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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