Speech at Netanya Academic College, Israel

Monday, March 26, 2012

Watch my speech at the "The Israel-Azerbaijan Strategic Alliance. Marking twenty years since the Khojaly Massacre" conference on February 27 , 2012 in Netanya Academic College, Israel:


Human Rights Friendly Public Administration

Thursday, March 15, 2012

In XXI century public administration is something that has been through already centuries driven development process. In the realities of democratic building and development Azerbaijan have also set out certain goals and made certain achievements on the process of building effective public administration. Recent studies show that for the public administration to be effective, it needs to be human rights friendly.
To achieve that goal you have to take certain steps to ensure integration of human rights into the administration system. First you need to:
1.     work towards improvement of the human rights protection techniques and ensure compliance of the public and private sector with their human rights;
2.   adopt the program to counter measures that undermine the universal compliance with human rights standards;
3.    take appropriate steps to include the promotion and protection of human rights into all foreign and internal policy areas and activities;
4.    provide the conditions for the support of international human rights instruments as well as the national human rights initiatives;
5.     actively involve civil society into implementation of your human rights driven public administration;
6.      ensure the cooperation with human rights monitoring institutions;
7.      strive to provide equal opportunities for human rights defense.

This is a non-exhaustive list of initial measures to be taken to shape your public administration system into human rights friendly encasement. Since the UN Charter came into force in 1945, the process of integration of human rights into public administration has maintained its focus on ensuring the adoption and implementation of the international legal norms that apply to the state when they treat foreign citizens as well as own peoples. The process largely started with the adoption of Universal Declaration of Human Rights in 1948 and the two covenants that followed the Declaration in 1966 – the Covenant on Civil and Political Rights as well as the Covenant on Economic, Social and Cultural Rights. That process led to a large number of conventions being adopted in more specific areas of international human rights law. In this regards the states should consider themselves on a regular and ongoing routine whether there is a necessity for further regulation in that area. Azerbaijan as well is very active towards creating all necessary conditions to apply the international instruments on human rights. Even after you have established norms the challenge would be to turn the words on paper into action and concentrate on the efforts to implement effectively these human rights obligations in practice through your public administration.
Another matter that amounted to implementation was the establishment of the UN High Commissioner for Human Rights in 1993 and reflected the understanding of the states the role human rights play in international community’s life. Same trend continued with the set-up of the International Criminal Court whose main job is prosecuting perpetrators of most grave violations of international law such as genocide, crimes against humanity, war crimes and aggression. Usually it is a job of the states to commit resources and efforts towards the follow-up on international obligations that demand compliance with these standards of implementation, including efforts in public administration.
Civil society, including international organizations that work independently are playing an increasingly important role in a networked world where more and more issues, concerns and solutions are of a transnational nature and require an international cooperation. Independent institutions make a great effort on national as well as on international level playing a role of watchdogs and promoters of international human rights law. And at the national level in their respective areas they become a source of invaluable expert knowledge. Monitoring, reporting and advisory functions on human rights are also a large responsibility of national human rights institutions. These institutions should be base on the basic principles embedded into the UN system to ensure that they have a comprehensive mandate for the promotion and protection of human rights, thus making the public administration more open to human rights organizations. UN bestowed mandate would mean that contributions of the aforementioned organizations will be considered of importance to the universality of human rights.
Thus government’s approaches in public administration should include high priorities to effective cooperation with civil society as well as with international and local NGOs and human rights organizations. Such cooperation should be of a great value to all the parties. The process of such cooperation should be considered in the public administration efforts as continuous and developing. In the end understanding of the importance of such relations between government and human rights institutions comes with results of the effective public administration. In this regards the support of civil society in human rights work on an ongoing basis is very important and should involve relevant organizations. In that sense next step will be to further ensure the outlined framework of promotion of the efforts in that area. All such measures would amount to the effective human rights policy towards public administration.
Political parties and parliaments that are acting according to the democratic rules are the corner stones of human rights promotion in public administration. First of all there should not be a tendency to ignore the parliament’s decisions as they are an important democratic factor. There should be assistance to political parties to better manage their mandate on human rights protection. Thus the governments should take considerable steps to intensify their support for these areas. The goal and primary objective is to establish responsible, transparent and effective political system of parties and parliaments. These steps are crucial to the consolidation of a civil society through the course of promotion of human rights in public administration.
Governments should by themselves as well as jointly with other states work towards promotion and protection of human rights simultaneously in bilateral relations with other governments and correspondingly – in regional and international cooperation. Added value should be extracted from the building of the framework where various actions complement each other thus enabling the government to synchronize its foreign policy with public administration in the human rights sphere.
Summarizing aforementioned principles it is worth noting that through the course of making its public administration more human rights friendly Azerbaijan was able to:

1. Strengthen its efforts to develop effective human rights friendly institutions and well-functioning legal system;
2. Strengthen its efforts to comprehensively implement bilateral, multilateral and international initiatives in the human rights area;
3. Take considerable steps towards strengthening the effect of the UN human rights activities on regional and municipal level;
4. Contribute to protection of human rights in courts and legal system;
5. Work to strengthen freedom of expression;
6. Maintain the significance of principles of the rule of law to human rights promotion and protection;
7. Strengthen the institutions that are of great importance to a effectively functioning law-governed society;
8. Take other necessary steps towards ensuring more human rights friendly public administration.

Making your public administration framework more accessible to human rights area is not a non-recurrent one-time only case. It is a long and always developing process that needs to answer the challenges and demands of time every single day. Keeping in mind the universality of human rights law and its standards may contribute greatly to the goal of making your public administration human-oriented.

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


CSTO response to Nagorno-Karabakh conflict: what about international law?

Tuesday, March 13, 2012

It is no secret that leaders of Republic of Armenia have long since included its membership in Collective Security Treaty Organisation (CSTO) into its Nagorno-Karabakh conflict rhetoric, specifically implying that CSTO should support Armenia in possible armed confrontation with Azerbaijan. Main thought is that if the Republic of Azerbaijan should decide to regain control over its occupied territories using its right to self-defense, response should be already interstate and collective. While Armenian statements are speculations, more recent statements of the Organization’s Secretary General Nikolai Bordyuzha suggest that CSTO is not that far from the same thought. Basically, when answering the question of CSTO action in case of escalation of Nagorno-Karabakh conflict during the press-conference with RIA “Novosti”, Bordyuzha reacted that as a member of the Organization, Armenia shall get all the necessary support. More recently, he went as far as stating that Armenia has a “special status” in CSTO .
The main questions are how legitimate and real is such an assistance of CSTO in accordance with international law. Keeping in mind that any relations between states are built upon and regulated by the corresponding norms of international law – in our case international treaty law.
First, let us take a look at what is CSTO. On May 15, 1992 Armenia, Kazakhstan, Kyrgyzstan, Russia, Tajikistan and Uzbekistan have signed collective security treaty (CST) in Tashkent.  Azerbaijan have signed the same treaty on September 24, 1993, Georgia – on September 9, 1993, Belarus – on December 31, 1993 and the treaty entered into force on April 20, 1994. That treaty was set out for five years with possibility of extension. On April 2, 1999 presidents of Armenia, Belarus, Kazakhstan, Kyrgyzstan, Russia and Tajikistan have signed the protocol on the extension of the treaty for another five-year term, however Azerbaijan, Georgia and Uzbekistan refused to sign the extension and the same year Uzbekistan joins GUAM. On the Moscow summit on CST on May 14, 2002 state-parties have made a decision to transform the CST into the full-scale international organization – Collective Security Treaty Organisation. On October 7, 2002 in Tashkent the member-states have signed Charter and Agreement on the legal status of CSTO, that are already ratified by all the members of the CSTO and have entered into force on September 18, 2003. On December 2, 2004 UN General Assembly have adopted a resolution that have granted Collective Security Treaty Organisation an observer status. After the recognition in the UN it is safe to say that CSTO became an accepted regional organization on maintenance of peace and security in accordance with Article 52 of the UN Charter.
It is worth mentioning that CSTO as a regional organization have gone through a long process of its establishment as a political body since 2004. Taking into account the membership in the organization as well as the recent trends in the development of CSTO, the outlook of the body suggests the regional security union of the Central Asian states and Russia, that focuses on the security problems particularly of the Central Asian region. At the same time considering the lack of common borders of the Republic of Armenia with its partner from CSTO and very narrow corridor of military support linking Armenia with Russia through Georgia due to geopolitical reasons, further role of Armenia in CSTO is somewhat obscure and contradicting the logic of the processes that encompass the Organization.
Now let as take a look at the aims and goals of CSTO. They are listed in the Article 3 of CSTO Charter: “The goals of the Organization are the strengthening of peace, international and regional security and stability, protection – on a collective basis – of the independence and the territorial integrity and sovereignty of the member-states. In order to accomplish these goals the member-states give priority to political resources”. As it can be seen from above, basic goals outlined in the Article 3 are strengthening of peace, international and regional security (that is in accordance with UN Charter) and the organization-specific goals are protection of the independence, territorial integrity and sovereignty of the member-states on collective grounds. These special goals are the main cornerstone in the arguments of the Republic of Armenia and the statements by Bordyuzha when addressing the issue of possible regaining of the control over its occupied territories by the Republic of Azerbaijan. In that sense the first question that comes into mind is that if such action of Azerbaijan would constitute a threat to independence, territorial integrity and sovereignty of Armenia?
First of all it is quite obvious that the regaining of control over its occupied territories would be considered as a use of force (in international law terms) on the part of Azerbaijan is beyond any doubt. At the same time there is also no doubt that the occupied territories belong to the Republic of Azerbaijan as the territorial integrity of Azerbaijan in universally recognized.  The fact of occupation of the territories is recognized by such an international organizations as UN, Counsel of Europe, OSCE and others. Thus the actions of Azerbaijan under international law would have to be qualified as an indivisible right of any state to self-defense, until the UN Security Council would implement an appropriate measures to maintain or restore international peace and security (in accordance with Article 51 of the UN Charter). Until today no such practical measures were implemented on the part of the UN Security Council.
With that in mind we have to acknowledge that any possible actions on the part of Azerbaijan in restoring its control over occupied territories cannot constitute any threat to any aspect of the Armenian statehood and thus Collective Security Treaty Organisation shall not have any international legal reasons to support the Armenian claims. At the same time taking into account the strategic relations of the Republic of Azerbaijan with the vast majority of the CSTO member-states, the possibility of their involvement in the conflict in reality is close to complete zero.
It is obvious that statements of the CSTO Secretary General are provoked by the tensions around Iran that spread to the Caucasus region also. However, it is always good to be careful with your public statements – you may be later estopped under international law.

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


Israel-Azerbaijan: common history, common tragedies…

Thursday, March 01, 2012
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)

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


Azerbaijan and Israel Relations

Thursday, March 01, 2012

Read my new comment on Azerbaijan and Israel in the midst of regional tensions here.

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