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
Bakhtiyar
Tuzmukhamedov
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
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] 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.
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).
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