Source: https://www.icj-cij.org/public/files/case-related/180/180-20211014-ORA-01-00-EN.pdf pages 23-31

Video (17 min)

Mr. SALONIDIS:

THE REQUESTED PROVISIONAL MEASURES RELATING TO AZERBAIJAN’S ESPOUSAL OF ETHNIC HATRED CONCERN PLAUSIBLE RIGHTS UNDER ARTICLES 2, 4 AND 7 OF THE CONVENTION ON THE ELIMINATION OF ALL FORMS OF RACIAL DISCRIMINATION

1. Madam President, distinguished Members of the Court, good morning. It is an honour to appear before you and a privilege to do so on behalf of the Republic of Armenia. Armenia respectfully requests that you order Azerbaijan to “refrain from espousing hatred of people of
   Armenian ethnic or national origin, including by closing or suspending the activities” of the so-called “Military Trophies Park”. My task this morning is to explain the plausibility of the rights Armenia
   seeks to protect through this request.

2. I will start by briefly recalling Azerbaijan’s fundamental obligation under the International Convention on the Elimination of All Forms of Racial Discrimination (hereinafter the “Convention”) to combat racist hate speech. I will then turn to the plausibility of Armenia’s rights in that regard and the evidence that sustains it.

I. Hate speech and the Convention

3. The Convention’s third preambular paragraph proclaims that “all human beings . . . are entitled to equal protection of the law against any discrimination and against any incitement to discrimination”19. Racist hate speech was naturally an object of concern for the drafters of the CERD, and it has been no different for the body entrusted with monitoring its implementation. Indeed, according to the CERD Committee, “[t]he identification and combating of hate speech practices is integral to the achievement of the objectives of the Convention” [20].

4. The principal vehicle for combating hate speech [21] in the Convention is Article 4. Article 4 establishes in subparagraph (c) Azerbaijan’s obligation to “not permit public authorities or public institutions, national or local, to promote or incite racial discrimination” [22]. The obligation encompasses “racist expressions emanating from [public] authorities or institutions,” which, the CERD Committee considers “as of particular concern, especially statements attributed to high-ranking officials” [23].

5. Other provisions in the Convention also contribute to combating racist hate speech. For example, Article 2, paragraph 1 (a), obligates Azerbaijan to “engage in no act or practice of racial discrimination . . . and to ensure that all public authorities and public institutions shall act in conformity with this obligation” [24]. For its part, Article 7 requires Azerbaijan to “adopt immediate and effective measures, particularly in the fields of teaching, education, culture and information, with a view to combating prejudices which lead to racial discrimination” [25].

6. Armenia’s request seeks to protect precisely rights arising under these provisions from a real and imminent risk of irreparable prejudice.
19 International Convention on the Elimination of All Forms of Racial Discrimination (hereinafter the “CERD Convention”), opened for signature 7 March 1966, entered into force 4 January 1969, United Nations, Treaty Series (UNTS), Vol. 660, p. 214, preamble, para. 3.

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20 CERD Committee, General Recommendation No. 35: Combating racist hate speech, UN doc. CERD/C/GC/35 (26 Sept. 2013), para. 8; emphasis added.
21 CERD Committee, General Recommendation No. 35: Combating racist hate speech, UN doc. CERD/C/GC/35
(26 September 2013), para. 8.
22 CERD Convention, Art. 4 (c).
23 CERD Committee, General Recommendation No. 35: Combating racist hate speech, UN doc. CERD/C/GC/35
(26 September 2013), para. 22; emphasis added.
24 CERD Convention, Art. 2 (1) (a), (d).
25 CERD Convention, Art. 7.

II. Armenia’s rights under Articles 2, 4 and 7 of the Convention are plausible

7. At this stage of the proceedings, the Court is not called upon to determine whether these rights definitively exist [26]. Rather, the Court need only satisfy itself that such rights are “plausible” [27] under the Convention. The Court has found previously the plausibility condition to be met when the asserted rights are “grounded in a possible interpretation” of the treaty in question [28]. In other cases, under the Convention, the Court has also examined whether “it is plausible that the acts complained of constitute acts of racial discrimination” [29].

8. Armenia’s rights under Articles 2, 4 and 7 of the Convention are not just “plausible”, they are explicitly stated in the Convention. Instead of respecting those rights, corresponding to some of its most fundamental obligations under the Convention, Azerbaijan is flagrantly violating them on a daily basis through a constant rhetoric of hate, espoused by the highest echelons of the Azerbaijani establishment, openly and with complete impunity.

9. The CERD Committee itself has criticized the “repeated and unpunished use of inflammatory language by [Azerbaijani] politicians speaking about the Nagorno-Karabakh conflict” and noted “its adverse impact on the public’s view of ethnic Armenians” [30].

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26 See e.g. Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Qatar v. United Arab Emirates), Provisional Measures, Order of 23 July 2018, I.C.J. Reports 2018 (II), p. 422, para. 44; 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. 18, para. 44.
27 See e.g. 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), Provisional Measures, Order of 19 April 2017, I.C.J. Reports 2017, p. 126, para. 64.
28 Questions relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal), Provisional Measures, Order of 28 May 2009, I.C.J. Reports 2009, p. 152, para. 60.
29 Cf. 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), Provisional Measures, Order of 19 April 2017, I.C.J. Reports 2017, p. 135, para. 82. See also Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Qatar v. United Arab Emirates), Provisional Measures, Order of 23 July 2018, I.C.J. Reports 2018 (II), p. 406, para. 54.
30 CERD Committee, Concluding observations on the combined seventh to ninth periodic reports of Azerbaijan, UN doc. CERD/C/AZE/CO/7-9 (10 June 2016), para. 27; emphasis added.

10. Other international institutions have expressed similar concerns. The Council of Europe’s Advisory Committee on the Framework Convention for the Protection of National Minorities has referred to the “very persistent public narrative surrounding the Nagorno Karabakh conflict that identifies variably ‘Armenia’ or ‘Armenians’ as ‘the enemy’ and openly promulgates hate messages” [31]. And the European Commission against Racism and Intolerance has noted that “an entire generation of Azerbaijanis has now grown up listening to this hateful rhetoric” [32].

11. This rhetoric escalated before and during the September-November 2020 armed conflict. Regrettably, it was Azerbaijan’s highest-ranking official, President Ilham Aliyev, who set the tone. His dehumanizing metaphors equating Armenians to dogs [33] became a rallying cry during the conflict, showing, in the words of a commentator, “the degree of hostility and hate speech within Azeri society” [34].

12. The presidential hate speech did not stop with the end of Azerbaijan’s aggression in November 2020; month after month, it continues to this day. For example, in December 2020, President Aliyev characterized Armenians as the “despised and savage enemy”, and as “aliens” to the region [35]. In January this year, he claimed that Armenians “have no moral values” and cautioned his compatriots to “not be likened to them” [36]. In February, he stated that Armenians “cling to other countries like a leech” [37]. In March, he declared that Armenians are “sick”, ravaged by a “virus more dangerous [than] the coronavirus” [38].

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31 Council of Europe, Advisory Committee on the Framework Convention for the protection of national minorities, Third Opinion on Azerbaijan  adopted on 10 October 2012, No. ACFC/OP/III(2012)005 (3 September 2013), available at https://www.refworld.org/docid/5229cf374.html, para. 50; emphasis added.
32 European Commission against Racism and Intolerance, ECRI Report on Azerbaijan (fifth monitoring cycle) (7 June 2016), available at https://rm.coe.int/fourth-report-on-azerbaijan/16808b5581, pp. 9 and 17. See also US State Department, 2019 Country Reports on Human Rights Practices: Azerbaijan (11 March 2020), available at
https://www.state.gov/wp-content/uploads/2020/02/AZERBAIJAN-2019-HUMAN-RIGHTS-REPORT.pdf, p. 38; The Office of Ombudsman of the Republic of Artsakh, Armenophobia in Azerbaijan: Organized Hate Speech & Animosity towards Armenians (25 September 2018), available at https://artsakhombuds.am/hy/document/570.
33 President of the Republic of Azerbaijan Ilham Aliyev, “Ilham Aliyev addressed the nation” (17 October 2020), available at https://en.president.az/articles/43334. See also “Azerbaijan’s war crimes in Nagorno-Karabakh”, T-online (3 December 2020), available at https://www.t-online.de/nachrichten/ausland/krisen/id_89055086/videos-showazerbaijan-s-war-crimes-in-nagorno-karabakh.html.
34 Bahruz Samadov, “Azerbaijan update: From COVID-19 to the New War in Nagorno-Karabakh”, The Heinrich Böll Stiftung (10 December 2020), available at https://www.boell.de/en/2020/12/10/azerbaijan-update-covid-19-new-war-nagorno-karabakh. See also e.g. The Human Rights Defender of Armenia & The Human Rights Ombudsman of Artsakh, Ad Hoc Public Report Organized Hate Speech and Animosity Towards Ethnic Armenians in Azerbaijan as Root Causes of Ethnically-Based Torture and Inhuman Treatment by Azerbaijani Armed Forces (September-November 2020) (7 December 2020), available at https://artsakhombuds.am/en/document/780.
35 President of the Republic of Azerbaijan Ilham Alivev, “Ilham Alivev addressed the nation” (1 December 2020), available at https://en.president.az/articles/48205.
36 President of the Republic of Azerbaijan Ilham Aliyev, “Opening speech by Ilham Aliyev at the meeting in a video format on results of 2020” (7 January 2021), available at https://en.president.az/articles/49937.
37 President of the Republic of Azerbaijan, Ilham Aliyev, “Ilham Aliyev attended the ceremony to give out apartments to families of martyrs and war disabled was held in Baku” (25 February 2021), available at https://en.president.az/articles/50726.
38 President of the Republic of Azerbaijan, Ilham Aliyev, “Speech by Ilham Aliyev at the 7th Congress of New Azerbaijan Party” (5 March 2021), available at https://en.president.az/articles/50805.

In April, while proudly inaugurating the “Military Trophies Park”, he suggested that “[s]avage is perhaps too soft of a word to describe [Armenians]” [39]. Later that same month, he called the United States Government’s recognition of the Armenian genocide “unacceptable” and a “historic mistake” [40].

13. In May, he referred to Armenians as “barbarian[s]”, who destroyed and plundered the land like a “wild tribe”, and declared that “this people cannot build a state . . . this people can only live within other large states” [41]. In June, he claimed that “[t]he whole world knows” that “[t]he first Armenian state was established on [Azerbaijan’s] historical lands” [42]. In July, he reiterated that Armenians “have no historical basis for living there”, meaning Nagorno-Karabakh [43]. In August, he found “vandalism” to be “inherent” in Armenians [44]. In September, he once again proclaimed that Armenians have a “mental illness”, and are a “depraved” and “impertinent” “tribe” [45]. A mere ten days ago, he stated that the “Armenian nation has nothing to do with the Caucasus”, and that Armenians “are . . . settlers here and everyone knows where they came from” [46].

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39 President of the Republic of Azerbaijan, “Ilham Aliyev attended opening of Military Trophy Park in Baku” (12 April 2021), available at https://en.president.az/articles/51067.
40 President of the Republic of Azerbaijan, Ilham Aliyev, “Ilham Aliyev has held a phone conversation with President of the Republic of Turkey Recep Tayyip Erdogan” (24 April 2021), available at https://en.president.az/articles/51284.
41 State Committee for Affairs of Refugees and Internally Displaced Persons of the Republic of Azerbaijan, President Ilham Aliyev attended ceremony to lay foundation stone for restoration of Aghdam city met with members of
general public (28 May 2021), available at http://idp.gov.az/en/news/1205.
42 President of the Republic of Azerbaijan Ilham Aliyev, “Ilham Aliyev met with leadership and a group of military personnel of Azerbaijani Army on Armed Forces Day” (26 June 2021), available at https://en.president.az/articles/52331.
43 “Aliyev on Armenian-Azerbaijan border, Nagorno-Karabakh status: We are in our territory”, JAM News (23 July 2021), available at https://jam-news.net/aliyev-on-armenian-azerbaijan-border-nagorno-karabakh-status-we-are-in-ourterritory/.
44 President of the Republic of Azerbaijan, Ilham Aliyev, “Ilham Aliyev and First Lady Mehriban Aliyeva attended opening of Vagif Poetry Days in Shusha” (30 August 2021), available at https://en.president.az/articles/52881.
45 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 September 2021), available at https://en.president.az/articles/53224.
46 President of the Republic of Azerbaijan, Ilham Aliyev, “It was the likes of Serzhik Sarkisyan who lost the war, he now wants to blame defeat on Pashinyan  Azerbaijan President” (4 October 2021), available at https://en.trend.az/azerbaijan/politics/3493480.html.

14. Madam President, Members of the Court, it is said that “hate speech is in the ear of the beholder”. You will read President Aliyev’s speeches in their entirety, and you will appreciate for yourself the context in which these statements were made. You will also discover the obvious answer: these are not mere expressions of controversial ideas or opinions. These are “incitement to hatred, contempt, violence or discrimination” [47], plain and simple. They are the continuation of a hateful rhetoric, that has been ongoing for years.

15. The problem of course is not just President Aliyev’s rhetoric — anti-Armenian hate speech is by no means limited to him. The problem is that it is this official discourse that shapes the viewpoints of Armenians of generations upon generations of Azerbaijanis. Why? Because President Aliyev’s grip on Azerbaijan is absolute  and this is putting it mildly. Freedom House ranks Azerbaijan as “not free” and among the lowest scoring countries in the world in terms of its citizens’ civil liberties and political rights [48]. Human Rights Watch has noted that all mainstream media are under “tight government control” [49]. As a result, there is no counter-point to anti-Armenian hate: activists working on promoting dialogue between the Armenian and Azerbaijani societies are routinely arrested and sentenced on false charges of high treason, as the European Court of Human Rights has recently found [50].

16. This discourse shapes and feeds upon an environment that openly glorifies and rewards abhorrent crimes against Armenians. The image on your screens is from a stamp proudly issued by Azerbaijan to commemorate the major events of 2020, namely, its fight against the coronavirus and war of aggression against Nagorno-Karabakh. The image depicts a disinfection specialist, standing over a map of Azerbaijan and fumigating an area in dark green colour. That area is Nagorno-Karabakh as well as the southern parts of Armenia. The message is clear: ethnic Armenians are a virus in need of eradication. The references to ethnic cleansing are so blatant that the Universal Postal Union declined to register the stamp, and invited Azerbaijan to withdraw it [51].

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47 CERD Committee, General Recommendation No. 35: Combating racist hate speech, UN doc. CERD/C/GC/35 (26 Sept. 2013), para. 25.
48 “Freedom in the World 2021: Azerbaijan”, Freedom House, available at https://freedomhouse.org/country/azerbaijan/freedom-world/2021. See also “Nations in Transit 2021, Azerbaijan: Executive Summary”, Freedom House (2021), available at https://freedomhouse.org/country/azerbaijan/nations-transit/2021.
49 Human Rights Watch, Azerbaijan events of 2019 (2019), available at https://www.hrw.org/world-report/2020/country-chapters/azerbaijan.
50 See e.g. Yunusova and Yunusov v. Azerbaijan (No. 2), ECtHR, App. No. 68817/14, Judgment (16 July 2020), paras. 103-113. See also Mirgadirov v. Azerbaijan and Turkey, ECtHR, App. No. 62775/14, Judgment (17 Sept. 2020), paras. 92-93.
51 Letter from Ricardo Guilherme Filho, Director of Legal Affairs, Universal Postal Union, to Hakob Arshakyan, Minister of High-Tech Industry, Republic of Armenia, No. 4700 (DL.PHIL) 01.21 (1 June 2021), Application and Request for provisional measures of the Republic of Armenia, Ann. 51).

17. Another notorious example of glorification of anti-Armenian hate is the case of Lieutenant Ramil Safarov52. Instead of serving the life sentence he was originally given in Hungary for the brutal murder of his Armenian colleague attending the same NATO English language course in Budapest in 2004, upon his extradition to Azerbaijan, Safarov was pardoned, promoted to the rank of major, and given a flat and all of his wages lost since his arrest. He was labelled as an “exemplary model of patriotism for the Azerbaijani youth” by no less than the human rights defender of Azerbaijan [53]. Recently, the European Court of Human Rights found all these actions to be racially motivated by an animus against ethnic Armenians [54]. The CERD Committee, for its part, noted that “by welcoming a citizen of [Azerbaijan] convicted of murdering an Armenian as a national hero and by pardoning and releasing that person upon transfer, [Azerbaijan] condones racial hatred and hate crimes and denies redress to victims” [55].

18. In this environment of hate and glorification, is it then a surprise that the atrocious sights of the so-called “Military Trophies Park” came to be. On your screens, you ca n see some of the racist depictions of Armenian soldiers in denigrating and dehumanizing scenes. Several European institutions deplored this park of hate, and you can find these reactions in footnote [56]. You can also find under tab 2 of your folders the Armenian Human Rights Defender’s report on the park [57]. The images from that gruesome park alone are sufficient to establish the plausibility of Armenia’s rights that this request seeks to protect.

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52 Application and Request for provisional measures of the Republic of Armenia, paras. 58-62.
53 Makuchyan and Minasyan v. Azerbaijan and Hungary, ECtHR, App. No. 17247/13, Judgment (26 May 2020), para. 25.
54 Makuchyan and Minasyan v. Azerbaijan and Hungary, ECtHR, App. No. 17247/13, Judgment (26 May 2020), para. 218.
55 CERD Committee, Concluding observations on the combined seventh to ninth periodic reports of Azerbaijan, UN doc. CERD/C/AZE/CO/7-9 (10 June 2016), para. 15.
56 Letter from Dunja Mijatović, Council of Europe Commissioner for Human Rights, to Ilham Aliyev, President of the Republic of Azerbaijan (20 Apr. 2021), available at https://rm.coe.int/letter-to-mr-ilham-aliyev-president-of-therepublic-of-azerbaijan-bym/1680a2364c; European Parliament, European Parliament resolution of 20 May 2021 on prisoners of war in the aftermath of the most recent conflict between Armenia and Azerbaijan, No. 2021/2693 (RSP) (20 May 2021), available at https://www.europarl.europa.eu/doceo/document/TA-9-2021-0251_EN.pdf; Parliamentary Assembly of the Council of Europe, Resolution 2391: Humanitarian consequences of the conflict between Armenia and Azerbaijan / Nagorno-Karabakh conflict (27 Sept. 2021), available at https://pace.coe.int/en/files/29483/html, para. 19.2.
57 The Human Rights Defender of the Republic of Armenia, Ad Hoc Public Report: A Park of Killed Armenian Soldiers and Chained Prisoners of War Opened in Baku: A Museum of Human Sufferings and Promotion of Racism, 2021, available at https://ombuds.am/images/files/96e6d55d169a784b6424e4d565b29dba.pdf.

And this is so, Madam President, Members of the Court, notwithstanding the documents that Azerbaijan produced on the eve of this hearing. The documents in question purport to represent that the park’s racist mannequins and bullet-torn helmets of Armenian soldiers were removed on 1 and 8 October, respectively [58]. Mr. Martin after me will explain why this manoeuvre  even if taken at face value  cannot spare Azerbaijan from the exercise of your jurisdiction to indicate provisional measures. For my purposes, I would like to recall that a few months ago, Azerbaijan defended the park against appeals to remove its racist displays, calling it a symbol of “the triumph of international law and justice”, “a place for education for the present and future generations” and even a venue “for seeking the truth” [59]. What changed such as to force Azerbaijan to reconsider this position? President Aliyev’s hateful rhetoric certainly did not change. It has been going on, and on, and on, as I have explained earlier. I am afraid that it will continue, even after this hearing. No, what changed is Armenia’s Application instituting these proceedings and the prospect of your provisional measures. This is what has motivated Azerbaijan to represent, on the eve of this hearing, that is has removed some of the park’s racist displays. This conduct can only underscore the plausibility of Armenia’s rights under Articles 2, 4 and 7 of the Convention.

19. Madam President, Members of the Court, the CERD Committee has underscored the “special responsibility of public figures to provide anti-racist and pro-tolerance leadership” [60]. Yet despite his special responsibility, rather than using his voice to combat expressions of anti-Armenian hate, President Aliyev has orchestrated a chorus of anti-Armenian hate. Like many ordinary Azerbaijanis, government institutions and other high-ranking officials have followed suit. The humanitarian consequences that my colleagues after me will address stand as a testament to this sad fact. There can be no doubt that, if left unchecked, this rhetoric of hate will continue.

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58 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), Application of the Republic of Azerbaijan in the case Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Azerbaijan v. Armenia), Ann. 24; 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), p. 2 (ibid., Ann. 33).
59 Letter from Fakhraddin Ismayilov, Permanent Representative of the Republic of Azerbaijan, to Dunja Mijatović, Council of Europe Commissioner for Human Rights (26 April 2021), available at https://rm.coe.int/reply-of-theazerbaijani-authorities-to-the-letter-of-the-council-of-e/1680a24413; emphasis added.
60 Patrick Thornberry, “Article 4: Racist Hate Speech” in The International Convention on the Elimination of All Forms of Racial Discrimination: A Commentary, Oxford, Oxford University Press 2016, p. 296.

Armenia’s rights under Articles 2, 4 and 7 of the Convention meet any threshold of plausibility for purposes of this phase of the proceedings.

Madam President, Members of the Court, I thank you for your attention and would kindly ask you to invite Professor Murphy to address you next.