Thursday, March 1, 2012

Israel-Azerbaijan: common history, common tragedies…

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Not many states can boast that they have common history of their respective peoples. Azerbaijan and Israel can. Thus that position is the main determinant in the current strategic relations between our countries.
Jewish communities have lived in Azerbaijan since time immemorial. The historians would always argue if it was this or that century, however I would argue that this is truly a friendship that was tested by these centuries. Time has forged the relationships that no one can break though many envy such ties between our nations.
Jewish communities have always been considered as natural to Azerbaijan; they have never been seen as foreign and nowadays they are equal citizens of the Republic of Azerbaijan that we are all proud of. The representatives of such communities have taken part in the development of our country and have made an outstanding input into science, culture, healthcare, economy, industry and many other areas of the contemporary Azerbaijan. Representatives of Jewish communities take part in all the spheres of economical, socio-cultural and socio-political life of our state and at the same time contribute to the development of international relations of Azerbaijan.
However friendship knows not only happy days, but at the same time the days of common grievances. Thus Azerbaijanis and Jewish peoples have been victims of the atrocities.
1918-1919 when most of the territory of contemporary Azerbaijan was consumed by the massacres of Armenians against Azerbaijanis the Jewish people have also suffered the violence. In the Guba region the northern part of contemporary Azerbaijan Armenians slaughtered the whole Jewish settlements. Why? Because Jewish people were helping Azerbaijanis to hide from this savagery, helping them to escape, helping with food and clothing. They have also refused to submit their Azerbaijani brothers to Armenians. So they have been slaughtered with the Azerbaijanis in ethnic cleansings.
Around twenty years later started one of the most horrible processes in the history of humanity – the Genocide of the Jewish people. At that horrible time Azerbaijanis being a part of the Soviet Union fought with the fascist, genocidal regime in Germany. There are so many stories of how the Azerbaijanis were helping the Jewish people to escape executions and murders, sheltering them and freeing them from captivity. This is not just stories written by someone. I heard them from my grandfather who fought through the whole war. Telling me this with tears in his eyes when he was describing how the Jewish people were treated… Here is an example of our unity.
You would think the humanity would learn something from these horrible events of the past. However, around fifty years later in 1992 before the upcoming genocides in Rwanda and former Yugoslavia another genocidal event took place that didn’t get the same attention from the international community. I am talking about the genocide of Azerbaijanis in Khojaly during the war in Nagorno-Karabakh.
I am a lawyer. And genocide for me is first of all a horrible crime. Unfortunately, it is very rare that someone tries to prove the genocidal nature of the massacre in Khojaly from the legal perspective. I will try to do exactly that.
Genocide: The crime known nowadays as genocide was prosecuted for the first time in Nuremberg Tribunal under heading of crimes against humanity. It was the only time this crime was prosecuted until creation of ICTY and ICTR. Crime of genocide is defined in the Convention on the Prevention and Punishment of Crime of Genocide of 1948 (Genocide Convention) and has become a part of customary international law and a norm of jus cogens.[1] Article 2 of aforementioned convention defines genocide as any of the following acts committed with intent to destroy in whole or in part, a national, ethnical, racial or religious group, as such:
a.       Killing members of the group;
b.      Causing serious bodily or mental harm to members of the group;
c.       Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;
d.      Imposing measures intended to prevent births within the group;
e.       Forcibly transferring children of the group to another group.[2]
These provisions are replicated by ICTY Statute (Article 4(2)), ICTR Statute (Article 2(2)), and ICC Statute (Article 6). However, not a lot of States implemented these provisions in their national legislation (even those that have ratified Genocide Convention). Genocide is one of the gravest crimes. An accused must be found guilty on the basis of his own individual criminal responsibility. However, the victim of crime of genocide is group itself and not individual.
Actus reus of genocide does not presume the actual extermination of a group. Genocide is committed ones any of the acts provided in Genocide Convention is committed with the requisite of mens rea and can be committed by acts or omissions.[3]
On a part of mens rea in order to convict an accused of genocide it must be proven that the accused had the specific intent (dolus specialis), or a psychological nexus between the physical result and the mental state of the perpetrator, to destroy, at least in part, a national, ethnic, racial, religious group as such, or that the accused had at least the knowledge (conscience claire) that he was participating in genocide, that is the destruction, at least a part, of national, ethnic, racial or religious group, as such.[4]
Genocide should always be distinguished from the crime against humanity of persecution. Perpetrator of persecution selects his victims by qualification of belonging to a specific community but does not seek the destruction of that community as such.[5]
During Nagorno-Karabkh Conflict Armenians committed several acts of genocide against Azerbaijani population on the occupied territories and against Azerbaijani population in Armenia. These acts were committed with the intention to destroy parts of Azerbaijani national group living on aforementioned territories. Thus according to the definition of genocide in Genocide Convention and Rome Statute, these acts were committed as genocide of parts of ethnical group. Ethnical group is one whose members share a common language and culture. An ethnic group may identify or distinguish itself as such, or maybe identified as such by others, including perpetrators of genocide.[6] Further I would like to proceed with facts of genocide starting from the beginning of conflict and till present time as some acts of genocide are continued to be committed.
Since January 1988, the Armenians began to implement into life the policy of “Armenia without Turks”. The government of Armenia, nationalistic organizations “Karabakh” and “Krunk”, and representatives of the church of Echmiezdin committed thousands of bloody crimes under the protection of the administration of the USSR in the process of forcible deportation of the Azerbaijanis from Armenia.
As a result of first ethnic cleansings 185 Azerbaijani settlements were emptied, over 250,000 Azerbaijanis were compelled to leave their houses; 217 Azerbaijanis were murdered and 49 of them froze in the mountains when escaping to save their lives, 41 of them were beaten to death, 35 of them were tortured to death, 115 of them were burnt, 16 of them were shot, 10 of them died of heart attacks unable to endure the tortures, 2 of them were murdered by physicians in the hospital, some people were drowned in the water, some were hung, some were electrified to death, and some were beheaded.[7]
It is important to show the examples of genocidal acts of Armenians against Azerbaijanis. Presenting some facts and drawing the actual picture of some events that took place in the Nagorno-Karabakh Conflict will help me to argue further that these events were genocide.
One of the most horrible events of the Nagorno-Karabakh Conflict is the genocide in Khojaly. It is like the genocides committed in Khatyn, Lidisia, Oradur, Yugoslavia and Rwanda reflected in the history of mankind. In the early hours of 26 February 1992, the armed forces of Armenia, the armed Armenian militants of the Nagorno-Karabakh, and Motor-Infantry Regiment No. 366 of the former Soviet Union dislocated between Askaran and Khankendi occupied the town and committed genocide against the Azerbaijanis. Preparation for Khojaly attack began in the evening of February 25 when the military equipment of Motor-Infantry Regiment No. 366 began to take positions around the city.
The assault of the city began with the 2 hours firing by tanks, armored cars and guns with the missile "Alazan". Khojaly was blocked from three sides and people tried to escape in Askeran direction. Parts of the population trying to escape the violence encountered ambushes on the way out of the town and were murdered. Very soon they understood that it was the ominous trap. The organized nature of the extermination of the population of Khojaly was evident from that the killing took place in prepared in advance ambushes on peaceful inhabitants who fled the town in desperation to save their lives. For example, Elman Mamedov, chief of administration in Khojaly, reported that a large group of people who had left Khojaly came under intensive fire from Armenian positions near the village of Nakhichevanik. It is reported that near Nakhchivanik village the Armenian armed forces were prepared in advance to open fire on the unarmed people. Just here, in Askeran-Nakhchevanik shallow gully many of the children and women, elders, frostbitten and weaken in the snow of forests and mountain passes became the victims of the brutality of Armenian armed forces.
Those days Azerbaijani forces couldn't burst through to help the population of Khojaly, and there was also no ability to take away the dead bodies. At the same time special groups of Armenians in white camouflage cloaks using helicopters searched the people in the forests, groups of people who came out the forest were shot or taken as hostages and subjected to tortures. That event also shows the intent of Armenians to exterminate the rest of Azerbaijani population of Khojaly at any cost.[8]
Episodes of Khojaly genocide are terrifying. Antiga, the resident of Khojaly, was burned alive because she did not say: "these places are part of Great Armenia". Khojaly resident Sariya Talibova told: "heads of 4 meskhetis and 3 Azeris were cut off over Armenian grave. Then they extracted eyes of 2 Azeris". Khazangul Tavakkul qizi Amirova said: ”My family was wholly taken hostage by the armed Armenians when Khojaly was occupied. They shot and killed my mother Raya, my seven-years old sister Yegana, and my aunt Goycha. They poured petrol on my father Tavakkul and set him on fire”.
The night, in which the Armenians committed the genocide in Khojaly, 613 peaceful residents were murdered with a special cruelty, tortured, beheaded, and blinded. Pregnant women were bayoneted; same destiny reached 63 children, 106 women and 70 old men.
The genocide was committed with the participation of Motor-Infantry Regiment No. 366 commanded by Major Seyran Mushegovich Oganyan, companies and platoons of the same battalion commanded by Eugenie Nabokikhin, chief of headquarters of the first battalion Valeri Isayevich Chitchyan and over 50 officers and senior personnel of the Armenian nationality.[9]
Genocide acts continued however. Another event of genocide acts of Armenians against Azerbaijanis is evident from the April 1, 1993 when Armenian military formation began large-scale attacks over Kelbajar region. During this operation a new radio network was used operating on frequency of 6721 kHz, in order to implement coordination of the operation and general control.
Materials obtained as a result of radio intelligence service during the operation on the 6-7-th of April 1993 witness that the order was given by the head quarter radio station placed in Vardenis region of Armenia ("GSM -7") to the head radio station in the region of military operation ("Uragan") to liquidate and burry quickly all the captives and hostages including old people, women and children in Kelbajr region. The cause of that act was to sweep off all the evidences of ethnic cleansings against Azerbaijanis from the representatives of international organizations including journalists who arrived at the region of the military operation at that time and at the same time exterminate as many Azerbaijanis as possible.[10]
The genocide acts in Khojaly and Kelbajar is only one piece of a pattern of destruction and ethnic cleansings methodically carried out by the Armenian armed forces against Azerbaijani population. The similar events were taking place in different parts of occupied territories.
Actus reus of the crimes can be seen from the facts above. Mens rea of crimes is however less clear, but there are a lot of details like ambushes prepared by Armenians in advance in Khojaly, following refugees on helicopters and orders given by radio in Kelbajar that suggest that mens rea was formed prior to the commission of an act of genocide. Pre-formed mens rea is one of the necessary elements of crime of genocide.[11] The other qualification that perpetrator must choose the victim not because of his individual identity, but because of membership in specific group (in our case Azerbaijanis),[12] is also very clear as there were no Armenians killed in the events of Khojaly or Kelbajar or other. It was clearly Azerbaijanis who were chosen to be a victim of genocidal acts. Another requirement for mens rea of crime is that perpetrator must intent to destroy a large portion of the group[13] in our case is also quite obvious. Azerbaijanis against whom genocide was attempted were quite a large share of population of that ethnical group presented in currently occupied territories and on territory of Republic of Armenia.
On the first group of acts committed as a killing of the group, as a part of Genocide Convention, I want to set example of ICTR ruling that ‘killing’ is homicide committed with the intent to cause death. By its constituent physical elements, the very crime of genocide necessarily entails premeditation.[14] Rome Statute makes it clear that the act of killing or causing death forms essential element of crime of genocide, where ‘causing death’ means intentional omission that leads to death of the victim. All of these requirements are clearly present in genocide acts of Armenians.
Causing serious bodily or mental harm is another way to commit genocide also present in the Nagorno-Karabakh Conflict. A large number of acts of torture, inhumane and degrading treatment, rape, sexual violence, etc. and serious injuries to the health of victims of genocide in the Nagorno-Karabakh Conflict formed another group of acts of genocide of Azerbaijanis by Armenians. These aforementioned acts form one of the groups of acts of genocide according to the international criminal practice. In addition, harm done by these acts need not to be permanent or irremediable.[15] The fact that all the requirements are there on their places can be seen from the information on genocide acts provided above.
The suffering caused to both our people is grave and permanent. However both our common history and common tragedies just made us closer to each other.



[1] Jelisic case (Prosecutor v. Goran Jelisic), 14 December 1999, Case No. IT-95-10, para.60.
[2] Convention on the Prevention and Punishment of Crime of Genocide of 1948, <www.preventgenocide.org/law/convention/text.htm>, visited 29 June 2007.
[3] Akayesu case (Prosecutor v. Jean-Paul Akayesu), 2 September 1998, Case No. ICTR-96-4-T, para. 497; Kambanda case (Prosecutor v. Jean Kambanda), 4 September 1998, Case No. ICTR-97-23-S, para. 40.
[4] Jelisic, supra note 1, para. 66, Oral Judgment of 19 October 1999.
[5] Ibid., para. 79
[6] Akayesu, supra note 3, para. 513.
[7] See, <http://www.human.gov.az>, visited 3 July 2010.
[8] See, <http://www.nuhun.net/xocali/index_en.html>, visited 3 July 2010.
[9] See, supra note 7.
[10] See, <http://www.khojaly.org.az/kelb.html>, visited 3 July 2010.
[11] Kayishema and Ruzindana, supra note 3, para. 91
[12] Akayesu, supra note 3, paras. 521-522.
[13] Jelisic, supra note 1, para. 81-82.
[14] Akayesu, supra note 3, para. 501.
[15] Ibid., para. 504.



Kamal Makili-Aliyev
Doctor of Laws (LL.D)
01.03.2012


Speech on The Israel-Azerbaijan Strategic Alliance. Marking Twenty Years since the Khojaly Massacre Conference. Info here and here

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