Speaking at the recent Istanbul summit of the Organisation for Security and Co-operation in Europe, President Boris Yeltsin rejected Western criticism of Russian military operations in the secessionist Chechen Republic with these words: "When dealing with terrorists, questions of proportionality and humaneness [sic] don’t apply."[1] Whether the ‘fighters’, as Chechnya’s irregular defenders are loosely termed, are actually terrorists or not is clearly a subjective value-judgement, but in any event a determination of the existence and classification of an armed conflict situation is essential as a preliminary to establishing what, if any, international law is applicable to the circumstances in Chechnya.
The Chechen Republic is an integral part of the Russian Federation, from which it declared independence in 1991. As international law does not recognise a general right to unilateral secession,[2] the purported secession of Chechnya from the Russian Federation has never been recognised by the international community. It follows logically that the conflict in Chechnya is non-international in nature: it was so treated by the United Nations during the last Russian military intervention there (1994-1996) and on that occasion was also acknowledged as such by the Constitutional Court of the Russian Federation. The same decision held that the main instrument applicable to that conflict was the 1977 Protocol II Additional to the 1949 Geneva Conventions.[3] As the Soviet Union had ratified Additional Protocol II in 1989 and the Geneva Conventions in 1954, it is clear that Russian forces in Chechnya are subject to the provisions of the Protocol [4] and of Article 3 common to the Geneva Conventions. It is less clear what law, if any, the Chechen ‘fighters’ can be held to; certainly in concrete terms there is little chance of securing their compliance, although the Russian authorities could try them, after capture, as common criminals for any alleged atrocities. In general the principle of reciprocity would suggest that the Chechens apply as a minimum the standards of humanity in Common Article 3, supplemented by basic human rights norms. However, the 1994-1996 conflict, in which the most fundamental norms of humanitarian law were disregarded by both sides, does not provide a very hopeful precedent.
In the present conflict, however, the violations to date appear completely one-sided: there have as yet been no direct confrontations between the Federal forces and the Chechen ‘fighters’, so the latter have not yet had an opportunity to violate international humanitarian law. On the other hand, if media reports are to be believed, the Russians have employed indiscriminate weapons (notably multiple rocket-launchers) and have generally targeted the civilian population in Chechnya. Transports clearly marked with the Red Cross have been attacked. Human Rights Watch has documented Russian bombardments of residential areas in Grozny, Urus-Martan, Novy Sharoi, Shatoi and Achkoi-Martan; also, the main Baku-Rostov highway (along which many refugees are travelling in an effort to escape the fighting) has been shelled. Such attacks by Russian forces are indiscriminate (i.e. they fail to distinguish between combatants and non-combatants) and the use of force generally appears excessive. At the very least, the Russian conduct so far discloses violations of Articles 4, 11 and 13 of Additional Protocol II. Unfortunately, since that Protocol contains no mandatory international enforcement mechanism, it is unlikely that any Russian personnel accused of violating it will ever be called to account unless before a Russian tribunal. Alternatively, an international tribunal with the appropriate jurisdiction might try such persons on charges of crimes against humanity, which are committed against the civilian population as part of a systematic policy and require no nexus to an armed conflict of any kind. The requisite intention, however, would surely be very difficult to prove.
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[1] The Independent, 19 November 1999.
[2] See Reference re Secession of Quebec (Supreme Court of Canada) 37 I.L.M. 1340 (1998).
[3] Constitutional Court of the Russian Federation, Decision of 31 July 1995, available in part on the Internet at www.icrc.org/ihl-nat/.
[4] On this occasion it seems clear, again, that the hostilities are on such a scale and of such intensity as to meet the threshold for Additional Protocol II to apply - see Article 1 of the Protocol.
David Turns is a Lecturer, International & European Law Unit, School of Law, University of Liverpool, United Kingdom.