International Court of Justice Lawsuits May Impact Heritage Protection | Opinion

Cultural heritage professionals and human rights specialists should closely follow a pair of lawsuits recently brought in front of one of the highest courts in the world. These court cases could have an impact on the prevention of cultural heritage destruction and accountability for past violations.

On Sept. 16, Armenia instituted proceedings against Azerbaijan before the International Court of Justice, the main judicial organ of the United Nations, alleging violations of the International Convention on the Elimination of All Forms of Racial Discrimination (CERD), to which both states are parties. Armenia alleged that Azerbaijan has subjected Armenians to a state-sponsored policy of racial discrimination, including mass killings, torture and destruction of cultural heritage. Armenia alleges this policy culminated in the 44-day war in 2020, waged by Azerbaijan over the breakaway region of Nagorno-Karabakh, inhabited mostly by Armenians. Exactly a week later, Azerbaijan submitted a suit of its own against Armenia before the ICJ alleging violations of CERD stemming from discrimination against Azerbaijanis, including ethnic cleansing and the erasure of cultural heritage.

The suits mirror each other. Nevertheless, there is tremendous power asymmetry between Armenia, whose bitter defeat in the war threatens the democratization process begun in the peaceful 2018 Velvet Revolution, and oil-rich Azerbaijan, one of the most authoritarian regimes in the world.

Legal experts and ICJ watchers have been feasting on the applications. Previous cases brought under CERD, such as Georgia v. Russian Federation, stumbled on the issue of jurisdiction. The court has jurisdiction only if negotiation between the parties has failed.

By detailing unsuccessful rounds of communication between the two states, Armenia aims to prove that it fulfilled its obligation. Further, no CERD case at the ICJ has been decided on the merits thus far. The court will have to decide if the alleged claims fit the provisions of CERD, or if they rather relate to international humanitarian law.

Do war crimes like the abuse of Armenian prisoners by Azerbaijan fall under CERD, as Armenia argues? Does the fact that Armenia has not provided Azerbaijan maps of landmines laid in the past decades represent an act of racial discrimination, as Azerbaijan alleges? Do the allegations of cultural destruction, erasure and appropriation relate to racial discrimination under CERD? What is the broader meaning of these suits that call attention to a bitter, intractable and bloody conflict that has been overlooked by the international community? Will the litigation contribute to peace in the region or will it make it even more elusive?

If the court decides to take the cases it would take years to reach a decision on the merits. In the meantime, both Armenia and Azerbaijan have requested the court to institute provisional measures. These are emergency measures intended to halt any ongoing violation that is likely to cause irreparable harm. If the court orders provisional measures, they may have an immediate impact. Here ICJ utilizes a "plausibility" test. Is it plausible that these allegations potentially amount to violations of CERD?

The provisional measure that may stand the best chance of being granted by the ICJ is Armenia's request for the protection of Armenian cultural heritage in areas under Azerbaijani control, for access to these sites and continued monitoring. Following the war, Azerbaijan gained control of thousands of Armenian cultural and religious sites. Danger looms over them, as their ongoing destruction and appropriation by Azerbaijan, linked to official statements denigrating Armenians, are well documented. Moreover, once cultural heritage is destroyed, it is irreparably lost.

Azerbaijan's suit likewise alleges that Armenia has destroyed Azerbaijani cultural heritage in the past; however, Armenia does not control any territory of Azerbaijan at present. Azerbaijan's further allegation that numerous museum objects were stolen in the period when Armenians controlled areas around Nagorno-Karabakh raises questions about the loss of these objects and possible irreparable harm. If these allegations clear the "plausibility" test, the court could issue an order to protect cultural heritage and to provide ongoing reports. It seems likely that the court will impose similar measures on both states as it did in Georgia v. Russian Federation, rather than singling out only one side. If an order to protect heritage is issued, then the ICJ will have achieved something that no other international organization has succeeded in doing thus far: on-the-ground fact finding and reporting from Karabakh, preferably by international experts.

The judges of the Court of Justice
The judges of the International Court of Justice on Jan. 23, 2020, in The Hague, Netherlands. Nacho Calonge/Getty Images

Other provisional measures may prove more challenging. Measures requested by Armenia include, among others, the release of Armenian prisoners of war and the closure of a "Victory Park" in Baku that celebrates Azerbaijani military strength by exhibiting bullet-ridden Armenian helmets from the battlefield and degrading representations of Armenians. Azerbaijan requested landmine maps and a crackdown on groups in Armenia that allegedly promote hatred. Threats to cultural heritage may resonate better with the court not only due to points of law, but also thanks to the work of activists and cultural heritage organizations locally and internationally, which issued repeated warnings regarding ongoing destruction of and threats to Armenian cultural and religious heritage since the beginning of the 2020 war. UNESCO has made insistent requests to conduct a fact-finding mission in Azerbaijani-controlled areas regarding all groups' cultural heritage. Azerbaijan rebuffed these requests, then seemed to redirect UNESCO to focus on destruction by Armenians instead. A fact-finding mission has still not materialized, despite Azerbaijan's past collaborations with UNESCO, and the fact that one of UNESCO's longstanding goodwill ambassadors is Azerbaijan's vice president who is also the country's first lady.

A unique potential exists to redress a problem in international cultural heritage protection.

Supporters of cultural heritage and human rights have long been stymied by the lack of accountability for violations of cultural rights and the limited ability of international organizations to enforce cultural rights norms. The duty to safeguard cultural heritage, such as threats to UNESCO World Heritage sites, falls primarily upon the state that is home to such heritage. However, a state home to endangered cultural heritage may be unable or unwilling to carry out this duty, or may be itself threatening cultural heritage. What happens then?

The intentional destruction of culture is a global phenomenon that continues to proliferate. Experts have long recognized the close links between intentional destruction of cultural heritage and discrimination, ethnic cleansing and genocide. Most instances of the destruction of culture are met with near universal condemnation and draw support for the protection and preservation of culture. But accountability has been elusive. Public awareness of a particular tragedy—something as egregious as ISIS blowing up the Temple of Bel in Palmyra, Syria—is no guarantee that anything can be done about it.

The local and international communities are hobbled in their response to such situations. Few international instruments have the teeth to defend cultural rights and cultural heritage in danger, not just issue statements of concern and publish watchlists of heritage in danger. The 2016 conviction of Ahmad Al Faqi Al Mahdi by the International Criminal Court for his part in the destruction of cultural heritage in Mali remains a unique case, and one that pertains to an individual rather than a state. International cultural heritage professionals and activists can only intervene with the permission of the state where the heritage is located. Monitors are unable to visit cultural heritage sites without permission from the state in question, or are unable to visit freely without surveillance. If the ICJ does order provisional measures for the protection of cultural heritage, it may turn out to be one rare mechanism to pressure intransigent states to protect all cultural heritage on their territory, including those of groups subjected to discrimination.

The potential exists for the ICJ to set a precedent for the protection of cultural heritage. That would constitute a strong statement condemning the destruction of culture as a result of racial hatred and discrimination. The stakes are very high, and many will be watching.

It may well be that cultural heritage protection will be the one area where these lawsuits can lead to concrete results in a short amount of time. If the ICJ grants provisional measures that stop the destruction of cultural sites and put an end to the promotion of racial hatred, that would be a gain for all those who support human rights and cultural heritage. That is, assuming that the provisional measures are enforceable and that the states will implement them fully and in good faith. Looking to the future, perhaps this litigation at the ICJ can become part of a broader process of peace building—perhaps through a joint truth commission or process. Admittedly, that can only come about if the regional and global players in the conflict show real commitment toward peace—and are prepared to face its costs.

Heghnar Watenpaugh is professor of art history at the University of California, Davis. She is a 2020 Guggenheim fellow and a National Endowment for the Humanities public scholar. She is the author of The Missing Pages, the only book to win awards from both the Society for Armenian Studies and the Ottoman and Turkish Studies Association.

The views expressed in this article are the writer's own.