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October 1999 Françoise
Hampson |
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All I really know about the Chechen conflict is what I see and read in the media. That is not sufficient to reach conclusions about criminal liability for particular alleged violations. I am clear, however, about the characterization of the conflict. The conflict in Chechnya is occurring within the Russian Federation. There is no doubt that it is an armed conflict not of an international character and that, at the very least, Common Article 3 is applicable. One may also ask whether Additional Protocol II to the Geneva Conventions is applicable. The Protocol--ratified by the Russian Federation in 1989--addresses not only the protection of the victims of conflict but also contains minimal rules on how the fighting is to be carried out (e.g. Article 13 prohibits attacks directed against the civilian population). In addition, the draft Statute of the International Criminal Court indicates certain conduct which constitutes a war crime even in a non-international armed conflict. Whilst the treaty is not yet in force, the delimitation of offences for which criminal liability will lie is evidence that such conduct is prohibited in non-international conflicts. The case-law of the International Criminal Tribunal for the former Yugoslavia also makes it clear (e.g. Tadic appeal on jurisdiction) that individual criminal responsibility will attach not only to violations if Common Article 3 to the Geneva Conventions but also to the commission of war crimes in non-international conflicts. The Russian Federation is also bound by the European Convention on Human Rights. In order to modify the application of Article 2 on the protection of the right to life, it would be necessary for the Russian Federation to have submitted a notice of derogation. Even then, the protection of the right to life is only modified in relation to lawful acts of war. Similar arguments would apply in relation to other human rights treaties by which the Russian Federation is bound. It is not yet possible on the basis of the information contained in news reports to determine whether war crimes have been committed and, if so, by whom. Nevertheless, the reports provide sufficient evidence to give rise to serious questions both concerning individual criminal responsibility and also the civil liability of the Russian Federation for the violation of non-derogable human rights law. Françoise Hampson is a professor at the University of Essex and co-director of its Children and Armed Conflict Unit. She is a member of the UN Sub-Commission on the Prevention of Discrimination and Protection of Minorities, the ICRC expert committee on customary law, and governor of the British Institute of Human Rights.
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