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

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.

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 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”.

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:

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. 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:

   1. (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;

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

   3. (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;

   4. (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;

   5. (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. B. 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

Article 4

Article 5

Article 6

Article 7

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.

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 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.

* *

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.

* *

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”.

*

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 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.

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

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

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.

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 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.

*

* *

98. For these reasons, THE COURT,

Indicates the following provisional measures:

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

1. (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;

1. (a) 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;

1. (a) 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;

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

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.

I. INTRODUCTION

1. Although I have voted in favour of subparagraph (2) of paragraph 23 of the Order on Armenia's Request for the Modification of the Order of 7 December 2021 Indicating Provisional Measures, (dispositif) (“the present Order”), I respectfully disagree with the finding of the majority of the Court in subparagraph (1) that “the circumstances, as they now present themselves to the Court, are not such as to require the exercise of its powers to modify the measures indicated in the Order of 7 December 2021”. I accordingly voted against that subparagraph. I also disagree with the reasoning of the Court in paragraphs 12 to 19 of the present Order that led the majority to its conclusion. In my respectful opinion, the recent turn of events in September 2022 does constitute a change in the situation that warranted the indication of provisional measures in this case on 7 December 2021 and, as I shall demonstrate below, that change justifies a modification in the first provisional measure, along the lines requested by Armenia.

2. It will be recalled that Armenia has, through its various letters to the Court, requested that the first of the provisional measures indicated by the Court in its provisional measures Order of 7 December 2021 be modified to include those captured by Azerbaijan after the 2020 conflictFootnote ¹. It requests that the first provisional measure be modified by adding the following italicized words: “[p]rotect from violence and bodily harm all persons captured in relation to the 2020 Conflict, or any armed conflict between the Parties since that time, upon capture or thereafter, including those who remain in detention, and ensure their security and equality before the law”.

3. Armenia also requests that the Court confirm whether an ad hoc committee has been established for this case pursuant to Article 11 of the Resolution concerning the Internal Judicial Practice of the CourtFootnote ². Both requests were accompanied by allegations and evidence of Azerbaijan's non-compliance with the indicated provisional measuresFootnote ³.

4. Azerbaijan filed an initial response on 22 September 2022Footnote ⁴, inter alia, laying out its own allegations and evidence of Armenia's non-compliance with measures indicated for both this case and the provisional measures indicatedFootnote ⁵ for the related case of Azerbaijan v. Armenia Footnote ⁶. On 27 September 2022, Azerbaijan followed up with its written observations opposing the modification requested by Armenia on grounds that the latter had not demonstrated urgency, making additional allegations of Armenia's non-compliance, and presenting a proposal for the filing of periodic reports in order to facilitate compliance monitoring in both Armenia v. Azerbaijan and Azerbaijan v. Armenia Footnote ⁷.

5. In response, Armenia submitted a letter dated 29 September 2022, addressing Azerbaijan's four arguments on urgency and reiterating its request for modification. In this separate opinion, I will only address Armenia's request concerning the modification of the provisional measures indicated by the Court in its Order of 7 December 2021.

II. WHETHER THE SITUATION WARRANTING THE ORDER OF 7 DECEMBER 2021 HAS CHANGED

6. Under Article 76, paragraph 1, of the Rules of the Court, the Court may, at a party's request or proprio motu, “at any time before the final judgment in the case, revoke or modify any decision concerning provisional measures if, in its opinion, some change in the situation justifies such revocation or modification” (emphasis added). The Court therefore needs to assess whether the situation warranting the original provisional measures order has changed and, if so, whether that change justifies the modification requested.

7. In determining whether or not there has been a change in the situation underlying the Court's Order of 7 December 2021, it is necessary to appreciate the context in which that Order was issued. It will be recalled that the Court indicated the provisional measures contained in that Order following a particular conflict, namely, the so-called “Second Nagorno-Karabakh War” of September 2020Footnote ⁸ that lasted 44 days, and after the declaration of the ceasefire of 10 November 2020 pursuant to the Trilateral StatementFootnote ⁹. Armenia's request for the indication of the 2021 provisional measures was intended to secure protection of the CERD rights of specifically 45 named Armenian individuals that both Parties agreed had been captured by Azerbaijan in relation to the said Second Nagorno-Karabakh War and that remained in the Respondent's custody at that timeFootnote ¹⁰. Armenia identified those individuals as “prisoners of war and civilian detainees taken captive during the 2020 Conflict or in its aftermath”Footnote ¹¹. It was in respect of these 45 individuals that the Court “[found] 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”Footnote ¹². Accordingly, the provisional measures indicated concerned those particular individuals and not any other persons detained over the course of a tenuous relationship between the Parties spanning many years, much less those who would, hypothetically, be captured during some future flare-up, as the present Order now stipulatesFootnote ¹³. Similarly, the Court's reasoning and analysis of the evidence in the 7 December 2021 Order specifically dealt with allegations regarding the treatment of Armenian nationals held captive during the “September-November 2020 armed hostilities or their aftermath”Footnote ¹⁴. Moreover, the natural reading of the 2021 Order indicates that it was intended to be backward looking and specific to those who were still held in Azerbaijani custody at that time, as the text refers to “all persons captured in relation to the 2020 Conflict who remain in detention”Footnote ¹⁵ (emphasis added). In my respectful opinion, the 2021 Order has both a ratione personae limitation as well as a ratione temporis limitation, which limitations are, in my view, inconsistent with the reasoning and findings of the majority in paragraphs 18 and 19 of the present Order.

8. After careful consideration and analysis of the context and situation underlying the issuance of the 2021 provisional measures Order, I shall now consider the current context and circumstances in order to determine whether there has been a change in the situation. Despite disagreements as to the details, the Parties agree that there was a resumption of hostilities from 12 to 13 September 2022. This fact is also established through independent sources including remarks by the Assistant Secretary-General of the United Nations at the Security Council meeting on 15 September, which described the fighting as “the largest in a series of incidents since 2020”Footnote ¹⁶. The situation continues to be volatile. After agreeing to a ceasefire on the evening of 14 September, the Parties resumed clashes on 23 and 28 September, with each blaming the other for violating the ceasefireFootnote ¹⁷. Both Parties agree that, as a result of the September 2022 hostilities, more Armenian service personnel were captured and detained by Azerbaijan. Azerbaijan makes much ado about 17 Armenian nationals that it has repatriated since the renewed hostilities. It will be recalled however, that in its 7 December 2021 Order, the Court held that it “does not consider that CERD plausibly requires Azerbaijan to repatriate all persons identified by Armenia as prisoners of war and civilian detainees”Footnote ¹⁸. Thus, whilst Azerbaijan may be commended for its humanitarian stance in repatriating captured Armenian service personnel, such repatriation is not a legal obligation under the 2021 provisional measures. Rather, Azerbaijan's legal obligation relates to the treatment of each of the 45 identified Armenian prisoners and those who remain in Azerbaijani custody, in particular by “[p]rotect[ing] them from violence and bodily harm . . . and ensur[ing] their security and equality before the law”. Besides, Armenia, while acknowledging the repatriation of its servicemen, asserts that there is evidence that those repatriated had been subjected to torture and that Azerbaijan has other Armenians in its custody beside the 17, including at least six executed while detained and at least two who have not been returnedFootnote ¹⁹. In my view, the recent resurgence of hostilities, which broke the period of relative peace, and which led to fresh prisoners of war and probable death, constitutes a major change in the circumstances underlying the indication of the 2021 provisional measures.

III. WHETHER THE CHANGE JUSTIFIES THE MODIFICATION OF MEASURES

9. Armenia asserts that its request is a simple clarification of the Court's Order of 7 December 2021, which has become necessary “to avoid any ambiguity with respect to Azerbaijan's obligations vis-à-vis captured Armenian servicemen”Footnote ²⁰. According to Armenia, urgency is self-evident given the change in the situation, and the Court has already decided on the other elements required for the modification, including prima facie jurisdiction, plausibility of the asserted right, and the link between the right and the measure, all of which remain identical to those for the original provisional measure. Armenia also comments that the modification would cover conduct that already violates another provisional measure that requires both Parties to “refrain from any action which might aggravate or extend the dispute before the Court or make it more difficult to resolve”Footnote ²¹.

10. Azerbaijan only disputes the precondition of urgency and provides four arguments to support its positionFootnote ²². The first is that no one would be protected by the added language since it alleges that all the detainees captured during the 12-13 September 2022 hostilities have been repatriatedFootnote ²³. The second and third arguments are linked; they jointly state that there is no need to merely reiterate obligations that Azerbaijan already acknowledges and has been taking active steps to comply withFootnote ²⁴. The fourth argument is that the change is mischaracterized since Armenia is responsible for the resumption of hostilitiesFootnote ²⁵.

11. Armenia provides a response to each of Azerbaijan's arguments. In response to the first argument, it states that repatriation does not deny urgency, because there remains a real and imminent risk of repetition of Azerbaijan's conduct threatening the well-being of Armenian service members. In response to the second argument, Armenia notes that the Court did not accept the same representation as a defence in relation to detainees from the 2020 conflict who are no different from those captured recently. In response to the third argument, Armenia argues that remedial steps do not remove the urgency and that the alleged remedies are not leading to accountability. In response to the fourth argument, Armenia maintains both that the claim is false and that it would not justify abuse regardlessFootnote ²⁶.

12. For the Court to modify an existing provisional measure, the new situation must itself meet the general conditions laid down in Article 41 of the Statute of the Court. As correctly explained by Armenia and left undisputed by Azerbaijan, all elements of Article 41 (other than that of urgency which is disputed by Azerbaijan) have been considered and established in the original provisional measures OrderFootnote ²⁷. This section thus focuses solely on the question of urgency. The Court clarified in the 7 December 2021 Order that “[t]he 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”Footnote ²⁸. Based on this standard, I find this condition satisfied.

13. In the 2021 Order, the Court specifically took note of evidence supporting allegations of inhuman and degrading treatment and torture of Armenian prisoners of war to conclude that there was urgency for the measure in question. The evidence of abuse currently in front of the Court for the modification request, consisting primarily of videos and screenshots that Armenia alleges are being circulated on social media by Azerbaijani servicemen, is arguably less verified than what the Court had at hand during the original proceedingsFootnote ²⁹. Nevertheless, in light of the recent history of alleged abuse, the resumption of hostilities and the capture of additional Armenians provides sufficient reason to suspect that acts susceptible of causing irreparable prejudice could occur before the Court renders a final decision on the merits.

14. This conclusion would also be consistent with the Court's provisional measures Order. Two facts should be noted in this regard. First, the modification request is not Armenia's first attempt at expanding the temporal scope of the measure in question. During the proceedings on the request for provisional measures, Armenia requested that the measure cover individuals taken captive “during the 2020 Conflict or in its aftermath” Footnote ³⁰. This was also the formulation the Court used in finding a link between the plausible right asserted and the relevant provisional measureFootnote ³¹. That said, the Court ultimately adopted its own formulation referring to those “captured in relation to the 2020 Conflict”. Clearly, the Court decided not to refer to “the aftermath” of the conflict in order to limit the scope of coverage. That said, the Order does not preclude clarification or expansion, which appears to be justified as new hostilities have begun and additional servicemen were captured. This view is further supported by the fact that conduct that would be governed by the modified language would likely also violate the provisional measure to refrain from actions that may aggravate or extend the dispute before the Court.

15. Second, Azerbaijan's four arguments either follow the same line of logic it used in the original provisional measures proceedings or are irrelevant for evaluating urgency. The first three, with minor variation in the factual details asserted, replicate Azerbaijan's previous claims, based on which the Court still concluded that the measure in question was warrantedFootnote ³². The fourth argument of fault is not relevant. Urgency is about the possibility of irreparable prejudice newly created by the changed circumstance, not the question of responsibility for this change. In my view, the Court should stand by its original decision that urgency exists despite Azerbaijan's representations.

IV. CONCLUSION

16. In conclusion, I am of the view that there has been a change of circumstances and the change justifies the requested modification.

17. As to the language of the revised Order, I propose the following modification to subparagraph (1) (a) of paragraph 98 of the Order of 7 December 2021: “Protect from violence and bodily harm all persons captured in relation to the 2020 Conflict and subsequent hostilities between the Parties, including those who remain in detention, and ensure their security and equality before the law.”

(Signed)   Julia SEBUTINDE.

I. INTRODUCTION

13. Azerbaijan and Armenia, both of which were Republics of the former Union of Soviet Socialist Republics, declared independence on 18 October 1991 and 21 September 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 Azerbaijan calls “the Second Garabagh War” and Armenia calls “the Second Nagorno- Karabakh 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

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

41. 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).

42. At this stage of the proceedings, however, the Court is not called upon to determine definitively whether the rights which Azerbaijan wishes to see protected exist; it need only decide whether the rights claimed by Azerbaijan 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).

* *

43. In the present proceedings, Azerbaijan asserts rights under Articles 2, 3, 4, 5, 6 and 7 of CERD. In particular, Azerbaijan argues that “Armenia's policies and practices target Azerbaijanis for discriminatory treatment falling within the scope of Article 1 (1) and in violation of Articles 2, 3, 4, 5, 6, and 7 of CERD”. Azerbaijan thus considers that its rights under these provisions of CERD are plausible and that Armenia's acts plausibly constitute racial discrimination in violation of its obligations under CERD.

44. Azerbaijan contends more specifically that by laying mines, including in the course of the 2020 Conflict, in civilian areas previously inhabited by ethnic Azerbaijanis, Armenia has deliberately made it impossible for them to return to their homes. Azerbaijan further contends that Armenia continues to plant landmines and intentionally withholds comprehensive and accurate information about mine placement. Azerbaijan asserts that the laying of landmines and the alleged refusal to share information about their location are part of a longstanding campaign of “ethnic cleansing” by Armenia which constitutes “racial discrimination” under the definition set out in Article 1, paragraph 1, of CERD, and violates the rights of ethnic Azerbaijanis under this Convention in so far as it has both the purpose and effect of nullifying or impairing, for example, the right not to be arbitrarily deprived of life, the right to liberty and security of person and the right to liberty of movement and freedom to choose one's residence. Azerbaijan thus submits that the rights it asserts under CERD with regard to the laying of landmines by Armenia are plausible.

45. Azerbaijan notes that Armenia has neither condemned the activities within its territory of armed ethnonationalist hate groups, such as VoMA, that are said to incite violence against ethnic Azerbaijanis, including through social media, nor punished those involved in such activities. Azerbaijan cites, for example, anti-Azerbaijani propaganda disseminated by VoMA on social media, referring to persons of Azerbaijani national or ethnic origin pejoratively as “Turks” or “Caspian Turks”, and referring to Azerbaijan as the “Caspian Threat”, which should be “liquidat[ed]”. According to Azerbaijan, VoMA claims that its personnel has “work[ed] in close cooperation with [Armenia's] Armed Forces and received a commendation by the command”. Moreover, Azerbaijan considers that, by failing to condemn or prohibit anti-Azerbaijani paramilitary groups, Armenia has allowed those groups to proliferate. In this regard, it also refers to the group “Statehood as National Value” (hereinafter “POGA”) which apparently began organizing military training programmes in March 2021. In addition, Azerbaijan asserts that the Government of Armenia is responsible for an “ongoing anti-Azerbaijani cyber disinformation campaign”. According to Azerbaijan, by not condemning or prohibiting the operations of VoMA, POGA and similar groups, by glorifying the racist ideology used to target persons of Azerbaijani national or ethnic origin and by engaging, at a governmental level, in a cyber disinformation campaign in an attempt “to stoke ethnic tensions between Azerbaijanis and Armenians”, Armenia is infringing the rights guaranteed by Articles 2, 4, 5 and 7 of CERD.

*

46. With respect to Azerbaijan's claim relating to Armenia's supposed “policy and practice” of laying landmines, Armenia contends that Azerbaijan has no plausible rights under CERD because “landmines, by their nature, do not engage in ethnic discrimination”. Moreover, according to Armenia, there is no evidence that it ever used mines to target persons of Azerbaijani ethnic origin. It asserts that the laying of mines in areas in and around Nagorno-Karabakh was not for the purpose of racial discrimination but for the purpose of military defence. Armenia states that it has already provided maps to Azerbaijan and its Agent announced that it “stand[s] ready to provide any more maps in [its] possession regarding minefields located behind the lines currently held by Azerbaijani armed forces, which now present solely humanitarian concerns”.

47. Regarding Azerbaijan's allegations that the Respondent has neither condemned nor punished the activities within its territory of armed ethnonationalist hate groups, Armenia observes that the groups in question are not State entities and that it has not endorsed, nor does it endorse or condone, the rhetoric of these organizations. Armenia asserts that Azerbaijan's alleged rights in this regard are not plausible in so far as the private speech that Azerbaijan has cited does not constitute speech against which CERD provides protection. Moreover, Armenia refers to the wording of Article 4 of CERD, which requires States parties to take measures to eradicate acts of discrimination “with due regard to the principles embodied in the Universal Declaration of Human Rights and the rights expressly set forth in article 5 of [the] Convention”. Armenia notes that these rights include the right to freedom of expression and freedom of association contained in Article 5 (d) of CERD. According to Armenia, the evidence before the Court does not establish that the organizations in question seek to incite racial hatred in such a way that the Government of Armenia would be required to prevent their speech and, thus, Armenia considers that the rights that Azerbaijan seeks to protect are not plausible.

48. Armenia adds that Azerbaijan has not demonstrated that Armenia is engaging in cyber disinformation operations to incite anti-Azerbaijani hate and concludes that the “rights for which Azerbaijan seeks protection through the second part of its third request are therefore not plausible”.

* *

49. 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:

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

“Article 2

1. 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:

   1. (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;

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

   3. (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;

   4. (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;

   5. (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. 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

Article 4

Article 5

Article 6

Article 7

50. 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).

51. 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.

52. The Court considers, on the basis of the information presented to it by the Parties, that at least some of the rights claimed by Azerbaijan are plausible rights under the Convention. This is the case, with respect to rights allegedly violated through Armenia's failure to condemn the activities within its territory of groups that, according to Azerbaijan, are armed ethnonationalist hate groups that incite violence against ethnic Azerbaijanis, and to punish those responsible for such activities.

53. With regard to rights under CERD asserted by Azerbaijan with respect to Armenia's alleged conduct in relation to landmines, the Court recalls that Azerbaijan claims that this conduct is part of a longstanding campaign of ethnic cleansing. The Court recognizes that a policy of driving persons of a certain national or ethnic origin from a particular area, as well as preventing their return thereto, can implicate rights under CERD and that such a policy can be effected through a variety of military means. However, the Court does not consider that CERD plausibly imposes any obligation on Armenia to take measures to enable Azerbaijan to undertake demining or to cease and desist from planting landmines. Azerbaijan has not placed before the Court evidence indicating that Armenia's alleged conduct with respect to landmines has “the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing”, of rights of persons of Azerbaijani national or ethnic origin.

* *

54. The Court now turns to the condition of the link between the rights claimed by Azerbaijan 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 Azerbaijan 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 Azerbaijan.

* *

55. Azerbaijan considers that each of the provisional measures requested is clearly linked to the rights for which it seeks protection. In particular, with regard to the measure requesting that Armenia be ordered to prevent certain groups from engaging in hate speech, and to cease and desist from its alleged ongoing cyber disinformation campaign, Azerbaijan asserts that this is aimed at protecting ethnic Azerbaijanis from racist hate speech and the risk of ethnic violence and therefore are directly linked to the rights asserted by Azerbaijan under CERD.

*

56. Armenia maintains, in general, that the measures requested by Azerbaijan have no link to rights of Azerbaijan arising under CERD.

* *

57. The Court has already found that at least some of the rights claimed by Azerbaijan under CERD are plausible (see paragraph 52 above). It considers that a link exists between one of the measures requested by Azerbaijan (see paragraphs 5 and 11 above) and the plausible rights it seeks to protect. This is the case for the measure aimed at ensuring that any organizations and private persons in the territory of Armenia do not engage in the incitement and promotion of racial hatred and racially motivated violence targeted at people of Azerbaijani national or ethnic origin. This measure, in the view of the Court, is directed at safeguarding plausible rights invoked by Azerbaijan under CERD.

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

IV. RISK OF IRREPARABLE PREJUDICE AND URGENCY

59. 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).

60. 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.

61. 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.

* *

62. Azerbaijan submits that Armenia has incited and continues to incite hatred and violence against persons of Azerbaijani national or ethnic origin by permitting armed hate groups to recruit members, raise funds, and operate training centres. It claims in particular that VoMA, whose stated aim is “to create an entirely ethnic Armenian ‘Nation Army’ and to ready the mono-ethnic Armenian State against the perceived ‘threat’ of Azerbaijanis”, uses fear and hatred of persons of Azerbaijani national or ethnic origin as a recruiting tool, regularly disseminates messages of racial superiority, and arms and trains Armenians for an ethnic war against persons of Azerbaijani national or ethnic origin. Azerbaijan adds that the threat of violence is exacerbated by “growing calls to arms” by VoMA, which, in its most recent activity report for September 2021, stated that it had trained dozens of people and instructors across Armenia and had solicited donations for vehicles and “arms for weapons practice and protection in the populated areas along the borders”. Azerbaijan adds that, by not condemning or prohibiting anti-Azerbaijani paramilitary groups, Armenia has allowed groups, such as VoMA and POGA, which apparently began organizing military training programmes in March 2021 to prepare Armenians for war, to proliferate within its territory. Azerbaijan considers that there is an urgent need to protect Azerbaijanis from continued hate speech and violence on account of their national or ethnic origin and that the emotional effects of this constant threat of violence can cause an irreparable prejudice to their rights.

*

63. Armenia denies that there exists an imminent risk of irreparable prejudice to the rights of Azerbaijan with respect to its “allegations of incitement of ethnic hatred and violence through an alleged failure to sanction or punish so-called armed hate groups”. Armenia contends that the objectives of these organizations have nothing to do with incitement of racial hatred and racially motivated violence targeted at persons of Azerbaijani national or ethnic origin. In particular, Armenia states that VoMA is a non-governmental organization engaged in emergency and civil-military defence preparedness, education and training, which aims to “raise the spirits of the Armenian people”. Armenia further references the obligation to respect the right of freedom of opinion and expression when considering the reach of Article 4 of CERD, and observes that statements must be of an “exceptionally/manifestly offensive character” (emphasis in the original) to fall outside the protection of the “due regard” clause in Article 4. With respect to the statements made by VoMA, Armenia acknowledges that they could be considered as nationalistic, patriotic, and sometimes offensive and even controversial, but it denies that these statements could be viewed as an incitement to ethnic hatred and violence against an ethnic group. Therefore, the Respondent asserts that Azerbaijan has neither demonstrated that Armenia has allowed militant hate groups — such as, according to Azerbaijan, VoMA and POGA — to proliferate, nor provided evidence of incitement of racial hatred imputable to these or similar organizations. Consequently, Azerbaijan has failed to establish an imminent risk of irreparable prejudice.

* *

64. 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.

65. 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.

66. 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. 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.

67. In light of the considerations set out above, the Court concludes that the alleged disregard of the rights deemed plausible by the Court (see paragraph 52 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.

V. CONCLUSION AND MEASURES TO BE ADOPTED

68. 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 Azerbaijan, as identified above (see paragraph 52).

69. 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).

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

71. The Court considers that, with regard to the situation described above, Armenia must, pending the final decision in the case and in accordance with its obligations under CERD, take all necessary measures to prevent the incitement and promotion of racial hatred, including by organizations and private persons in its territory, targeted at persons of Azerbaijani national or ethnic origin.

72. The Court recalls that Azerbaijan has requested it to indicate measures aimed at ensuring the non-aggravation of the dispute with Armenia. 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 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 measure 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.

73. The Court further recalls that Azerbaijan requested it to indicate provisional measures directing Armenia to “take effective measures to collect, to prevent the destruction and ensure the preservation of, evidence related to allegations of ethnically-motivated crimes against Azerbaijanis” 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.

*

* *

74. 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.

*

* *

75. 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 Azerbaijan and Armenia to submit arguments in respect of those questions.

*

* *

76. For these reasons,

The Court,

Indicates the following provisional measures:

(1) Unanimously,

The Republic of Armenia shall, in accordance with its obligations under the International Convention on the Elimination of All Forms of Racial Discrimination, take all necessary measures to prevent the incitement and promotion of racial hatred, including by organizations and private persons in its territory, targeted at persons of Azerbaijani national or ethnic origin;

(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.

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 Azerbaijan and the Government of the Republic of Armenia, respectively.

(Signed)   Joan E. Donoghue, President.

(Signed)   Philippe Gautier, Registrar.

Judge IWASAWA appends a declaration to the Order of the Court.

(Initialled)   J.E.D.

(Initialled)   Ph.G.

I. INTRODUCTION

17. The context in which the present case comes before the Court is well-known. On 24 February 2022, the President of the Russian Federation, Mr. Vladimir Putin, declared that he had decided to conduct a “special military operation” against Ukraine. Since then, there has been intense fighting on Ukrainian territory, which has claimed many lives, has caused extensive displacement and has resulted in widespread damage. The Court is acutely aware of the extent of the human tragedy that is taking place in Ukraine and is deeply concerned about the continuing loss of life and human suffering.

18. The Court is profoundly concerned about the use of force by the Russian Federation in Ukraine, which raises very serious issues of international law. The Court is mindful of the purposes and principles of the United Nations Charter and of its own responsibilities in the maintenance of international peace and security as well as in the peaceful settlement of disputes under the Charter and the Statute of the Court. It deems it necessary to emphasize that all States must act in conformity with their obligations under the United Nations Charter and other rules of international law, including international humanitarian law.

19. The ongoing conflict between the Parties has been addressed in the framework of several international institutions. The General Assembly of the United Nations adopted a resolution referring to many aspects of the conflict on 2 March 2022 (doc. A/RES/ES-11/1). The present case before the Court, however, is limited in scope, as Ukraine has instituted these proceedings only under the Genocide Convention.

*

20. The Court regrets the decision taken by the Russian Federation not to participate in the oral proceedings on the request for the indication of provisional measures, as set out in the above-mentioned letter of 5 March 2022 (see paragraph 12 above).

21. The non-appearance of a party has a negative impact on the sound administration of justice, as it deprives the Court of assistance that a party could have provided to it. Nevertheless, the Court must proceed in the discharge of its judicial function at any phase of the case (Arbitral Award of 3 October 1899 (Guyana v. Venezuela), Jurisdiction of the Court, Judgment, I.C.J. Reports 2020, p. 464, para. 25; Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Merits, Judgment, I.C.J. Reports 1986, p. 23, para. 27).

22. Though formally absent from the proceedings, non-appearing parties sometimes submit to the Court letters and documents in ways and by means not contemplated by its Rules (Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Merits, Judgment, I.C.J. Reports 1986, p. 25, para. 31). It is valuable for the Court to know the views of both parties in whatever form those views may have been expressed (ibid.). The Court will therefore take account of the document communicated by the Russian Federation on 7 March 2022 to the extent that it finds this appropriate in discharging its duties.

23. The Court recalls that the non-appearance of one of the States concerned cannot by itself constitute an obstacle to the indication of provisional measures (United States Diplomatic and Consular Staff in Tehran (United States of America v. Iran), Provisional Measures, Order of 15 December 1979, I.C.J. Reports 1979, p. 13, para. 13). It emphasizes that the non-participation of a party in the proceedings at any stage of the case cannot, in any circumstances, affect the validity of its decision (cf. Arbitral Award of 3 October 1899 (Guyana v. Venezuela), Jurisdiction of the Court, Judgment, I.C.J. Reports 2020, p. 464, para. 26; Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Merits, Judgment, I.C.J. Reports 1986, p. 23, para. 27). Should the present case extend beyond the current phase, the Russian Federation, which remains a Party to the case, will be able, if it so wishes, to appear before the Court to present its arguments (Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Merits, Judgment, I.C.J. Reports 1986, pp. 142-143, para. 284).

II. PRIMA FACIE JURISDICTION

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

50. 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).

51. At this stage of the proceedings, however, the Court is not called upon to determine definitively whether the rights which Ukraine wishes to see protected exist; it need only decide whether the rights claimed by Ukraine 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).

* *

52. In the present proceedings, Ukraine argues that it seeks provisional measures to protect its rights “not to be subject to a false claim of genocide”, and “not to be subjected to another State's military operations on its territory based on a brazen abuse of Article I of the Genocide Convention”. It states that the Russian Federation has acted inconsistently with its obligations and duties, as set out in Articles I and IV of the Convention.

53. Ukraine contends that it has a right to demand good faith performance of obligations under the Genocide Convention by the Russian Federation, in accordance with the object and purpose of the Convention. It states that the Russian Federation has abused and misused the rights and duties stipulated in the Convention and that the “special military operation” of the Respondent is an aggression undertaken “under the guise” of the duty to prevent and punish genocide, enshrined in Articles I and IV of the Convention, and that it frustrates the object and purpose of the Convention.

54. The Applicant further submits that it has a right under the Convention not to be harmed by the Russian Federation's misuse and abuse of the Convention. It considers in particular that it has a right not to suffer grave harm as a result of a military action falsely cloaked as one undertaken to prevent and punish genocide.

55. Ukraine asserts that the above-mentioned rights are grounded in a possible interpretation of the Genocide Convention and are therefore plausible.

* *

56. The Court observes that, in accordance with Article I of the Convention, all States parties thereto have undertaken “to prevent and to punish” the crime of genocide. Article I does not specify the kinds of measures that a Contracting Party may take to fulfil this obligation. However, the Contracting Parties must implement this obligation in good faith, taking into account other parts of the Convention, in particular Articles VIII and IX, as well as its Preamble. Pursuant to Article VIII of the Convention, a Contracting Party that considers that genocide is taking place in the territory of another Contracting Party “may call upon the competent organs of the United Nations to take such action under the Charter of the United Nations as they consider appropriate for the prevention and suppression of acts of genocide or any of the other acts enumerated in article III”. In addition, pursuant to Article IX, such a Contracting Party may submit to the Court a dispute relating to the interpretation, application or fulfilment of the Convention.

57. A Contracting Party may resort to other means of fulfilling its obligation to prevent and punish genocide that it believes to have been committed by another Contracting Party, such as bilateral engagement or exchanges within a regional organization. However, the Court emphasizes that, in discharging its duty to prevent genocide, “every State may only act within the limits permitted by international law”, as was stated in a previous case brought under the Convention (Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, I.C.J. Reports 2007 (I), p. 221, para. 430).

58. The acts undertaken by the Contracting Parties “to prevent and to punish” genocide must be in conformity with the spirit and aims of the United Nations, as set out in Article 1 of the United Nations Charter. In this regard, the Court recalls that, under Article 1 of the United Nations Charter, the purposes of the United Nations are, inter alia,

59. The Court can only take a decision on the Applicant's claims if the case proceeds to the merits. At the present stage of the proceedings, it suffices to observe that the Court is not in possession of evidence substantiating the allegation of the Russian Federation that genocide has been committed on Ukrainian territory. Moreover, it is doubtful that the Convention, in light of its object and purpose, authorizes a Contracting Party's unilateral use of force in the territory of another State for the purpose of preventing or punishing an alleged genocide.

60. Under these circumstances, the Court considers that Ukraine has a plausible right not to be subjected to military operations by the Russian Federation for the purpose of preventing and punishing an alleged genocide in the territory of Ukraine.

* *

61. The Court now turns to the condition of the link between the rights claimed by Ukraine and the provisional measures requested.

* *

62. Ukraine claims that there is a clear link between the plausible rights that it seeks to preserve and the first two provisional measures that it requests. In particular, the first two provisional measures share a direct link to Ukraine's right under Article I to good faith performance of the Convention by any State party.

* *

63. The Court has already found that Ukraine is asserting a right that is plausible under the Genocide Convention (see paragraphs 50-60 above). The Court considers that, by their very nature, the first two provisional measures sought by Ukraine (see paragraph 14 above) are aimed at preserving the right of Ukraine that the Court has found to be plausible. As to the third and fourth provisional measures requested by Ukraine, the question of their link with that plausible right does not arise, in so far as such measures would be directed at preventing any action which may aggravate or extend the existing dispute or render it more difficult to resolve, and at providing information on the compliance with any specific provisional measure indicated by the Court (cf. 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. 61).

64. The Court concludes, therefore, that a link exists between the right of Ukraine that the Court has found to be plausible and the requested provisional measures.

IV. RISK OF IRREPARABLE PREJUDICE AND URGENCY

65. 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, ibid., 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).

66. 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., para. 65). The Court must therefore consider whether such a risk exists at this stage of the proceedings.

67. 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 obligations under the Genocide Convention, but to determine whether the circumstances require the indication of provisional measures for the protection of the right found to be plausible. 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.

* *

68. Ukraine submits that there is an urgent need to protect its people from the irreparable harm caused by the Russian Federation's military measures that have been launched on a pretext of genocide. It emphasizes that the invasion by the Russian Federation has resulted in numerous casualties among Ukrainian civilians and military personnel, the bombing of numerous cities across Ukraine, and the displacement of over one and a half million Ukrainian civilians both within Ukraine and across its international borders.

69. Ukraine asserts that, in assessing whether the condition of urgency is satisfied in cases involving ongoing conflict, the Court typically considers whether the population at risk is particularly vulnerable, the fragility of the overall situation, including the likelihood of aggravation of the dispute, and the risk of reoccurrence of harm. Ukraine submits that the Court has frequently stated that loss of life constitutes an irreparable harm.

70. In this regard, Ukraine contends that thousands of people have already been killed in the conflict and that, with every day that passes, more lives will be lost and probably at an accelerating rate. It argues that the refugee crisis is another example of irreparable harm, pointing to the uncertainty that these displaced individuals will ever be able to return to their homes and the lasting psychological trauma the conflict will cause them even if they are resettled. It emphasizes that the population is extremely vulnerable, with many lacking food, electricity and water; that the overall situation is extremely fragile; and that the risk of aggravation of the crisis is acute. Ukraine further asserts that the Russian Federation's military action poses grave environmental risks, not only to Ukraine but also for the wider region, referring in particular to the dangers posed to Ukraine's civil nuclear industry and toxic smoke released by attacks on fuel depots.

71. Ukraine submits that the seriousness of the situation unambiguously satisfies the conditions of irreparable harm and urgency necessary for the imposition of provisional measures.

*

72. The Russian Federation, for its part, submits that, contrary to what Ukraine asserts, the urgency must pertain not to the situation in general but to the protection of rights provided for by the Convention.

* *

73. Having previously determined that Ukraine can plausibly assert a right under the Genocide Convention and that there is a link between this right and the provisional measures requested, the Court now considers whether irreparable prejudice could be caused to this right and whether there is urgency, in the sense that there is a real and imminent risk that irreparable prejudice will be caused to this right before the Court gives its final decision.

74. The Court considers that the right of Ukraine that it has found to be plausible (see paragraph 60 above) is of such a nature that prejudice to it is capable of causing irreparable harm. Indeed, any military operation, in particular one on the scale carried out by the Russian Federation on the territory of Ukraine, inevitably causes loss of life, mental and bodily harm, and damage to property and to the environment.

75. The Court considers that the civilian population affected by the present conflict is extremely vulnerable. The “special military operation” being conducted by the Russian Federation has resulted in numerous civilian deaths and injuries. It has also caused significant material damage, including the destruction of buildings and infrastructure. Attacks are ongoing and are creating increasingly difficult living conditions for the civilian population. Many persons have no access to the most basic foodstuffs, potable water, electricity, essential medicines or heating. A very large number of people are attempting to flee from the most affected cities under extremely insecure conditions.

76. In this regard, the Court takes note of resolution A/RES/ES-11/1 of 2 March 2022, of the General Assembly of the United Nations, which, inter alia, “[e]xpress[es] grave concern at reports of attacks on civilian facilities such as residences, schools and hospitals, and of civilian casualties, including women, older persons, persons with disabilities, and children”, “[r]ecogniz[es] that the military operations of the Russian Federation inside the sovereign territory of Ukraine are on a scale that the international community has not seen in Europe in decades and that urgent action is needed to save this generation from the scourge of war”, “[c]ondemn[s] the decision of the Russian Federation to increase the readiness of its nuclear forces” and “[e]xpress[es] grave concern at the deteriorating humanitarian situation in and around Ukraine, with an increasing number of internally displaced persons and refugees in need of humanitarian assistance”.

77. In light of these circumstances, the Court concludes that disregard of the right deemed plausible by the Court (see paragraph 60 above) could cause irreparable prejudice to this right 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.

V. CONCLUSION AND MEASURES TO BE ADOPTED

78. 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 right of Ukraine that the Court has found to be plausible (see paragraph 60 above).

79. 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).

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

81. The Court considers that, with regard to the situation described above, the Russian Federation must, pending the final decision in the case, suspend the military operations that it commenced on 24 February 2022 in the territory of Ukraine. In addition, recalling the statement of the Permanent Representative of the Russian Federation to the United Nations that the “Donetsk People's Republic” and the “Lugansk People's Republic” had turned to the Russian Federation with a request to grant military support, the Court considers that the Russian Federation must also ensure that any military or irregular armed units which may be directed or supported by it, as well as any organizations and persons which may be subject to its control or direction, take no steps in furtherance of these military operations.

82. The Court recalls that Ukraine also requested it to indicate measures aimed at ensuring the non-aggravation of the dispute with the Russian Federation. When it indicates 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 the dispute if it considers that the circumstances so require (see, for example, Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Armenia v. Azerbaijan), Provisional Measures, Order of 7 December 2021, para. 94; Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Azerbaijan v. Armenia), Provisional Measures, Order of 7 December 2021, para. 72). 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 the dispute.

83. The Court further recalls that Ukraine requested it to indicate a provisional measure directing the Russian Federation to “provide a report to the Court on measures taken to implement the Court's Order on Provisional Measures one week after such Order and then on a regular basis to be fixed by the Court”. In the circumstances of the present case, however, the Court declines to indicate this measure.

*

* *

84. 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.

*

* *

85. 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 Ukraine and of the Russian Federation to submit arguments in respect of those questions.

*

* *

86. For these reasons,

The Court,

Indicates the following provisional measures:

(1) By thirteen votes to two,

The Russian Federation shall immediately suspend the military operations that it commenced on 24 February 2022 in the territory of Ukraine;

IN FAVOUR: President Donoghue; Judges Tomka, Abraham, Bennouna, Yusuf, Sebutinde, Bhandari, Robinson, Salam, Iwasawa, Nolte, Charlesworth; Judge ad hoc Daudet;

AGAINST: Vice-President Gevorgian; Judge Xue;

(2) By thirteen votes to two,

The Russian Federation shall ensure that any military or irregular armed units which may be directed or supported by it, as well as any organizations and persons which may be subject to its control or direction, take no steps in furtherance of the military operations referred to in point (1) above;

IN FAVOUR: President Donoghue; Judges Tomka, Abraham, Bennouna, Yusuf, Sebutinde, Bhandari, Robinson, Salam, Iwasawa, Nolte, Charlesworth; Judge ad hoc Daudet;

AGAINST: Vice-President Gevorgian; Judge Xue;

(3) 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.

Done in English and in French, the English text being authoritative, at the Peace Palace, The Hague, this sixteenth day of March, two thousand and twenty-two, in three copies, one of which will be placed in the archives of the Court and the others transmitted to the Government of Ukraine and the Government of the Russian Federation, respectively.

(Signed) Joan E. DONOGHUE, President.

(Signed) Philippe GAUTIER, Registrar.

Vice-President GEVORGIAN appends a declaration to the Order of the Court; Judges BENNOUNA and XUE append declarations to the Order of the Court; Judge ROBINSON appends a separate opinion to the Order of the Court; Judge NOLTE appends a declaration to the Order of the Court; Judge ad hoc DAUDET appends a declaration to the Order of the Court.

(Initialled) J.E.D.

(Initialled) Ph.G.

The first element of the dispute

7. There is an abundance of evidence showing that Russia alleged breaches of the Genocide Convention by Ukraine and denials by Ukraine of those allegations. These allegations were either made expressly or arose by implication from the context in which they were made. Indeed, it is settled that there is no need for parties to refer to a particular treaty in order for a dispute to exist between them under that treaty, although it must be clear to the respondent that there is a dispute relating to the subject-matter of the treatyFootnote ⁶.

8. The Investigative Committee of the Russian Federation is an official Russian agency in charge of federal criminal prosecutions and reports directly to the President of the Russian Federation. The Investigative Committee opened an inquiry into “the genocide of the Russian-speaking population” living in the Luhansk and Donetsk oblasts. In September 2014, the Committee found that

It may be observed that this finding has implications for the specific requirement in the Genocide Convention of an intent “to destroy, in whole . . ., a national, ethnic, racial or religious group” and obviously indicates that Russia's attention was focused on whether the purported acts of Ukraine fell under the Genocide Convention. In January 2015, the Committee found that acts carried out by the Ukrainian military constituted crimes under the 1948 Convention. In September 2017, the Committee announced criminal proceedings against 20 senior officials in Ukraine's Ministry of Defence in respect of orders that they issued to soldiers in violation of the Genocide Convention.

9. In November 2021, President Putin adopted a decree in respect of the territory in eastern Ukraine, which, according to the Russian Ambassador to the Contact Group for the settlement of the situation in eastern Ukraine, was a response to actions in Kyiv that “actually fall under the United Nations Convention on the Prevention of Genocide”. On 18 February 2021, the Chairman of the Russian Parliament accused Ukraine of committing in eastern Ukraine “acts prohibited based on international accords”, observing: “[I]f this is not genocide, then what is?” On 21 February 2022, President Putin, in relation to his decision to recognize the republics of Donetsk and Luhansk, referred to this “horror and genocide, which almost 4 million people are facing”. In an address on 24 February 2022, President Putin stated: “the purpose of this operation is to protect people who, for eight years now, have been facing humiliation and genocide perpetrated by the Kiev regime”. President Putin further stated that Russia intends to “de-Nazify Ukraine” and “bring to trial those who perpetrated numerous bloody crimes against civilians”. On 25 February 2022, the Russian Foreign Minister stated that Russia's military actions “prevent[ed] the neo-Nazis and those who promote methods of genocide from ruling this country”. Also on 25 February 2022, the Russian Ambassador to the European Union remarked that “[w]e can turn to the official term of genocide as coined in international law. If you read the definition, it fits pretty well.” The three explicit statements by Russian officials concerning the Genocide Convention in 2014 and 2015, the beginning of the dispute between the two States, provide a basis for the inference that, by the subsequent references in 2021 and 2022 to “genocide”, Russian officials meant genocide under the Genocide Convention.

10. On 23 February 2022, the Russian Ambassador to the United Nations, addressing Russia's recognition of the republics of Donetsk and Luhansk, pointed to “the flagrant genocide . . . of the 4 million people in the Donbass”. In response, the Ukrainian Minister of Foreign Affairs stated, “Russia's accusations of Ukraine are absurd. Ukraine has never threatened or attacked anyone. Ukraine has never planned and does not plan any such action.”

11. On 26 February 2022, the Minister for Foreign Affairs of Ukraine stated:

12. The above-mentioned statements clearly reference a claim by Russia that Ukraine has committed acts that constitute genocide under the 1948 Genocide Convention and a denial by Ukraine of that claim. In its Application, Ukraine maintains that “[t]here is no factual basis for the existence of genocide in the Luhansk and Donetsk oblasts” and asks the Court to find that no acts of genocide as alleged by Russia were committed by Ukraine.

Isolation of the real issue

13. In the circumstances of this case, it falls to the Court to determine on an objective basis the dispute between the Parties by “isolat[ing] the real issue in the case and . . . identify[ing] the object of the claim”Footnote ⁷. The dispute between the Parties did not commence on 24 February 2022 when Russia sent its forces into Ukraine. Although the dispute may be traced to events before 2014 (including those following the break-up of the former Union of Soviet Socialist Republics (“USSR”) and the emergence into independence of several States that were formerly part of the USSR), for the purposes of this case that date may serve as its origin. An objective examination of the statements of the Parties and their diplomatic exchanges from that date show that the real issue in the case is not the use of force, as argued by Russia. Rather, it is the allegation by Russia that Ukraine was carrying out acts that constituted genocide under the Genocide Convention and Ukraine's denial of that allegation. This conclusion is supported by the several investigations carried out by the Russian Investigative Committee in the period from 2014 to 2017 into alleged acts of genocide committed by Ukrainian officials against the Russian-speaking population in the Donetsk and Luhansk oblasts in breach of the Genocide Convention. A very significant investigation is that of September 2014 which found that Ukraine gave orders to “completely destroy” specifically Russian-speaking populations, a finding that directly relates to the intent requirement to establish genocide under Article II of the Genocide Convention. In light of Russia's assertion that it has the right to exercise universal jurisdiction on the basis of the Genocide Convention, the investigations carried out by the Investigative Committee led to the institution of criminal proceedings by Russia against Ukrainian officials for breaches of the Genocide Convention. It would be hard to have more conclusive evidence of a dispute between Russia and Ukraine than criminal proceedings initiated by Russia against Ukrainian officials for a breach of the Genocide Convention.

14. Russia's stated reliance on the right of self-defence under the Charter by the President on 24 February 2022 does not serve to define the dispute between the Parties as one relating to the use of force. The dispute between the Parties was defined eight years before by the several investigations carried out by Russia into alleged acts of genocide by Ukraine under the 1948 Convention. That the dispute relates to Russia's allegation of genocide is confirmed by the Russian President's statement that the purpose of the special military operation is to “protect people who have been subjected to abuse and genocide by the Kiev regime for eight years”. Against the background of the criminal investigations, it is entirely reasonable to understand President Putin's reference to genocide as meaning genocide under the Genocide Convention, to which both States are parties. There is therefore evidence of a line of discourse between the Parties, over a period of eight years, in which Russia alleges Ukraine's breach of the Genocide Convention and Ukraine denies that allegation. This shows an opposition of views sufficient to constitute a dispute between Ukraine and Russia as to whether Ukraine has committed acts of genocide within the meaning of the Convention. In short, the dispute before the Court does not, as alleged by Russia, relate to the question of the use of force under customary international law.

15. The acts that Russia alleges to have been carried out by Ukraine include the killing of persons from the Russian-speaking population in the Donetsk and Luhansk oblasts, members of an ethnic group in Ukraine. These acts appear to be capable of falling within the provisions of Article II of the Genocide Convention, because that provision lists, as one of the acts constituting genocide, killing members of an ethnic group with intent to destroy in whole or in part that group.

16. In light of Russia's allegation that Ukraine has committed genocide against the Russian-speaking population in the Donetsk and Luhansk oblasts, in its Application, Ukraine requests the Court to find that it has not committed genocide. More usually, in its practice, the Court is called upon to exercise its jurisdiction in cases where the applicant maintains that the respondent has committed a breach under the relevant treaty. However, there is nothing in doctrine or practice that precludes the Court from having jurisdiction to find that an applicant has not committed a breach of a treaty, where that applicant has requested the Court to make such a finding.

17. In light of the foregoing, the Court has prima facie jurisdiction to entertain the dispute brought by Ukraine.

The second element of the dispute

18. Ukraine argues that there is another aspect of the dispute that it has brought before the Court. Ukraine submits that there is a legal dispute between the Parties as to whether Russia may take military action in and against Ukraine to punish and prevent alleged acts of genocide within the meaning of Article I of the Convention. Russia maintains that the “special military operation” it is carrying out in Ukraine has nothing to do with the Genocide Convention; rather, it constitutes the exercise by a State of its right of self-defence under Article 51 of the Charter of the United Nations.

19. Although President Putin stated that the military operation was initiated “in accordance with Article 51 . . . of the Charter of the United Nations”, he expressly noted that “[i]ts purpose is to protect people who have been subjected to . . . genocide by the Kiev regime for eight years”. This makes clear that, notwithstanding the possible defensive aims of the special military operation, the operation has a clear protective aim; more specifically, it aims to protect against alleged acts of genocide committed by Ukraine which, as has already been shown, Russia considered to be contrary to Ukraine's obligations under Genocide Convention. In response to Russia's claim, the Ukrainian Ministry of Foreign Affairs issued a statement that Ukraine “strongly denies Russia's allegations of genocide and denies any attempt to use such manipulative allegations as an excuse for Russia's unlawful aggression”. There is undoubtedly a question of the lawfulness of Russia's use of force within the framework of the United Nations Charter which arises in the context of a broader dispute between the Parties, but this does not preclude the Court from assuming jurisdiction with respect to the aspect of the dispute which properly falls within its jurisdiction under the Genocide Convention.

20. In its 2021 Judgement in Alleged Violations of the 1955 Treaty of Amity, Economic Relations, and Consular Rights (Islamic Republic of Iran v. United States), the Court ruled that the fact that certain acts committed by the United States may fall within the ambit of more than one instrument, or may relate to the interpretation or application of more than one treaty, did not preclude the Court from finding that those acts related to the interpretation or application of the Treaty of Amity to the extent that the measures adopted by the United States might constitute breaches of that TreatyFootnote ⁸. In the circumstances of the present case, although Russia's “special military operation” may relate to the prohibition of the use of force and the right of self-defence provided for in Articles 2 (4) and 51 of the United Nations Charter respectively, that fact does not preclude the Court from finding that a dispute also arises from the initiation of the “special military operation” with respect to the Genocide Convention.

21. The difficulties attendant on situating cases involving the use of force by a State on the territory of another State within the framework of the Genocide Convention have previously arisen in the Court's jurisprudence. In the Legality of Use of Force cases, as in the present case, Yugoslavia sought to found the jurisdiction of the Court on Article IX of the 1948 Genocide Convention. In the cases brought against Spain and the United States, the Court concluded, with respect to its jurisdiction under Article IX of the Genocide Convention, that

The Court further observed that

“the Court manifestly lacks jurisdiction to entertain Yugoslavia's Application . . . it cannot therefore indicate any provisional measure whatsoever in order to protect the rights invoked therein;

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . there is a fundamental distinction between the question of the acceptance by a State of the Court's jurisdiction and the compatibility of particular acts with international law; the former requires consent; the latter question can only be reached when the Court deals with the merits after having established its jurisdiction and having heard full legal arguments by both parties”Footnote ¹⁰.

22. For the purposes of the present case, it is critical to understand that the Court's finding that it manifestly lacked jurisdiction under Article IX of the Genocide Convention was not at all related to the action that formed the basis of the claims, that is, the use of force by the respondent States. Having found that its Statute and Rules could not afford a basis for jurisdiction, the Court examined Article IX of the Genocide Convention as a basis for resolving the dispute between the States. It found, however, that both Spain and the United States had made reservations to Article IX, which had the effect of excluding the jurisdiction of the Court in the cases before itFootnote ¹¹. These cases are, therefore, distinguishable from the present case because the Court does not manifestly lack jurisdiction over Ukraine's claims. Both Ukraine and Russia are parties to the Genocide Convention and neither State has entered a reservation to Article IX of the Convention. Thus, the Court is not facing a situation of manifest lack of jurisdiction; rather, in determining its prima facie jurisdiction, the question before the Court is whether Ukraine's claims are capable of falling within the provisions of the Genocide Convention.

23. In the cases brought against the other eight States, there being no basis for a manifest lack of jurisdiction under Article IX of the Genocide Convention, the Court went on to consider whether it had prima facie jurisdiction under that provision to grant the measures requested by Yugoslavia against each of those States.

24. In its Application, Yugoslavia defined the subject-matter of the dispute as “acts of [the respondent] by which it has violated its international obligation banning the use of force against another State”, as well as other norms of international humanitarian and international human rights law, and “the obligation not to deliberately inflict conditions of life calculated to cause the physical destruction of a national group”Footnote ¹². Yugoslavia requested that the Court adjudge and declare that each respondent State “has acted . . . in breach of its obligation not to use force against another State”, in breach of various standards of international humanitarian and international human rights law, and “in breach of its obligation not to deliberately inflict on a national group conditions of life calculated to bring about its physical destruction, in whole or in part”Footnote ¹³. In its Request for the indication of provisional measures, Yugoslavia asked the Court to order that each State “shall cease immediately the acts of use of force and shall refrain from any act or threat or use of force against the Federal Republic of Yugoslavia”Footnote ¹⁴. With respect to its jurisdiction under Article IX of the Genocide Convention, the Court concluded that it was not in a position to find, in the absence of evidence as to an intention to destroy a national group, “that the acts imputed by Yugoslavia to the Respondent are capable of coming within the provisions of the Genocide Convention”Footnote ¹⁵. The Court found that “the threat or use of force against a State cannot in itself constitute an act of genocide within the meaning of Article II of the Genocide Convention”Footnote ¹⁶. In the present case, however, Ukraine has not put before the Court a general question of the legality of Russia's use of force. Instead, it has asked the Court to “[a]djudge and declare that the ‘special military operation’ declared and carried out by the Russian Federation . . . is based on a false claim of genocide and therefore has no basis in the Genocide Convention”.

25. In justifying its “special military operation” in Ukraine, Russia expressly stated that the purpose of the operation is “to stop . . . [the] genocide of the millions of people” in the Donetsk and Luhansk oblasts, and “to protect people who have been subjected to abuse and genocide by the Kiev regime”. It is this express purpose which brings the dispute within the terms of the Genocide Convention, and specifically Article I, which imposes on States parties an obligation “to prevent and to punish” genocide. There is, therefore, a live issue in the present case as to whether Russia can use of force to prevent and to punish alleged genocide. As such, in describing the subject-matter of the dispute, Ukraine submits that the parties hold opposing views on “whether Article I of the Convention provides a basis for Russia to use military force against Ukraine to ‘prevent and to punish’. . . alleged genocide”. The fact that the acts of which Ukraine complains constitute a use of force by the Russian Federation does not mean that those acts are incapable of amounting to breaches of the Genocide Convention.

26. In using force, Russia has purported to act to prevent alleged genocide by Ukraine. Ukraine, on the other hand, asserts that Russia “had no right under the Convention to engage in the military action initiated on 24 February 2022”. In doing so, Ukraine argues, Russia has acted contrary to Article I of the Genocide Convention. There is, therefore, a dispute between the States as to whether Russia could employ the use of force in and against Ukraine to protect persons from alleged genocide. However, while the breach of the Convention alleged by Ukraine need not be established at this stage, it must be demonstrated that the acts complained of appear to be “capable of falling with the provisions of that instrument”Footnote ¹⁷.

27. Ukraine submits that the duty to prevent genocide provided for in Article I of the Genocide Convention is limited in scope. More specifically, it submits that Article VIII of the Convention “anchors the duty to prevent and punish genocide in the principles of international law reflected in the Charter of the United Nations”. In its merits Judgment in the Bosnia Genocide case, the Court found that Article I of the Genocide Convention imposes an obligation on States parties to “employ all means reasonably available to them, so as to prevent genocide so far as possible”Footnote ¹⁸. It is reasonable to conclude that it was in the exercise of this duty that the Russian Federation acted in initiating a military campaign in Ukraine. The Court further noted that, in carrying out the duty to prevent, a State party “may only act within the limits permitted by international law”Footnote ¹⁹. Therefore, Article I of the Genocide Convention imposes an obligation on Russia not only to act to prevent genocide, but to act within the limits permitted by international law to prevent genocide.

28. The preamble to the Genocide Convention states that “genocide is a crime under international law, contrary to the spirit and aims of the United Nations and condemned by the civilized world”. In that regard, it is noted that Article 1 of the United Nations Charter describes the purposes of the United Nations as including “bring[ing] about by peaceful means, and in conformity with the principles of justice and international law, adjustment or settlement of international disputes or situations which might lead to a breach of the peace”. Reliance on the preamble to the Genocide Convention is in order because, in terms of Article 31 of the Vienna Convention on the Law of Treaties, the preamble is a part of the context in which a treaty must be interpreted. The Genocide Convention also provides, by its Article VIII, that it is open to States parties to call upon the competent organs of the United Nations to take appropriate action to prevent and suppress genocide. Equally significant is Article IX which provides that disputes relating to the interpretation, application or fulfilment of the Convention are to be brought before the Court. These are therefore means for the resolution of disputes that the Convention provides. These means would of course have been open to Russia as alternatives to the military action that it commenced in Ukraine on 24 February 2022.

29. The Court, in its Nicaragua v. United States Judgment, noted that the protection of human rights under international conventions “takes the form of such arrangements for monitoring or ensuring respect for human rights as are provided for in the conventions themselves”Footnote ²⁰. Article VIII therefore may be seen as an indication of the kind of action that a Contracting Party may take for monitoring or ensuring respect for the human rights provided for in the Genocide Convention. The Court also expressed the view that “while the United States might form its own appraisal of the situation as to respect for human rights in Nicaragua, the use of force could not be the appropriate method to monitor or ensure such respect”Footnote ²¹. By the same token, while Russia may form its own appraisal as to the situation relating to the respect of the human rights of persons of Russian ethnicity in the Donetsk and Luhansk oblasts, in light of the object and purpose of the Genocide Convention and the circumstances of its conclusion, the use of force would not appear to be the appropriate method to monitor or ensure such respect. It is therefore possible to interpret the duty under Article I to prevent and punish genocide as precluding the force used by Russia in its “special military operation” in Ukraine.

30. In view of the relatively low evidentiary threshold applicable at this stage of the proceedings, it can be concluded that the breach of the Genocide Convention alleged by Ukraine, that is, that Russia has acted contrary to Article I of the Convention in initiating a military campaign with the aim of preventing genocide, appears to be capable of falling within the provisions of that instrument. As such, the dispute is one which the Court has jurisdiction ratione materiae to entertain pursuant to Article IX of the Convention.

APPROPRIATENESS OF THE MEASURES REQUESTED

31. Since Ukraine's right not to have force used against it by Russia as a means of preventing the alleged genocide in Ukraine is grounded in a possible interpretation of the Convention, that right is plausible. The evidence before the Court shows that there have been numerous casualties resulting from the military intervention as well as bombing of numerous cities across Ukraine, and that over one and a half million persons have fled Ukraine to escape the atrocities. Consequently, given the patent irreparable harm caused by the “special military operation” and the urgent need for the measures, it is appropriate for the Court to grant Ukraine's request for an order requiring Russia to suspend its special military operation in Ukraine until such time as the Court has determined the merits of the case.

32. It is critical to note that the fact that the military operation by Russia appears to be capable of falling within the Convention as being in breach of Article I, has no implication for Russia's claimed right of self-defence. The right of self-defence recognized in Article 51 is inherent in every State and cannot be overridden by any pronouncement the Court may make as to the consistency of Russia's military operation with the Genocide Convention.

33. Special comments are warranted in relation to the third and fourth provisional measures requested by Ukraine. The third measure ordered by the Court calls on both Parties to refrain from any action which might aggravate or extend the dispute before the Court or make it more difficult to resolve. In my view, there is no justification for directing this measure to Ukraine. It should have been directed solely to the Russian Federation. Nonetheless, the formulation of the measure called for an affirmative vote in order to ensure that there would be a non-aggravation measure that would be applicable to the Russian Federation. Ukraine also requested as a fourth provisional measure that the Court should order the Russian Federation to “provide a report to the Court on measures taken to implement the Court's Order on Provisional Measures one week after such order and then on a regular basis to be fixed by the Court”. The Court did not grant this request. In my view, this decision is regrettable, since in light of the very grave situation in Ukraine caused by the “special military operation”, it would have been advantageous for the Court to examine periodic reports by Russia on its implementation of the provisional measures and to make appropriate orders.

(Signed) Patrick L. ROBINSON.