A new take on cultural heritage at the ICJ – Armenia v. Azerbaijan

Posted on: February 17, 2022 by

The Armenian coat of arms as it appeared in the application to the ICJ brought by Armenia on 16 September 2021 (image in the public domain).

It’s rare that an international court confronts cultural heritage issues. But that’s just what happened two months ago. On 7 December, an important Order came down from the International Court of Justice (ICJ) at the Hague that included consideration of, amongst other matters, the importance of tangible cultural heritage to minority populations in times of violence and aggression. Being such an unusual occurrence, it is worth taking note of this ruling.

The Order relates to the armed conflict in late 2020 when Azerbaijani troops re-occupied parts of the Nagorno-Karabakh region. This is the region that, since 1994, had functioned as an autonomous entity within the borders of Azerbaijan (it is also known as Artsakh). The region is made up of a majority of ethnic Armenians and comprises churches, cemeteries, libraries and other sites of Armenian heritage. The State of Armenia, which borders the Nagorno-Karabakh region, has long sided with its fellow Armenians in the region, putting it at odds with Azerbaijan.

In September 2020, the Azerbaijan military began to occupy Nagorno-Karabakh, which lies within the territory of Azerbaijan, much to the chagrin of the Armenian communities therein and their ally, Armenia. The 44 days of conflict included damage to heritage sites including the cathedral at the town of Shushi/Shusha, which was left with a major crater in its apse as a result of aerial bombardment. A ceasefire on 9 November 2020, brokered by Russia, put an end to the conflict, resulting in significant amounts of Nagorno-Karabakh territory now being held by Azerbaijan (including the town of Shushi/Shusha).

The region of Nagorno-Karabakh at the centre of the conflict between Armenia and Azerbaijan. Some of the area was retaken by Azerbaijan in 2020, while the ceasefire placed significant parts of the territory under Russian peacekeeping control.

It is not the armed conflict itself that was the subject of the ICJ case, but rather an allegation by Armenia that Azerbaijan is violating an international convention that prevents discrimination against minority groups within a State’s territory. This is the International Convention on the Elimination of All Forms of Racial Discrimination (CERD), which was adopted in 1965. The CERD has 182 States Parties, including Armenia (acceded in 1993) and Azerbaijan (acceded in 1996). By bringing the claim through the CERD, Armenia was able to trigger the jurisdiction of the ICJ via Article 22 of the Convention, for technical reasons that were dealt with in the ICJ’s Order (we won’t go into them here), at paragraphs 15 to 43.

Armenia’s allegations against Azerbaijan were that Azerbaijan is involved in ethnic cleansing, racism and other forms of suppression against the Armenian minority living in Azerbaijan. Armenia requested that Azerbaijan abide by its international obligations under the CERD and put an end to these breaches. It brought the case before the ICJ in September 2021 first to seek provisional measures against Azerbaijan. Included in the list of measures sought, Armenia asked the Court to ensure that Azerbaijan, in accordance with the CERD, protect the Armenian minority’s right to access and enjoy the community’s historic, cultural and religious heritage (churches, cathedrals, monuments, landmarks, etc) by putting an end to vandalism, destruction or alteration to these sites. Azerbaijan was also asked to facilitate, and not impede, efforts to preserve this same heritage for the community (see paragraphs 1 to 12 of the Order setting out Armenia’s claim).

It should be said that, before the ICJ, Azerbaijan denied that it was engaging in any form of ethnic cleaning, racism or suppression of the Armenian minority, and denied violating the CERD. Because this Order related to provisional measures, the ICJ did not go into the full merits of the dispute. Much like a domestic court would do on an application for interim injunction, the ICJ considered whether there was a ‘plausible case’ made out by Armenia and whether there was a risk of irreparable prejudice and urgency requiring the Order to be issued.

The provision in the CERD that Armenia relied upon for its allegations in relation to heritage was Article 5(e)(vi), which guarantees the right to equal participation in cultural activities:

Article 5

In compliance with the fundamental obligations laid down in article 2 of this Convention, States Parties undertake to prohibit and to eliminate racial discrimination in all its forms and to guarantee the right of everyone, without distinction as to race, colour, or national or ethnic origin, to equality before the law, notably in the enjoyment of the following rights:

[…]

(e) Economic, social and cultural rights, in particular:

[…]

(vi) The right to equal participation in cultural activities

[…]

According to Armenia, this ‘entails a right to the protection and preservation of Armenian historic, cultural and religious heritage’ (paragraph 50). The ICJ agreed with Armenia’s reading of this provision, finding that there was a plausible argument that the above right had been violated by alleged vandalism, destruction and alteration of Armenian historic, cultural and religious heritage (paragraph 61).

On this point, two of the 15 judges dissented. One of these was the Somalian Judge Abdulqawi Ahmed Yusuf (see his interesting Hague Talks address here). Judge Yusuf set out very categorically in his dissent that the Court’s attempt to fit the damage and destruction of tangible heritage into Article 5(e)(vi) of the CERD – a provision which speaks only of ‘equal participation’ in cultural activities – would be to turn the Convention into a ‘fourre-tout’, i.e. an oversized oven that can fit almost anything. Judge Yusuf explained that other international instruments, most notably the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict, along with its two Protocols, were more germane to the issue of protecting tangible heritage during war and occupation.

Images of damage to Ghazanchetsots Cathedral in Shusha/Shushi in October 2020 (public domain images c/o Wikimedia)

Nevertheless, Judge Yusuf was in a minority of two (along with one of the ad hoc judges, Judge Keith from New Zealand), while the remaining 13 Judges found that Article 5(e)(vi) of the CERD could indeed be triggered by the Armenian allegations (keep in mind, they remain allegations not yet fully decided on by the Court). The ICJ referred to a Council of Europe resolution from 27 September 2021 whereby the Council’s Assembly ‘condemned the damage deliberately caused [by Azerbaijan] to [Armenian] cultural heritage during the 6-week war, and what appears to be the deliberate shelling of the Gazanchi Church/Holy Saviour, Ghazanchetsots Cathedral in Shusha/Shushi…’ (paragraph 86)

The Court agreed to make an Order for the provisional measures. Firstly because disregard for the rights the Court had earlier deemed ‘plausible’ would cause irreparable prejudice to those rights. And secondly because there was urgency in the matter, i.e. a real and imminent risk that such prejudice would be caused before any final decision by the Court. The provisional measures ordered by the Court included that Azerbaijan abide by the CERD, that it protect Armenian POWs captured during the 2020 conflict and, importantly for our area of interest, that it take ‘all necessary measures to prevent and punish acts of vandalism and desecration affecting Armenian cultural heritage, including but not limited to churches and other places of worship, landmarks, cemeteries and artefacts.’ (paragraph 98)

Although the Order only related to provisional measures, this was a landmark decision by the ICJ in relation to tangible cultural heritage. To my knowledge, only once before has the ICJ dealt specifically with cultural heritage protection, and only briefly at that, in the case of Temple of Preah Vihear (Cambodia v. Thailand) from 1962. In fact, the Court here referred to that case as a basis for demonstrating the possibility of irreparable damage to cultural heritage during an armed conflict between parties (paragraph 84).

The ICJ’s reading of the ‘right to equal participation in cultural activities’ at Article 5(e)(vi) of the CERD was indeed very broad (too broad for dissenting Judges Yusuf and Keith). Interestingly the right to ‘equal participation’ is similar to another right existing elsewhere, namely the right to ‘participate in the cultural life of the community’ (in the Universal Declaration of Human Rights at Article 27(1) and similarly in the International Covenant on Economic, Social and Cultural Rights at Article 15(1)(a)). It has always been difficult for observers to discern the content of such a right, and it has usually been understood to be too general and vague as to offer much assistance in specific cases.

Now, at least in the context of the CERD, the world’s most important international court has given what could be termed the ‘cultural participation’ right new meaning – or at least a new scope. According to the majority of the Court, this right is at risk of being infringed if elements of cultural heritage (buildings, churches, temples, mosques, gravesites, artefacts, etc) are damaged or interfered with in the context of a conflict, even an internal one. We will now await a decision on the full merits of the case by the Court. Only then might we obtain a full explanation for this rather unexpected conclusion.

It is also worth noting that, just over a week after Armenia brought its claim to the Court on 16 September 2021, Azerbaijan responded with a claim of its own against Armenia, also alleging violations of the CERD. An Order in relation to Azerbaijan’s claim was also delivered by the Court on 7 December. The Court ordered similar provisional measures against Armenia as it had against Azerbaijan, requiring it to abide by the CERD and prevent any violations thereof, but this other claim did not allege damage or destruction of cultural heritage sites. Thus the Court did not decide this matter as it had in Armenia’s claim. Most interesting for our purposes was the judicial pronouncement relating to Armenia’s claim, as discussed above.