Hostilities
in Chechnya in 1994-96 have been referred to, explicitly or implicitly,
in Russian legal sources as "non-international armed conflict."
The law providing for additional compensations for servicemen on
mission to particularly dangerous and arduous areas, first adopted
in 1993, was amended in 1997 to include those military who "carried
out assignments under the conditions of a non-international armed
conflict in the Chechen Republic."1 The Constitutional
Court of the Russian Federation in its review of Presidential decrees
that authorized the use of military force in Chechnya, while never
directly referring to hostilities there as a "non-international
armed conflict", none-the-less cited Additional Protocol II as a
source of law that should have been applied by parties to the conflict.2
The Court did not analyze the Protocol, nor did it consider it as
applicable law in the judicial review of decrees.
The
term that is currently used by Russian Government to describe what
mass media refers to as "war in Chechnya" is "counter-terrorist
operation". Assuming that the term is used consciously, it might
imply a reference to the Federal Law on Anti-Terrorist Activity.3
The law defines the "counter-terrorist operation" as "special measures
to interdict a terrorist action, to provide for security of individuals,
to neutralize terrorists, as well as to minimize effects of a terrorist
action" (Art.4). The Law gives a very broad definition of what it
calls a "zone where the counter-terrorist operation in underway."
It could be an area on land or water, as well as a transport vehicle,
a building with its appurtenances, or a part thereof. The law obliges
Federal agencies directly involved in anti-terrorist activity, including
the Ministry of Internal Affairs and the Ministry of Defense, to
abide, among other legal sources, by "the generally recognized principles
and norms of international law and international treaties of the
Russian Federation" (Art.7, para 1). It may be assumed that the
legislators had in mind instruments that set basic rules for international
cooperation to combat terrorism, including both treaties and "soft
law", such as the UNGA Resolution "Measures to Eliminate International
Terrorism" of 9 December 1994 or the Ottawa Declaration of G8 foreign
ministers of 12 December 1995. Whether the legislators had in mind
the Geneva Conventions is less obvious. Even if they did not, the
wording is broad enough to include the fundamental instruments of
international humanitarian law (IHL).
Interviewed
by the Financial Times, Russian Prime Minister Vladimir Putin
stated that, in the conduct of that "counter-terrorist operation",
"Russia is strictly complying with its obligations concerning the
provisions of international humanitarian law."4 It may
be implied that the Government considers Common Article 3 applicable.
As for Additional Protocol II, data that appears reliable do not
prove that armed groups opposing Federal forces meet all requirements
of the Protocol's Art.1 para 1. Individual groups may have elements
of internal structure and discipline. It is less certain that there
is centralized control or responsible command. It is doubtful that
they are capable of coordinated action. They definitely do not "exercise
such control over a part of [its] territory as to enable them to
carry out sustained and concerted military operations". There is
documented proof that at least some of them are more than unwilling
to implement the Protocol.
[1]
Federal Law of the Russian Federation # 146-FZ of 19 November 1997,
in: Sobraniye Zakonodatelstva Rossiyskoy Federatsii # 47, Art.5343,
24 November 1997.
[2]
Sobraniye Zakonodatelstva Rossiyskoy Federatsii # 33, Art.3424,
14 August 1995.
[3]
Federal Law of the Russian Federation # 130-FZ of 25 July 1998,
in: Sobraniye Zakonodatelstva Rossiyskoy Federatsii (Collection
of Legislation of the Russian Federation), # 31, Art.3808, 3 August,
1998.
[4]
Financial Times, 11 December 1999 (on-line edition).
Bakhtiyar
Tuzmukhamedov is an Associate Professor at the Diplomatic Academy
in Moscow. He is a member of the Committee on Arms Control and Disarmament
Law of the International Law Association and of the Executive Committee
of the Russian Association of International Law.
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