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.
