ANN ARBOR, MI — Since the autumn of 2020, the effects of the 44-Day War and its aftermath have reverberated throughout the Armenian world.
While locals in Armenia were concerned with the direct threat of Azerbaijani aggression, Diasporan Armenians wondered what they could do to help. A non-profit organization, the Center for Truth and Justice (CFTJ) was founded by a group of Southern California lawyers who gathered to focus on something they do best: collecting evidence.
This past month, August 2022, an authoritative United Nations committee in Geneva gave the CFTJ and other non-governmental organizations a chance to make their case for Azerbaijan’s violation of a major human rights treaty which both Azerbaijan and Armenia are a party to. This hearing could have a huge effect on the outcome of the pending Armenia v. Azerbaijan case in the International Court of Justice (ICJ), which is the first ICJ case in history of which Armenia is a party.
The CFTJ was represented in Geneva by Chicago-based lawyer, Talin Hitik, who recently explained the history of the CFTJ as well as her role in the process of bringing Azerbaijan’s war crimes to the attention of the United Nations. (This interview took place immediately before the most recent Azerbaijani attack on Armenia on September 12/13.)
Inception of Center for Truth and Justice
Given the importance of evidence in civil and criminal litigation in the US legal system, the CTFJ, a group of Los Angeles-area Armenian lawyers (and one judge) saw the possibility to use their skills and training to find substantive evidence of Azerbaijan’s war crimes in order to pursue international legal redress on some level.
The CFTJ has opened two law clinics, one in Armenia and one in Artsakh. They have enlisted local law students to collect first-hand testimonial evidence from war survivors via in-depth, recorded interviews. The US-based lawyers trained 100 Armenia-based law students and lawyers to carry out this task.
This Diaspora-Homeland synergy has had productive results, collecting the recorded testimonies of numerous soldiers, former POWs, private citizens who lost loved ones, homes, or property, and other eyewitnesses.
Armenia v. Azerbaijan
The chance to use these testimonies as evidence in an international forum came in the wake of the Armenia vs. Azerbaijan case pending before the ICJ in the Hague, Netherlands. The original application from Armenia on September 16, 2021, alleged violations of the International Convention on the Elimination of All Forms of Racial Discrimination, an international human rights treaty originally drawn up in 1965, which Armenia and Azerbaijan are both party to. Because cases in the ICJ often take years to adjudicate, Armenia requested “provisional orders” (like a temporary injunction). The ICJ promulgated an “order” on December 7, 2021, stating (paraphrased) that Azerbaijan must (1) protect POWs from violence and bodily harm, (2) prevent the incitement of racial hatred and discrimination against Armenians, (3) prevent and punish acts of vandalism and desecration of Armenian cultural heritage monuments.
Since then, the CFTJ, through their teams in Armenia and Artsakh, has been collecting eyewitness testimony of Azerbaijan’s violation of these three points. In keeping with what is admissible under International Law, they have focused on violations that took place after December 7, 2021, when the Order was promulgated.
Last month, August 2022, the UN’s Committee on the Elimination of Racial Discrimination (CERD), which is based in Geneva and is tasked with monitoring implementation of the treaty, conducted its periodic review of Azerbaijan. All countries which are party to the treaty (“State Parties”) periodically come under the Committee’s review; Azerbaijan most recently came under review in 2016. Interestingly, the United States also came up under review in August.
As part of the review process, NGOs (Non-Governmental Organizations, such as nonprofits and human rights organizations) are invited to submit reports to CERD. One of the NGOs that applied to and was granted the right to do this was CTFJ.
Since none of CTFJ’s members specialize in international law, they sought the assistance of Hitik, an active member of the Armenian community who has specialized experience in the area.
“The Center for Truth and Justice reached out to me to be an international law advisor,” Hitik stated. “I advise them on matters of international law. They excel at evidence but they don’t know how to use their evidence.”
The application of valuable evidence to the international law forums such as the ICJ is key to the successful litigation of the case against Azerbaijan.
“I started talking to them [the CFTJ] about how to use their evidence, what types of cases can they file, etc.,” added Hitik.
Hitik, a graduate of DePaul University School of Law in Chicago, has experience that uniquely qualified her for this task. “I have a certificate in international comparative law, from when I was in law school,” she stated.
She added, “I worked in the Hague at the Hague Conference [an organization specializing in private international law] and also at the Permanent Court of Arbitration [a non-UN body that provides arbitration services between countries]. I taught different subjects of private international law at American University of Armenia and Yerevan State University, international humanitarian law and two different courses concerning the human rights system. My current focus [in my private practice] is on private international law. I focus on conflicts of international law and teach public international law at University of Michigan Law School.”
In relation to the members of CFTJ and their legal abilities, “preservation of evidence is their bread and butter,” Hitik stated. “And Armenia wasn’t doing this at all.” She adds that local authorities in Armenia were understandably preoccupied with immediate matters of life and death. “So people were fleeing Karabakh to Armenia, and they started taking witness testimony.”
She added, “They were, really importantly, taking testimony from former prisoners of war (POWs) who had been in Azeri captivity, who detailed torture, ill treatment, and cruel treatment, and what happened to them at the hands of Azeri soldiers.” The POWs had been returned to Armenia as a result of negotiations on their behalf by the International Committee of the Red Cross.
“Much to their credit, the Center for Truth and Justice found out about [CERD’s] review of Azerbaijan, so they submitted a written petition to the UN,” Hitik noted.
Hitik also explained the basics of the process leading up to the August hearing: “So, what happens is the state party [in this case, Azerbaijan] submits a report written by their government on how they had complied with their treaty obligations. They submit that report and the CERD body receives their report. And they have an in-person hearing scheduled for some later date.”
“At the in-person hearing,” Hitik continues, “they give the country ‘themes’ that they want to address. They also give an opportunity for civil society organizations to give an alternative report.” That’s where Hitik and the CFTJ came in.
“Seven or eight different alternative reports were submitted,” Hitik shared. “Most were Armenian-oriented, from the Diaspora or Armenia. Most of those groups gave an intervention at the oral hearings”
An “intervention” [technically, an “oral intervention”], Hitik explained, is international-law jargon for any time an entity is allowed to voice its opinions, arguments, findings, and so on, before an official body of the United Nations or other international organizations. This is different from the lengthy official report which the organization has submitted; the “intervention” gives a representative of the organization the chance to make a short oral statement before the body, similar to a closing argument in an American courtroom, in which the main issues can be summarized and stressed.
In addition to Hitik, who represented the CFTJ, several others were present at the meetings to speak out against Azerbaijan. “There is a really impressive report from a consortium of five NGOs based in Yerevan,” Hitik stated. “They had a different methodology.” On behalf of that consortium, Yerevan lawyer Anna Melikyan was physically present, noted Hitik.
“There was also a woman who lost her home in Hadrut,” said Hitik, “a 3rd– or 4th-generation resident of Karabakh, and their family lost three homes in Hadrut and relocated to Yerevan. Her name is Margarita and she’s now a celebrity in Armenia.”
Margarita Karamyan is a former member of the regional administration of Hadrut and now heads the “Return to Dizak” NGO in Yerevan. Margarita was funded by the Yerevan NGOs and got a visa to attend the meeting in Geneva, where she spoke in English.
“It was really powerful to hear someone who was talking about watching her neighbors get killed, and losing her own home,” Hitik shared. “All of the analysis aside, the most influential thing was having someone say, ‘I lived through this, I am a survivor.’”
The Hearings in Geneva
The 107th Session of CERD met from August 8-August 30, 2022. Among other agenda items, the following countries were up for review: Azerbaijan, Benin, Nicaragua, Slovakia, Suriname, United States of America, and Zimbabwe.
The first review for which NGOs were invited to speak was that of Azerbaijan, and the first item on the agenda was a closed door meeting for NGOs to give speeches (“interventions”) on the issues at hand.
This meeting, which took place on August 8, was the official opportunity to make an official intervention. The meeting took place in a formal room before a panel, somewhat similar to a Senate Hearing, said Hitik. From the committee, the chairwoman of CERD and three others were present, others were on Zoom.
Hitik was accompanied by three other Armenians from Los Angeles, as well as Anna Melikyan, the lawyer from Yerevan, and Margarita Karamyan, the refugee and activist from Artsakh.
In addition, a representative of the Armenian Bar Association (US) spoke via Zoom, as well as several other organizations based in Armenia, the US, France, Russia, and elsewhere.
The purpose of the closed-door meeting, in theory, is to protect the NGOs and their members or spokespeople from retaliation for speaking out against the State Party.
A second, unofficial meeting of NGOs was held, Hitik added, on Monday, August 15. During this so-called “lunch hour,” each representative was again invited to speak for four minutes, followed by a back and forth with the committee members, which was off the record.
The third meeting which took place was the culmination of the process, the actual review of the state party [Azerbaijan], also on August 15. This took place at 2:00 PM, after the “lunch hour.”
The official delegation from Baku was present, headed by the Deputy Minister of Foreign Affairs, Elnur Mammadov.
Mammadov “did most of the talking,” according to Hitik. She further stated that along with representatives of all of the government, the delegation gave their testimony as to how they complied with the convention.
“It’s supposed to be an open discussion between the State Party and the members of the committee,” Hitik stated. “And they have to answer questions by the members of the committee.”
After further testimony from Azerbaijan on the following day (August 16), the committee composed a document of their concluding observations. This document was officially adopted on August 26 and distributed in an advanced unedited version on August 30.
The most significant section of the entire report, which was on all aspects of Azerbaijan’s adherence to the Convention on the Elimination of All Forms of Racial Discrimination, was the section discussing the ethnic Armenians of Nagorno-Karabakh.
Power of In-Person Testimony
For every country that’s under review, Hitik said, one committee member is assigned as “country rapporteur.” At the end, that person is in charge of the concluding observations.
The country rapporteur for Azerbaijan was Dr. Chinsung Chung, a sociology professor from South Korea. “She did not have the strongest grasp of the historical and geopolitical nuances,” said Hitik. “I was a little disappointed that the committee chose this person. I was a little disappointed that the committee members did not have enough background with the region or the conflict.”
Hitik gave a prime example of why being present at the meeting was critical for the Armenian side. During the review, Chung was asking questions to the Azerbaijani ministers, when an exchange took place along these lines, recalled Hitik: “I would like to know if you have allowed humanitarian aid in Nagorno-Karabakh,” Chung apparently stated. The Azeri representative reportedly replied, ‘I have to inform you, that the region is not called Nagorno-Karabakh, it’s now called Karabakh.’ Chung then said, ‘I’m sorry, I didn’t know, I will only use the term Karabakh,’” according to Hitik.
Hitik pointed out the legal and geopolitical ramifications of this brief exchange. While referred to colloquially by many Armenians as “Karabakh” or “Karabagh,” the autonomous region was during Soviet times officially named “Nagorno-Karabakh Autonomous Oblast.” “Nagorno” is a Russian prefix meaning “Mountainous,” and was applied in distinction to Lowland Karabakh which did not have an Armenian population and was not an Autonomous Oblast. It is the Nagorno-Karabakh Autonomous Oblast which legally declared independence from the Soviet Socialist Republic of Azerbaijan in 1989. While its successor body and other Armenians have adopted the name “Republic of Artsakh,” Azerbaijan refers to the region simply as “Karabagh.”
Therefore, according to Hitik “they were trying to get a UN body to say on record that it’s ‘Karabakh’” in order to bolster their legal claim.
An hour after that meeting, Hitik, along with Anna Melikyan, had a meeting with the UN Special Rapporteur on Cultural Rights, Alexandra Xanthaki. Hitik said the diplomat asked her, “How do we know what’s true?” Hitik replied, “I’m going to give you an example of rewriting history,” and proceeded to explain the “Karabakh” vs “Nagorno-Karabakh” exchange.
Xanthaki understood what was happening. “They are trying to say that the conflict is a fait accompli,” she observed, according to Hitik, and continued, “Do me a favor, and you and all your NGOs write up a brief history of the internationally recognized terminology. And if you can please include what other UN bodies have called it in recent history.”
A paper was written up, mostly by the consortium of five NGOs from Yerevan, and the pro-Armenian group sent it over to the secretariat of CERD. The final document issued by CERD used the term “Nagorno Karabakh” rather than “Karabakh.” “This is why being in the room is so critical in all of these discussions,” Hitik concluded.
Another example of Azerbaijan trying to deceive the UN came when Mammadov, according to Hitik, “spoke for five minutes about how great they are. Then he spent the next 20 minutes talking about how the Republic of Armenia violated CERD. It is incredibly inappropriate and awkward for a country to talk about another country [in this context when the first country is the one up for review.]”
Hitik paraphrased Mammadov as saying that “due to the Republic of Armenia’s illegal occupation of our territory for the last 20 years, we were not able to control our compliance with the convention, because we did not have control over our territories due to Armenia’s illegal occupation.” Although the official UN press release repeated this statement, Hitik and her colleagues followed up with the authorities.
“Basically, it’s clear to all of us that were there, that we had a huge impact on the concluding observations. A lot of the things we talked about ended up in the report. The first thing they talk about in their conclusion is Nagorno-Karabakh, because so many of us [advocating on behalf of Armenians] were actually there [during the hearings].”
Hitik also states that she and her colleagues made the most of their time in Geneva to advocate for the Armenians of the region.
“We met with almost every working group and special rapporteur outside of this. The Special Rapporteur on Torture, on Racism, the Working Group on the Use of Mercenaries, etc.”
The mercenary situation was particularly shocking. According to Hitik, an Azeri soldier who could apparently speak neither Russian nor Turkish was captured by Armenian forces, who believed he might have been speaking Arabic. A recently arrived Syrian-Armenian refugee was brought into translate. This translator was one of the individuals interviewed by CFTJ and videotaped.
The translator was “very detailed and specific,” noted Hitik, who summarized his video testimony, which is not currently available to the public. According to her, the translator told interviewers that “the mercenaries said that they were recruited by a man who had ties to the Mujahideen in Idlib, Syria. Because the men hired as mercenaries were mostly extremist Sunnis, the recruiter told them that A., they would get $1,500-2,000 per month and B., they’d be committing jihad. They were also told to take no prisoners of war and to kill every Armenian they saw regardless of whether they were a soldier or a civilian. They were asked to behead them and take pictures for proof.”
Hitik further related that according to the translator’s video testimony, “The mercenary had pictures on his cell phone of beheaded soldiers and civilians, and showed them to the Syrian-Armenian translator.”
“A lawyer from the Working Group on the Use of Mercenaries watched this video for seven minutes and she said ‘you need to give me this video,’” Hitik related. The video, taken by CFTJ, is not publicly available, which is why we have paraphrased its contents based on our interview with Hitik.
Other interviews included material such as POWs discussing being taken out of their cells, beaten, forced to say “Karabagh is Azerbaijan,” not given food, etc., according to Hitik.
One POW was beaten so badly, she noted, that he had to be hospitalized in Baku, and as soon as he recuperated, was tied to the back of a truck and dragged around.
There were also photographs from a mother who received her 20-year-old son back in pieces.
These videos were shown to the Special Rapporteur for the Convention on Torture, Dr. Alice Jill Edwards of Australia, said Hitik.
What Was Achieved?
According to Hitik, the NGOs argued the same things that the Republic of Armenia argued when the country filed a lawsuit against Azerbaijan in the ICJ. That original case alleged a violation of the Convention on the Elimination of All Forms of Racial Discrimination. The conduct focused on was the treatment of POWs, the destruction of cultural heritage, and the vile and public hate speech in Azerbaijan, including from officials such as President Ilham Aliyev. This was the conduct which the December 7, 2021 provisional order from the ICJ demanded the Azerbaijan desist from (at Armenia’s request), without mentioning Aliyev by name.
The CFTJ in its report to CERD in Geneva on Azerbaijan’s conduct, echoed these same points. In fact, CFTJ focused on the direct violations of the December 7 Order that took place since that Order was promulgated, more so than Azerbaijan’s general wrongdoings since the beginning of the war.
In response to the efforts of the CFTJ and the other NGOs, CERD included prominent statements on Nagorno-Karabakh in their Concluding Observations on Azerbaijan (the August 26 report). In the report, CERD officially stated that they were “deeply concerned” about the allegations of “severe and grave human rights violations” on the part of Azerbaijan’s military against POWs and others, as well as reports of destruction of Armenian cultural heritage sites, incitement to racial hatred (including by public figures and officials), and the lack of a mechanism to investigate such violations and provide victims with redress.
CERD officially recommended that Azerbaijan “strengthen its efforts” to investigate human rights violations, take steps to provide support and reparation for victims, investigate the reports of destruction to Armenian cultural heritage sites and facilitate UNESCO to preserve these sites while consulting with the Armenian ethnic community. They also recommended that Azerbaijan adopt measures to combat hate speech and incitement, including by officials, targeted at ethnic Armenians.
“This particular committee, CERD, was so important,” said Hitik. “The CERD is the committee on the Convention. The ICJ case [Armenia vs. Azerbaijan] is a case about that Convention. If you are a judge sitting in the ICJ and you are hearing this case [Armenia vs. Azerbaijan], it would be malpractice for you to not read the document [adopted by CERD on August 26 after the Geneva hearings discussed in this article]. They [CERD] are the body given the authority to comment on any state party’s compliance with the convention. These are going to be read by every single judge in the ICJ case.”
Hitik continues that while CERD can hypothetically follow up, their role is more to make findings of fact. “The ICJ will assume that everything here [in CERD’s conclusions] is true, this is an official UN document.”
And why is that important? Well, the ICJ is the court of the United Nations – often referred to colloquially as “World Court.”
“The ICJ case is a really big deal. What we’re looking for is a declaration by the most important international tribunal to at least recognize the violations of international law committed by Azerbaijan. This case will go on for some time. The memoranda you submit are 200 pages or more. This is the first time in Armenia’s history that they’ve been in the ICJ; it’s a huge deal.”
What could be the real life ramifications of the case and of the recent advocacy in Geneva by Hitik, the CFTJ, and other organizations?
“On a concrete level I would hope that a judgement on Azerbaijan’s violation of CERD could reopen a discussion on remedial secession by the people of Nagorno-Karabakh. If we go for the next five years and Azerbaijan still has effective control, there is no way that the Armenians of Nagorno-Karabakh will have their full rights realized. I am pessimistic about the possibilities for internal self-determination of the Armenians living under the Azeri regime,” she said.
She continues, “A case like this could push the international community for the need for remedial secession.”
Remedial secession took place in the past 20 years in Kosovo, East Timor, and South Sudan. “It could be as big a deal as the Kosovo case,” Hitik continued. “Even though the Kosovo case was non-binding, it had an enormous impact.” And the work Hitik and her colleagues did in Geneva with CERD “will have a huge impact” on the outcome of the Armenia vs. Azerbaijan case, the lawyer concluded.
To see a video of Attorney Talin Hitik’s speech to Committee on the Elimination of All Forms of Racial Discrimination (CERD) on August 8, 2022: https://www.youtube.com/watch?v=NPIdwTjSIrU