In October of 1999, the Crimes of War Project carried out an informal survey of international legal experts to etermine the applicability of the laws of war —international humanitarian law— to the conflict in Chechnya. In response, these experts submitted short written statements of their views. We found that there is general agreement among them that the situation in Chechnya is an internal armed conflict as defined in international law. As such, the laws of war apply to both Russian and Chechen forces. The conflict is not simply a "police" or "anti-terrorist" action as described by Russian authorities but one that brings into effect the laws of war.

The Russian Federation ratified the Geneva Conventions of 1949 on May 10, 1954, and ratified Additional Protocol II on September 29, 1989. As a result, it is bound to observe the rules set forth in these treaties and conduct its military actions accordingly.

This survey was carried out in the hope informing the debate on the conflict in Chechnya, and to draw attention to what may prove to be serious abuses of international humanitarian law.

The opinions presented are those of the individuals and not of their respective institutions, and they are not writing as representatives of the Crimes of War Project. Please cite author and this web site for attribution.

The Experts

David Turns
David Turns is a Lecturer, International & European Law Unit, School of Law, University of Liverpool, United Kingdom.

Cherif Bassiouni

H. Wayne Elliott, S.J.D.
H. Wayne Elliott, S.J.D., Lieutenant Colonel, U.S. Army (Retired), is a former chief of the international law division at the Judge Advocate General's School, U.S. Army.

Françoise Hampson
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.

A.P.V. Rogers
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).

Bakhtiyar Tuzmukhamedov
Diplomatic Academy, Moscow, Russian Federation

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.

David Turns
School of Law, University of Liverpool, United Kingdom

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] don’t apply."[1] Whether the ‘fighters’, as Chechnya’s 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.

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[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.

Cherif Bassiouni
DePaul University

The conflict in Chechnya falls within the meaning of Common Article 3 of the four Geneva Conventions of August 12, 1949 and of Protocol II Additional to these Conventions.

The indiscriminate attacks by Russian military forces against the civilian population and civilian objects, including air and artillery bombardments, resulted in violations of the Fourth Geneva Convention on the Treatment of Civilian populations. It also constitutes a violation of Protocol II.

The policies of the Russian government and its armed forces, as well as the manner in which the indiscriminate use of force against protected objects, constitute war crimes, for which the Russian government leadership and the military leadership who participated in the making and carrying out of these policies are responsible. Individual combatants such as pilots and artillery officers who carried out orders to indiscriminately kill civilians and destroy protected objects are also individually responsible for the commission of war crimes if the targets appeared to be unlawful.

It is totally irrelevant to the application of the Geneva Conventions and to the laws and customs of war that some of the actions of Chechen insurgents are characterized as "terrorist." There is simply no justification for the commission of deliberate and intentional violations of Common Article 3, Protocol II, and the laws and customs of war.

It is also significant to point out that international humanitarian law prohibits reprisals against the civilian population and civilian objects.

M. Cherif Bassiouni is a professor of law and director of the International Criminal Justice and Weapons Control Center at DePaul University in Chicago. He chaired the UN Commission of Experts on the former Yugoslavia, and is the author of Crimes Against Humanity in International Criminal Law (Martinus Nijhoff, 1998).

H. Wayne Elliott, S.J.D.
Lt. Colonel, U.S. Army (Retired)

In determining the applicability of the law of war the first step is to properly define the type of conflict. Press reports (18 November 1999) indicate that Russian leader Boris Yeltsin sees the current conflict in Chechnya as an internal problem, one the resolution of which is entirely and solely up to Russia. In fact, he goes even further and says to the western leadership, "You have no right to criticize Russia for Chechnya."

Russian military and civil leaders have referred to the Chechen forces as terrorists and bandits. If that is an accurate description, then the fighting in Chechnya is, indeed, an internal matter. Of course, even so, the way in which the Russian government deals with the culprits might still be a subject of interest and criticism. So exactly what is the nature of the conflict in Chechnya?

Truly internal matters, such as criminal activity, even when done with a political motive are not the concern of the traditional law of war. The very idea of State sovereignty and equality cut against outside involvement in such matters. Nonetheless, the 1949 Geneva Conventions do provide some level of international cognizance of internal conflicts. Common Article 3 relates to a "conflict not of an international character." When fighting rises to a certain level Article 3 is automatically triggered. It provides minimum humanitarian standards for those caught up in the fighting. Generally, these victims of the internal conflict are entitled to humane treatment, including care of wounds; protection from mutilation and physical harm; and recognition of personal dignity. Also prohibited is collective punishment and pillage.

Establishing the international standard of humane treatment is relatively easy. The more difficult issue is determining exactly when an internal conflict rises to the level of a "conflict not of an international character" and, thus, becomes an Article 3 conflict. While the language of Article 3 itself provides little guidance, the Red Cross Commentary on the Article does. The Commentary is supplemented by Article 1 of Additional Protocol II to the Geneva Conventions. The criteria may be summarized as:

1. Does the party in revolt possesses an organized military force with a responsible chain of command?

2. What is the response of the de jure government to the revolt? Is it forced to rely on its military forces rather than the police?

3. Has the de jure government acted as if the rebel forces are lawful combatants? Has it demanded the protections of the law of war for its own forces?

4. Do the insurgent forces have the characteristics of a State? Do these forces act in accordance with the law of war? Does the dissident group exercise control over enough territory to carry out sustained military operations?

Applying these criteria to Chechnya, it is difficult to make the case that Russia is not now engaged in at least an Article 3 conflict. Recognizing the nature of the conflict as one falling within the safeguards of Article 3 does not change the nature of the conflict. It is still an internal matter. But, it is an internal matter subject to some minimal safeguards found in international law. Reminding Russia of its obligations under that law hardly constitutes outside interference. It is the sovereign State of Russia which agreed to the standards set out in Article 3 and in Protocol II. It is the sovereign State of Russia which must now comply with the standards it freely and independently adopted. Doing so, might even make outside "interference" much less likely.

H. Wayne Elliott, S.J.D., Lieutenant Colonel, U.S. Army (Retired), is a former chief of the international law division at the Judge Advocate General's School, U.S. Army.

Françoise Hampson
University of Essex, United Kingdom

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.

A.P.V. Rogers
Maj. General, British Army (Retired)

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).