September 5, 2024
By Isabelle Kapoian, under the guidance of Yelena Ambartsumian, Esq.
Armenian cultural heritage in Artsakh, a region where Armenian communities have existed ancestrally for centuries, is not safe. Considering Azerbaijan’s policies of erasure of countless churches, cemeteries, and other historically and culturally important constructions and artifacts, Armenia has turned to the International Court of Justice (ICJ) for relief through the Convention on the Elimination of All Forms of Racial Discrimination (CERD). In this precedential case, the ICJ issued a provisional measure binding Azerbaijan to cease its destruction of Armenian tangible cultural heritage. Though Armenia v. Azerbaijan is still pending before the ICJ (a public hearing was held in April of 2024), a judgment in Armenia’s favor could finally hold Azerbaijan accountable and carve a legal framework of relief for other marginalized groups facing state policies of cultural erasure.
The Present Case
In the South Caucasus, a region comprised of Georgia, Armenia, and Azerbaijan, a cultural genocide is underway. For decades, Azerbaijan has pursued an exclusive ethno-territorial state policy through ethnic cleansing and cultural destruction aimed at the eradication of the Armenian physical and historical presence. From 1997–2006 in exclave of Nakhichevan, which borders Armenia and Turkey, Azerbaijan expelled Nakhichevan’s Armenian population and destroyed 98 percent of its Armenian cultural heritage. This included the razing of medieval churches and tens of thousands of historic tombstones and ancient khachkars (intricately carved, free-standing cross-stones) without legal or political consequences.
Azerbaijan has continued this policy in Artsakh (also known as Nagorno Karabakh), a region where Armenian communities have lived for centuries. In September 2023, after enforcing an illegal nine-month blockade and military offensive against Artsakh, Azerbaijan military attacked Artsakh and succeeded in expelling its ethnic Armenian population, creating over 120,000 refugees and eradicating the Armenian presence that had existed there for at least two thousand years. Regarding Azerbaijan’s treatment of Armenian cultural heritage in Artsakh, thus far it has shelled the Holy Savior Ghazanchetsots Cathedral; destroyed churches including Zoravor Surb Astvatsatsin, St. Sargis, and St. Hovhannes; damaged museums; leveled the village of Karintak; desecrated and demolished khachkars (carved Armenian cross-stones); and razed cemeteries like Mets T’agher. Azerbaijan has additionally systematically erased distinctly Armenian elements, including inscriptions and symbols, from Armenian monuments through purported “restoration” (see: the Holy Savior Ghazanchetsots Cathedral) to falsely reclassify the monuments as exclusively Caucasian Albanian.
The threat of destruction for the remaining Armenian heritage in Artsakh is especially grave; the final vestige of the Armenian ancestral presence there is its cultural heritage—likely making it Azerbaijan’s next target. The threatened heritage includes an estimated 500 historical sites and 6,000 monuments—including the first Armenian-written-language school, the monastic complex of Dadivank established in the 9th century on the grave of the disciple Dadi, the 13th-century monastery Gandzasar, the Hellenistic city-ruins of Tigranakert, countless other churches and khachkars, and innumerable cultural objects that have informed Armenian cultural traditions for centuries.
UNESCO’s Inefficacy
The United Nations Educational, Scientific and Cultural Organization (UNESCO) has been unable to safeguard Armenian cultural heritage in Artsakh or Azerbaijan; its treaties generally lack “clear substantive rights to cultural heritage for individuals and communities” and do not penalize states for destroying cultural heritage. Of UNESCO’s cultural heritage treaties, some apply only during armed conflict (e.g., the 1954 Hague Convention and its Second Protocol), and fail to protect Armenian heritage during peacetime. However, Azerbaijan executed some of its most egregious policies of cultural destruction during a time of supposed “peace” when it almost completely eradicated the Armenian cultural heritage in Nakhichevan. UNESCO was additionally ineffectual when it proposed a mission in Artsakh to monitor the status of Armenian cultural sites after Azerbaijan’s initial military offensive in late 2020; however, Azerbaijan’s objection barred UNESCO’s Second Protocol Committee from conducting any fact-finding in the region.
Other treaties prioritize state sovereignty and require the consent of the Member State that houses the cultural heritage for UNESCO’s committees to assist in safeguarding the heritage (e.g., the Intangible Heritage Convention, and the World Cultural and Natural Heritage Convention). Because Azerbaijan will likely never request assistance to preserve Armenian heritage within its borders, other UN Member States cannot request to do so. Moreover, Artsakh is not a Member State that could itself consent to receive UNESCO assistance, so these treaties are ineffectual in protecting Armenian cultural heritage in the present situation.
Even if applicable, UNESCO cultural heritage instruments lack inhibitory consequences and enforcement mechanisms for offending states. In practice, the only consequences UNESCO can exercise against a state are to condemn the state’s actions publicly, to remove the state’s cultural heritage from UNESCO’s World Heritage List (though UNESCO has only ever delisted three sites), and to cease to provide the state with financial or technical assistance. However, the latter consequence incorrectly presupposes that Azerbaijan has an interest in allocating resources to preserving Armenian cultural heritage.
It would appear that, UNESCO has contributed to Azerbaijan’s artwashing by hosting the 2013 exhibit Azerbaijan – A Land of Tolerance at its Paris headquarters, naming Azerbaijan’s Vice President and First Lady, Mehriban Aliyeva, a Goodwill Ambassador, and hosting an annual World Heritage Committee session in Azerbaijan.
In the opinion of the authors, UNESCO is a biased actor complicit in Azerbaijan’s cultural destruction. UNESCO has inaccurately and detrimentally given equal weight to Armenia and Azerbaijan’s conduct regarding the conflict over Nagorno-Karabakh, engaging in both-sides-ism despite the two countries’ power differential.
Armenia’s Turn to the International Court of Justice through the CERD
In 2021, Armenia sought relief through the United Nations Convention on the Elimination of All Forms of Racial Discrimination (“the CERD”). The CERD is a human rights treaty adopted in 1965 that condemns and protects against racial discrimination based on, among other characteristics, national or ethnic origin. Both Armenia and Azerbaijan are signatories.
On September 16, 2021, Armenia instituted proceedings against Azerbaijan (Armenia v. Azerbaijan) and made a request for provisional measures before the International Court of Justice (“ICJ”) based on Azerbaijan’s alleged violations of the CERD. Armenia filed suit broadly on behalf of “individuals of Armenian ethnic or national origin (‘Armenians’).”
Armenia claims that Azerbaijan violated the CERD by “systematically destroying and falsifying Armenian cultural sites and heritage” in Artsakh. It argues that Article 5(e)(vi) of the CERD, which establishes the right to “equal participation in cultural activities” at all times, includes the “right to protection and preservation of Armenian historic, cultural, and religious heritage.” Armenia also requested provisional measures to enjoin Azerbaijan’s destruction and falsification of Armenian cultural heritage, the erasure of the Armenian historical presence, and the inhibition of Armenians’ access to and enjoyment of their cultural heritage.
The ICJ granted Armenia’s request for provisional measures on December 7, 2021, and was empowered to indicate provisional measures after finding that there was ”a real and imminent risk that irreparable prejudice will be caused to the rights [Armenia] claimed before the Court gives its final decision.” By a vote of thirteen to two (with Judge Abdulqawi Ahmed Yusuf of Somalia and ad hoc Judge Keith of New Zealand dissenting), the ICJ ruled that ”Azerbaijan shall [t]ake all necessary measures to prevent and punish [] vandalism and desecration affecting Armenian cultural heritage, including but not limited to churches and other places of worship, monuments, landmarks, cemeteries and art[i]facts[.]”
This proceeding is significant because it represents the first time that rights related to tangible cultural heritage have been brought before the ICJ through the CERD, and it is the only CERD proceeding in which the ICJ has granted a provisional measure to safeguard these rights and tangible cultural heritage.
Benefits and Shortcomings of CERD
The CERD has certain advantages for pursuing cultural heritage destruction claims. First, unlike other human rights treaties, the dispute alleging CERD violation could be heard by the ICJ without Azerbaijan’s consent (Article 22). In addition, Armenia was entitled to invoke Azerbaijan’s responsibilities under the CERD despite the harm having occurred outside of the Republic of Armenia’s territory (per Article 11).
There are, however, two major shortcomings. The first is enforceability: despite the December 7 provisional measure being binding on Azerbaijan, Azerbaijan has already violated it by destroying St. Sargis Church in 2022, the Halevor Bridge in 2023, and razing Kanach Zham Chapel, the village of Karintak, and Ghazanchetsots Cemetery last April. Therefore, under Article 94(2) of the UN Charter, Armenia “may have recourse to the Security Council . . . to give effect” to the provisional measure. The Security Council, however, has never invoked these powers. Second, this case will likely be lengthy; an ICJ decision on the merits can take several years. For example, Bosnia and Herzegovina v. Serbia and Montenegro took almost 14 years to reach a final decision. Ultimately, with the current speed at which Azerbaijan is destroying Armenian heritage, waiting for a final decision may be too late to save Armenian heritage on the territories controlled by Azerbaijan, if the provisional measures are not enforced.
The Path Forward
Though Armenia v. Azerbaijan is still pending before the ICJ, an enforced judgment in Armenia’s favor could help cease Azerbaijan’s cultural erasure and finally hold it accountable for decades of destruction. More significantly, though ICJ decisions only have binding force on the parties to the dispute, it may create persuasive case precedent that broadens the scope of the CERD’s right to “equal cultural participation in cultural activities” and carve a legal path of relief for marginalized groups facing cultural genocide. Although CERD proceedings must be filed with the ICJ through a Member State, it only takes one allied Member State to initiate a proceeding before the ICJ on behalf of a marginalized group facing state policies of cultural erasure. This legal framework may ultimately impress and redistribute the collective responsibility of nation-states to protect the world heritage of marginalized groups beyond their territory.
Suggested Readings & Media:
- Articles: Alexander Herman, A New Take on Cultural Heritage at the ICJ – Armenia v. Azerbaijan, Inst. Art & L. (Feb. 17, 2022), available here; Simon Maghakyan & Sarah Pickman, A Regime Conceals Its Erasure of Indigenous Armenian Culture, Hyperallergic (Feb. 18, 2019), available here.
- Reports: Caucasus Heritage Watch, December 2023 Report and June 2024 Report, available here.
- Lecture: The University of Chicago Department of Near Eastern Languages and Civilizations Dumanian Lecture Series, Towards an Armenian Futurism, organized by Sylvia Alajaji, featuring Mashinka Firunts Hakopian, Kamee Abrahamian, and Hrag Vartanian (May 20, 2021), available here.
- Book: Christina Maranci, The Art of Armenia: An Introduction (Oxford Univ. Press, 2018).
- Interactive Maps: Caucasus Heritage Watch, Map of Impacted Sites Identified during Satellite Monitoring, available here; Monument Watch, Map of Armenian Cultural Heritage, available here.
About the Authors
Isabelle Kapoian is a third-year student at Rutgers Law School with an undergraduate degree in economics with a concentration in global trade and finance, and minors in art and international affairs. At Rutgers Law, Isabelle is a member of the Jessup International Law Moot Court Team and Alternative Dispute Resolution Team and is an Associate Editor for the Rutgers Law Record Journal.
This article was researched and edited under the guidance of Yelena Ambartsumian, Esq. Yelena is a New York-based attorney and founder of AMBART LLC, a law firm that focuses on art, AI, privacy, and IP law. She has researched and authored several articles related to cultural heritage in Artsakh and the legal mechanisms that could, with enough political will, serve to safeguard such heritage.
Bibliography:
Disclaimer: This article is for educational purposes only and is not meant to provide legal advice. Readers should not construe or rely on any comment or statement in this article as legal advice. For legal advice, readers should seek an attorney.
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