THERE IS AN URGENT RISK OF IRREPARABLE PREJUDICE AND THE MEASURES REQUESTED ARE LINKED TO THE RIGHTS ARMENIA SEEKS TO PROTECT
1. Madam President, distinguished Members of the Court, good morning. It is an honour and a privilege to appear before you on behalf of Armenia.
2. It falls to me today to address the issues of urgency and irreparability, and of the link between the rights for which Armenia seeks protection and the provisional measures we request. Fortunately, I can be brief. Nothing about what I am about to say should be controversial. In fact, it all flows directly, inescapably, from my colleagues’ presentations before me. The urgent need to protect Armenians from continued hate speech, to repatriate and protect Armenian POWs and detainees from further mistreatment, and to protect Armenian cultural heritage from erasure all follows from the evidence as unavoidably as night follows day.
I. There is an urgent risk of irreparable prejudice to Armenia’s rights in dispute
3. The Court has made clear that it will exercise its power to indicate provisional measures “only if there is urgency, in the sense that there is a real and imminent risk that irreparable prejudice will be caused before the Court gives its final decision” . That condition is met “when the acts susceptible of causing irreparable prejudice can ‘occur at any moment’ before the Court makes a final decision on the case” .
4. To be sure, not just any irreparable prejudice counts. What matters is that “irreparable prejudice could be caused to [the] rights which are the subject of judicial proceedings or . . . the alleged disregard of such rights may entail irreparable consequences” .
5. At this preliminary stage of proceedings, the Court is not required to “make definitive findings of fact” or determine that CERD has, in fact, been violated . To the contrary, the Court need only determine that it is “not inconceivable” that a violation might occur167, or that information
before the Court “d[oes] not exclude the possibility” that irreparable harm might be caused .
6. All of these elements are plainly present here.
7. On the issue of hate speech, as Dr. Salonidis showed, Armenians have the right under CERD to be free of racial discrimination by Azerbaijan in all its forms, including racist hate speech .
CERD specifically requires Azerbaijan “not [to] permit public authorities or public institutions, national or local, to promote or incite racial discrimination” . Yet, even so, President Aliyev, who inherited the job from his father and has held the highest office in the land for 18 years, continues to spew racist hatred to this day. As recently as last month, he said Armenians have a “mental illness”, and called them worse than animals and a “depraved” “tribe” .
163 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (The Gambia v. Myanmar), Provisional Measures, Order of 23 January 2020, I.C.J. Reports 2020, p. 24, para. 65.
165 Ibid., para. 64; emphasis added.
166 Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Georgia v. Russian Federation), Provisional Measures, Order of 15 October 2008, I.C.J. Reports 2008, pp. 395-396,
167 Immunities and Criminal Proceedings (Equatorial Guinea v. France), Provisional Measures, Order of 7 December 2016, I.C.J. Reports 2016, p. 1169, para. 89.
168 Nuclear Tests (Australia v. France), Interim Protection, Order of 22 June 1973, I.C.J. Reports 1973, p. 101, para. 29.
169 CR 2021/20 (Salonidis).
170 CERD Convention, Art. 4 (c).
171 President of the Republic of Azerbaijan, Ilham Aliyev, “Victorious Commander-in-Chief, President Ilham Aliyev addressed the nation on the occasion of the Remembrance Day” (27 Sept. 2021), available at
8. How does such hate speech threaten irreparable harm? Simple. Hate begets hate. And hate emanating from a State’s highest authority begets more hate still. Dr. Salonidis recalled that the CERD Committee has observed that “[r]acist expressions emanating from public authorities or institutions are . . . of particular concern, especially statements attributed to high-ranking officials” . As some of us have learned from our own recent national experience, hatred from the top, even in a nominally free country, operates as a kind of licence that opens the floodgates allowing other elements of society to follow suit.
9. The obsessive, and continuing, expressions of hatred for Armenians coming from President Aliyev and other senior government officials thus constitute a disregard for the rights of Armenians that may easily entail irreparable consequences. They fan the flames of open racism that immediately imperil the rights of all Armenians, including those living in Nagorno-Karabakh and those still held in captivity. Indeed, such speech places them in even greater physical jeopardy than they already are. By actively fomenting an atmosphere of hate, President Aliyev and other senior government officials are making their physical and mental abuse even more likely.
10. The ghoulish “Military Trophies Park” is a perfect demonstration of the point. Open six days a week to anyone over the age of six, the displays at the park teach Azeris young and old that it is not only permissible, but actually desirable, to mock, degrade and abuse Armenians. The park serves as an obvious signal that such mistreatment is condoned at the highest levels. Does anyone really think that the Azerbaijani soldiers responsible for guarding Armenian POWs and civilian detainees will miss the message? In short, the park badly exacerbates the already real and present threat to the detainees.
11. Late Tuesday, less than 48 hours ago, Azerbaijan submitted an unsworn and strangely confidential document stating that the mannequins had allegedly been removed from the park, albeit two weeks after Armenia filed its Request .
172 CERD Committee, General Recommendation No. 35: Combating racist hate speech, UN doc. CERD/C/GC/35 (26 Sept. 2013), para. 22; emphasis added.
173 Letter from Orujali Abbaszade, Director of the Military Trophies Park, to Elnur Mammadov, Deputy Minister for Foreign Affairs, Republic of Azerbaijan (6 Oct. 2021) (certified translation from Azerbaijani), Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Azerbaijan v. Armenia, Application of Azerbaijan, Ann. 24.
And last night, it submitted yet another unsworn confidential document claiming that the bullet-torn helmets had also been removed another week after that . Even accepting that this extraordinarily belated “evidence” is properly before the Court and can be credited, which we do not accept, none of it affects the urgency of the need to order the park closed. In the first place, some images of the mannequins from President Aliyev’s visit remain on the park’s website, as you can see now . In the absence of a formal, public undertaking made by Azerbaijan’s Agent before this Court, there is no guarantee they will not be returned the moment these hearings are over. Even then, the park remains as a conspicuous symbol of hate. A celebration of Armenia’s defeat, what other message could it possibly convey?
12. The urgent threat of irreparable prejudice resulting from Azerbaijan’s continuing wrongful detention of Armenian nationals is more obvious still. Professor Murphy explained that the rights in dispute in this case include the right of Armenian POWs and civilian detainees to the equal enjoyment
of their individual rights, including but not limited to repatriation, and the right to security of person and protection by the State against violence or bodily harm .
13. Unlawful detention is inherently a form of irreparable prejudice. Those detained for months or years before you reach a decision on the merits in this case will never get that time back. This is not an exaggeration. As Professor Murphy explained, Azerbaijan has already sentenced many of the detainees to serve years in Azerbaijani prisons. The only way to avoid such irreparable harm is a provisional measure from the Court ordering repatriation.
14. Professor Murphy also explained that the evidence shows a clear record and practice of Azerbaijani authorities abusing Armenian detainees, soldiers and civilians alike .
174 Letter from Orujali Abbaszade, Director of the Military Trophy Park, to Elnur Mammadov Deputy Minister for Foreign Affairs, Republic of Azerbaijan (13 Oct. 2021) (certified translation to Azerbaijani), p. 2, Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Azerbaijan v. Armenia, Application of Azerbaijan, Ann. 33).
175 “Prezident İlham Əliyev Bakıda Hərbi Qənimətlər Parkının açılışında iştirak edib [President Ilham Aliyev attended the opening of the Military Trophy Park in Baku]”, Hərbi Qənimətlər Parkı [Military Trophy Park], available at https://herbiqenimetlerparki.az/az/foto/87 (translation from Azerbaijani).
176 CR 2021/20 (Murphy).
177 CR 2021/20 (Murphy).
The gruesome videos that Armenia has presented to the Court will haunt the nightmares of those of us who have watched them for a very long time . Given the lengthy prison sentences that Azerbaijan has issued,
there is no doubt that the detainees are extremely vulnerable, for an extended period of time, to continued abuse by Azerbaijani guards. The need for the urgent intervention of this Court to prevent further irreversible harm is almost too obvious to say.
15. If the clear and present threat of imminent psychological trauma, bodily harm and even death does not warrant the indication of provisional measures, it would be hard to imagine what would. Indeed, the Court has repeatedly found the requirements of urgency and irreparability met in
situations where there were serious threats to human life and safety.
16. In Georgia v. Russia, the Court indicated provisional measures where “violations of the right to security of persons and of the right to protection by the State against violence or bodily harm” could “involve potential loss of life and bodily injury” . Also relevant was the fact that the
circumstances were, as they are here, “unstable and could rapidly change” due to “ongoing tension and the absence of an overall settlement to [a] conflict” .
17. And, of course, in the Hostages case, the Court ordered the “immediate release, without any exception, of all persons of United States nationality” who had been held hostage . It did so in light of the “privation, hardship, anguish and even danger to life and health” to which they were
178 CR 2021/20 (Murphy), citing Video of Inhuman and Degrading Treatment of Mr. Lyudvig Mkrtchyan and Other Armenian Captives [WARNING: GRAPHIC] (Application and Request for provisional measures of the Republic of Armenia, Ann. 69); CR 2021/20 (Murphy), citing Second Video of Inhuman and Degrading Treatment of Mr. Lyudvig Mkrtchyan (annotated version contains annotations, such as subtitles in English of dialogue) [WARNING: GRAPHIC] (Application and Request for provisional measures of Armenia, Ann. 71). See also Videos Showing Executions of
Armenians by Azerbaijan (videos may contain annotations, such as subtitles in English of dialogue) [WARNING: GRAPHIC] (Application and Request for provisional measures of Armenia, Ann. 72); Videos Showing Mutilation of Armenian Corpses by Azerbaijan (videos contain annotations, such as subtitles in English of dialogue) [WARNING: GRAPHIC] (Application and Request for provisional measures of Armenia, Ann. 74); Videos Showing Inhuman and Degrading Treatment of Repatriated Individuals by Azerbaijan (videos contain annotations, such as subtitles in English of
dialogue) [WARNING: GRAPHIC] (Application and Request for provisional measures of Armenia, Ann. 73); Video of Inhuman and Degrading Treatment of Mr. Gevorg Sujyan (video contains annotations, such as subtitles in English of dialogue) [WARNING: GRAPHIC] (Application and Request for provisional measures of Armenia, Ann. 70); Videos Showing Torture and Inhuman and Degrading Treatment of Unacknowledged Captives by Azerbaijan (videos contain annotations, such as subtitles in English of dialogue) [WARNING: GRAPHIC] (Application and Request for provisional measures of Armenia, Ann. 75).
179 Application of the International Convention on the Elimination of all Forms of Racial Discrimination (Georgia v. Russian Federation), Provisional Measures, Order of 15 October 2008, I.C.J. Reports 2008, p. 396, para. 142.
180 Ibid., para. 143.
181 United States Diplomatic and Consular Staff in Tehran (United States of America v. Iran), Provisional Measures, Order of 15 December 1979, I.C.J. Reports 1979, p. 21, para. 47 (1) (A) (ii).
182 Ibid., p. 20, para. 42.
18. These are just examples. But they are enough to show that the Court has long recognized that protecting individuals from harm is the quintessential circumstance warranting the indication of provisional measures. Armenia respectfully suggests that the Court should do exactly that here to protect the remaining detainees in Azerbaijani custody.
19. The urgent need for interim measures to protect Armenian cultural heritage is equally clear. Professor d’Argent showed that Armenia’s rights in dispute include the right to access and enjoy cultural heritage . That right includes the right to have that heritage protected, not destroyed, vandalized or have its character altered. Yet, as Professor d’Argent also showed, that is exactly what Azerbaijan is doing, in conducting an ongoing campaign to erase the evidence of Armenia’s presence from its territory. Just by way of example, revolting as it is, satellite photos make clear that between 12 April and 18 June 2021, a historic Armenian cemetery in the village of Sghnakh was razed to make way for the construction of road . Azerbaijan is literally paving over Armenian history.
20. The risk here is real and ongoing for the reasons Professor d’Argent explained. But the extent of the risk also cannot be understood without some mention of the historical context. As set out in our Application and Request for provisional measures, the relationship between Armenia and
Azerbaijan has long been complicated, to say the least. As also set out in our Application, even before the most recent armed conflict, Azerbaijan was prolific in its effort to erase any vestige of the Armenian presence from its territory. We refer to a number of examples in footnote .
183 CR 2021/20 (d’Argent).
184 Application and Request for provisional measures of Armenia, para. 116.
185 See e.g. Application and Request for provisional measures of Armenia, para. 71 (citing Simon Maghakyan & Sarah Pickman, “A Regime Conceals Its Erasure of Indigenous Armenian Culture”, Hyperallergic (18 Feb. 2019), available at https://hyperallergic.com/482353/a-regime-conceals-its-erasure-of-indigenous-armenian-culture; “Azerbaijan must be held accountable for the destruction of Armenian cultural heritage”, Horizon Weekly (8 Dec. 2018), available at https://horizonweekly.ca/en/azerbaijan-must-be-held-accountable-for-the-destruction-of-armenian-cultural-heritage;
Armen Haghnazarian & Dieter Wickmann, “Azerbaijan, destruction of the Armenian Cemetery at Djulfa Continued”, Heritage at Risk (June 2007), p. 37, available at https://www.icomos.org/risk/world_report/2006-2007/pdf/H@R_2006-2007_09_National_Report_Azerbaijan.pdf; Kat Zambon, “Satellite Images Show Disappearance of Armenian Artifacts in Azerbaijan”, American Association for the Advancement of Science (7 Dec. 2010), available at https://www.aaas.org/news/satellite-images-show-disappearance-armenian-artifacts-azerbaijan). See also Application and
Request for provisional measures of Armenia, para. 72, citing Simon Maghakyan, “Special investigation: Declassified satellite images show erasure of Armenian churches”, The Art Newspaper (1 June 2021), available at https://www.theartnewspaper.com/feature/agulis; Application and Request for provisional measures of Armenia, para. 73 (citing UN General Assembly & Security Council, Letter dated 18 May 2018 from the Chargé d’affaires a.i. of the Permanent Mission of Armenia to the United Nations addressed to the Secretary-General, UN doc. A/72/876-S/2018/486
(25 May 2018); Samvel Karapetian, Gayane Movsissian & Armen Gevorgian, “The state of Armenian historical monuments in Azerbaijan and Artsakh”, Research on Armenian Architecture (RAA) Foundation (2011), available at
https://www.mfa.am/filemanager/nkr/monuments.pdf; Simon Maghakyan, “Special investigation: Declassified satellite images show erasure of Armenian churches”, The Art Newspaper (1 June 2021), available at
21. The continued spewing of racist hate speech by President Aliyev and other senior officials only exacerbates this real and present risk. Indeed, by refusing even to acknowledge the existence of Armenian cultural heritage, President Aliyev is directly promoting a climate that is even more
conducive to the hate-filled destruction of that heritage.
22. In concluding on this point, I note that the Court has in the past ordered provisional measures to protect property and other tangible items from destruction. In the recent Cambodia v. Thailand case, it ordered measures to ensure that “no irreparable damage is caused to . . . property”, including a UNESCO World Heritage site . And in Democratic Republic of the Congo v. Uganda, it did so in circumstances where “assets and resources” in the area of conflict remained vulnerable .
We respectfully submit that the Court should follow these examples and similarly order provisional measures to protect Armenia’s cultural heritage from the very real and very urgent risk of irreparable prejudice.
II. The provisional measures Armenia requests are linked to the rights the protection of which is sought
23. That brings me, Madam President, to the second and last part of my presentation this morning: the requirement that the provisional measures we seek be linked to the rights whose protection we seek. On this subject, I can be even more brief. The requisite link between the relevant rights and measures is even more obvious than is the urgent threat of irreparable harm.
24. I will not burden the Court by reciting the full text of the provisional measures we request.
They are set out in our Request and the distinguished Agent will return to them at the end of tomorrow’s session. Suffice it now to note that they fall into four broad categories that precisely dovetail with the rights whose protection we seek.
25. The first category of measures we request relates to the Armenian POWs and other detainees . To put it simply, we ask the Court to order Azerbaijan to release them and, pending that, to treat them humanely.
186 Request for Interpretation of the Judgment of 15 June 1962 in the Case concerning the Temple of Preah Vihear (Cambodia v. Thailand) (Cambodia v. Thailand), Provisional Measures, Order of 18 July 2011, I.C.J. Reports 2011 (II), p. 552, para. 61.
187 Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), Provisional Measures, Order of 1 July 2000, 1.C.J. Reports 2000, p. 128, para. 43.
188 See Application and Request for provisional measures of the Republic of Armenia, para. 131.
As Professor Murphy explained, and I underscored a few moments ago, the rights whose protection we seek include, among others, the rights of the detainees under Article 2 to be free of racial discrimination in all of its forms, and under Article 5 to be secure in their person and to be protected by the State from violence and bodily harm. As in the Hostages case, the only genuine way to protect that right is to order the detainees’ immediate release. The widely confirmed reports of Armenian detainees being tortured and even executed in captivity — and Azerbaijan’s wholesale
denial of the same — leave no other option. Requesting that they be treated humanely in the interim is asking nothing more than that the rights in dispute be respected.
26. The second category of measures we request relates to the hate speech coming from the very top of the Azerbaijani Government and the disturbing “Military Trophies Park” . In short, we ask that the Court order that the hate speech be stopped and the park closed. Those measures are directly linked to Armenia’s rights under Articles 2, 4 and 7 of CERD.
27. The third category of measures relates to the protection of cultural heritage . We ask that the Court order Azerbaijan to protect Armenians’ right under Article 5 to equal participation in cultural activities, including the right of access to and enjoyment of their cultural heritage, and to take measures to stop its destruction, vandalization and alteration. The connection between those requests and the rights to enjoy one’s cultural heritage as outlined by Professor d’Argent is, again, almost too obvious to state.
28. The fourth category of measures we request is more general. We ask that the Court order Azerbaijan to (1) take measures to protect relevant evidence; (2) take no action that will aggravate or extend this dispute and (3) submit regular reports on the steps it has taken to comply with the
Court’s ultimate order .
29. The first of these — the order to preserve evidence — is linked to the rights whose protection is sought in the sense that it is necessary to ensure that Armenia has a full and fair opportunity to present its case that Azerbaijan has violated those very rights. Without it, there is a genuine risk that Armenia’s ability to vindicate those rights will be compromised, all the more since Azerbaijan has control of most of the first-hand evidence.
189 See Application and Request for provisional measures of the Republic of Armenia, para. 131.
30. The second and third of these general requests are largely de rigueur in circumstances like these. An order not to aggravate or extend the dispute is entirely customary  and an order for regular reporting is essential to ensure that Azerbaijan is genuinely implementing the Court’s Order and
respecting the rights of Armenians that are the subject of that Order (and our Request) .
31. Madam President, for all these reasons, there is a very urgent risk of irreparable prejudice warranting the Court’s exercise of its extraordinary power to indicate provisional measures. The measures we seek, moreover, are linked to the very same rights whose protection we seek.
32. Thank you for your kind and patient attention. That concludes Armenia’s first-round presentations this morning.
The PRESIDENT: I thank Mr. Martin, whose statement brings to an end the first round of oral argument of Armenia, as well as this morning’s sitting. The Court will meet again this afternoon, at 4 p.m., to hear the first round of oral argument of Azerbaijan.
The sitting is adjourned.