Rumors about Azerbaijan`s victory over Armenia in Hague are exaggerated

Question: Are the decisions of the International Court of Justice fair in these cases ("Armenia against Azerbaijan" and "Azerbaijan against Armenia")? What are these documents essentially talking about?

Answer: In general, it should be noted that before the consideration of the case on December 7, 2021, on the essence of the mutual statements of Azerbaijan and Armenia, the Court had already taken decisions on the statements of both sides of the statements (petitions) on interim measures against Azerbaijan applied to the Court with a request to take six interim measures against Armenia. In short, these measures prescribed the following:

Armenia should take all necessary steps to carry out urgent, safe and effective clearance of mines from the mined territories of Azerbaijan, as well as provide prompt, complete and accurate information on the location and characteristics of mines;

Armenia must stop endangering the lives of Azerbaijanis by encouraging or facilitating the laying of mines on the territory of Azerbaijan;

Armenia should take all necessary measures to prevent incitement to racial hatred and racially motivated violence against Azerbaijanis by organizations, including VoMA (Voxj Mnalu Arvest (the art of survival) - an Armenian armed group) and individuals on its territory, as well as hatred of Azerbaijanis in public and private statements on twitter and other social and traditional media.

Armenia should take effective measures to ensure the collection, prevention of destruction and protection of evidence of ethnically motivated crimes against Azerbaijanis, including evidence from the Republic of Azerbaijan;

Armenia should refrain from any actions that may aggravate, expand or complicate the settlement of this dispute;

Finally, Armenia must submit a report, indicating provisional measures, on all measures taken to implement its decision, indicating provisional measures, within three months from the date of the decision, and then every six months until a final decision on the case is made.

Of the 6 interim measures requested by Azerbaijan, the court recognized only 2 as legitimate. Thus, according to the decision on interim measures, the Court made a unanimous decision:

In accordance with its obligations under the International Convention on the Elimination of All Forms of Racial Discrimination, Armenia must take all necessary measures to prevent incitement and encouragement of racial hatred, including by organizations and individuals on its territory, directed at persons of Azerbaijani origin.

Another interim measure, the Court has imposed on both sides. Thus, the second interim measure states that "both parties refrain from any action that may aggravate or prolong the dispute before the Court or that may complicate its settlement."

It should be noted that the International Court of Justice did not satisfy the first request for interim measures, which both sides consider the most important (Azerbaijan's demand for mine maps, Armenia's demand for the release of prisoners of war). The International Court of Justice requires such claims to be based on statements of fact (related to law) and be convincingly linked to the Convention. In this regard, it should also be borne in mind that the jurisdiction of the Court here will be limited to the protection of the rights provided for in the Convention on Racial Discrimination.

As for Armenia, the International Court of Justice noted that it did not provide evidence that the immediate return of prisoners of war is a matter of international humanitarian law and that the capture and detention was due to ethnic origin.

With regard to Azerbaijan's mine-related claims, the International Court of Justice noted that a mining policy could create controversy if it was specifically shaped and implemented on the basis of nationality and ethnicity. The International Court of Justice stressed that the Azerbaijani side could not convincingly prove this.

Question: Armenia put forward six demands to Azerbaijan - release of Armenian prisoners, humane treatment of them, prevention of propaganda of hatred towards Armenians, closure of the War Trophy Park, protection of the Armenian cultural heritage and admission of Armenians to these places. Deputy Foreign Minister Elnur Mammadov stated that the issues raised by Armenia regarding Azerbaijan in the international court were not supported. Is Elnur Mammadov right? What claims of Armenia to Azerbaijan were accepted by the court, and what were not?

Answer: Armenia demanded from the Court to take 8 interim measures against Azerbaijan. The court accepted 6 of them for consideration and ruled to take only 4 interim measures - 3 in relation to Azerbaijan and one for both countries.

These include the following:

a) Protect all persons detained in connection with the 2020 conflict from violence and personal injury, and ensure their safety and equality before the law (adopted by 14 votes in favor and one vote against);

b) Take all necessary measures to prevent incitement and encouragement of racial hatred and discrimination against persons of Armenian nationality or Armenian ethnic origin, including by officials and state bodies of Azerbaijan (unanimously);

c) Take all necessary measures to prevent and punish acts of vandalism and insult to the Armenian cultural heritage, including churches and other places of worship, monuments, landmarks, cemeteries (13 - for, 2 - against).

The International Court of Justice did not rule in favor of the requirement for the three interim measures of protection, which Armenia considers to be the most important. This:

1. Release of all Armenian prisoners and detainees;

2. Closure of the War Booty Park;

3. Protect the right of access to the monuments of Armenian culture.

The International Court of Justice largely attributed this decision to the lack of convincing evidence that they were related to the rights protected by the Convention. In addition, the International took into account that the Azerbaijani side has already taken out dummies imitating Armenian servicemen and the helmets of the dead Armenian servicemen from the War Trophy Park in Baku.

Question: Azerbaijani media write that "Azerbaijan forced Armenia to kneel in the UN court," "won the upper hand in court." Is it really?

Answer: It is difficult to agree with such assessments in the Azerbaijani media of the decision of the International Court of Justice on interim measures against Azerbaijan, adopted at the request of Armenia. Although the International Court of Justice rejected Armenia's demands for some interim measures (such as the immediate release of prisoners of war and other detainees and the closure of a mining park in Baku), it ultimately ruled on three important interim measures for Armenia. These include the adoption of interim measures regarding the treatment of prisoners of war in accordance with international law, measures to prevent racial hatred and discrimination against persons of Armenian national or ethnic origin (by the state and officials) and the protection of Armenian cultural monuments in Azerbaijan.

Question: Deputy Foreign Minister Elnur Mammadov also promised that Azerbaijan will file new lawsuits against Armenia. What other claims can Azerbaijan bring against Armenia in other international courts and in The Hague? What are the prospects for business?

Answer: After making a decision on interim measures, the International Court of Justice will move on to the stage of considering the merits of applications filed with the Court by Azerbaijan and Armenia. Here the Court will fully assess the claims and evidence presented by the parties. The final decision in the case against Georgia was taken 2.5 years after the adoption by the Court of interim measures against Russia.

According to the official structures of Azerbaijan, in 2021, Azerbaijan filed complaints against Armenia in two international courts. These are the European Court of Justice and the International Court of Justice.

Since, as will be stated below, an appeal to the International Court of Justice is a jurisdiction arising from the Convention on the Elimination of All Forms of Racial Discrimination (Article 22), ratified by Azerbaijan and Armenia, the Court has exclusive jurisdiction to rule on racial discrimination. On other issues, the Azerbaijani and Armenian sides must accept the jurisdiction of the Court in the relevant disputes. Only in this case can the International Court of Justice consider on their merits other claims brought by the parties in the context of the conflict.

The jurisdiction of the Court in contentious proceedings is based on the consent of the states. The form of expression of such consent is possible on the basis of a special agreement or on issues stipulated by international agreements and conventions. Without going into details, it can generally be said that Azerbaijan can sue in jurisdictions in which foreign or international companies may be liable for the illegal use of natural resources in the liberated territories, as well as for causing damage to individuals and state property.

Question: Many are confused by the recent decisions of the International Court of Justice. If you remember, after the war, officials announced that a lawsuit would be filed against Armenia demanding compensation for damage caused in the liberated territories, as well as damage caused during the war. People confuse the decision of the International Court of Justice with this question and ask: "Where is the compensation?" What has been heard about this compensation? And is there any prospects for this claim for compensation in international courts?

Answer: It should be noted that in the case of Azerbaijan and Armenia, the jurisdiction of the International Court of Justice for both countries, that is, the interpretation or application of the Convention on the Elimination of All Forms of Racial Discrimination, is a matter of dispute. The International Court of Justice does not consider issues related to the calculation and compensation of material damage suffered by the parties as a result of the military conflict. Compensation for possible damage can arise only in case of violation by the state of its obligations under the Convention "On the Elimination of All Forms of Racial Discrimination" in relation to certain individuals. In other words, currently the most competent authority to consider the issue of compensation for damage in the context of a conflict is the European Court of Human Rights.

However, the European Court can only consider cases of violations that have occurred or continue to occur in relation to both countries from the date of entry into force of the Convention (2002). In this case, the Court may consider cases in which violations of the laws of war as a result of the Second Karabakh War led to violations of human rights (right to life, property rights, right to housing).

Kamran Mahmudov