|
October 1999 Bakhtiyar
Tuzmukhamedov |
|
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.
|
