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] dont apply."[1]
Whether the fighters, as Chechnyas 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.
++++
[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.
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