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October 1999 H.
Wayne Elliott, S.J.D. |
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In determining the applicability of the law of war the first step is to properly define the type of conflict. Press reports (18 November 1999) indicate that Russian leader Boris Yeltsin sees the current conflict in Chechnya as an internal problem, one the resolution of which is entirely and solely up to Russia. In fact, he goes even further and says to the western leadership, "You have no right to criticize Russia for Chechnya." Russian military and civil leaders have referred to the Chechen forces as terrorists and bandits. If that is an accurate description, then the fighting in Chechnya is, indeed, an internal matter. Of course, even so, the way in which the Russian government deals with the culprits might still be a subject of interest and criticism. So exactly what is the nature of the conflict in Chechnya? Truly internal matters, such as criminal activity, even when done with a political motive are not the concern of the traditional law of war. The very idea of State sovereignty and equality cut against outside involvement in such matters. Nonetheless, the 1949 Geneva Conventions do provide some level of international cognizance of internal conflicts. Common Article 3 relates to a "conflict not of an international character." When fighting rises to a certain level Article 3 is automatically triggered. It provides minimum humanitarian standards for those caught up in the fighting. Generally, these victims of the internal conflict are entitled to humane treatment, including care of wounds; protection from mutilation and physical harm; and recognition of personal dignity. Also prohibited is collective punishment and pillage. Establishing the international standard of humane treatment is relatively easy. The more difficult issue is determining exactly when an internal conflict rises to the level of a "conflict not of an international character" and, thus, becomes an Article 3 conflict. While the language of Article 3 itself provides little guidance, the Red Cross Commentary on the Article does. The Commentary is supplemented by Article 1 of Additional Protocol II to the Geneva Conventions. The criteria may be summarized as: 1. Does the party in revolt possesses an organized military force with a responsible chain of command? 2. What is the response of the de jure government to the revolt? Is it forced to rely on its military forces rather than the police? 3. Has the de jure government acted as if the rebel forces are lawful combatants? Has it demanded the protections of the law of war for its own forces? 4. Do the insurgent forces have the characteristics of a State? Do these forces act in accordance with the law of war? Does the dissident group exercise control over enough territory to carry out sustained military operations? Applying these criteria to Chechnya, it is difficult to make the case that Russia is not now engaged in at least an Article 3 conflict. Recognizing the nature of the conflict as one falling within the safeguards of Article 3 does not change the nature of the conflict. It is still an internal matter. But, it is an internal matter subject to some minimal safeguards found in international law. Reminding Russia of its obligations under that law hardly constitutes outside interference. It is the sovereign State of Russia which agreed to the standards set out in Article 3 and in Protocol II. It is the sovereign State of Russia which must now comply with the standards it freely and independently adopted. Doing so, might even make outside "interference" much less likely. H. Wayne Elliott, S.J.D., Lieutenant Colonel, U.S. Army (Retired), is a former chief of the international law division at the Judge Advocate General's School, U.S. Army.
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