Please read my new comment on problems of humanitarian access in Syria - here.
Kamal Makili-Aliyev
Doctor of Laws (LL.D)
12.04.2012
Please read my new comment on problems of humanitarian access in Syria - here.
The
international community is largely still transfixed with the situation
surrounding Iran’s Nuclear Program. Officials from both U.S. and Europe believe
that Tehran is trying to build nuclear weapons while Iran maintains that the
Program’s goal is only to provide electricity to the country without using oil
supplies that can be sold abroad as well as to procure the fuel for the medical
reactors. And though the tensions surrounding the Iran’s Nuclear Program in one
of the most volatile regions of the contemporary world have been there for
years their recent escalation began in November 2011, due to the report of the
international inspectors from IAEA and the heavier sanctions that immediately
followed from the West.
Following the
sanctions came Iran’s response in the form of threat to close the Strait of
Hormuz disrupting around 20% of global oil traffic. Threats were answered by the U.S. that made it quite clear they prepared
to take all necessary actions to maintain the oil flow crucial to the global
economy. Strait of Hormuz is one of the most important straits for the
international trade exchange and security. While traversing that strait, ships
have to pass through the territorial waters of Iran and Oman and follow Traffic
Separation Scheme throughout the strait to escape the risk of collision.
Basically, that Scheme separates inbound and outbound traffic in the Hormuz
through the establishment of two 3 km (1.9 mile) lanes and another 3 km (1.9
mile) in between to navigate the ships flow through Hormuz. Total traffic lane
is now around 10 km (5.7 mile) wide.
Generally speaking Iran does not have any legal rights
to block of suspend transit passage of ships through Hormuz. Such actions
should be considered not only grave breach of international law, but due to the
economic and trade nature of the strait, the threat to the international peace
and security. That is why it is not surprising that U.S. are prepared to take
action in such case even with the use of force. The fact that the presence of
the U.S. warships continuously increases in the Gulf area only confirms the
gravity of the situation.
Moreover, the tensions around Iran’s Nuclear Program
boiled to the point when Israel made a clear message that it is ready to attack
Iran’s nuclear facilities. Such statements from Israel are causing the oil
prices to go up thus having an effect that surpasses regional level and goes
straight to rattling the already unstable global economy that still can’t get
back from sovereign debt crisis in Europe.
Recently global geopolitical players came to the
consent to continue negotiations with Iran, after the authorities in Teheran
made statements that they would allow international inspectors access to the
classified military complex Parchin. Before that moment Iran refused such
access. However, it is still unclear how limited and conditional such access
would be.
The primary goal of the sanctions against Iran is
usually described as an effort to disrupt its Nuclear Program by the means of
distancing the country from international financial system, including both
institutions and funds. The coordinated sanctions imposed by Europe and U.S. aim
first at the banking system. Second target became companies that are related to
the Iran’s nuclear industry as well as some petrochemical and oil industries.
Common understanding is that such sanctions should weaken Iranian government
through depravation from possibilities to develop and invest in the oil
industry and gasoline refinement.
As sanctions came into the effect the response of
Teheran was to further escalate the tensions by suspending the oil exports to
U.K. and France and threatening to do the same in relation to other European
states. Interesting fact is that these countries are least dependent on Iranian
oil from all 27 European Union states. Thus the Teheran’s pressure so far seems
more diplomatic in nature than real response to sanctions.
The intensification of tensions around the situation is
on the rise since. Experts speculate about Israeli attack on Iran nuclear
facilities, enforcement of sanctions grows stronger and Iran threatens with
retaliation, while at the same time expresses its readiness to cooperate with
IAEA to prove peaceful nature of its Nuclear Program.
Another situation that adds pressure on regional
security is of course the atrocities in Syria. While the situation is of a
grave concern to the international community UN Security Council is at the
legal stalemate initiated by Russia and China. So far both Russia and the West agree only that the main
role in negotiating peace in the country should belong to the Arab League. The
problem is the fresh memory of the Libyan resolution in the Security Council.
In the Libyan case, the U.S. and EU countries’ interpretation of the strict resolution on
the situation was so wide it included participation on one side of the civil
war, which led to the change of the regime in Libya and ultimately to the
brutal death of former dictator Moammar Gadhafi, who (although an international
criminal) should have been brought to justice. At the same time Russia and
China see an intervention into Syria as an opportunity for U.S. to weaken Iran
distancing the country from one of its allies.
Moreover, the rising tensions in the relations between
Iran and Azerbaijan making the picture of a very tense and otherwise overloaded
with security issues region quite complete. Fearing the possible presence of
the U.S. forces close to Iranian northern borders coupled with concerns for the
large Azerbaijani minority living on the northern part of Iran, made Teheran
start a real information war against Azerbaijan in its media, following the
attempts to assassinate famed Israelis on the Azerbaijani soil through
specially trained armed groups.
Overall situation in the region has been tied into a
very tense geopolitical knot. World powers are watching the situation that can
spill over into the violent outbreak very closely, trying to allocate the
possible scenarios for the future of Iran. Which at the moment doesn’t seem so
bright.
Kamal Makili-Aliyev
Doctor of Laws (LL.D)
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:
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.
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)
15.03.2012
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)
13.03.2012
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.
Read my new comment on Azerbaijan and Israel in the midst of regional tensions here.
Kamal Makili-Aliyev
Doctor of Laws (LL.D)
29.02.2012
Read my new comment on possibility of Syrian case referral to the International Criminal Court here.
Kamal Makili-Aliyev
Doctor of Laws (LL.D)
25.02.2012
Read my new comment on Interim Status in Nagorno-Karabakh here.
Kamal Makili-Aliyev
Doctor of Laws (LL.D)
24.02.2012
Read my new article on Syrian legitimacy issue here.
Kamal Makili-Aliyev
Doctor of Laws (LL.D)
15.02.2012
На фоне всех слухов об условиях содержания Саифа Каддафи в Зинтане, по-прежнему ребром стоит вопрос о том кто же будет его судить.
В первые же дни когда войска мятежников вошли в Триполи и не обнаружили там ни Муаммара, ни Саифа Каддафи, некоторые члены ПНС сделали заявления, в которых говорили о том, что нынешнее правительство может и будет судить их за преступления, совершенные ими в отношении народа Ливии.
При этом Саиф вместе с отцом уже тогда был объявлен в розыск Международным Уголовным Судом (МУС), в связи с обвинениями в совершении преступлений против человечности. Данный суд был создан в Гааге на основании Римского Статута, который на данный момент ратифицировали 118 государств. МУС часто называют последователем Международных уголовных трибуналов по бывшей Югославии и Руанде.
К сожалению, не существует единого правового института решающего, что делать с бывшим участником диктатуры, причастным к репрессиям в собственной стране и актам терроризма за рубежом. На данный момент очевидно, что решение о том где будет свершено правосудие над Саифом Каддафи принимается политически и не в соответствии с международным правом. Такой подход уже очевиден и на уровне глобальной политики. Именно Совет Безопасности ООН соорудил дело в отношении обоих Каддафи и передал его МУС. Совершенно очевидно, что решение об открытии такого дела не было принято юристами в Гааге. Скорее это была коллективная политическая воля государств ООН и на данный момент эта политическая воля идет вровень с преференциями правосудия ПНС.
Когда сталкиваются политика и правосудие...
После того как был взят Триполи, чиновники президентской администрации США подчеркнули, что Ливийский народ сам должен решать что делать с Муаммаром Каддафи и его сыном Саифом, однако данное решение должно отвечать "высочайшим стандартам международного правосудия."
Затем через некоторое время Госсекретарь США Хилари Клинтон и другие дипломаты США в своих заявлениях отметили, что будущее семьи Каддафи как приоритет, является менее важным, чем разрешение ситуации с химическим оружием в Ливии, снижение потенциала развития исламского экстремизма и направление новой Ливии на путь демократии. В тоже время, в курсе дальнейших заявлений со стороны чиновников США последовательно отмечалось, что "правовой статус" Муаммара и Саифа Каддафи это не тот вопрос, который будет детально рассматриваться Вашингтоном.
Первейшей проблемой предоставления правосудия для Саифа Каддфи на усмотрение ливийцев это то, что на данный момент в Ливии практически отсутствует судебная система. При Каддафи-отце система правосудия в Ливии основывалась на исламском праве, при этом отправление правосудия в отношении политических преступлений и преступлений против государства находилось в руках "революционных судов" и военных трибуналов. Новое правительство Ливии неоднократно заявляло, что намерено составить проект новой конституции, но не раскрывало подробностей того как он будет выглядеть.
Заявления нового правительства в отношении Саифа Каддафи и его сообщников, часто противоречивые и пронизанные этническими и региональными делениями (такие деления часто наносили вред военным планам ПНС) не вызывают уверенности в способности этого правительства создать и обеспечить работающую правовую систему. Все чаще слышны заявления юристов, задействованных в международных уголовных процессах, о том, что никто не уверен в том, что же новое правительство в Ливии будет делать с Саифом Каддафи.
В дополнение ко всему, некоторые из теперешних членов правительства Ливии, в свое время были высокопоставленными чиновниками режима Каддафи и вполне могли быть причастны к преступлениям режима, что может очень сильно повлиять на их желание ворошить прошлое в Международного Уголовном Суде.
Осуждение за преступления против человечности...
Вполне возможно, что новое ливийское правительство передаст Саифа Каддафи Международному Уголовному Суду в качестве жеста доброй воли для международного сообщества. Осуждение Саифа Каддафи в Гааге будет проводится в условиях намного более развитой системы правосудия. МУС уже в июне сего года выдал ордера на аресты Муаммара Каддафи, его сына Саифа Каддафи и бывшего начальника военной разведки полковника Абдуллы аль-Сенусси по обвинению в преступлениях против человечности. Муаммар Каддафи был убит повстанцами и до сих пор не ясно что случилось с Абдуллой аль-Сенусси, но вот на выдачу МУС Саифа Каддафи уже был поставлен крайний срок.
Сотрудники МУС утверждают, что после падения правительств в Тунисе и Египте в ходе т.н. "Арабской весны" Саиф Каддафи участвовал в использовании государственных войск и ресурсов для того чтобы подавить и не допустить повторения "демонстраций гражданских лиц против режима, любыми способами, включая насильственное лишение жизни". Обвинения включают лишь преступления якобы совершенные в последние две недели февраля 2011 года, но привлечение Саифа Каддафи к ответственности в МУС может повлечь новые обвинения и привлечение к ответственности других лиц и членов бывшего правительства.
Международно-правовые нормы в отношении МУС дают возможность государствам-участникам Римского Статута в первую очередь самим привлекать к ответственности за международные преступления. Однако Ливия государством-участником не является.
Как и в случаях с судебными процессами по бывшей Югославии и Руанде, судебный процесс в МУС над Саифом Каддафи скорее всего займет годы досудебных расследований, проверки показаний и судебных допросов, прежде чем будет вынесен приговор. Прокуроры должны будут на основании широкого спектра обвинений, представленных в ордерах на арест, составить обширное дело на основании сотен, а возможно тысяч допросов свидетелей и доказательств собранных в ходе расследования в самой Ливии. Подобные уголовные дела в трибунале по бывшей Югославии включали в себя и видеоматериалы подробной съемки во многих городах, в которых были совершены ужасные преступления.
МУС оплатит услуги защиты, если Саиф Каддафи будет не в состоянии оплатить собственных юристов, и у него будет право оспаривать любые улики и доказательства, а так же показания свидетелей. Еще более осложняют дело правила процесса в МУС, которые позволяют свидетелям давать на суде показания анонимно, в случаях, если они бояться мести за свои показания. При этом у подзащитного сохраняется право оспаривать анонимность свидетелей в каждом конкретном случае.
Но, пожалуй, самой большой проблемой на данный момент, является привлечение Саифа Каддафи к МУС. Суд не обладает реальной правоприменительной силой для обеспечения выполнения своих ордеров на арест. Суд полагается на Совет Безопасности ООН, который обеспечивает дипломатическое давление на страны, отказывающиеся сотрудничать. В этом направлении статистика, к сожалению, говорит не в пользу Совета Безопасности.
Именно Совет Безопасности первым передал дело отца и сына Каддафи в МУС, что позволило сохранить коалицию против правительства Каддафи в те месяцы, когда ситуация в Ливии находилась в патовом состоянии. При этом, хотя Совет Безопасности и призывал государства, которые не являются участниками МУС к сотрудничеству в этом направлении, с его стороны не последовало никаких угроз санкций или их применения за отказ от такого сотрудничества.
На данный момент, учитывая что приближается крайний срок передачи Саифа Каддафи Международному Уголовному Суду, уже становится очевидным нежелание или отсутствие возможности у нового правительства Ливии экстрагировать сына погибшего диктатора.
Kamal Makili-Aliyev
Doctor of Laws (LL.D)
31.01.2012
Please read my article on Human Rights in Azerbaijani Public Administration here.
Continue reading →
Kamal Makili-Aliyev
Doctor of Laws (LL.D)
31.01.2012
Recent tensions in “Persian” or “Arabian” Gulf are on their escalation due to the threats of Iran to hamper passage of the 20% of world’s oil flow by blocking the Strait of Hormuz. Threats were answered by the U.S. that made it quite clear they prepared to take all necessary actions to maintain the oil flow crucial to the global economy.
As the situation heats up and analysts are trying to predict the chances of the clashes in the Persian Gulf, analyzing military, political and geopolitical factors, the legal part of the question somehow escapes wider discussions. At the same time legal status of the Strait of Hormuz plays an important role both in international law and in the approach that should be taken when dealing with situation that can arise from the threats that are on the table right now.
Strait of Hormuz is one of the most important straits for the international trade exchange and security. While traversing that strait, ships have to pass through the territorial waters of Iran and Oman and follow Traffic Separation Scheme throughout the strait to escape the risk of collision. Basically, that Scheme separates inbound and outbound traffic in the Hormuz through the establishment of two 3 km (1.9 mile) lanes and another 3 km (1.9 mile) in between to navigate the ships flow through Hormuz. Total traffic lane is now around 10 km (5.7 mile) wide.
The importance of Hormuz as crucial to the international economy and security predetermined that the rule of the transit passage would apply to such strait. What it actually means is that thought all the ships passing through Hormuz, have to pass through the territorial waters of Iran, they are enjoying the right to free transit. Concept of “transit passage” is a customary navigation rule that was codified in Part III, Section 2 of the United Nations Convention of the Laws of the Sea. Specifically Article 38 of the aforementioned Convention that reads: “1. In straits... all ships and aircraft enjoy the right of transit passage, which shall not be impeded; except that, if the strait is formed by an island of a State bordering the strait and its mainland, transit passage shall not apply if there exists seaward of the island a route through the high seas or through an exclusive economic zone of similar convenience with respect to navigational and hydrographical characteristics; 2. Transit passage means the exercise in accordance with this Part of the freedom of navigation and overflight solely for the purpose of continuous and expeditious transit of the strait between one part of the high seas or an exclusive economic zone and another part of the high seas or an exclusive economic zone. However, the requirement of continuous and expeditious transit does not preclude passage through the strait for the purpose of entering, leaving or returning from a State bordering the strait, subject to the conditions of entry to that State; 3. Any activity which is not an exercise of the right of transit passage through a strait remains subject to the other applicable provisions of this Convention”. Thought not all the states have ratified that Convention, its provisions dealing with the transit passage are already the part of the rules customary international law and thus all the states are bound by them and accepted them, including U.S. and Iran. The acceptance of such rules is clear and evident from the practice of these states and general opinio juris.
If Iran decides to block the Hormuz it will simply be in breach of customary international law, and thus in breach of Article 44 of the United Nations Convention of the Laws of the Sea, that reads: “States bordering straits shall not hamper transit passage and shall give appropriate publicity to any danger to navigation or overflight within or over the strait of which they have knowledge. There shall be no suspension of transit passage”. In other words Iran does not have any legal rights to block of suspend transit passage of ships through Hormuz. Such actions should be considered not only grave breach of international law, but due to the economic and trade nature of the strait, the threat to the international peace and security.
However, here the approach should also be different on the part of the U.S. Rather that threaten to use force against Iran in case it will hamper the oil flow to Hormuz, U.S. should come forward with decisions based on the international law framework. Namely, refer the case to international body that specifically deals with the threats to the international peace and security – UN Security Council. Being the permanent member of Security Council it should not be a problem for the U.S. At the same time the decision needed by the U.S. in the Council is pretty much guaranteed as the threat to the world economy is quite real for all the states present in the Security Council permanent membership.
While Iranian bluff may have been real, Tehran has made so many grossly exaggerated claims in the past, that it seems they were designed more to try to deter U.S. military action and/or convince the Iranian public than government is truly being serious of its real world capabilities. Current exchange of threats on the other hand simply deviates from international law and does not make situation any more just.
Kamal Makili-Aliyev
Doctor of Laws (LL.D)
26.01.2012
One of the most serious challenges in the debates on international human rights law for the last years is of the acknowledgment of the direct connection between human rights and business. Even before the World Trade Organization meeting in Seattle in 1999 it was already quite clear that the human rights debates have drawn business in the middle of all the disagreements. Why has that happened? Human rights have reached a higher position in the agenda of global business (and thus have drawn business on the higher position on the agenda of non-governmental organizations, such as Amnesty International) due to specific global trends:
• development of the world economy as a central geopolitical fact of the modern world;
• enlargement of the external market as a key driver of foreign policy in many states;
• revolution of information technologies that link the world as they have never before. The result is the increased visibility of corporate negative actions and the rapidity with which this information can be disseminated around the world;
• increased consumer awareness in the areas of the labor practices of companies whose products they purchase;
• privatization, that has simultaneously raised both the influence of business, as well as the need of private companies to be more publicly accountable;
• several high profile situations in which businesses have been found in serious human rights violations; and
• widespread demands for companies to operate in more transparent and responsible manner (as follows from the development of concepts such as “corporate social responsibility” and the “triple bottom line”).
Many of the business leaders have tried to assert that the human rights defense is solely the responsibility of government – this is despite the almost endless list of serious human rights violations by companies, mostly in the developing states. Example can be brought from the media investigations of the labor conditions on the Nike factories in Vietnam that have revealed beatings, sexual harassment and workers being forced to kneel for extended periods with their arms held in the air. Globally, millions of child workers are in slavery through forms of debt bondage in countries like India; forced labor is wide spread in Myanmar and China; trade unionists receive death threats in Columbia and are banned for good in Myanmar and are regularly pressured into resigning in Guatemala.
In addition to all that it is common that the presence of multinational enterprises in a state is seen as proving support for government policies and actions. For example, the silence of Shell in Nigeria, when Ken Saro-Wiwa and eight other Ogonis were executed after set-up trials in 1995, wasn’t a politically neutral action. Silence of Shell was understood by the government of Nigeria as a tacit support of their actions. Similar criticisms have been mad of many of the other multinational oil and energy companies, such as Total in Myanmar and BP in Columbia.
The corporate sector also has a tremendous amount of important influence on the actions of governments. That does not relate only to the traditional areas of business interest (for example taxation and competition policy) but also, increasingly, to broader policy areas such as unemployment, health and education. On international level bodies such as World Trade Organization, World Bank and the International Monetary Fund have started to exert a greater influence on domestic government policy in areas such as market liberalization, government expenditure and trade and industry policy.
Many countries today have changed their rules related to the external direct investments for the creation of the more appropriate environment for the multinational corporations. At the same time it is absolutely clear that states nowadays share political arena with large multinational corporations, however it is crucial that we be careful with conclusions. Arguments in favor of the corporations to play specific role in the protection and the promotion of human rights should not depend too heavily on the analogy with state-bodies. One thing is quite clear – multinational corporations are not states – and that is why the states should be the major carriers of the obligations on the protection of human rights. Moreover, the size of multinational corporation should not be the main factor – all of them have to implement human rights, despite their level of participation in the society’s public life.
In conclusion it is also important to note that there is another theory that multinational corporations can be the human rights protectors. They can be created with the already documented goal to enforce human rights or to function in the human rights’ boundaries.
All of such initiatives and development in human rights regulation area and multinational corporation activities have one common detail – all of them acknowledge that today such corporations have become general organizational template both on national and international levels.
Kamal Makili-Aliyev
Doctor of Laws (LL.D)
11.01.2012
К вопросу о международно-правовых гарантиях ответственности военнослужащих в Азербайджанской Республике
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Статья 14 Международного пакта о гражданских и политических правах в числе минимальных гарантий при рассмотрении любого предъявляемого обвинения указывает на право не быть принуждаемым к даче показаний против самого себя или к признанию себя виновным. Европейская конвенция о защите прав человека и основных свобод прямо не содержит такого положения, однако Европейский Суд по правам человека в толковании права на молчание как составной части права не давать показания против самого себя исходит из того, что эти положения являются общепризнанными международными нормами, которые лежат в основе понятия справедливой судебной процедуры (ст. 6 Европейской конвенции).
Указанные положения основных источников международного права говорят о правах любого человека на отказ от дачи показаний против самого себя. Военнослужащие так же, как и любые другие люди обладают такими правами и обеспечиваются защитой таких прав. При этом в любом государстве – военнослужащие это отдельная категория граждан, обладающая своим специфическим статусом. Такой специфический статус серьезно увеличивает количество видов ответственности, которые несет военнослужащий как гражданин, обладающий особым статусом: включая моральную, дисциплинарную, административную, гражданскую, уголовную и даже некоторые другие дополнительные виды ответственности. При этом, существует некое заблуждение, что право на отказ свидетельствовать в суде против себя и соответственно не принятие судом таких доказательств, если они были получены вынужденно, распространяется на все виды ответственности военнослужащих. Однако это не так. Если лицо, не обладающее статусом военнослужащего, может пользоваться, в области моральной и дисциплинарной ответственности, базирующихся на мягких формах регулирования юридических отношений, определенного рода правами схожими с указанными выше, то для военнослужащего как видно из предыдущих тезисов, такое положение дел будет мешать несению службы и будет несовместимо с целями и задачами службы. Данное заблуждение легко преодолеть если вчитаться в пункт 3 статьи 14 Международного пакта о гражданских и политических правах: «Каждый имеет право при рассмотрении любого предъявляемого ему уголовного обвинения как минимум на следующие гарантии на основе полного равенства… не быть принуждаемым к даче показаний против самого себя или к признанию себя виновным».
Как видно из вышесказанного указанные положения распространяются лишь на уголовную ответственность. А значит и для военнослужащих они являются обязательными гарантиями лишь в уголовном процессе, что кстати и нашло свое отражение в статье 20 Уголовно-Процессуального Кодекса Азербайджанской Республики в виде свободы самообличения или обличения родственников. Отметим, что ни в одном из других процессуальных кодексов АР нет схожих положений, что еще раз подтверждает вышесказанное.
Kamal Makili-Aliyev
Doctor of Laws (LL.D)
06.01.2011
While the tragic events in Syria are still bringing around 100 of civilian deaths every day and the total number of victims is now estimated more than 5000 people, international community is still to decide how to react to the situation. 20.12.2011 is now called a bloodiest day in the whole Syrian crisis. Syria's major opposition group have already condemned government for "brutal massacres" this week and called for the U.N. to protect civilians against "acts of genocide."
Though the situation in itself can’t be considered to amount to the crime of genocide, widespread facts of crimes against humanity are quite evident in Syrian crackdown. Such situation in itself produces enough threat to the peace and security in the world for the U.N. Security Council to be concerned with the situation. Anti-government protests rattle Syria since Spring 2011. The opposition demands resignation of the regime and is being backed by the United States and EU countries that have already imposed a number of economic sanctions against Syria. However, these measures were not enough to bring parties to the peace and stop the bloodshed in the country.
U.N. Security Council reacted to the situation with the draft resolution on the condemning President Bashar al-Assad’s crackdown on the protesters. That resolution was successfully blocked by the Russia and China both vetoing the document. Recently Russian representatives in U.N. Security Council have circulated a draft resolution calling for an end of violence in Syria among the Council members. The draft openly demands that “all parties in Syria immediately stop any violence irrespective of where it comes from,” however it does not impose any sanctions on Syrian government whatsoever. The draft is still being considered by the Unites States that make it clear that they would like to see the strengthening of the “Russian draft”. They specifically express concern that that the draft is as critical of demonstrators as it is of Syrian forces. Meanwhile the monitoring mechanisms deployed by the Arab League and agreed to by the Syrian government evidently lead to nowhere, thus bringing the Syrian case into the legal stalemate.
So why is there no consent on the part of the Security Council in the situation? So far both Russia and the West agree only on that the main role in the negotiating peace in the country should belong to the Arab League. The problem is with the fresh memory of Libyan resolution on the table of the Security Council. In Libyan case the interpretation of the strict resolution on the situation, was interpreted by the United States and EU countries so wide as to include the participation on the one side of the civil war, which led to the change of the regime in Libya and ultimately to the brutal death of former dictator M.Gaddafi, that (though an international criminal) should have been brought to justice.
It is only logical that in the situation like this, Russia and China will be more reluctant to vote for any resolution in the Security Council that would have even a slight room for the interpretation that would lead to an enforced change of the Syrian regime. At the same time United States are in the position where they feel that stronger pressure on Syria needed for the mitigation of the atrocities. At least the statements of White House Press Secretary are in accordance: “The United States continues to believe that the only way to bring about the change that the Syrian people deserve is for Bashar al-Assad to leave power… Time and again, the Assad regime has demonstrated that it does not deserve to rule Syria. It’s time for this suffering and killing to stop. It’s time for the immediate and full implementation of all terms of the Arab League agreement, including the full withdrawal of security forces, the release of political prisoners, and unfettered access by monitors and international media to all parts of Syria…”
Ultimately, the struggle for the resolution will continue, while the atrocities in Syria are also far from their logical ending. These kinds of legal stalemates that are heavily dependent on political will of the states undermine the sole role of the international law in the situations that threaten international peace and security. On one hand we have the situation where the action of the states needed to prevent the further loss of human life and international crimes; on the other hand, however, we see the reluctance of the states to act due to the questionable actions of the other states when interpreting and implementing international law. It is only left to hope that during the negotiations in the U.N. Security Council its members will be able to come to the consensus and soon, otherwise the international community will once more prove too slow to react to the threats it’s faced with. And then, who knows how many more “Syria[s]” there will be…
Kamal Makili-Aliyev
Doctor of Laws (LL.D)
23.12.2011
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