On January 30 and 31, 2023, Armenia and Azerbaijan presented their oral arguments on their respective requests for additional provisional measures in their competing cases before the International Court of Justice (ICJ) under the Convention on the Elimination of All Forms of Racial Discrimination (CERD). Armenia asked that the ICJ order Azerbaijan to unblock the Lachin Corridor and stop disrupting the supply of gas and other public utilities to Nagorno-Karabakh. Azerbaijan, in turn, asked that the ICJ order Armenia to enable it to demine areas to which Azerbaijani citizens will return and stop planting landmines or booby traps in Azerbaijani territory.
You don’t need to be a lawyer to appreciate the solemn grandeur that accompanies the start of every ICJ hearing, when a tuxedo-clad usher exclaims “La Cour!” to signal that all seated in the world’s highest courtroom should rise, as 15 of the world’s most eminent Judges are about to enter and take to the bench. Even watching through a computer screen cannot dilute the magic of the moment, although there are few experiences more humbling than to be physically present in the Peace Palace’s Great Hall of Justice and personally witness history in the making.
You might need to be a lawyer, however, to be able to properly grasp the applicable law, know what makes for a persuasive argument, and understand what constitutes credible and reliable evidence in support thereof. The caliber of lawyers representing States before the ICJ should therefore be commensurate to the prominence of its Judges and the importance of the cases before them. But no amount of prestige can make up for poor arguments or lack of evidence. Cases are not won on reputation alone, and the Judges are not naive. That said, lawyers are generally bound to act on the instructions of their clients, even when their clients ignore their advice.
There is no doubt that Armenia and Azerbaijan have each hired all-star legal teams to represent them in their interstate cases. Foley Hoag for Armenia and Debevoise & Plimpton for Azerbaijan are renowned heavy hitters in the international dispute resolution ring. In fact, counsel from both sides have previously worked together to represent Qatar in its case against the United Arab Emirates before the ICJ under the CERD (see here, pages 8-9), which Qatar ultimately lost for lack of jurisdiction despite having previously been granted provisional measures.
In Armenia vs. Azerbaijan, Armenia argued that: the Azerbaijani protesters blocking the Lachin Corridor since December 12, 2022, are in fact fake “eco-activists” who have been placed there by the state; the minimal trickle of essential goods that Azerbaijan permits to get in through the International Committee of the Red Cross (ICRC) and/or Russian peacekeepers on an exceptional basis proves the rule that the road is closed; and Azerbaijan’s conduct in this respect, including its repeated disruption of gas and other utilities, is causing a dire humanitarian crisis for the Armenians of Nagorno-Karabakh which specifically targets them on ethnic grounds and is designed to intimidate them into permanently leaving their indigenous homeland.
When it came to Azerbaijan to respond, I was anticipating a meaningful presentation on issues such as the legitimacy of the restrictions and whether they technically qualify as a “blockade” or contravene international law if ICRC vehicles can pass through. After all, international legal scholars have been discussing these and other related issues regarding the Lachin Corridor since December 12 (see e.g. here and here). I was at the very least expecting submissions to the effect that the use of blockades in armed conflict is not per se illegal, or perhaps refer to situations in which the ICJ has previously concluded a State may restrict or refuse another State’s right of passage over its territory, such as in Portugal v. India (1960).
Such debates would certainly have been far more intellectually stimulating than the same old, stale excuse that Armenia is, as usual, lying. Instead, Azerbaijan’s Response was chock full of such statements as: “There is no blockade”; “Armenia’s claims of a protester-imposed blockade are simply false”; “Azerbaijan […] has not imposed any restrictions on traffic along the Lachin road”; “Armenia and its Installed Régime in Garabagh broadcast statements and information to convince the local population that the Lachin road is closed even if they are hearing otherwise”; “The Lachin Corridor remains open”; “It is telling that each of Armenia’s baseless accusations against Azerbaijan is accompanied by a flurry of activity on the international stage”; “Armenia uses every opportunity to declare an impending humanitarian crisis and call on the global community to urgently act against Azerbaijan.”
For good measure, Azerbaijan then went on to argue, essentially in the alternative, that: the protesters are real and have valid concerns; to suppress them would violate their right to freedom of assembly and expression; and, there is nothing Azerbaijan can do because it is the Russian peacekeepers who exercise authority and control over the Lachin Corridor.
Hold on now, let me get this straight: so, not only are Armenians a bunch of liars, but they’ve got the whole world fooled, and if you believe them, then blame Russia? Is that it? Is that what Azerbaijan is paying its lawyers millions of dollars to argue? Never mind that Russia (along with almost the rest of the entire international community) has openly called on Azerbaijan to move the protesters blocking the road, or that Azerbaijan has been known for decades to routinely and violently crack down on peaceful protests against the Azerbaijani government, even during the blockade of the Lachin Corridor. Did it not occur to anyone on Azerbaijan’s team how manifestly discriminatory it would come across to demand that the ICJ uphold the rights of Azerbaijani protesters only when they protest against Armenians?
Watching in disbelief, I couldn’t decide whether it felt more like witnessing a child scream “I didn’t do anything!” after knocking over a classmate, or an adult being gently gaslighted in the toxic arms of a narcissistic ex-partner who just gave them a black eye. It certainly brought me back to the earlier days of the International Criminal Tribunal for Rwanda (ICTR) when some defense counsel used to actually deny that there was ever even a Rwandan genocide. The ICTR Judges eventually had to take judicial notice of the occurrence of the Rwandan genocide as a fact of common knowledge so as stop counsel from wasting the court’s time with such a ridiculous (and harmful) submission.
Azerbaijan’s arguments in Azerbaijan vs. Armenia the following day were no less disappointing, leaving behind little more than a strong sense of déjà vu. That’s of course because the ICJ has already heard, and dismissed, the very same request back in 2021. In an attempt to revive the issue, Azerbaijan zeroed in on the Agent of Armenia’s declaration to the ICJ in 2021, in response to Azerbaijan’s first request for provisional measures, that “Armenia is not planting landmines in the territory of the Republic of Azerbaijan”. Azerbaijan then contended that it had since “uncovered new facts regarding Armenia’s ongoing planting of landmines and other explosive devices,” which showed that Armenia was – surprise, surprise – lying.
The only such “evidence” available in the weeks leading up to the hearing was contained in Azerbaijan’s application filed on January 3, 2023, and published on the ICJ’s website, which stated that: “Since August 2022, Azerbaijan has discovered over 2,700 recently manufactured Armenian-produced landmines in the Lachin and Kalbajar Districts” (para. 12). To support this statement, the application contained a few close-up photographs of one landmine and other rudimentary or improvised explosives (Figure 1, p. 9; Figures 3-5, pp. 16-18), as well as two photographs of several landmines neatly lined up in long rows in a deserted field (Figure 2, pp. 12-13).
While such photographs do suggest that the objects depicted therein may be in Azerbaijan’s possession, they do absolutely nothing to demonstrate on even the lowest possible standard of proof where they were found or taken from. In this respect, all Azerbaijan offered in its application were blanket assertions supported by references to letters or other statements emanating from its own state apparatus – hardly what anyone could reasonably consider to be reliable evidence given its inherently biased provenance. I figured Azerbaijan was strategically saving its “smoking gun” for oral arguments.
Wrong again. The only additional photos or arguments presented during Azerbaijan’s speech were either more of the same or had nothing to do with landmines or other explosives. Lengthy submissions around images of ghost towns and snippets of century-old quotes by Garegin Nzhdeh filled much of Azerbaijan’s allotted time. Most of these go more to the merits of Azerbaijan’s overall case and were already heard and dismissed by the ICJ in Azerbaijan’s first request, not because there was insufficient evidence of landmines the first time, but because “the Court does not consider that CERD plausibly imposes any obligation on Armenia to take measures to enable Azerbaijan to undertake demining or to cease and desist from planting landmines.”
As such, Azerbaijan essentially had “a second bite at the apple”, which the law typically frowns upon because it is fundamentally unfair. And this, despite the Presiding Judge’s repeated instruction that: “In the oral pleadings on requests for the indication of provisional measures parties should limit themselves to what is relevant to the criteria for the indication of provisional measures as stipulated in the Statute, Rules and jurisprudence of the Court. They should not enter into the merits of the case beyond what is strictly necessary for that purpose.”
When it came to Armenia to respond, the presentation by Professor Sean Murphy refuting Azerbaijan’s evidence was nothing short of masterful in the exercise of casting fatal doubt over an opposing party’s case. Armenia thus presented the entirely plausible counter-argument that Azerbaijan collected landmines from Armenian sovereign territories occupied by its own armed forces following its unlawful acts of aggression in 2021 and 2022, and is using them as a false evidentiary basis to support its request. As such, not only would a decision to grant Azerbaijan’s latest request constitute a marked departure from the ICJ’s prior holding on the very same issue, but it would also appear to be rewarding Azerbaijan for its aggressive invasions of Armenia. Such a result would be unthinkable and completely anathema to the ICJ’s raison d’être.
Here’s something that Azerbaijan did get right, though, and commendably so: achieving gender balance and including racial diversity among the front-runners of its litigation team. To be sure, this has nothing to do with the validity of the requests, the quality of arguments or evidence presented, or the undoubted competence of the lawyers for both sides. But I would be remiss if I didn’t mention how cringe-worthy and tone-deaf it was to see an entire front row of white men on the Armenian side, in a case about discrimination, facing and taking turns to address an increasingly gender inclusive and racially diverse bench presided over by a woman who, nearly two years ago, expressed similar dismay at this ongoing problem:
“It is a true honor to take a seat on the bench of the Great Hall of Justice in the splendid Peace Palace. Each time that I gaze out at the delegations representing parties, however, I am struck that their composition bears too much resemblance to the groups of persons who gathered in 1945 to draft the Charter of the United Nations and the Statute of the Court. Very few of the counsel are from developing countries and almost all, regardless of nationality, are men.”
On this, Armenia can, and must, do better.
Disclosure: Sheila Paylan has previously served as an advisor to the Republic of Armenia, including during the hearings on the first requests by Armenia and Azerbaijan for provisional measures before the ICJ in 2021. The opinions and views expressed in this article are entirely her own and do not necessarily reflect those of the Republic of Armenia.
(c) 2023, EVN Report