Armenia’s Champion in World Court, Yeghishe Kirakosyan, Speaks in Massachusetts

“This is cynical, I know, it sounds very cynical,” said Kirakosyan. “That’s the country, it’s highly cynical, racist, autocraticy, or a dictatorship more directly, that makes the enforcement of international law harder. In any case, we continue pursuing this path,” he stated.

International Court of Justice

In addition to the ECHR, Armenia has also field claims in the International Court of Justice (ICJ), the main judicial body of the United Nations. The application at the ICJ is based specifically on the Convention for the Elimination of All Forms of Racial Discrimination.

Kirakosyan mentioned the hearings that have taken place at the Hague in relation to the case (see https://mirrorspectator.com/2022/09/15/center-for-truth-and-justice-makes-armenias-case-against-azerbaijan-at-united-nations/) and also pointed out the fact that his team filed a request for urgent provisional measures to preserve the rights of ethnic Armenians under the convention until the court can adjudicate the application.

The adjudication of the original application can take years, Kirakosyan said.

According to Kirakosyan, the highlight of this process were the hearings where his team presented their arguments underlying the original claim as well as the request for provisional measures. The primary issues included the treatment of POWs, the destruction of cultural heritage, the “Military Trophies Park” set up in Azerbaijan, and hate speech by public officials.

Kirakosyan noted in regard to the hate speech claim, that “when you follow the rhetoric [of] high ranking officials, it always has a racist and Armenophobic element in it. You can’t see any speech that doesn’t use some abusive words or statements,” continuing that Azerbaijani officials were “trying to perpetuate that thread of hatred in society.”

Fortunately, the evidentiary materials were of such a persuasive character, that the court granted most of the requests, including the requests on hate speech, destruction of cultural heritage, and rights of ethnic Armenians imprisoned in Azerbaijan.

The measure that the court can apply is to “oblige” both parties not to take any steps to further aggravate the dispute, according to Kirakosyan. He stated that since the decision on provisional measures was taken by the ICJ on December 7, 2021, his team has been following up and trying to observe how it’s been implemented.

Azerbaijan has been in breach often, Kirakosyan stated, and his team notifies the court about that. He stated that “multiple times we have notified the court, and during the recent attack we witnessed again a repetition of the same trait, capturing of POWs, horrific treatment, war crimes, crimes against humanity.”

Kirakosyan mentioned the acts by Azerbaijani military forces against Anush Apetyan and others as “the gruesome mutilation of deceased bodies, which is completely in contrast with any value set that international law provides today.”

A Crisis of Values

Kirakosyan suggested that “the problem with Azerbaijan, and globally too, and in the region, … [is] we are witnessing a little bit of a crisis of values today, which also makes the enforcement application of international law even more challenging. Not only are values in crisis, but countries or dictatorships like Azerbaijan are far away from the value set that has been established by the international community.”

He continued that, “I think it is partly also due to the fact that these countries also try to ‘fake’ that they are being good countries or law-abiding counties under international law, trying to mislead the international community.”

Kirakosyan further stated that what Armenia is trying to do is to point out the existing principles and norms of international law, and how Azerbaijan is violating them. After the September 13 attack, his team submitted a request to the court to establish a 3-judge committee to observe the implementation of the order. He stated that his team had requested this in March and are reiterating the request in the wake of the recent attacks.

The team is also asking the court to amend the existing order to extend it to protect new captives, given the current situation.

He stated that his team hopes to hear from the court soon, as in the past week they had been providing all the evidentiary materials they could find to the court, including information from media sources and videos that have been made available publicly.

The focus on the raw, unsettling video footage has been a way for Kirakosyan’s team to try to prove the urgency of the matter.

Kirakosyan states that he believes the legal proceedings are important in many respects, such as keeping a record and making Armenia’s voice heard through the international community, especially when there are public oral hearings. Another hearing will be held next year in relation to the claim at the ECHR, he states, and public hearings are helping to focus the attention of the international community.

Such public hearings and increasing international awareness will “add and create an additional pressure mechanism” which may pressure Azerbaijan to comply with some of its commitments under international law.

Azerbaijan Makes Claims Against Armenia

Kirakosyan added in a sidenote, that Azerbaijan has also made claims against Armenia. According to him, “the tactic that they are using is very simple, they are trying to mirror our claims, they are trying to mirror our steps and it’s a way of defending their interests. They try to create an image of a victim, which sounds way too cynical for recent events.”

Kirakosyan stated that he believes “there’s a need for the Armenian side to very systematically work in this regard in a very diligent manner, because the country’s attempts to falsify the facts are very well known,” stating that Azerbaijan uses tactics such as “meticulously structured educational programs” with “very precise messages and images of ethnic Armenians as evil.”

The advocate compared Azerbaijan’s falsification of human rights claims against Armenia to their tendency to engage in historical revisionism, in a way that bolsters their territorial claims. He stated that the attempts to “invent history, rewrite history, and falsify history,” go back to the early 20^th century, and that Azerbaijan is “trying diligently to erase any Armenian trace on the territories that they control,” including the destruction of khachkars, cemeteries, and any Armenian cultural artifacts, as well as their falsification as “Caucasian Albanian.”

Kirakosyan stated that the same tactics are present when dealing with the international arena, meaning that the work his team does is becoming even more challenging and difficult.

Current Status and Importance of the Case

Kirakosyan stated that the proceedings “are now at the level where we are presenting our main submission which encompasses the arguments Armenia is making and most of the evidentiary materials that we will be presenting to the courts.” He called the evidence “overwhelming.”

The case is highly important, Kirakosyan says, calling it “existential for the entire nation, in many respects.” That’s why pursuing the case is vital for the country.

He stated that the legal proceedings are important for reinforcing Armenia’s sovereignty, that Armenia is making its voice heard, and that it is making “a bold step for emphasizing its membership in the international community and its adherence to the values that have been created or should be governing the international community and should be governing relations between states.”

On the topic of values, Kirakosyan continued that “unfortunately, many countries today are forgetting those values and trying to tilt them. But still I think we need to not forget, because those values are fundamental, and the convention that Armenia has brought the case based on, is fundamental in this respect because [the Convention on the Elimination of All Forms of Racial Discrimination] is one the first human rights instruments adopted after the Second World War, in 1965.”

Kirakosyan further stated that he believes the Convention on the Elimination of All Forms of Racial Discrimination is tightly and logically connected with the Genocide Convention, because racist policies and racial hatred and animosity create a favorable atmosphere for the commission of the crime of genocide “and other heinous crimes against international law.”

“The fruits that we see, being committed against Armenian soldiers and civilians are the direct fruits of decades long hate propaganda.”

He added that, “I know that when countries go this far, it is very hard for them to change quickly. It’s impossible in a day or two or a month or a year. You need to work diligently, but it’s important for us to pressurize that because that makes [Armenia’s] position stronger.”

Question and Answer Session

The speech was followed by a question-and-answer session.

One question asked about the implications of the rulings: What happens if the courts rule for Armenia?

Kirakosyan replied that the enforcement mechanism of the ECHR is the political body of the Council of Europe, a council of ministers which holds regular meetings and to which Azerbaijan would be obliged to provide periodic updates. The execution of Cyprus v. Turkey judgement is quite old, but discussion still continues on this at the Council of Europe official meetings. Kirakosyan went on to state that although he is a realist and he knows that Turkey and Azerbaijan won’t readily implement judgements, that the judgements can be used politically to add pressure. It will be easier to convince the international community to take action, he said.

Another question was about whether Artsakh has standing in international court. The response was that although Artsakh does not, the Republic of Armenia has the standing to bring claims, even if those affected are living in Azerbaijan proper or in Artsakh. In fact, any country could bring claims against another country for mistreatment of ethnic minorities, he said.

Questions were asked about human rights agencies such as Amnesty International verifying the Armenian side’s claims. It was stated that these agencies are very important because being objective non-Armenian organizations, the value of their reports is higher. The Red Cross (ICRC) is acting impartially and helping POWs to communicate with families.

In relation to a question about statements made by the World Council of Churches at the behest of Bishop Vicken Aykazian and others, Kirakosyan stated that these statements were helpful, but the ICRC’s data is more important because they have the primary source of information on the ground.

A question was asked about US House of Representatives Speaker Nancy Pelosi and how much she knows about the situation. Kirakosyan replied that he believes she has been very well briefed and that he also briefed her personally. He added that he was meeting with the Armenian Embassy in the US to update them as well.

He noted that one immediate impact had been the court asking Azerbaijan to close down the Military Trophies Park. Although it was not closed down, the fallen soldiers’ helmets and some other things were removed, apparently.

Political scientist Professor Anna Ohanyan, who was present at the lecture, then commented that “there is ample evidence in political studies scholarship on small states, that small states should engage in normative entrepreneurship, which is exactly what you’re doing,” and asked Kirakosyan if he could comment on whether the war in Ukraine has affected his work and also what Armenia’s policy was on the International Criminal Court.

Kirakosyan responded that he didn’t think the Ukraine issue had any impact on the court case, unless it was negatively impacting it in some way since it takes away needed attention. He stated that ICJ reacted immediately to Ukraine based on the Genocide Convention, in contrast to the slow process with Armenia. He did note that the tendency of smaller or weaker states to use international law could “play the other way around” noting that the states currently doing this include Ukraine, Georgia, and Armenia.

Kirakosyan responded in regard to the International Criminal Court (ICC), that the Constitutional Court of Armenia found in 2004 that it was unconstitutional for Armenia to ratify the ICC statute, though the country had done so back in 1999. However, the Constitution of Armenia has changed twice since that time, and he now believes the statute on the International Criminal Court can and should be ratified by Armenia as it would “add an extra layer of protection.”

Kirakosyan’s response was that the tone of the international community is shifting, and that this means Armenia needs to be very careful, to build on that and not lose momentum. He stated that he also personally believes that the reason the world was silent during the 44-day war was that Armenians lost opportunities to work in this regard to prove that “our position was legally sound, or not baseless.”

Finally, a question was asked about the process of Remedial Secession. Remedial Secession is a disputed and rather new concept, coined in the past couple of decades, and used for the first time in the context of Kosovo. It is important to note that the UK started to use the phrase, as well as Russia, Germany, and France, lending it credence as an emerging concept in international law.

Kirakosyan argued that the idea of external self-determination (or remedial secession) is rooted in the documents of the United Nations and in the 1970 Declaration of the Principles of International Law. He argued that “if you try to unpack it” it can be seen that the seeming contradiction between Territorial Integrity and Self-Determination is not actually a contradiction. Kirakosyan states that if a case for remedial secession (external self-determination) can be made, it also resolves the territorial integrity issue, because the principle of territorial integrity is an element of the non-use of force principle enshrined in Article 2.4 of the UN Charter. This legal tension was resolved in an advisory opinion by the court in the Kosovo case, Kirakosyan stated. The principle of territorial integrity creates obligations only for member states of the United Nations (like Armenia and Azerbaijan) not for seceding states (like Artsakh). His point was that Artsakh’s secession from Azerbaijan does not infringe on “territorial integrity” because Artsakh does not (yet) have any obligation in regard to territorial integrity. Kirakosyan closed with a reference to a case on Quebec where a good example was given of the legal requirements needed to secede from another country under international law. According to Kirakosyan, one of the primary legal requirements is that an existential threat needs to be present.