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October 1999 A.P.V.
Rogers |
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There is no doubt that an internal armed conflict is going on in Chechnya to which Common Article 3 of the Geneva Conventions applies. There is, of course, a necessary threshold of violence needed to constitute an armed conflict and to distinguish the situation from criminal or terrorist activity but once heavy armor, artillery and ground attack aircraft are deployed it is clear that the threshold has been crossed. Common Article 3 and Customary International Law lay down certain basic standards that must be complied with in internal armed conflicts (see "Civil War" from Crimes of War: What the Public Should Know). It is for consideration whether Additional Protocol II of 1977 also applies to the situation. Russia ratified the Protocol in 1989. It applies to armed conflicts between a State party's armed forces and dissident armed forces or other organized armed groups which, under responsible command, exercise such control over part of the State's territory as to enable them to carry out sustained and concerted military operations and to implement the Protocol. So questions for journalists to clarify here are about the organization and command structure of Chechen side, whether they control territory and conduct systematic military operations and whether they comply with the 10 basic rules, for example, do they operate in military uniform, do they respect civilian immunity, how do they treat captured members of the Russian armed forces? Civilian immunity is specifically set out in Art. 13 of Protocol II. Civilians are not to be attacked (unless they take a direct part in hostilities) nor terrorized and they are to be protected against the dangers arising from military operations. Art. 12 of Protocol II requires medical units and transports and the red cross and red crescent emblems to be respected and protected. The mere fact that there have been civilian deaths, even in a market place, or that red cross vehicles have been destroyed does not prove that a war crime has been committed. The civilian death and damage caused by the NATO bombing during the Kosovo conflict was not deliberate; it was a result of incidental damage, mistakes or malfunctions. The same may be true of the Russian actions in Chechnya. Journalists should, therefore, be asking why artillery, missiles and attack aircraft are being deployed and against what targets, what precautions are being taken to minimize civilian casualties and what explanation there is for the reported civilian casualties. A.P.V. Rogers, OBE, is a retired major general in the British Army and a recognized expert on the laws of war. He received the 1997 Paul Reuter prize for Law on the Battlefield (Manchester University Press, 1996).
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