections because the inapplicability of CERD is apparent on the
face of Armenia’s Memorial. The Court therefore need not weigh evidence or
otherwise consider the merits to dismiss this set of Armenia’s claims. As Annex
46 to these Preliminary Objections, Azerbaijan submits a table that sets out
Armenia’s claims with references to the legal, factual, and evidentiary portions of
Armenia’s Memorial that are subject to dismissal on this basis65.
1. Armenia’s Allegations of Unlawful Violence by Members of
Azerbaijan’s Armed Forces Do Not Fall Within CERD
42. Although Armenia purports to assert CERD claims of unlawful violence
against “ethnic Armenians”, its own allegations show that these acts, if they
occurred, were not based on ethnic origin. Armenia’s claims fall into three
categories: (i) alleged mistreatment and violence against members of Armenia’s
64 Armenia’s Memorial, p. 586, para. 6.81; ibid., p. 595, para. 6.104; ibid., pp. 611–612,
para. 6.138.
65 See Annex 46 (detailing claims subject to the Preliminary Objections).
29
armed forces in the context of active hostilities taking place in early April 2016
and during or after the Second Garabagh War in late 2020 and thereafter; (ii)
alleged mistreatment and violence against individuals who crossed the
international boundary or the line of contact during Armenia’s occupation that
Azerbaijan determined were members of Armenia’s armed forces; and (iii) alleged
attacks on and mistreatment of civilians in the context of active hostilities.
Armenia asserts that those claims implicate CERD Articles 2(1) and 4(a) as well
as the “right to security of person” under Article 5(b), but in the absence of
discrimination based on ethnic origin, Armenia’s alleged violations are beyond the
scope of CERD. Armenia’s claims66 therefore should be dismissed.
(a) Alleged mistreatment of members of Armenia’s armed forces
43. Armenia’s allegations of brutality towards members of Armenia’s armed
forces may be evidence of hostility and tension between the armies of Azerbaijan
and Armenia during armed conflict, but they have nothing to do with
discrimination based on ethnic origin. Armenia’s Memorial alleges misconduct
against members of Armenia’s armed forces in the context of active hostilities
from 2–5 April 2016, during the Second Garabagh War in late 2020, and in
hostilities occurring after the Second Garabagh War.
44. With respect to the April 2016 hostilities, Armenia explicitly refers to its
claims as asserting violations of IHL, alleging that Azerbaijan did not act “in
accordance with the laws of armed conflict”, that Azerbaijan’s alleged “acts of
aggression” killed 76 combatants and 4 civilians, and that 28 servicemen and 3
66 See Annex 46, nn.1, 3, 6 (citing Armenia’s Memorial, p. 586, para. 681; ibid., p. 595, para.
6.104; ibid,. p. 611, para. 6.138).
30
civilians were mistreated while in Azerbaijan’s custody67. Armenia also alleges
misconduct during and after the Second Garabagh War against Armenian
servicemen and “fallen Armenian soldiers and medical personnel”, but does not
allege any basis for its bare assertion that such conduct was directed against
“Armenians” on the basis of their ethnic origin, rather than as members of
opposition armed forces 68 . Whether those alleged acts would constitute a
violation of IHL is irrelevant to whether they were based on ethnic origin.
45. Armenia’s limited evidence shows that the acts it complains of, to the
extent they occurred, were not based on an individual’s ethnic origin but rather on
the individual’s status as an enemy combatant69. In many cases, Armenia posits
no connection to discrimination on the basis of ethnic origin at all other than by
making general references to a supposed climate of ethnic prejudice. In other
instances, Armenia argues that there were “explicit expressions of hatred of ethnic
Armenians” 70 in connection with alleged abuse of bodies of Armenian
servicemembers or other alleged war crimes, but in nearly all of these cases,
Armenia misrepresents the statements in question. Almost invariably, the
67 Armenia’s Memorial, p. 101, para. 3.66. See also Armenia’s Memorial, pp. 299–300, para.
3.326 (citing Annexes 127, 161–165); Annex 45 to Armenia’s Memorial (noting allegations
of violations of the Geneva Convention Relative to the Protection of Civilian Persons in Time
of War (Fourth Geneva Convention), the 1977 Protocol Additional to the Geneva
Conventions, and the Laws of War on Land Manual).
68 See Armenia’s Memorial, pp. 93, 95–96, 99–101, 235–245, 251–255, 285–286, 291, 296–298,
300–304, 428–429, 434–438, 440–443, 446–447, 494, 497–501, 512–518.
69 See Armenia’s Memorial, pp. 515–517, para. 4.132; Annex 118 to Armenia’s Memorial
(allegedly showing Azerbaijani soldiers filming fallen servicemen and calling a fallen
servicewoman a “whore”); Annex 119 to Armenia’s Memorial (allegedly showing
Azerbaijani soldiers filming fallen servicemen and referring to them as “the immorals”);
Annex 155 to Armenia’s Memorial (allegedly showing Azerbaijani soldiers filming and
stepping on fallen servicemen); Annex 203 to Armenia’s Memorial (same).
70 Armenia’s Memorial, pp. 238–245, paras. 3.247–3.260.
31
statements Armenia labels as “racist” involve references to Armenian
servicemembers 71 , and while in many instances the language is undoubtedly
offensive, they do not refer to Armenians as an ethnic group—instead, statements
focus upon and decry past war crimes committed by Armenia’s armed forces, such
as the massacre of hundreds of Azerbaijani civilians in the town of Khojaly or
Armenia’s unlawful occupation of Garabagh72. Even in the limited instances
71 See Annex 168 to Armenia’s Memorial (cited at Armenia’s Memorial, p. 244, nn.825–826)
(including the following statements by alleged Azerbaijani soldiers: “This is how we are, this
is how we destroy Armenians. Look here, these are their barracks”; “This is an Armenia
nurse. He is an Armenian major”; “[T]his is the UAZ of Armenians. Look, look, it is the
barracks of Armenians”); Annex 133 to Armenia’s Memorial (cited at Armenia’s Memorial,
p. 243, n.823) (“He looks like he is from the land infantry, right? . . .Five people attacked us,
five people. Fuck them . . .”); Annex 117 to Armenia’s Memorial (cited at Armenia’s
Memorial, p. 240, n.810) (including the following statements by purported Azerbaijani
soldiers: “Give me the weapon . . . How many of you are here? . . . Did your [people] make a
spy of you? . . . The ones that made you spies, where are your [people], where are your
[people], answer quickly! . . .Tell me straight, scumbag, and you’ll survive as a POW. . .”);
Annex 128 to Armenia’s Memorial (cited at Armenia’s Memorial, p. 241, n.816) (including
the following statements by purported Azerbaijani soldiers: “Ask him: ‘Is he an army
conscript?’ Yes, this one, hit him . . . Fuck you!”); Annex 167 to Armenia’s Memorial (cited
at Armenia’s Memorial, p. 241, nn.818, 819) (including the following statements by
purported Azerbaijani soldiers: “Tell me, where is your group? . . . If he does not speak, you
will see what will happen”); Annex 169 to Armenia’s Memorial (cited at Armenia’s
Memorial p. 237, n.803, p. 243, n.822) (including the following statements by purported
Azerbaijani soldiers referring to members of Armenia’s armed forces: “These are not human;
these should be shot from behind.”).
72 Compare Armenia’s Memorial, p. 244, n.829 (“Throughout the video, he insults the dead
Armenian servicemen, adding: If there is need, I am ready to kill [Armenians] like animals”)
with Annex 173 to Armenia’s Memorial (cited at Armenia’s Memorial, p. 244, n.289) (“We
took revenge for our dead martyrs . . . We treated them the same way they treated us in
Khojaly . . . We have taken control of the servicemen of the internal forces. If there is a need,
I am ready to kill them like animals”.). See also Annex 134 to Armenia’s Memorial (cited at
Armenia’s Memorial, p. 244, n.824) (including the following statements by alleged
Azerbaijani soldiers: “Did you choke us in blood in Khojaly? . . .You choked us in blood in
Khojaly, pimp!.. [W]e will avenge the blood of our martyrs”); Annex 124 to Armenia’s
Memorial (cited at Armenia’s Memorial, p. 244, n. 827) (including the following statements
by purported Azerbaijani soldiers: “[Y]ou are now answering with your ears for the
immorality you did yesterday . . . I came here for one purpose, for cutting off the seeds of
these immoral people to taking revenge.”); Annex 132 to Armenia’s Memorial (cited at
Armenia’s Memorial p. 242, n. 820) (including the following statements by three alleged
Azerbaijani soldiers: “Say Karabakh is Azerbaijan . . . Nation of Bitches” . . . Wait! We
cannot force him speak that way.”); Annex 131 to Armenia’s Memorial (cited at Armenia’s
32
where alleged Azerbaijani servicemembers used derogatory language with a
possible ethnic dimension—for example, a reference to “Armenian dogs”73—
alongside other insulting language, this evidences hostility between opposing
soldiers at war, not discrimination on the basis of ethnic origin. In the absence of
any facts pled showing that individuals were singled out for different treatment on
the basis of ethnic origin, the use of insults between soldiers during armed conflict
does not transform abusive acts against the enemy into racial discrimination under
CERD. In a similar vein, the Amnesty International and Human Rights Watch
reports relied upon by Armenia also consider allegations of misconduct by
Azerbaijani servicemen solely in the context of IHL, but none of them refers to
CERD or contains any indication that racial discrimination played any role74.
46. In three instances, Armenia relies only on after-the fact allegedly racist
statements made by unknown persons, and it otherwise has nothing to connect its
claims to CERD. With respect to one of the most heinous acts alleged in its
Memorial—the alleged execution of three of Armenia’s servicemen during the
Memorial, p. 239, n.806) (including the following statements by alleged Azerbaijani soldiers:
“nation of bitches”; “fuck your people”); Armenia’s Memorial, paras. 3.307, 3.309
(describing how detained Armenian servicemen were forced to say “Karabakh is
Azerbaijan”); Armenia’s Annex 126 (cited at Armenia’s Memorial, p. 291, n.984) (same);
Armenia’s Annex 129 (cited at Armenia’s Memorial, p. 295, n.1004) (including the
following statements by alleged Azerbaijani soldiers: “Do you know who Lachin
belongs to?”).
73 Annex 137 to Armenia’s Memorial (cited at Armenia’s Memorial, p. 245, n.830) (including
the following statements by purported Azerbaijani soldiers: “these are Armenian dogs”;
“Karabakh is Azerbaijan and will stay Azerbaijani. Immorals! Die!”).
74 See, e.g., Human Rights Watch, Azerbaijan: Armenian POWs Abused in Custody, (19 March
2021), https://www.hrw.org/news/2021/03/19/azerbaijan-armenian-pows-abused-custody
(cited at Armenia’s Memorial, p. 247, nn. 854-856); Human Rights Watch, Azerbaijan:
Armenian Prisoners of War Badly Mistreated (2 December 2020),
https://www.hrw.org/news/2020/12/02/azerbaijan-armenian-prisoners-war-badly-mistreated
(cited at Armenia’s Memorial, p. 247, n.838). See also Armenia’s Memorial, nn.790, 792,
831, 832, 838, 854–856.
33
2016 hostilities75—the only purported connection to racial hatred that Armenia
cites is a statement posted to Facebook by unknown individuals after the fact76. In
another instance, Armenia alleges that a video depicting dead Armenian soldiers
was accompanied by a text description using a specific derogatory slur77; but the
video itself, submitted as Annex 203, does not contain the cited slur. The alleged
text description is not before the Court78, and Armenia makes no effort to identify
who added the alleged text description after the fact79. In the third instance,
Armenia refers in its Memorial to a photo purporting to depict an Azerbaijani
soldier resting his foot atop a dead Armenian soldier and states that a “caption”
accompanying the photo uses a derogatory slur80. But again, Armenia does not
submit the alleged caption to the Court, does not attempt to identify who added
the caption, and does not attempt to connect the alleged slurs to the misconduct of
the soldiers depicted81. These after-the-fact allegedly ethnically biased comments,
75 See Armenia’s Memorial, p. 101, para. 3.63.
76 See Armenia’s Memorial, p. 101, para. 3.67 (stating that “comments inciting hatred and
violence against Armenians” were made on social media after the alleged misconduct
occurred).
77 Armenia’s Memorial, pp. 516–517, para. 4.132; ibid., n.1718.
78 Letter from Philippe Gautier, Registrar of the International Court of Justice, to Elnur
Mammadov, Agent of the Republic of Azerbaijan, dated 9 February 2023 (“[T]he Court has
decided that these documents [described as “Other Sources”] do not form part of the
case file”).
79 Armenia purported to attach a screenshot showing the text containing the slur as “Other
Source” No. 1037, which does not identify who added the text and in any event is not before
the Court. The only translation of the video provided by Armenia is an excerpt in Annex 290
that says: “A video showing at least 3-4 corpses of Armenian soldiers. The individual filming
steps on the back of one of the dead Armenian soldiers, saying ‘These are the boys of the
Armenians’ and ‘immorals’”.
80 Armenia’s Memorial, pp. 516–517, para. 4.132; ibid., n.1720.
81 Armenia purported to attach the “caption” as “Other Source” No. 1039, which does not
identify the author of the supposed caption and is not properly before the Court in any event.
34
which could have originated from anyone and anywhere, have no relevance to
whether the underlying alleged conduct was racially discriminatory.
47. The few instances where Armenia has even purported to cite allegedly
discriminatory language, moreover, are the exception rather than the rule. In most
instances, Armenia does not allege that the putative misconduct was accompanied
by anti-Armenian statements or other evidence of discrimination. Instead,
Armenia simply makes allegations of mistreatment of detainees and other
misconduct during armed conflict82. While the alleged misconduct, if it occurred,
may be contrary to IHL, it has nothing to do with the subject matter of CERD.
48. Azerbaijan again wishes to make clear that it in no way condones or
excuses conduct that violates IHL and has taken steps to punish those
responsible83. It is an unfortunate reality that in any armed conflict, some soldiers
may ignore their training and react inhumanely and vengefully against members of
the opposing army or even civilians of the enemy State. That is true whether the
enemy is of the same or a different ethnicity. Rather than condone or endorse
such conduct, Azerbaijan is actively investigating allegations of such violations
raised by third parties and previously raised by Armenia, and has already initiated
11 criminal cases84 and convicted four servicemen85. Azerbaijan is committed to
82 See Armenia’s Memorial, pp. 251–255, paras. 3.270–3.275 (alleging that detainees were
forced to sleep standing, kept in isolation, deprived of food, and subject to beatings); ibid., pp.
297–298, para. 3.326 (alleging interrogations and beatings of detained servicemen); ibid., pp.
302–306, paras. 3.332–3.339 (alleging that detainees were beaten, electrocuted, deprived of
food and water, and spat on); ibid., pp. 428–429, para. 4.6 (alleging abuse of detained
servicemen); ibid., pp. 434– 439, paras. 4.15–4.20; ibid. pp. 446–447, paras. 4.29–4.31.
83 See supra, n.42.
84 See, e.g., CERD Committee, 2904th Meeting, 107th Session (16 August 2022) at 1:44:20,
https://media.un.org/en/asset/klz/klzdlzmmn8.
35
upholding its obligations under the Geneva Conventions to prosecute and punish
such conduct, which is also contrary to Azerbaijan’s domestic law and military
policies, without distinction based on the ethnic origin of the alleged victim86. But
claims arising from conduct during armed conflict governed by IHL do not, on
their own, implicate questions of interpretation and application of CERD, no
matter how strong the hostility between the two States or between parts of their
populations.
49. To be clear, conduct that violates IHL can also implicate CERD if it
involves a “distinction … based on … national or ethnic origin which has the
purpose or effect of nullifying or impairing the recognition, enjoyment or exercise,
on an equal footing, of human rights and fundamental freedoms”87. Azerbaijan
itself makes claims based on this kind of discrimination in Azerbaijan v. Armenia,
where it explains that during the First Garabagh War, Armenia singled out ethnic
Azerbaijanis in the formerly occupied territories of Azerbaijan for murder, torture
and other abuse, while ethnic Armenian populations in Azerbaijan were left
undisturbed (indeed, were protected) by Armenia’s forces 88 . That kind of
discrimination—that is, distinction or differentiation—between individuals based
on their ethnic or national origin, and affecting their human rights or fundamental
85 Permanent Mission of the Republic of Azerbaijan to the UN Office and other International
Organizations, Letter no. AL AZE 1/2022 (21 February 2023),
https://spcommreports.ohchr.org/TMResultsBase/DownLoadFile?gId=37389.
86 See, e.g., Azerbaijan’s Letter to Court dated 27 September 2022. See also Human Rights
Watch, Azerbaijan: Armenian POWs Abused in Custody (19 March 2021),
https://www.hrw.org/news/2021/03/19/azerbaijan-armenian-pows-abused-custody (cited at
Armenia’s Memorial, nn.854–856) (“One [Armenian] former POW said the [Azerbaijani]
commanding officer told his subordinates not to hit the POWs”).
87 CERD, art. 1(1).
88 Azerbaijan’s Memorial, Parts II.C, pp. 199–237; ibid., IV.C.2.a, pp. 336–339.
36
freedoms, directly implicates CERD. But in the absence of differentiation based
on ethnic origin, allegations of misconduct during armed conflict—even if the
perpetrator and victim are from different ethnic groups—do not constitute “racial
discrimination” as defined in CERD.
(b) Alleged mistreatment of individuals who illegally crossed
borders or the line of contact
50. Armenia also provides no evidence or argument in support of its assertion
that racial discrimination was involved in the alleged violations of the rights of
seven residents of Armenia who were detained between 2009 and 2014 after
illegally crossing the border from Armenia into Azerbaijan or after crossing the
line of contact between then-occupied parts of Azerbaijan’s territory and areas
controlled by Azerbaijan. Armenia admits that these individuals “crossed the
border” into Azerbaijan during this period of unlawful military occupation of
Azerbaijan’s territory and that at least two of them were members of Armenia’s
armed forces89. As Azerbaijan has explained elsewhere, Azerbaijan believed all
of these individuals to be “member[s] of the Armenian armed forces”90 who were
suspected of entering Azerbaijan to engage in espionage or other unlawful
activities. The judgments of the European Court of Human Rights on which
Armenia relies with respect to four of the detained Armenian individuals did not
find a violation of ECHR Article 14, which prohibits discrimination91.
89 Armenia’s Memorial, p. 93, para. 3.55 (“[O]n 26 December 2014, Azerbaijani forces
captured . . . a serviceman of the NKR Defense Army”), p. 95, para. 3.58 (“[I]n August
2020 . . . an Armenian soldier who . . . crossed . . . into Azerbaijan’s Goranboy district, was
detained by Azerbaijani authorities”).
90 See, e.g., Badalyan v. Azerbaijan, ECHR Application No. 51295/11, Judgment dated 22 July
2021, p. 4, para. 15.
91 The ECHR found violations of Articles 2, 3 and 5 of the European Convention on Human
Rights, relating to the right to life; the right to freedom from torture or cruel, inhuman and
37
51. Azerbaijan disputes that these individuals were subjected to improper
treatment in violation of their human rights, but in any event, Armenia has
presented no basis for its assertion that the alleged mistreatment was based on
ethnic origin rather than, for example, their perceived status as members of an
enemy State’s armed forces, their undisputed status as nationals of an enemy State,
and their violation of the laws against illegal entry. Again, none of those is a
protected classification under Article 1(1) of CERD. Indeed, Article 1(2) of
CERD makes explicit that “[t]his Convention shall not apply to distinctions,
exclusions, restrictions or preferences made by a State Party to this Convention
between citizens and non-citizens.” And the Court has held that differential
treatment based on current nationality, as opposed to national origin or ethnic
origin, is not capable of falling within the scope of CERD92.
(c) Alleged targeting or mistreatment of civilians
52. The Court also lacks jurisdiction over Armenia’s claims of unlawful
violence against civilians during active hostilities, mistreatment of civilian
detainees, and “intentional and indiscriminate attacks” on civilians and civilian
infrastructure. Although these acts, if they occurred, would implicate IHL,
unlawful attacks on civilians are not ipso facto a violation of CERD.
degrading treatment; and the right to liberty and security of the person. See Petrosyan v.
Azerbaijan, ECHR Application No. 32427/16, Judgment dated 4 November 2021, p. 22, para.
84 (not considering case under Article 14 of the European Convention on Human Rights);
Saribekyan and Balyan v. Azerbaijan, ECHR Application No. 35746/11, Judgment dated 30
January 2020, p. 26, paras. 102–103; Khojoyan and Vardazaryan v. Azerbaijan, ECtHR
Application No. 62161/14, Judgment (4 November 2021), p. 22, para 85. See also Badalyan
v. Azerbaijan, ECHR Application No. 51295/11, Judgment dated 22 July 2021, p. 1, para. 1
(not raising an Article 14 claim).
92 Application of the International Convention on the Elimination of All Forms of Racial
Discrimination (Qatar v. United Arab Emirates), Preliminary Objections, Judgment of 4
February 2021, I.C.J. Reports 2021, p. 106, para. 105.
38
53. In many of the cases that Armenia identifies, civilians located in areas
previously occupied by Armenia were allegedly killed or injured as Azerbaijan
liberated these territories93. For example, Armenia claims that three Armenian
civilians were killed as “Azerbaijani troops [] entered and took control of the
Talish village in Nagorno-Karabakh”94. Armenia also claims that four Armenian
civilians were killed as Azerbaijani servicemen liberated Hadrut and Shusha95.
Armenia, however, offers no evidence that its allegations of unlawful violence
towards these civilians constitute racial discrimination within the scope of CERD.
Instead, Armenia describes in gruesome detail factual allegations that, if true,
would be governed by IHL96 . To the extent Armenia’s evidence suggests a
motive for alleged unlawful acts, it shows that those acts, if they occurred, were
based on individuals’ perceived association with those who had occupied
Azerbaijan’s territory and who had committed atrocities against Azerbaijanis—not
the individuals’ ethnic origin97 . The same is true of Armenia’s evidence of
93 See, e.g., Armenia’s Memorial, pp. 98–99, para. 3.62; ibid., p. 101, para. 3.66; ibid., pp. 248–
250, paras. 3.265–3.267; ibid., pp. 282–283, para. 3.305; ibid., pp. 292–294, paras. 3.318–
3.320; ibid., pp. 304–305, para. 3.337; ibid., pp. 429–432, para. 4.7; Annex 204 to Armenia’s
Memorial; Annex 123 to Armenia’s Memorial; Annex 130 to Armenia’s Memorial; Annex
170 to Armenia’s Memorial; Annex 95 to Armenia’s Memorial (reporting the death of a
civilian in Hadrut).
94 Armenia’s Memorial, pp. 98–99, para. 3.62.
95 Armenia’s Memorial, pp. 248–250, paras. 3.265–3.268.
96 See, e.g., Armenia’s Memorial, pp. 98–99, para. 3.62 (describing murder by beheading,
dismemberment and mutilation (cutting of ears and arms), and “other acts of brutality”, and
citing in support Annex 45 to Armenia’s Memorial, which describes how acts of brutality
against civilians violate States’ obligations under the Fourth Geneva Convention).
97 See Armenia’s Memorial, pp. 238–239, para. 3.247 (alleging that Azerbaijani soldiers killed
an Armenian civilian and “proclaim[ed] ‘[t]his is how we took revenge for the blood of our
martyrs’”) (citing Annex 123); ibid., pp. 292–293, para. 3.318 (alleging a civilian in
Garabagh was forced to say “Karabakh is Azerbaijan” and later killed); ibid., p. 293, para.
3.319 (alleging that an Azerbaijani soldier punched and kicked a civilian while “yelling that
he must have taken part in the war 30 years ago and that ‘this was punishment for killing
Azerbaijani people back then’”).
39
alleged violence against and mistreatment of civilian detainees98. Armenia itself
relies heavily on sources such as an April 2016 Interim Report of the so-called
“Human Rights Ombudsman of the Republic of Artsakh” that consider allegations
of brutality towards Armenian civilians as possible violations of the Fourth
Geneva Convention, not racial discrimination potentially violating CERD99.
54. Armenia’s remaining claims concern the alleged “deliberate[] target[ing
of] the ethnic Armenian population and infrastructure of the NKR”100 during
active hostilities and the alleged firing by Azerbaijan’s forces in the direction of
civilian areas after the Second Garabagh War101.
55. With respect to the alleged targeting of civilians during active hostilities in
2016, as noted above, Armenia frames its allegations explicitly in terms of IHL102.
It also alleges that Azerbaijan conducted “indiscriminate” attacks on ethnic
Armenian civilians and civilian infrastructure during the Second Garabagh War103.
By definition, “indiscriminate” attacks do not discriminate on the basis of ethnic
98 See Armenia’s Memorial, p. 255, para. 3.274 (alleging that a civilian detainee was “forced to
sing the national anthem of Azerbaijan” and told “[h]is village” belongs to Azerbaijan); ibid.,
pp. 304–306, paras. 3.336–3.339 (alleging that civilian detainees were abused in detention,
and another was forced to say “Karabakh is Azerbaijan”).
99 Annex 45 to Armenia’s Memorial, pp. 20–21, paras. 59–62; Armenia’s Memorial, p. 231,
n.790 (citing a Human Rights Watch report that references “[i]nternational humanitarian law”
as “applicable to the international armed conflict between Azerbaijan and Armenia”).
100 See, e.g., Armenia’sMemorial, p. 98, para. 361; ibid., p. 231, para. 3.240.
101 Armenia’s Memorial, pp. 96–97, para. 3.59; ibid., pp. 493–503, paras. 4.100–4.112; ibid., pp.
512–514, paras. 4.129–4.131.
102 Armenia’s Memorial, p. 98, para. 3.61 (“Azerbaijan’s attack was not conducted in accordance
with the laws of armed conflict; rather, it deliberately targeted the ethnic Armenian civilian
population and infrastructure of the NKR, including schools and homes.”).
103 Armenia’s Memorial, p. 231, para. 3.240.
40
origin or anything else104 . Armenia offers no allegations of fact, much less
evidence, suggesting that the targets of these attacks were selected on the basis of
ethnic origin, rather than (for example) on the basis of their proximity to
Armenian military units. And once again, the sources Armenia cites in support of
its claims describe the conduct at issue as conduct governed by IHL, not by
CERD105.
56. With respect to the alleged firing towards civilians after the Second
Garabagh War, Armenia offers no basis for any allegation that any civilians were
deliberately targeted rather than being collateral victims of ongoing military
skirmishes. As Azerbaijan has already explained, Azerbaijan’s forces were
responding to repeated attacks on Azerbaijan’s positions by Armenia’s armed
forces, which Armenia had placed in civilian settlements in Garabagh, and the
continued activities of Armenia’s illegal armed detachments in Azerbaijan’s
territory106. But even if Armenia could show intentional targeting of civilians, its
104 See Application of the International Convention on the Elimination of All Forms of Racial
Discrimination (Azerbaijan v. Armenia), Provisional Measures, Order of 22 February 2023,
Declaration of Judge ad hoc Keith, para. 2 (“By their very nature, landmines are
indiscriminate in their effects.”). See also Application of the International Convention on the
Elimination of All Forms of Racial Discrimination (Azerbaijan v. Armenia), Provisional
Measures, Order of 7 December 2021, I.C.J. Reports 2021, p. 420, para. 46 (noting
Armenia’s argument that “landmines, by their nature, do not engage in ethnic
discrimination”). Although Azerbaijan continues to believe that Armenia’s laying of
landmines specifically in the vicinity of ethnic Azerbaijani settlements constitutes racial
discrimination under CERD, it agrees with the point that truly indiscriminate attacks do not
implicate CERD. See CR 2021/26, pp. 12–13, paras. 3–4.
105 See, e.g., Human Rights Watch, Azerbaijan: Unlawful Strikes in Nagorno-Karabakh (11
December 2020) (cited at Armenia’s Memorial, p. 231, n.790); Annex 71 to Armenia’s
Memorial (cited at Armenia’s Memorial, p. 231, n.790) (describing alleged “war crimes”
committed during the Second Garabagh War as violations of the Geneva Conventions, Rome
Statute, and Mercenaries Convention).
106 See, e.g., Letter from Elnur Mammadov, Agent of the Republic of Azerbaijan, to Philippe
Gautier, Registrar of the International Court of Justice, dated 27 September 2022, pp. 7–11.
41
claims are governed by IHL and not CERD in the absence of a showing of
discrimination on the basis of ethnic origin.
57. Again, if Armenia could manufacture CERD jurisdiction simply by
asserting that some or all of the victims of armed hostilities were of Armenian
ethnicity, then nearly every claim arising out of armed conflict between two States
could be transformed into a CERD claim through a similar stratagem. That
approach is not consistent with CERD.
*
58. For these reasons, all of the claims in Part VI, Chapter 3, Section I, of
Armenia’s Memorial and as set out in Annex 46 do not fall within CERD and
should be dismissed as beyond the Court’s jurisdiction in this case.
2. Armenia’s Allegations of Wrongful Detention Do Not Fall Within
CERD
59. Although Armenia complains about detention of Armenian prisoners in
Azerbaijan, Armenia puts forward no evidence that any Armenian was detained
on the basis of ethnic origin. Accordingly, Armenia’s argument in Part VI,
Chapter 3, Section III of its Memorial, where it invokes CERD Articles 2 and 5(a)
to assert that Azerbaijan has “discriminatorily and arbitrarily” detained ethnic
Armenians, does not implicate the subject matter of CERD because Armenia
provides no grounds to conclude that the complained-of detentions were “based
on” ethnic origin.
60. The detainees that Armenia complains of fall into two categories:
Armenian nationals who illegally crossed the border into Azerbaijan and prisoners
of war captured during the Second Garabagh War. As to the individuals who
crossed the border, Armenia’s own allegations make clear that these individuals
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were taken into custody by Azerbaijan because they were nationals of a hostile
occupying State who illegally crossed into territory controlled by Azerbaijan, not
because they were ethnically Armenian 107 . Armenia’s references to “false
accusations” and “spurious charges”108 are completely unsubstantiated by any
facts pled in Armenia’s Memorial, no matter how many times those words are
repeated. Indeed, Armenia has admitted that these individuals crossed either the
border from Armenia into Azerbaijan or the military line of contact from thenoccupied
Garabagh into territory controlled by Azerbaijan109. This occurred at a
time when borders were closed and when a significant portion of Azerbaijan’s
territory was under military occupation by Armenia. Even if the detention of any
of these individuals had been unlawful under IHL—which Azerbaijan disputes—it
did not, on Armenia’s own case, involve differences in treatment based on ethnic
origin. Accordingly, it does not implicate rights under CERD110.
61. Armenia’s claim that Azerbaijan detained prisoners during the Second
Garabagh War also has nothing to do with the subject matter of CERD. Armenia
alleges that 280 individuals were arbitrarily detained during and after the Second
Garabagh War, at least 276 of whom are members of Armenia’s armed forces111.
62. In rejecting Armenia’s September 2021 request for provisional measures
that would have required release of these detainees, the Court found that
“international humanitarian law governs the release of persons fighting on behalf
107 See supra, Part III.B.I.b.
108 See Armenia’s Memorial, p. 604, p. 6.123.
109 See Armenia’s Memorial, p. 83, para. 3.35.
110 See supra, Part III.B.I.a–b.
111 Armenia’s Memorial, p. 606, para. 6.127.
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of one State who were detained during hostilities with another State” and, with
respect to certain of these detainees, that Armenia has not produced “evidence
indicating that these persons continue to be detained by reason of their national or
ethnic origin”112. Armenia has not put before the Court any grounds to reach a
different conclusion today.
63. Instead, Armenia simply asserts without any coherent explanation that
“Azerbaijan’s detention of these ethnic Armenians is patently discriminatory”113.
It argues that its allegations of unlawful violence by Azerbaijani forces—which
themselves have nothing to do with CERD as discussed above—as well as
completely unrelated allegations of hate speech leave “no room for doubt in this
regard”114. Armenia’s need to resort to bare assertions that racial discrimination is
“patent” or beyond “doubt”, without even explaining the supposed connection
between the detentions and the other allegations that it cites, shows that Armenia’s
claims do not fall within CERD.
64. In fact, as Azerbaijan has previously explained, all of the detainees were
either captured during active hostilities or were detained as a result of their
suspected illegal activity. Twenty-eight of the detainees were repatriated to
Armenia after a judicial determination that they had not committed a crime or
112 Application of the International Convention on the Elimination of All Forms of Racial
Discrimination (Armenia v. Azerbaijan), Order on Provisional Measures of 7 December
2021, I.C.J. Reports 2021, pp. 383–383, para. 60. See also Application of the International
Convention on the Elimination of All Forms of Racial Discrimination (Armenia v.
Azerbaijan), Order on the Request for the Modification of the Order of 7 December 2021
Indicating Provisional Measures of 12 October 2022, I.C.J. Reports 2022 (denying
Armenia’s request for modification of the 7 December 2021 order).
113 Armenia’s Memorial, p. 607, para. 6.129.
114 Armenia’s Memorial, p. 607, para. 6.129.
44
after their sentences were commuted 115 . The 33 detainees remaining in
Azerbaijan’s custody have been convicted of crimes including torture and
murder 116 . The mere fact that these wartime detainees are primarily ethnic
Armenians does not automatically transform claims about their detention into
claims under CERD. It is simply the predictable reality of armed conflict against
a monoethnic State whose population is almost entirely ethnic Armenian.
65. Again, Azerbaijan is not asking the Court to consider, on the merits, the
strength or weakness of Armenia’s case that the detentions were wrongful. Rather,
the question is whether Armenia’s claims—namely, that Azerbaijan is continuing
to detain prisoners of war and other detainees captured in conflict with Armenia—
are shown to be capable of falling within the provisions of CERD. In this case, on
the face of Armenia’s Memorial, the detentions have no discernible connection to
ethnic origin and every connection to the fact that the detainees were, or were
perceived to be, fighting for Armenia or engaged in violations of law. Armenia’s
unsupported assertions that criminal charges were not prosecuted fairly117 are
irrelevant to CERD in the absence of any basis for claiming that there was a
difference in treatment “based on” Armenian ethnic origin—as opposed to, for
example, based on status as a member of Armenia’s military or status as a citizen
of Armenia or resident of Garabagh who was believed to have crossed illegally
into Azerbaijan-controlled territory. Accordingly, the detentions do not implicate
any rights protected under CERD.
115 CR 2021/21, p. 26, para. 8 (Goldsmith); Letter from Elnur Mammadov, Agent of the
Republic of Azerbaijan, to Philippe Gautier, Registrar of the International Court of Justice,
dated 4 October 2022.
116 CR 2021/21, p. 26, para. 8 (Goldsmith); Letter from Elnur Mammadov, Agent of the
Republic of Azerbaijan, to Philippe Gautier, Registrar of the International Court of Justice,
dated 4 October 2022.
117 See Armenia’s Memorial, Part III.3.I.B.
45
66. For this reason, all of the allegations in Part VI, Chapter 3, Section III of
Armenia’s Memorial are beyond the Court’s jurisdiction under Article 22 of
CERD and should be dismissed.
3. Armenia’s Allegations of Enforced Disappearances Do Not Fall
Within CERD
67. Armenia’s allegations of enforced disappearances, if they were true, also
would be governed by IHL and do not fall within CERD. Armenia alleges in Part
VI, Chapter 3, Section IV of its Memorial that Azerbaijan subjected ethnic
Armenians to enforced disappearances during the Second Garabagh War and
subsequent outbreaks of armed hostilities, and that the alleged disappearances
violated CERD Articles 2 and 5. Armenia’s allegations, however, do not
implicate CERD in the absence of different treatment on the basis of ethnic origin.
68. Armenia does not provide any basis for any allegation that any Armenian
was killed, detained, or otherwise subjected to enforced disappearance based on
the individual’s ethnic origin. Indeed, the only attempt Armenia makes to even
argue that the allegations of disappearances fall within the scope of CERD is to
assert that all of Armenia’s claims must be “[v]iewed in the context of
Azerbaijan’s incessant hateful rhetoric against ethnic Armenians”118. As already
explained, however, these claims of “rhetoric” cannot be used to transform every
one of Armenia’s other, unrelated claims into CERD violations. Again, in the
context of an almost 30-year occupation and outbreaks of active hostilities
between Azerbaijan and Armenia, Armenia has no justification for simply
assuming that every alleged wrong against any national of Armenia or inhabitant
of Azerbaijan’s territories under Armenia’s control necessarily has the purpose or
effect of depriving individuals of rights on the basis of their ethnic origin.
118 Armenia’s Memorial, p. 620, para. 6.156.
46
69. As previously stated, Azerbaijan does not contend that CERD cannot
apply in wartime. For example, Azerbaijan itself has asserted a CERD claim in
Azerbaijan v. Armenia based on Armenia’s refusal to disclose the location of mass
gravesites of ethnic Azerbaijanis in the aftermath of Armenia’s campaign of
singling out ethnic Azerbaijani communities for extermination on the basis of the
ethnic origin and national origin of their inhabitants119. Armenia’s allegations
against Azerbaijan do not involve similar circumstances. Instead, Armenia’s
allegations arise in the context of the Second Garabagh War, when Azerbaijan
exercised its inherent right of self-defense as recognized under international law
and liberated territory internationally recognized as Azerbaijan’s own and
unlawfully occupied by Armenia. While enforced disappearances, if they
occurred, would be a deplorable human rights violation regardless of their
circumstances, they do not implicate CERD in the absence of discrimination based
on ethnic origin or other characteristics enumerated in Article 1(1) of CERD.
70. For this reason, all of the allegations in Part VI, Chapter 3, Section IV of
Armenia’s Memorial are beyond the Court’s jurisdiction under Article 22 of
CERD and should be dismissed.
IV.
SUBMISSIONS
71. For these reasons, Azerbaijan respectfully requests that the Court issue a
judgment:
a) Dismissing Armenia’s Application in its entirety on the ground that none
of Armenia’s claims is properly before the Court because Armenia has
119 Azerbaijan’s Memorial, p. 420, para. 581; ibid., at 429.
47
failed to comply with the negotiation precondition required by Article 22
of CERD; and
b) In addition or in the alternative, dismissing the claims as follows and as set
forth in Annex 46 on the ground that the Court lacks jurisdiction ratione
materiae because those claims fall outside the scope of CERD:
i) Each of the claims asserted in Part VI, Chapter 3, Section I, of
Armenia’s Memorial;
ii) Each of the claims asserted in Part VI, Chapter 3, Section III of
Armenia’s Memorial; and
iii) Each of the claims asserted in Part VI, Chapter 3, Section IV of
Armenia’s Memorial.
72. Azerbaijan reserves all its rights under the Court’s Statute and Rules,
including the right to amend and supplement these Submissions and right to
contest jurisdiction and admissibility on the above and other grounds should the
case proceed to the merits.
48
Respectfully submitted,
____________________________
Elnur Mammadov
Agent of the Republic of Azerbaijan
21 April 2023