                                               7 DÉCEMBRE 2021

                                                 ORDONNANCE

APPLICATION DE LA CONVENTION INTERNATIONALE SUR L’ÉLIMINATION
       DE TOUTES LES FORMES DE DISCRIMINATION RACIALE

                   (ARMÉNIE c. AZERBAÏDJAN)

                          ___________

APPLICATION OF THE INTERNATIONAL CONVENTION ON THE ELIMINATION
             OF ALL FORMS OF RACIAL DISCRIMINATION

                    (ARMENIA v. AZERBAIJAN)

                                               7 DECEMBER 2021

                                                    ORDER

                                     TABLE OF CONTENTS

                                                                                Paragraphs

    CHRONOLOGY OF THE PROCEDURE                                                    1-12

 I. INTRODUCTION                                                                  13-14

II. PRIMA FACIE JURISDICTION                                                      15-43
    1.   General observations                                                     15-18
    2.   Existence of a dispute relating to the interpretation or application
         of CERD                                                                  19-29
    3.   Procedural preconditions                                                 30-42
    4.   Conclusion as to prima facie jurisdiction                                 43

III. THE RIGHTS WHOSE PROTECTION IS SOUGHT AND THE LINK BETWEEN
    SUCH RIGHTS AND THE MEASURES REQUESTED                                        44-68

IV. RISK OF IRREPARABLE PREJUDICE AND URGENCY                                     69-88

V. CONCLUSION AND MEASURES TO BE ADOPTED                                          89-97

    OPERATIVE CLAUSE                                                               98

                                         ___________

                            INTERNATIONAL COURT OF JUSTICE

                                            YEAR 2021
                                                                                2021
                                                                                7 December
                                                                                General List
                                                                                No. 180
                                        7 December 2021

 APPLICATION OF THE INTERNATIONAL CONVENTION ON THE ELIMINATION
              OF ALL FORMS OF RACIAL DISCRIMINATION

                                 (ARMENIA v. AZERBAIJAN)

           REQUEST FOR THE INDICATION OF PROVISIONAL MEASURES

                                             ORDER

Present:   President DONOGHUE; Vice-President GEVORGIAN; Judges TOMKA, ABRAHAM,
           BENNOUNA, YUSUF, XUE, SEBUTINDE, BHANDARI, ROBINSON, SALAM, IWASAWA,
           NOLTE; Judges ad hoc KEITH, DAUDET; Registrar GAUTIER.

      The International Court of Justice,

      Composed as above,

      After deliberation,

      Having regard to Articles 41 and 48 of the Statute of the Court and Articles 73, 74 and 75 of
the Rules of Court,

      Makes the following Order:

                                                  -2-

      1. On 16 September 2021, the Republic of Armenia (hereinafter “Armenia”) filed in the
Registry of the Court an Application instituting proceedings against the Republic of Azerbaijan
(hereinafter “Azerbaijan”) concerning alleged violations of the International Convention on the
Elimination of All Forms of Racial Discrimination of 21 December 1965 (hereinafter “CERD” or
the “Convention”).

      2. At the end of its Application, Armenia

      “respectfully requests the Court to adjudge and declare:

      1. That Azerbaijan is responsible for violating the CERD, including Articles 2, 3, 4, 5,
         6 and 7.

      2. That, as a consequence of its international responsibility for these breaches of the
         Convention, Azerbaijan must:

           A. Cease forthwith any such ongoing internationally wrongful act and fully
              comply with its obligations under Articles 2, 3, 4, 5, 6 and 7 of the CERD,
              including by:

                refraining from practices of ethnic cleansing against Armenians;

                refraining from engaging in, glorifying, rewarding or condoning acts of
                 racism against Armenians, including Armenian prisoners of war, hostages
                 and other detained persons;

                refraining from engaging in or tolerating hate speech against Armenians,
                 including in educational materials;

                refraining from suppressing the Armenian language, destroying Armenian
                 cultural heritage or otherwise eliminating the existence of the historical
                 Armenian cultural presence or inhibiting Armenians’ access and
                 enjoyment thereof;

                punishing all acts of racial discrimination, both public and private, against
                 Armenians, including those taken by public officials;

                ensuring that the rights of Armenians, including Armenian prisoners of
                 war, hostages and other detained persons are upheld on an equal basis;

                adopting the laws necessary to uphold its obligations under the CERD;

                providing Armenians with equal treatment before the tribunals and all
                 other organs administering justice, and providing effective protection and
                 remedies against acts of racial discrimination;

                                               -3-

                refraining from hindering the registration and operation of NGOs and
                 arresting, detaining and sentencing human rights activists or other
                 individuals working towards reconciliation with Armenia and Armenians;
                 and

                taking effective measures with a view to combatting prejudices against
                 Armenians, and special measures for the purpose of securing their
                 adequate advancement.

           B. Make reparations for the injury caused by any such internationally wrongful
              act, including:

                by way of restitution, allowing the safe and dignified return of displaced
                 Armenians to their homes, and restoring or returning any Armenian
                 cultural and religious buildings and sites, artefacts or objects;

                providing additional forms of reparation for any harm, loss or injury
                 suffered by Armenians that is not capable of full reparation by restitution,
                 including by providing compensation to displaced Armenians until such
                 time as it becomes safe for them to return to their homes.

           C. Acknowledge its violations of the CERD and provide an apology to Armenia
              and Armenian victims of Azerbaijan’s racial discrimination.

           D. Offer assurances and guarantees of non-repetition of violations of its
              obligations under Articles 2, 3, 4, 5, 6 and 7 of the CERD.”

      3. In its Application, Armenia seeks to found the Court’s jurisdiction on Article 36,
paragraph 1, of the Statute of the Court and on Article 22 of CERD.

      4. The Application contained a Request for the indication of provisional measures submitted
with reference to Article 41 of the Statute and to Articles 73, 74 and 75 of the Rules of Court.

     5. At the end of its Request, Armenia asked the Court to indicate the following provisional
measures:

    “Azerbaijan shall release immediately all Armenian prisoners of war, hostages and
     other detainees in its custody who were made captive during the
     September-November 2020 armed hostilities or their aftermath;

    Pending their release, Azerbaijan shall treat all Armenian prisoners of war, hostages
     and other detainees in its custody in accordance with its obligations under the CERD,
     including with respect to their right to security of person and protection by the State
     against all bodily harm, and permit independent medical and psychological
     evaluations for that purpose;

    Azerbaijan shall refrain from espousing hatred of people of Armenian ethnic or
     national origin, including by closing or suspending the activities of the Military
     Trophies Park;

                                                  -4-

     Azerbaijan shall protect the right to access and enjoy Armenian historic, cultural and
      religious heritage, including but not limited to, churches, cathedrals, places of
      worship, monuments, landmarks, cemeteries and other buildings and artefacts, by
      inter alia terminating, preventing, prohibiting and punishing their vandalisation,
      destruction or alteration, and allowing Armenians to visit places of worship;

     Azerbaijan shall facilitate, and refrain from placing any impediment on, efforts to
      protect and preserve Armenian historic, cultural and religious heritage, including but
      not limited to churches, cathedrals, places of worship, monuments, landmarks,
      cemeteries and other buildings and artefacts, relevant to the exercise of rights under
      the CERD;

     Azerbaijan shall take effective measures to prevent the destruction and ensure the
      preservation of evidence related to allegations of acts within the scope of the CERD;

     Azerbaijan shall not take any action and shall assure that no action is taken which may
      aggravate or extend the existing dispute that is the subject of the Application, or render
      it more difficult to resolve; and

     Azerbaijan shall provide a report to the Court on all measures taken to give eﬀect to
      its Order indicating provisional measures, no later than three months from its issuance
      and shall report thereafter to the Court every six months.”

       6. The Registrar immediately communicated to the Government of Azerbaijan the Application
containing the Request for the indication of provisional measures, in accordance with Article 40,
paragraph 2, of the Statute of the Court, and Article 73, paragraph 2, of the Rules of Court. He also
notified the Secretary-General of the United Nations of the filing by Armenia of the Application and
the Request for the indication of provisional measures.

       7. Pending the notification provided for by Article 40, paragraph 3, of the Statute, the Registrar
informed all States entitled to appear before the Court of the filing of the Application and the Request
for the indication of provisional measures by a letter dated 22 September 2021.

      8. Since the Court included upon the Bench no judge of the nationality of either Party, each
Party proceeded to exercise the right conferred upon it by Article 31 of the Statute to choose a
judge ad hoc to sit in the case. Armenia chose Mr. Yves Daudet and Azerbaijan Mr. Kenneth Keith.

       9. By letters dated 27 September 2021, the Registrar informed the Parties that, pursuant to
Article 74, paragraph 3, of its Rules, the Court had fixed 14 and 15 October 2021 as the dates for the
oral proceedings on the Request for the indication of provisional measures.

     10. At the public hearings, oral observations on the Request for the indication of provisional
measures were presented by:

                                                 -5-

On behalf of Armenia:                H.E. Mr. Yeghishe Kirakosyan,
                                     Mr. Robert Kolb,
                                     Mr. Constantinos Salonidis,
                                     Mr. Sean Murphy,
                                     Mr. Pierre d’Argent,
                                     Mr. Lawrence H. Martin.

On behalf of Azerbaijan:             H.E. Mr. Elnur Mammadov,
                                     Mr. Vaughan Lowe,
                                     Mr. Peter Goldsmith,
                                     Ms Laurence Boisson de Chazournes,
                                     Ms Catherine Amirfar,
                                     Mr. Donald Francis Donovan.

       11. At the end of its second round of oral observations, Armenia asked the Court to indicate
the following provisional measures:

     “Azerbaijan shall release immediately all Armenian prisoners of war, hostages and
      other detainees in its custody who were made captive during the
      September-November 2020 armed hostilities or their aftermath;

     Pending their release, Azerbaijan shall treat all Armenian prisoners of war, hostages
      and other detainees in its custody in accordance with its obligations under the CERD,
      including with respect to their right to security of person and protection by the State
      against all bodily harm, and permit independent medical and psychological
      evaluations for that purpose;

     Azerbaijan shall refrain from espousing hatred of people of Armenian ethnic or
      national origin, including by closing or suspending the activities of the Military
      Trophies Park;

     Azerbaijan shall protect the right to access and enjoy Armenian historic, cultural and
      religious heritage, including but not limited to, churches, cathedrals, places of
      worship, monuments, landmarks, cemeteries and other buildings and artefacts, by
      inter alia terminating, preventing, prohibiting and punishing their vandalisation,
      destruction or alteration, and allowing Armenians to visit places of worship;

     Azerbaijan shall facilitate, and refrain from placing any impediment on, efforts to
      protect and preserve Armenian historic, cultural and religious heritage, including but
      not limited to churches, cathedrals, places of worship, monuments, landmarks,
      cemeteries and other buildings and artefacts, relevant to the exercise of rights under
      the CERD;

     Azerbaijan shall take effective measures to prevent the destruction and ensure the
      preservation of evidence related to allegations of acts within the scope of the CERD;

     Azerbaijan shall not take any action and shall assure that no action is taken which may
      aggravate or extend the existing dispute that is the subject of the Application, or render
      it more difficult to resolve; and

                                                    -6-

     Azerbaijan shall provide a report to the Court on all measures taken to give effect to
      its Order indicating provisional measures, no later than three months from its issuance
      and shall report thereafter to the Court every six months.”

       12. At the end of its second round of oral observations, Azerbaijan requested the Court “to
reject the request for the indication of provisional measures submitted by the Republic of Armenia”.

                                                     *

                                                *         *

                                           I. INTRODUCTION

       13. Armenia and Azerbaijan, both of which were Republics of the former Union of Soviet
Socialist Republics, declared independence on 21 September 1991 and 18 October 1991,
respectively. In the Soviet Union, the Nagorno-Karabakh region had been an autonomous entity
(“oblast”) that had a majority Armenian ethnic population, lying within the territory of the
Azerbaijani Soviet Socialist Republic. The Parties’ competing claims over that region resulted in
hostilities that ended with a ceasefire in May 1994. Further hostilities erupted in September 2020, in
what Armenia calls “the Second Nagorno-Karabakh War” and Azerbaijan calls “the Second
Garabagh War” (hereinafter the “2020 Conflict”), and lasted 44 days. On 9 November 2020, the
President of the Republic of Azerbaijan, the Prime Minister of the Republic of Armenia, and the
President of the Russian Federation signed a statement referred to by the Parties as the “Trilateral
Statement”. Under the terms of this statement, as of 10 November 2020, “[a] complete ceasefire and
termination of all hostilities in the area of the Nagorno-Karabakh conflict [was] declared”.

        14. The differences between the Parties are longstanding and wide-ranging. The Applicant
has invoked Article 22 of CERD as the title of jurisdiction in the present case, the scope of which is
therefore circumscribed by that Convention.

                                   II. PRIMA FACIE JURISDICTION

                                       1. General observations

       15. The Court may indicate provisional measures only if the provisions relied on by the
Applicant appear, prima facie, to afford a basis on which its jurisdiction could be founded, but need
not satisfy itself in a definitive manner that it has jurisdiction as regards the merits of the case (see,
for example, 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. 9, para. 16).

                                                    -7-

       16. In the present case, Armenia seeks to found the jurisdiction of the Court on Article 36,
paragraph 1, of the Statute of the Court and on Article 22 of CERD (see paragraph 3 above). The
Court must therefore first determine whether those provisions prima facie confer upon it jurisdiction
to rule on the merits of the case, enabling it — if the other necessary conditions are fulfilled — to
indicate provisional measures.

      17. Article 22 of CERD reads as follows:

             “Any dispute between two or more States Parties with respect to the interpretation
      or application of this Convention, which is not settled by negotiation or by the
      procedures expressly provided for in this Convention, shall, at the request of any of the
      parties to the dispute, be referred to the International Court of Justice for decision, unless
      the disputants agree to another mode of settlement.”

      18. Armenia and Azerbaijan are both parties to CERD; Armenia acceded to CERD on 23 June
1993, Azerbaijan on 16 August 1996. Neither Party made reservations to Article 22 or to any other
provision of CERD.

                      2. Existence of a dispute relating to the interpretation
                                      or application of CERD

       19. Article 22 of CERD makes the Court’s jurisdiction conditional on the existence of a dispute
relating to the interpretation or application of the Convention. According to the established case law
of the Court, a dispute is “a disagreement on a point of law or fact, a conflict of legal views or of
interests” between parties (Mavrommatis Palestine Concessions, Judgment No. 2, 1924, P.C.I.J.,
Series A, No. 2, p. 11). In order for a dispute to exist, “[i]t must be shown that the claim of one party
is positively opposed by the other” (South West Africa (Ethiopia v. South Africa; Liberia v. South
Africa), Preliminary Objections, Judgment, I.C.J. Reports 1962, p. 328). The two sides must “‘hold
clearly opposite views concerning the question of the performance or non-performance of certain’
international obligations” (Alleged Violations of Sovereign Rights and Maritime Spaces in the
Caribbean Sea (Nicaragua v. Colombia), Preliminary Objections, Judgment, I.C.J. Reports 2016 (I),
p. 26, para. 50, citing Interpretation of Peace Treaties with Bulgaria, Hungary and Romania, First
Phase, Advisory Opinion, I.C.J. Reports 1950, p. 74).

        20. In order to determine whether a dispute exists in the present case, the Court cannot limit
itself to noting that one of the Parties maintains that the Convention applies, while the other denies
it (see 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. 414, para. 18). Since Armenia has invoked as the basis of the Court’s
jurisdiction the compromissory clause in an international convention, the Court must ascertain
whether the acts and omissions complained of by the Applicant are capable of falling within the
provisions of that instrument and whether, as a consequence, the dispute is one which the Court has
jurisdiction ratione materiae to entertain (see ibid.).

                                                *         *

                                                  -8-

       21. Armenia contends that a dispute exists with Azerbaijan regarding the interpretation and
application of CERD, as demonstrated by the correspondence between the Parties. According to
Armenia, this dispute arose in the context of longstanding racial discrimination directed by
Azerbaijan at individuals of Armenian national or ethnic origin. In particular, Armenia claims that a
“State-sponsored policy of Armenian hatred” by the Azerbaijani authorities has led to systematic
discrimination against those individuals in Azerbaijan. It submits that Azerbaijan committed grave
violations of obligations arising under CERD during the 2020 Conflict, and has continued to do so
following the end of hostilities, in furtherance of its policy of “ethnic cleansing” intended to rid
“Azerbaijan and Nagorno-Karabakh of Armenians and Armenian influence”. According to Armenia,
the violations committed by Azerbaijan are directed at individuals of Armenian national or ethnic
origin, regardless of their nationality.

       22. Armenia alleges that Azerbaijan has acted and continues to act in violation of its
obligations under Articles 2, 3, 4, 5, 6 and 7 of CERD. Armenia asserts that Azerbaijan bears
responsibility, inter alia, for the inhuman and degrading treatment of prisoners of war and civilian
detainees of Armenian national or ethnic origin held in its custody; for engaging in practices of ethnic
cleansing; for glorifying, rewarding and condoning acts of racism; for inciting racial hatred, giving
as an example, mannequins depicting Armenian soldiers in a degrading way at the “Military Trophies
Park” which opened in Baku in the aftermath of the 2020 Conflict; for facilitating, tolerating and
failing to punish and prevent hate speech; and for systematically destroying and falsifying Armenian
cultural sites and heritage.

                                                   *

       23. Azerbaijan contends that there is no dispute between the Parties concerning the
interpretation or application of CERD. It affirms that it is committed to respecting fully the values
protected by CERD. The Respondent denies that its actions during and after the 2020 Conflict were
motivated by an “ethnic animus” and argues instead that, through those actions, it responded to “a
blatant and unlawful use of force against its people and its sovereign territory” on the part of Armenia,
in the context of its “decades-long unlawful occupation of Azerbaijan’s territory” dating back to the
hostilities that ended in 1994. In this connection, Azerbaijan states that its conduct was solely
motivated by a desire to “liberate its territories from Armenia’s illegal occupation”. Azerbaijan
asserts, inter alia, that Armenia failed to comply with four United Nations Security Council
resolutions requiring the immediate, complete and unconditional withdrawal of Armenian forces
from occupied areas of Azerbaijan.

       24. With regard to the claims put forward by Armenia in support of its allegation that the
actions of Azerbaijan constitute racial discrimination under CERD, the Respondent argues that these
actions “are entirely unrelated to racial discrimination”. According to Azerbaijan, Armenia’s case
before the Court is indeed not concerned with the protection of rights under CERD but instead reflects
a strategy “to use the Court as a platform to broadcast [Armenia’s] grievances against Azerbaijan”.
Azerbaijan moreover asserts that it does not condone statements or actions that promote hatred or
incite violence targeting Armenians as a national or ethnic group; that it reaffirms its obligations to

                                                     -9-

treat Armenian detainees in its custody in accordance with its obligations under CERD; and that it
has commenced investigations and brought charges against Azerbaijani servicemen with respect to
alleged crimes committed against Armenians during the 2020 Conflict.

        25. In Azerbaijan’s view, some of the measures requested by Armenia have in any event
become moot. In particular, in addressing Armenia’s request that the Court order Azerbaijan to close
or suspend activities at the “Military Trophies Park”, the Agent of Azerbaijan referred during the
hearing to his “assurance [on the previous day] about the permanent removal of certain exhibits in
the Trophies Park”.

                                                 *         *

      26. The Court recalls that for the purposes of determining whether there was a dispute between
the parties at the time of filing an application, it takes into account in particular any statements or
documents exchanged between them (see 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. 12, para. 26). In so doing, it pays special attention to “the
author of the statement or document, their intended or actual addressee, and their content” (ibid.).
The existence of a dispute is a matter for objective determination by the Court; it is a matter of
substance, and not a question of form or procedure (ibid.).

       27. The Court considers that the exchanges between the Parties prior to the filing of the
Application indicate that they differ as to whether certain acts or omissions allegedly committed by
Azerbaijan gave rise to violations of its obligations under CERD. The Court notes that, according to
Armenia, Azerbaijan has violated its obligations under the Convention in various ways (see
paragraphs 21 to 22 above). Azerbaijan has denied that it has committed any of the alleged violations
set out above and that the acts complained of fall within the scope of CERD (see paragraphs 23 to 24
above). The divergence of views between Armenia and Azerbaijan regarding the latter’s compliance
with its commitments under CERD was already apparent in the first exchange of letters between the
Ministers for Foreign Affairs of the Parties, dated 11 November 2020 and 8 December 2020
respectively, in the immediate aftermath of the 2020 Conflict. It is further demonstrated by
subsequent exchanges between the Parties.

       28. For the purposes of the present proceedings, the Court is not required to ascertain whether
any violations of Azerbaijan’s obligations under CERD have occurred, a finding that could only be
made as part of the examination of the merits of the case. At the stage of making an order on
provisional measures, the Court’s task is to establish whether the acts and omissions complained of
by Armenia are capable of falling within the provisions of CERD. In the Court’s view, at least some
of the acts and omissions alleged by Armenia to have been committed by Azerbaijan are capable of
falling within the provisions of the Convention.

       29. The Court finds therefore that there is a sufficient basis at this stage to establish prima facie
the existence of a dispute between the Parties relating to the interpretation or application of CERD.

                                                 - 10 -

                                    3. Procedural preconditions

       30. Under Article 22 of CERD, a dispute may be referred to the Court only if it is “not settled
by negotiation or by the procedures expressly provided for in this Convention”. The Court has
previously ruled that Article 22 of CERD establishes procedural preconditions to be met before the
seisin of the Court (see Application of the International Convention on the Elimination of All Forms
of Racial Discrimination (Georgia v. Russian Federation), Preliminary Objections, Judgment,
I.C.J. Reports 2011 (I), p. 128, para. 141).

       31. The Court has also held that the above-mentioned preconditions to its jurisdiction are
alternative and not cumulative (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), Preliminary Objections, Judgment, I.C.J.
Reports 2019 (II), p. 600, para. 113). Since Armenia does not contend that its dispute with
Azerbaijan was submitted to “procedures expressly provided for in [the] Convention”, which begin
with a referral to the Committee on the Elimination of Racial Discrimination under Article 11 of
CERD, the Court will only ascertain whether the dispute is one that is “not settled by negotiation”,
within the meaning of Article 22.

      32. In addition, Article 22 of CERD states that a dispute may be referred to the Court at the
request of any of the parties to that dispute only if they have not agreed to another mode of settlement.
The Court notes that neither Party contends that they have agreed to another mode of settlement.

       33. At this stage of the proceedings, the Court will examine whether it appears, prima facie,
that Armenia genuinely attempted to engage in negotiations with Azerbaijan, with a view to resolving
their dispute concerning the latter’s compliance with its substantive obligations under CERD, and
whether Armenia pursued these negotiations as far as possible (see 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. 420, para. 36).

                                                *      *

       34. Regarding the procedural preconditions set out in Article 22 of CERD, Armenia states that,
since the end of hostilities in autumn 2020, it has exchanged over 40 pieces of correspondence and
held several rounds of meetings with Azerbaijan. Specifically, Armenia asserts that the Minister for
Foreign Affairs of Armenia, in a letter dated 11 November 2020 addressed to his counterpart in
Azerbaijan, expressly referred to violations of multiple provisions of CERD by Azerbaijan, and
invited Azerbaijan to enter into negotiations with Armenia to remedy those violations. Armenia notes
that in his letter of reply, dated 8 December 2020, the Minister for Foreign Affairs of Azerbaijan
rejected Armenia’s allegations. Armenia indicates that, from November 2020 to September 2021, the
Parties engaged in further rounds of written exchanges and participated in at least seven rounds of
meetings between March and September 2021, “in an effort to settle this dispute amicably”.

                                                  - 11 -

       35. Armenia claims that during these rounds of negotiations, the Parties’ positions on the
crucial points that divided them  namely whether Azerbaijan had violated its obligations under
Articles 2, 3, 4, 5, 6 and 7 of CERD and whether it consequently owed reparation  did not change.
Armenia further contends that, by 16 September 2021, the date on which it filed its Application, there
was “no reasonable prospect” that the respective positions of the Parties would evolve, and that it
thus considered that the negotiations had failed. In light of the impasse it describes, Armenia contends
that the precondition of negotiations contained in Article 22 of CERD has thus been met.

                                                    *

        36. Azerbaijan, for its part, claims that Armenia did not genuinely attempt to engage in
meaningful negotiations prior to the institution of proceedings before the Court against Azerbaijan.
In its view, the time frame of the supposed negotiations shows that Armenia was never serious about
finding a solution to the matters that divided the Parties. Specifically, Azerbaijan notes that the period
from November 2020 to July 2021 was spent “talking about the procedural modalities” and that the
first substantive meeting between the Parties was held in mid-July 2021. Moreover, Azerbaijan
argues that, even thereafter, Armenia never attempted to engage constructively with any of the
proposals put forward by the Respondent. In particular, Azerbaijan maintains that, during the
bilateral meeting held on 30-31 August 2021, it presented counter-proposals that were never
genuinely considered nor discussed by Armenia, which simply rejected those proposals altogether at
the following meeting of 14-15 September 2021 before filing its Application and Request for the
indication of provisional measures the following day.

       37. Azerbaijan argues that a State is not entitled to bring a premature end to negotiations
relating to alleged violations of obligations arising under CERD simply because it would rather raise
these issues by means of proceedings before the Court. With regard to Armenia’s position that the
negotiations had reached an impasse, Azerbaijan states that it was not open to Armenia to make such
a determination unilaterally, as the continuation of negotiations cannot be subject to “a right to
exercise an unreasoned veto”. In addition, according to Azerbaijan, Armenia’s claim that the
negotiations failed was based on Azerbaijan’s refusal to accept that it had violated CERD, a claim
which Azerbaijan considers both unreasonable and inappropriate, since “[a]cceptance of guilt as a
threshold condition has no place in genuine negotiations”. In sum, according to Azerbaijan, the
record shows that it tried to engage in constructive negotiations whereas Armenia made no genuine
attempt to do so. Azerbaijan concludes that the Court manifestly lacks jurisdiction either to determine
the merits of the case or to order provisional measures because Armenia has failed to fulfil the
precondition of negotiation contained in Article 22 of CERD.

                                                *       *

                                                - 12 -

       38. Regarding the precondition of negotiation contained in Article 22 of CERD, the Court
observes that negotiations are distinct from mere protests or disputations and require a genuine
attempt by one of the parties to engage in discussions with the other party, with a view to resolving
the dispute. Where negotiations are attempted or have commenced, the precondition of negotiation
is met only when the attempt to negotiate has been unsuccessful or where negotiations have failed,
become futile or deadlocked. In order to meet this precondition, “the subject-matter of the
negotiations must relate to the subject-matter of the dispute which, in turn, must concern the
substantive obligations contained in the treaty in question” (see 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. 419, para. 36,
citing Application of the International Convention on the Elimination of All Forms of Racial
Discrimination (Georgia v. Russian Federation), Preliminary Objections, Judgment, I.C.J.
Reports 2011 (I), p. 133, para. 161).

       39. The Court notes that, as evidenced by the material before it, Armenia raised allegations of
violations by Azerbaijan of its obligations under CERD in various bilateral exchanges subsequent to
the signing of the Trilateral Statement in November 2020. In particular, the Parties corresponded
through a series of diplomatic Notes over a period running from November 2020 to September 2021
and held several rounds of bilateral meetings covering the procedural modalities, scope and topics of
their negotiations concerning alleged violations of obligations arising under CERD.

       40. The Court observes that, between the first exchange between the Ministers for Foreign
Affairs of Armenia and Azerbaijan, by letters dated 11 November 2020 and 8 December 2020
respectively, and the last bilateral meeting held on 14-15 September 2021, the positions of the Parties
do not appear to have evolved. Although the Parties were able to agree on certain procedural
modalities, including scheduling timetables and topics of discussion, no similar progress was made
in terms of substantive matters relating to Armenia’s allegations of Azerbaijan’s non-compliance
with its obligations under CERD. The information available to the Court regarding the bilateral
sessions held on 15-16 July 2021, 30-31 August 2021 and 14-15 September 2021 shows a lack of
progress in reaching common ground on substantive issues. In particular, in the Note Verbale dated
10 September 2021 from the Permanent Mission of Armenia to the United Nations Office and other
International Organizations in Geneva to the Permanent Mission of Azerbaijan to the United Nations
Office and other International Organizations in Geneva, Armenia stated that it considered
Azerbaijan’s “responses” (to the allegations of violations of obligations arising under CERD made
against it) presented during the 15-16 July 2021 session to be “in fact categorical rejections of
Armenia’s claims and requested remedies”. For its part, during the oral proceedings, Azerbaijan
argued  with reference to the bilateral sessions held in July, August and September 2021  that
every time it put forward counter-proposals in response to Armenia’s claims for remedies, Armenia
failed to “put forward any proposals”.

       41. Despite the fact that Armenia alleged in bilateral exchanges that Azerbaijan had violated
a number of obligations under CERD and that the Parties engaged in a significant number of written
exchanges and meetings over a period of several months, it seems that their positions on the alleged
non-compliance by Azerbaijan with its obligations under CERD remained unchanged and that their
negotiations had reached an impasse. It therefore appears to the Court that the dispute between the
Parties regarding the interpretation and application of CERD had not been settled by negotiation as
of the date of the filing of the Application.

                                                  - 13 -

        42. Recalling that, at this stage of the proceedings, the Court need only decide whether, prima
facie, it has jurisdiction, the Court finds that the procedural preconditions under Article 22 of CERD
appear to have been met.

                            4. Conclusion as to prima facie jurisdiction

       43. In light of the foregoing, the Court concludes that, prima facie, it has jurisdiction pursuant
to Article 22 of CERD to entertain the case to the extent that the dispute between the Parties relates
to the “interpretation or application” of the Convention.

           III. THE RIGHTS WHOSE PROTECTION IS SOUGHT AND THE LINK BETWEEN
                           SUCH RIGHTS AND THE MEASURES REQUESTED

       44. The power of the Court to indicate provisional measures under Article 41 of the Statute
has as its object the preservation of the respective rights claimed by the parties in a case, pending its
decision on the merits thereof. It follows that the Court must be concerned to preserve by such
measures the rights which may subsequently be adjudged by it to belong to either party. Therefore,
the Court may exercise this power only if it is satisfied that the rights asserted by the party requesting
such measures are at least plausible (see, for example, 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. 43).

       45. At this stage of the proceedings, however, the Court is not called upon to determine
definitively whether the rights which Armenia wishes to see protected exist; it need only decide
whether the rights claimed by Armenia on the merits, and for which it is seeking protection, are
plausible. Moreover, a link must exist between the rights whose protection is sought and the
provisional measures being requested (ibid., para. 44).

                                                *      *

       46. In the present proceedings, Armenia asserts rights under Articles 2, 3, 4, 5, 6 and 7 of
CERD. In particular, Armenia asserts the right of prisoners of war and civilian detainees of Armenian
national or ethnic origin to be repatriated and their right to be protected from inhuman treatment, the
right of persons of Armenian national or ethnic origin not to be subject to hate speech by Azerbaijan
and the right of persons of Armenian national or ethnic origin to access and enjoy their cultural
heritage, as well as Azerbaijan’s corresponding obligation not to destroy, erase or falsify such
heritage. Armenia argues that these rights are plausible in so far as they are “grounded in a possible
interpretation” of the Convention and that Azerbaijan’s actions plausibly constitute acts of racial
discrimination in violation of its obligations under CERD.

                                                 - 14 -

       47. Armenia contends that the failure to repatriate prisoners of war and civilian detainees of
Armenian national or ethnic origin following the ceasefire reached on 10 November 2020 constitutes
a violation by Azerbaijan of its obligations under Articles 2 and 5 of CERD. More specifically,
Armenia submits that the failure to repatriate prisoners of war and civilian detainees of Armenian
national or ethnic origin is a denial of their right to equality before the law, namely “before or under
international humanitarian law”, and amounts to “racial discrimination” within the meaning of
CERD. According to Armenia, these detainees have been subjected to “sham criminal proceedings”,
and it is “readily apparent” from the willingness of Azerbaijan to repatriate some prisoners of war on
certain occasions, while refusing to repatriate others captured under similar circumstances, that their
continued detention “has nothing to do with actual criminality”. The Applicant is thus of the view
that the Azerbaijani authorities are not “applying criminal law fairly and judiciously”, but rather are
“using criminal law arbitrarily as a subterfuge for prohibited, discriminatory conduct”.

       48. The Applicant further maintains that the inhuman and degrading treatment of prisoners of
war and civilian detainees of Armenian national or ethnic origin by Azerbaijan violates
Article 5 (b) of CERD, which protects the “right to security of person and protection by the State
against violence or bodily harm”. It asserts that evidence in the case file establishes that “atrocious
acts”, including torture, targeting these persons, were committed with “clear hatred being shown to
persons of Armenian origin”. In Armenia’s view, the treatment of prisoners of war and civilian
detainees of Armenian national or ethnic origin before Azerbaijani courts “clearly implicates”
Article 5 (a) of CERD which recognizes “[t]he right to equal treatment before the tribunals and all
other organs administering justice”.

       49. Armenia states that the rights of persons of Armenian national or ethnic origin not to be
subject to racial hatred and racial hate speech are explicitly stated in Articles 2, 4 and 7 of CERD. It
asserts that Azerbaijan, instead of respecting these rights, is violating them “on a daily basis through
a constant rhetoric of hate”. According to Armenia, this rhetoric “escalated” before and during the
2020 Conflict, and was employed by politicians and high-ranking officials, including the President
of Azerbaijan. Armenia further refers to “the racist depictions of Armenian soldiers in denigrating
and dehumanizing scenes” in Azerbaijan’s “Military Trophies Park”. Armenia thus contends that its
“rights under Article 2, 4 and 7 of the Convention meet any threshold of plausibility for purposes of
this phase of the proceedings”.

       50. Armenia also refers to the rights of persons of Armenian national or ethnic origin under
Articles 2 and 5 of CERD to access and enjoy, without discrimination, their historic, cultural and
religious heritage. More specifically, Armenia invokes Article 5 (d) (vii) which prohibits racial
discrimination in relation to the right to freedom of religion and Article 5 (e) (vi) which guarantees
the right to equal participation in cultural activities, which, according to Armenia, entails a right to
the protection and preservation of Armenian historic, cultural and religious heritage. Armenia alleges
that acts of destruction and vandalism have been perpetrated by “Azerbaijani soldiers and
mercenaries” against Armenian religious and cultural heritage sites, and that acts of desecration of
Armenian cemeteries and religious artefacts, such as the “khachkars” (or “cross-stones”) have also
occurred. Armenia further alleges that Azerbaijan, by carrying out what it calls restoration works on

                                                - 15 -

the cathedral of Shushi, has altered features characteristic of Armenian cultural heritage. Considering
the alleged general context of anti-Armenian hatred, Armenia contends that the repeated destruction,
alteration and desecration of Armenian cultural heritage and religious sites in territories controlled
by Azerbaijan constitutes “racial discrimination” in breach of Articles 2 and 5 of CERD and therefore
that its rights under these provisions are plausible.

                                                  *

       51. Azerbaijan acknowledges that, as of 8 October 2021, 45 named individuals captured in
relation to the 2020 Conflict remained in its custody. It asserts that these persons are not detained
“on the basis of their national or ethnic origin” and maintains instead that they have been charged or
convicted of serious offences including torture, murder or mercenarism. According to Azerbaijan,
their detention is lawful under domestic and international law and does not have the “purpose or
effect” of impairing their equal enjoyment of fundamental rights. It notes that “if Azerbaijan is
engaged in a conflict with a wholly ethnically Armenian force, the detainees it holds are likely to be
ethnically Armenian”, but that this is not evidence of racial discrimination. Azerbaijan also
underscores that it has “released or repatriated the vast majority of Armenians” (emphasis in the
original) detained in relation to the 2020 hostilities, and stresses that the release of eight Armenian
detainees in recent months was “not pursuant to a bargain with Armenia”, confirming therefore that
“Azerbaijan investigated in each case whether there is a basis for continued detention”. Accordingly,
Azerbaijan claims that the detention of individuals of Armenian ethnic or national origin cannot be
regarded as “racial discrimination” within the meaning of Article 1 of CERD and thus cannot
plausibly engage rights under the Convention.

       52. Azerbaijan adds that it has initiated investigations in cases where there have been credible
allegations of mistreatment of Armenian detainees, which it says demonstrates that it does not
condone torture or mistreatment of any kind, regardless of a detainee’s origin. It considers that
Armenia therefore has no plausible rights under CERD based on allegations of the inhuman and
degrading treatment of prisoners of war and civilian detainees of Armenian national or ethnic origin.

       53. Azerbaijan denies that it has incited hatred of people of Armenian national or ethnic origin
and argues that Armenia’s allegations in this regard are not supported by specific declarations or
conduct on the part of Azerbaijan. Therefore, according to the Respondent, Armenia has not
established any plausible rights under CERD based on its allegations that Azerbaijan violated its
obligations by inciting racial hatred against persons of Armenian national or ethnic origin. As to
Armenia’s references to the “Military Trophies Park”, Azerbaijan considers that, in light of the fact
that the mannequins and helmets of Armenian soldiers have been “permanently removed” from
display, “there is nothing remaining at the Park that could possibly implicate rights under CERD”.

                                                  - 16 -

      54. Regarding Armenian religious and cultural heritage, Azerbaijan accepts that all persons
who are lawfully present in Azerbaijan, including persons of Armenian national or ethnic origin,
must be able to visit on an equal basis historic, cultural and religious sites that are safely open to the
public in its territory. Azerbaijan claims that certain heritage sites, however, are currently not
accessible due to the placement of landmines by Armenia. According to the Respondent, restriction
of access to those sites is aimed at ensuring the safety and security of persons, regardless of their
national or ethnic origin, and cannot, therefore, constitute an act of racial discrimination under CERD
or a basis to claim “a plausible CERD right”. Azerbaijan adds that its law forbids vandalism and
destruction of cultural and religious heritage and asserts that it is “facilitating efforts to protect and
preserve” Armenian sites and artefacts relevant to the rights under CERD. Moreover, Azerbaijan
contends that it has undertaken to investigate all credible allegations of vandalism, destruction, and
unauthorized alteration of historic and cultural monuments and cemeteries used by ethnic Armenians.

       55. Azerbaijan concludes that in the present case the Applicant has failed to show that it seeks
to protect plausible rights on the merits in so far as it has not established that the acts complained of
constitute acts of “racial discrimination” within the meaning of CERD.

                                                *      *

       56. The Court notes that CERD imposes a number of obligations on States parties with regard
to the elimination of racial discrimination in all its forms and manifestations. Article 1, paragraph 1,
of CERD defines racial discrimination in the following terms:

      “any distinction, exclusion, restriction or preference based on race, colour, descent, or
      national or ethnic origin which has the purpose or effect of nullifying or impairing the
      recognition, enjoyment or exercise, on an equal footing, of human rights and
      fundamental freedoms in the political, economic, social, cultural or any other field of
      public life”.

Articles 2, 3, 4, 5, 6 and 7 of the Convention, invoked by Armenia in its Application and for the
purposes of its Request for the indication of provisional measures, read as follows:

                                               “Article 2

      1. States Parties condemn racial discrimination and undertake to pursue by all
         appropriate means and without delay a policy of eliminating racial discrimination
         in all its forms and promoting understanding among all races, and, to this end:

            (a) Each State Party undertakes to engage in no act or practice of racial
                discrimination against persons, groups of persons or institutions and to ensure
                that all public authorities and public institutions, national and local, shall act
                in conformity with this obligation;

                                         - 17 -

    (b) Each State Party undertakes not to sponsor, defend or support racial
        discrimination by any persons or organizations;

     (c) Each State Party shall take effective measures to review governmental,
         national and local policies, and to amend, rescind or nullify any laws and
         regulations which have the effect of creating or perpetuating racial
         discrimination wherever it exists;

    (d) Each State Party shall prohibit and bring to an end, by all appropriate means,
        including legislation as required by circumstances, racial discrimination by any
        persons, group or organization;

     (e) Each State Party undertakes to encourage, where appropriate, integrationist
         multi-racial organizations and movements and other means of eliminating
         barriers between races, and to discourage anything which tends to strengthen
         racial division.

2. States Parties shall, when the circumstances so warrant, take, in the social,
   economic, cultural and other fields, special and concrete measures to ensure the
   adequate development and protection of certain racial groups or individuals
   belonging to them, for the purpose of guaranteeing them the full and equal
   enjoyment of human rights and fundamental freedoms. These measures shall in no
   case entail as a consequence the maintenance of unequal or separate rights for
   different racial groups after the objectives for which they were taken have been
   achieved.

                                        Article 3

     States Parties particularly condemn racial segregation and apartheid and
 undertake to prevent, prohibit and eradicate all practices of this nature in territories
 under their jurisdiction.

                                       Article 4

       States Parties condemn all propaganda and all organizations which are based on
 ideas or theories of superiority of one race or group of persons of one colour or ethnic
 origin, or which attempt to justify or promote racial hatred and discrimination in any
 form, and undertake to adopt immediate and positive measures designed to eradicate
 all incitement to, or acts of, such discrimination and, to this end, with due regard to
 the principles embodied in the Universal Declaration of Human Rights and the rights
 expressly set forth in article 5 of this Convention, inter alia:

    (a) Shall declare an offence punishable by law all dissemination of ideas based on
        racial superiority or hatred, incitement to racial discrimination, as well as all
        acts of violence or incitement to such acts against any race or group of persons
        of another colour or ethnic origin, and also the provision of any assistance to
        racist activities, including the financing thereof;

                                            - 18 -

   (b) Shall declare illegal and prohibit organizations, and also organized and all
       other propaganda activities, which promote and incite racial discrimination,
       and shall recognize participation in such organizations or activities as an
       offence punishable by law;

   (c) Shall not permit public authorities or public institutions, national or local, to
       promote or incite racial discrimination.

                                          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:

   (a) The right to equal treatment before the tribunals and all other organs
       administering justice;

   (b) The right to security of person and protection by the State against violence or
       bodily harm, whether inflicted by government officials or by any individual
       group or institution;

   (c) Political rights, in particular the right to participate in elections  to vote and
       to stand for election  on the basis of universal and equal suffrage, to take
       part in the Government as well as in the conduct of public affairs at any level
       and to have equal access to public service;

   (d) Other civil rights, in particular:

        (i) The right to freedom of movement and residence within the border of the
            State;

        (ii) The right to leave any country, including one’s own, and to return to one’s
             country;

        (iii) The right to nationality;

        (iv) The right to marriage and choice of spouse;

        (v) The right to own property alone as well as in association with others;

        (vi) The right to inherit;

        (vii) The right to freedom of thought, conscience and religion;

        (viii)    The right to freedom of opinion and expression;

        (ix) The right to freedom of peaceful assembly and association;

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

        (i) The rights to work, to free choice of employment, to just and favourable
            conditions of work, to protection against unemployment, to equal pay for
            equal work, to just and favourable remuneration;

                                                  - 19 -

                 (ii) The right to form and join trade unions;

                 (iii) The right to housing;

                 (iv) The right to public health, medical care, social security and social
                      services;

                 (v) The right to education and training;

                 (vi) The right to equal participation in cultural activities;

            (f) The right of access to any place or service intended for use by the general
                public, such as transport, hotels, restaurants, cafés, theatres and parks.

                                                Article 6

              States Parties shall assure to everyone within their jurisdiction effective
        protection and remedies, through the competent national tribunals and other State
        institutions, against any acts of racial discrimination which violate his human rights
        and fundamental freedoms contrary to this Convention, as well as the right to seek
        from such tribunals just and adequate reparation or satisfaction for any damage
        suffered as a result of such discrimination.

                                                Article 7

             States Parties undertake 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 and to promoting understanding,
        tolerance and friendship among nations and racial or ethnical groups, as well as to
        propagating the purposes and principles of the Charter of the United Nations, the
        Universal Declaration of Human Rights, the United Nations Declaration on the
        Elimination of All Forms of Racial Discrimination, and this Convention.”

       57. The Court notes that Articles 2, 3, 4, 5, 6 and 7 of CERD are intended to protect individuals
from racial discrimination. It recalls, as it did in past cases in which Article 22 of CERD was invoked
as the basis of its jurisdiction, that there is a correlation between respect for individual rights
enshrined in the Convention, the obligations of States parties under CERD and the right of States
parties to seek compliance therewith (see, for example, 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. 426, para. 51).

       58. A State party to CERD may invoke the rights set out in the above-mentioned articles only
to the extent that the acts complained of constitute acts of racial discrimination as defined in Article 1
of the Convention (see ibid., para. 52). In the context of a request for the indication of provisional
measures, the Court examines whether the rights claimed by an applicant are at least plausible.

                                                 - 20 -

       59. The Court considers, on the basis of the information presented to it by the Parties, that at
least some of the rights claimed by Armenia are plausible rights under the Convention.

       60. In relation to persons that Armenia identifies as prisoners of war and civilian detainees
taken captive during the 2020 Conflict or in its aftermath, Armenia asserts two distinct rights: the
right to be repatriated and the right to be protected from inhuman or degrading treatment. The Court
notes that international humanitarian law governs the release of persons fighting on behalf of one
State who were detained during hostilities with another State. It also recalls that measures based on
current nationality do not fall within the scope of CERD (Application of the International Convention
on the Elimination of all Forms of Racial Discrimination (Qatar v. United Arab Emirates),
Preliminary Objections, Judgment of 4 February 2021, para. 105). The Court does not consider that
CERD plausibly requires Azerbaijan to repatriate all persons identified by Armenia as prisoners of
war and civilian detainees. Armenia has not placed before the Court evidence indicating that these
persons continue to be detained by reason of their national or ethnic origin. However, the Court finds
plausible the right of such persons not to be subjected to inhuman or degrading treatment based on
their national or ethnic origin while being detained by Azerbaijan.

       61. The Court also considers plausible the rights allegedly violated through incitement and
promotion of racial hatred and discrimination against persons of Armenian national or ethnic origin
by high-ranking officials of Azerbaijan and through vandalism and desecration affecting Armenian
cultural heritage.

                                                *     *

      62. The Court now turns to the condition of the link between the rights claimed by Armenia
and the provisional measures requested. In this regard the Court recalls that at this stage of the
proceedings only some of the rights claimed by Armenia have been found to be plausible. It will
therefore limit itself to considering the existence of the requisite link between these rights and the
measures requested by Armenia.

                                                *     *

       63. Armenia considers that each of the provisional measures requested is clearly linked to the
rights for which it seeks protection. According to Armenia, the measures relating to prisoners of war
and other detainees of Armenian national or ethnic origin will ensure that they can enjoy their right
under Article 2 of CERD to be free from racial discrimination in all of its forms and their right, under
Article 5 of CERD, to be secure and protected by the State from violence or bodily harm. For
Armenia, the only genuine way to protect these rights is to order that the detainees be immediately
released and that they be treated humanely pending their release. Armenia further asserts that the

                                                 - 21 -

measure requesting that Azerbaijan refrain from espousing hatred of people of Armenian national or
ethnic origin and that the “Military Trophies Park” be closed, is directly linked to rights under
Articles 2, 4 and 7 of CERD, which set out specific ways in which a State party must act to meet its
obligations to combat racial discrimination. With regard to the measures relating to the protection
and preservation of Armenian historic, cultural and religious heritage and the need to ensure a right
of access, Armenia maintains that these measures are necessary in order to protect the right of persons
of Armenian national or ethnic origin under Article 5 to equal participation in cultural activities,
including the right of access to and enjoyment of their cultural heritage.

                                                    *

       64. Azerbaijan considers that there is no link between the measures requested by Armenia and
the rights under CERD that it claims on the merits. In particular, with regard to the measures aimed
at obtaining the release of all Armenian detainees in its custody and at ensuring their proper treatment
pending that outcome, Azerbaijan argues, first, that there is no provision in CERD on the basis of
which Armenia could demand the release of lawfully detained individuals. Secondly, it contends that
the individuals who remain in Azerbaijan have either been lawfully tried, convicted and are serving
their sentences or are awaiting trial. Azerbaijan therefore does not accept that it is under any duty to
release those persons before they have been tried or, if found guilty, before they have served their
sentence. Azerbaijan argues, thirdly, that all Armenian detainees in Azerbaijan’s custody are treated
in accordance with Azerbaijan’s obligations under CERD.

       65. With regard to the measure requesting Azerbaijan to refrain from espousing hatred of
people of Armenian national or ethnic origin, the Respondent asserts that it has pledged its adherence
to the obligations under CERD not to condone statements or actions that promote hatred or incite
violence targeting a specific group on the basis of its national or ethnic origin. Azerbaijan also notes
that mannequins depicting Armenian soldiers and displays of helmets of Armenian soldiers were
permanently removed from the “Military Trophies Park”, as confirmed by a statement from its Agent
(see paragraph 25 above).

        66. With regard to the measures aimed at protecting Armenian historic, cultural and religious
heritage sites, as well as at ensuring the rights of Armenians to access and enjoy them, Azerbaijan
states that all persons who are lawfully present in Azerbaijan, including Armenians, are able to access
such sites on an equal basis; Azerbaijan also refers to an Azerbaijani law forbidding the vandalism
and destruction of sites of Armenian historic, cultural and religious heritage. The Respondent further
notes that it is facilitating efforts to protect and preserve sites and artefacts that are relevant under
CERD.

                                                *       *

                                                 - 22 -

       67. The Court has already found that at least some of the rights claimed by Armenia under
CERD are plausible (see paragraphs 59 to 61 above). It considers that a link exists between certain
measures requested by Armenia (see paragraphs 5 and 11 above) and the plausible rights it seeks to
protect. This is the case for measures aimed at requesting Azerbaijan to treat all persons that Armenia
identifies as prisoners of war and civilian detainees taken captive during the 2020 Conflict or in its
aftermath, in accordance with its obligations under CERD, including with respect to their right to
security of person and protection by the State against all bodily harm; to refrain from espousing
hatred against persons of Armenian national or ethnic origin; and to prevent, prohibit and punish
vandalism, destruction or alteration of Armenian historic, cultural and religious heritage and to
protect the right to access and enjoy that heritage. These measures, in the Court’s view, are directed
at safeguarding plausible rights invoked by Armenia under CERD.

     68. The Court concludes, therefore, that a link exists between some of the rights claimed by
Armenia and some of the requested provisional measures.

                      IV. RISK OF IRREPARABLE PREJUDICE AND URGENCY

       69. The Court, pursuant to Article 41 of its Statute, has the power to indicate provisional
measures when irreparable prejudice could be caused to rights which are the subject of judicial
proceedings or when the alleged disregard of such rights may entail irreparable consequences (see,
for example, 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. 64, referring to Alleged Violations of the 1955 Treaty of Amity,
Economic Relations, and Consular Rights (Islamic Republic of Iran v. United States of America),
Provisional Measures, Order of 3 October 2018, I.C.J. Reports 2018 (II), p. 645, para. 77).

       70. However, the power of the Court to indicate provisional measures will be exercised only
if there is urgency, in the sense that there is a real and imminent risk that irreparable prejudice will
be caused to the rights claimed before the Court gives its final decision. The condition of urgency 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 (ibid., p. 24, para. 65). The Court must therefore consider
whether such a risk exists at this stage of the proceedings.

       71. The Court is not called upon, for the purposes of its decision on the Request for the
indication of provisional measures, to establish the existence of breaches of CERD, but to determine
whether the circumstances require the indication of provisional measures for the protection of rights
under this instrument. It cannot at this stage make definitive findings of fact, and the right of each
Party to submit arguments in respect of the merits remains unaffected by the Court’s decision on the
Request for the indication of provisional measures.

                                                *     *

                                                - 23 -

       72. Armenia submits that there is an urgent need to protect prisoners of war and civilian
detainees of Armenian national or ethnic origin from further mistreatment, to protect persons of
Armenian national or ethnic origin from continued hate speech, and to protect Armenian historic,
cultural and religious heritage from erasure.

       73. Armenia alleges that the evidence shows a clear record and practice of Azerbaijani
authorities abusing prisoners of war and civilian detainees of Armenian national or ethnic origin.
Armenia adds that these individuals continue to be at grave risk of execution, torture or other forms
of mistreatment. It contends that prisoners of war and civilian detainees of Armenian national or
ethnic origin have been, and continue to be, exposed to stabbings, beatings, burnings and electric
shocks, and that such treatment is often accompanied by ethnic slurs and other hate speech. Armenia
states that a number of military and civilian detainees of Armenian national or ethnic origin have
even been executed. Armenia maintains that the fact that the detainees are subject to the arbitrariness
of criminal proceedings in Azerbaijan, in which they “are charged long after they should have been
repatriated, and then tried and convicted in a matter of days, often in a language they do not
understand”, and that they are at risk of being given lengthy prison sentences makes them extremely
vulnerable to continued abuse. For all these reasons, Armenia is of the view that there is a clear and
imminent threat of psychological trauma, bodily harm and even death for detainees of Armenian
national or ethnic origin.

       74. Armenia further speaks of obsessive and continuing expressions of hatred for persons of
Armenian national or ethnic origin emanating from Azerbaijani politicians and high-ranking
government officials, including the President. It alleges that this environment of hate may entail
irreparable consequences, in particular by making the physical and mental abuse of all Armenians
more likely, “including those living in Nagorno-Karabakh and those still held in captivity” in
Azerbaijan. For example, the racist depictions at the “Military Trophies Park” of Armenian soldiers
in denigrating and dehumanizing scenes “exacerbate[] the already real and present threat to the
detainees”.

       75. Armenia also contends that Azerbaijan has damaged, altered and destroyed Armenian
churches (such as the Holy Saviour/Ghazanchetsots Cathedral in Shushi, the Armenian church of
Saint John the Baptist in Shushi and the Saint Yeghishe Church in Mataghis), gravestones (in Hadrut,
in north of Shushi, in Mets Tagher, in Taghavard and in Sghnakh), and other cultural and religious
sites and artefacts (such as “khachkars” (or “cross-stones”)). Armenia claims that Azerbaijan
continues to engage in these acts of destruction and vandalism or allows these acts to occur. It adds
that even before the most recent armed conflict, Azerbaijan was prolific in its efforts to erase any
vestige of the Armenian presence from its territory and that the continued racist hate speech by the
President of Azerbaijan and senior government officials “only exacerbates this real and present risk”.
Indeed, according to Armenia, by refusing even to acknowledge the existence of Armenian cultural
heritage, the President of Azerbaijan “is directly promoting a climate that is even more conducive to
the hate-filled destruction of that heritage”.

                                                  *

                                                  - 24 -

       76. Azerbaijan denies that there exists an imminent risk of irreparable prejudice to the rights
of the Applicant under CERD because it has already reaffirmed on several occasions its obligations
under the Convention and has taken concrete action to comply with those obligations.

       77. In particular, Azerbaijan asserts that it has given its commitment that no detainees should
be subject to mistreatment on the basis of their national or ethnic origin. It notes that the International
Committee of the Red Cross visits individuals detained in relation to the 2020 Conflict on a regular
basis, assesses their treatment and conditions of detention and facilitates contact with their families.
In addition, Azerbaijan states that, during visits by the Azerbaijani ombudsperson, Armenian
detainees confirmed that they were provided with adequate food, both in quantity and nutritional
value, had access to clean drinking water and were able to speak with their relatives. Detainees were
also visited by the Azerbaijani National Preventive Group’s doctor and were provided medical
examinations at their request. Consequently, Azerbaijan is of the view that Armenia has not
demonstrated an imminent risk of irreparable prejudice to the rights of detainees presently in custody.

       78. Azerbaijan further points out that it does not condone statements or actions that promote
hatred or incite violence targeting Armenians as a national or ethnic group. It claims that Armenia
misinterprets the statements made by the President and senior government officials of Azerbaijan,
which were directed against enemy forces in the context of an armed conflict, and not against
Armenians as an ethnic group. Moreover, when certain statements were thought to have been directed
against the Armenian people, as opposed to the policies and practices of Armenia, Azerbaijani
officials took “immediate and positive measures designed to” combat hate speech. Azerbaijan further
observes that it has taken concrete steps to address Armenia’s concerns by removing mannequins
and helmets from the “Military Trophies Park” and that this removal of the only specific objects
complained of by Armenia eliminates any urgency to act.

       79. Azerbaijan further claims to have acknowledged publicly “its international obligation to
protect and uphold historical, cultural and religious heritage in the liberated territories”. It observes
that the protection of historic and cultural monuments is also enshrined in Azerbaijan’s Constitution
and in its statutory law, which criminalizes the deliberate destruction or damaging of over 6,300 sites
that are listed on its State Registry, which includes sites identified by Armenia. Azerbaijan adds that
it has undertaken to “provide support for investigations of all credible allegations of vandalism,
destruction, and unauthorized alteration of historical and cultural monuments and cemeteries used
by ethnic Armenian individuals”. It further notes that it is already working to restore sites on its
National Registry damaged during the conflict. Azerbaijan argues that Armenia does not identify
with any specificity any sites that it asserts to be in imminent danger of destruction unless the Court
issues provisional measures. According to Azerbaijan, instead of pointing to specific, ongoing
conduct that could demonstrate the risk of a real and imminent irreparable prejudice as required,
Armenia contents itself with alleging only past conduct, primarily during or in the aftermath of active
hostilities. For example, it refers to allegations of conflict-related damage to the Gazanchi Church,
damage to war memorials, a cross-stone and a monument in Shusha by Azerbaijani soldiers, and
soldiers vandalizing the Yegish Arakel Temple. The Respondent further submits that Armenia’s

                                                 - 25 -

requested provisional measure preventing or prohibiting “alterations” to cultural heritage is
tantamount to a prohibition on Azerbaijan from pursuing reconstruction and restoration of such
heritage in its own sovereign territory without consulting Armenia and that this request “assumes a
right to ‘enjoy’ monuments reconstructed to its specification” which does not plausibly exist under
CERD.

                                                *      *

       80. Having previously determined that some of the rights asserted by the Applicant are
plausible and that there is a link between those rights and the provisional measures requested, the
Court now considers whether irreparable prejudice could be caused to those rights and whether there
is urgency, in the sense that there is a real and imminent risk that irreparable prejudice will be caused
to those rights before the Court gives its final decision.

       81. The Court recalls that in past cases in which CERD was at issue, it stated that the rights
stipulated in Article 5 (a), (b), (c), (d) and (e) are of such a nature that prejudice to them is capable
of causing irreparable harm (see 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; 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. 138, para. 96; 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),
pp. 430-431, para. 67). The Court considers that this statement also holds true in respect of the right
of persons not to be subject to racial hatred and discrimination that stems from Article 4 of CERD.

       82. As the Court has noted previously, individuals subject to inhuman and degrading treatment
or torture could be exposed to a serious risk of irreparable prejudice (see 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). The Court has also recognized that psychological distress, like bodily harm, can lead to
irreparable prejudice (see 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. 431, para. 69).

      83. In the view of the Court, acts prohibited under Article 4 of CERD  such as propaganda
promoting racial hatred and incitement to racial discrimination or to acts of violence against any
group of persons based on their national or ethnic origin  can generate a pervasive racially charged
environment within society. This holds particularly true when rhetoric espousing racial
discrimination is employed by high-ranking officials of the State. Such a situation may have serious
damaging effects on individuals belonging to the protected group. Such damaging effects may
include, but are not limited to, the risk of bodily harm or psychological harm and distress.

                                                 - 26 -

       84. The Court has also indicated previously that cultural heritage could be subject to a serious
risk of irreparable prejudice when such heritage “has been the scene of armed clashes between the
Parties” and when “such clashes may reoccur” (see 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).

      85. In the present proceedings, the information placed before the Court by the Parties includes
the Resolution of the Parliamentary Assembly of the Council of Europe on Humanitarian
Consequences of the Conflict between Armenia and Azerbaijan adopted on 27 September 2021. It
observes that the Assembly indicates, inter alia, that

      “[a]mong allegations made by both sides, backed up by reputable international NGOs
      and a wealth of information available from different sources, there [is] worrying . . .
      evidence of . . . [a] substantial number of . . . allegations of [systematic] inhuman and
      degrading treatment and torture of Armenian prisoners of war by Azerbaijanis”.

The Court moreover observes that the Assembly “regrets that there remain statements at the highest
level which continue to portray Armenians in an intolerant fashion”.

      86. The Court in addition notes that the Assembly

      “condemns 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 as well as
      the destruction or damage of other churches and cemeteries during and after the conflict;
      remains concerned, in the light of past destruction, about the future of the many
      Armenian churches, monasteries, including the monastery in Khutavank/Dadivank,
      cross-stones and other forms of cultural heritage which have returned under Azerbaijan
      control; [and] expresses concern about a developing narrative in Azerbaijan promoting
      a ‘Caucasian Albanian’ heritage to replace what is seen as an ‘Armenian’ cultural
      heritage” (Resolution 2391 (2021), text adopted by the Assembly on 27 September 2021,
      24th sitting).

        87. The Court also takes note of the joint statement issued by several United Nations human
rights experts who, on 1 February 2021, addressed the situation of Armenians being held captive in
Azerbaijan and expressed grave concern “at allegations that prisoners of war and other protected
persons have been subjected to extrajudicial killing, enforced disappearance, torture and other
ill-treatment” (United Nations Office of the High Commissioner for Human Rights,
“Nagorno-Karabakh: Captives Must be Released  UN Experts” (1 February 2021).

       88. In light of the considerations set out above, the Court concludes that the alleged disregard
of the rights deemed plausible by the Court (see paragraphs 59 to 61 above) may entail irreparable
prejudice to those rights and that there is urgency, in the sense that there is a real and imminent risk
that such prejudice will be caused before the Court makes a final decision in the case.

                                                 - 27 -

                         V. CONCLUSION AND MEASURES TO BE ADOPTED

       89. The Court concludes from all of the above considerations that the conditions required by
its Statute for it to indicate provisional measures are met. It is therefore necessary, pending its final
decision, for the Court to indicate certain measures in order to protect the rights claimed by Armenia,
as identified above (see paragraphs 59 to 61).

       90. The Court recalls that it has the power, under its Statute, when a request for provisional
measures has been made, to indicate measures that are, in whole or in part, other than those requested.
Article 75, paragraph 2, of the Rules of Court specifically refers to this power of the Court. The Court
has already exercised this power on several occasions in the past (see, for example, 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. 28, para. 77).

      91. In the present case, having considered the terms of the provisional measures requested by
Armenia and the circumstances of the case, the Court finds that the measures to be indicated need
not be identical to those requested.

       92. The Court considers that, with regard to the situation described above, pending the final
decision in the case, Azerbaijan must, in accordance with its obligations under CERD, protect from
violence and bodily harm all persons captured in relation to the 2020 Conflict who remain in
detention, and ensure their security and equality before the law; take all necessary measures to
prevent the incitement and promotion of racial hatred and discrimination, including by its officials
and public institutions, targeted at persons of Armenian national or ethnic origin; and 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, monuments,
landmarks, cemeteries and artefacts.

       93. The Court takes full cognizance of the representation made by the Agent of Azerbaijan
during the oral proceedings regarding certain exhibits in the “Military Trophies Park”, namely that
mannequins depicting Armenian soldiers and displays of helmets allegedly worn by Armenian
soldiers during the 2020 Conflict have been permanently removed from the park and will not be
shown in the future (see paragraphs 25 and 65 above). In this regard, the Agent of Azerbaijan also
referred to two letters of 6 and 13 October 2021, whereby the Director of the “Military Trophies
Park” indicated that “all mannequins displayed at the Military Trophies Park . . . were removed on
October 1, 2021” and that, “on October 08, 2021 all helmets were removed from the Military
Trophies Park”. The Director of the “Military Trophies Park” further indicated that “[t]he
mannequins and helmets will not be displayed at the Military Trophy Park or the Memorial
Complex/Museum in the future”.

       94. The Court recalls that Armenia has requested it to indicate measures aimed at ensuring the
non-aggravation of the dispute with Azerbaijan. When it is indicating provisional measures for the
purpose of preserving specific rights, the Court may also indicate provisional measures with a view
to preventing the aggravation or extension of a dispute whenever it considers that the circumstances
so require (see, for example, Application of the International Convention on the Elimination of

                                                   - 28 -

All Forms of Racial Discrimination (Qatar v. United Arab Emirates), Provisional Measures, Order
of 23 July 2018, I.C.J. Reports 2018 (II), pp. 432-433, para. 76). In the present case, having
considered all the circumstances, in addition to the specific measures it has decided to order, the
Court deems it necessary to indicate an additional measure directed to both Parties and aimed at
ensuring the non-aggravation of their dispute.

       95. The Court further recalls that Armenia requested it to indicate provisional measures
directing Azerbaijan “to prevent the destruction and ensure the preservation of evidence related to
allegations of acts within the scope of CERD” and to provide regular reports on the implementation
of provisional measures. The Court, however, considers that, in the particular circumstances of the
case, these measures are not warranted.

                                                     *

                                               *            *

       96. The Court reaffirms that its “orders on provisional measures under Article 41 [of the
Statute] have binding effect” (LaGrand (Germany v. United States of America), Judgment,
I.C.J. Reports 2001, p. 506, para. 109) and thus create international legal obligations for any party to
whom the provisional measures are addressed.

                                                     *

                                               *            *

       97. The Court further reaffirms that the decision given in the present proceedings in no way
prejudges the question of the jurisdiction of the Court to deal with the merits of the case or any
questions relating to the admissibility of the Application or to the merits themselves. It leaves
unaffected the right of the Governments of Armenia and Azerbaijan to submit arguments in respect
of those questions.

                                                     *

                                               *            *

                                               - 29 -

      98. For these reasons,

      THE COURT,

      Indicates the following provisional measures:

     (1) The Republic of Azerbaijan shall, in accordance with its obligations under the International
Convention on the Elimination of All Forms of Racial Discrimination,

      (a) By fourteen votes to one,

      Protect from violence and bodily harm all persons captured in relation to the 2020 Conflict
who remain in detention, and ensure their security and equality before the law;

      IN FAVOUR:   President Donoghue; Vice-President Gevorgian; Judges Tomka, Abraham,
         Bennouna, Xue, Sebutinde, Bhandari, Robinson, Salam, Iwasawa, Nolte; Judges ad hoc
         Keith, Daudet;

      AGAINST: Judge Yusuf;

      (b) Unanimously,

      Take all necessary measures to prevent the incitement and promotion of racial hatred and
discrimination, including by its officials and public institutions, targeted at persons of Armenian
national or ethnic origin;

      (c) By thirteen votes to two,

     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,
monuments, landmarks, cemeteries and artefacts;

      IN FAVOUR:  President Donoghue; Vice-President Gevorgian; Judges Tomka, Abraham,
         Bennouna, Xue, Sebutinde, Bhandari, Robinson, Salam, Iwasawa, Nolte; Judge ad hoc
         Daudet;

      AGAINST: Judge Yusuf; Judge ad hoc Keith;

      (2) Unanimously,

      Both Parties shall refrain from any action which might aggravate or extend the dispute before
the Court or make it more difficult to resolve.

                                               - 30 -

      Done in French and in English, the French text being authoritative, at the Peace Palace,
The Hague, this seventh day of December, two thousand and twenty-one, in three copies, one of
which will be placed in the archives of the Court and the others transmitted to the Government of the
Republic of Armenia and the Government of the Republic of Azerbaijan, respectively.

                                                           (Signed)    Joan E. DONOGHUE,
                                                                            President.

                                                           (Signed)     Philippe GAUTIER,
                                                                             Registrar.

      Judge YUSUF appends a dissenting opinion to the Order of the Court; Judge IWASAWA appends
a declaration to the Order of the Court; Judge ad hoc KEITH appends a declaration to the Order of
the Court.

                                                                (Initialled)   J.E.D.

                                                                (Initialled)   Ph.G.

                                           ___________