The Legal Character of the Conflict in Chechnya
Marta Míšová, special to Prague Watchdog
Legal qualification of an armed conflict (i.e. the distinction between international and non-international conflicts) is highly significant because it makes it possible to define the set of legal norms that are applied in individual cases. An international conflict, either a conflict of two or more states or a struggle for national liberation, is particularly the object of the Four Geneva Conventions 1949, and Protocol I, Additional to the Geneva Conventions 1977. The protection that the two contractual documents give to the target groups of people (the injured and the ill in a land war, the injured, the ill and survivors of a sea war, prisoners of war and civilians), is relatively broad and detailed. In contrast, as regards a non-international conflict it is possible to invoke only the basic principles of international humanitarian law asserted in Article 3 of the Geneva Conventions. Alternatively, if a conflict intensifies, it is possible to invoke the provision of Protocol II, Additional to the Geneva Conventions 1977, which is quite brief and fails to regulate a number of areas.
In the past, the distinction between international and non-international conflicts was not a serious problem. However, there have been increasingly more ”new” or ”de-structured” conflicts since the end of the cold war. Their legal qualification is far from defined. Such conflicts cause embarrassment among lawyers and politicians, which is clearly seen in the attitude towards the war in former Yugoslavia. Violent clashes between members of various ethnic groups in some territories (mainly Bosnia and Herzegovina) directly or indirectly involved neighbouring countries (Croatia, the Federal Republic of Yugoslavia). Thus, the war manifested elements of an international as well as a non-international conflict. This fact was a crucial point for the International Tribunal for the Former Yugoslavia established on the basis of United Nations (UN) Security Council Resolution No. 827 1993. In the quest for the best guarantee for protecting people, some situations were given the stricter qualification of international conflict (that concerned mostly the activities of Serbian squads), while others got more lenient treatment based on the qualification of non-international conflict (mostly the activities of Muslim and Croatian troops). The resultant different qualifications of the same crimes committed in the same context by offenders of distinctive ethnic origins prove that contemporary international law has failed to find clear qualification for new types of conflict and is unable not only to solve them but also to define and classify them in many cases.
The war in Chechnya, another of the modern de-structured conflicts, is from the point of legal qualification among the most problematic and disputable conflicts. Russia, supported by some states (China, India, Cuba and others), claims that the conflict is an internal problem for the Russian Federation (1). The Chechen side, backed by some non-governmental organisations, insists that the war is an international conflict in accordance with article 1 (4) of Additional Protocol I. (2). Most countries and international organisations, including the United Nations, as well as specialists in public international law and international human rights tend to admit that the war in Chechnya, at least in some phases, meets the criteria for a non-international conflict.
There are several reasons why this conflict provokes a number of different views and qualifications. Firstly, the conflict is continuously developing and changing its form. Russians and Chechens have tried to use all possible models of treating each other (beginning with peaceful co-existence and ending in brutal killing), so it is possible to say that the 90’s are sort of a short recapitulation of the history of relations between the two sides. Secondly, an almost complete absence of independent observers in the territory leads to a lack of objective information, which forces those who want to study the conflict to rely on the protagonists’ news and reports that are little trustworthy and considerably impaired by propaganda. Thirdly, the atmosphere of the conflict has become highly politicised and affected by distinctive ideologies, and it is difficult to stay aloof from the influence of these factors when evaluating the situation. Fourthly, a number of problems concerning legal qualification of the conflict in Chechnya involve the broad question of the position of nations and nationalities and their rights to autonomy or self-determination in the former USSR and the present Russian Federation. As a too broad interpretation of these terms could lead to destabilisation in the whole region, it is obvious why many specialists are doing their best to ignore this issue completely.
1. WAR IN CHECHNYA – INTERNAL DISTURBANCES AND TENSIONS?
Since the beginning of the conflict the Russian side has been claiming that the campaign in Chechnya is an anti-terrorist operation for the preservation of a territorial integrity of the Russian Federation, the re-enforcement of the Constitution and the protection of fundamental human rights and freedoms. Should we accept this view, the war in Chechnya would not be in the category of an armed conflict asserted in the Geneva Conventions and Protocols, and the situation in the country would be considered as only ”internal disturbances and tensions”.
The term ”internal disturbances and tensions” was introduced in international human rights by the International Committee of the Red Cross in 1971 and it is defined as ”the situation in which, though not being an armed conflict in the real sense of the word, there are clashes of a certain degree of seriousness, length of time and displays of violence in the territory of a state.” (3)
Additional Protocol II in article 1 (2) provides that ”riots, isolated and sporadic acts of violence and other acts of a similar nature” are not considered armed conflicts and the provisions of the Protocol do not apply to them.
In accordance with this, if disturbances and tensions break out in a particular state, only the legislation of that state and the system of human rights protection are applicable. The system of human rights protection, in comparison with humanitarian law, asserts far more detailed and worked-out rules. Moreover, it often anticipates control mechanisms and sanctions. The weakness in the system is that in cases of ”exceptional circumstances and emergency” (which are obviously defined by the particular state), it is possible to limit people’s rights to the ”hard core”, i.e. the minimum human rights that are very close to the fundamental guarantees of human rights asserted in article 75 of Protocol I.
Internal disturbances and tensions turn into an armed conflict when animosity reaches a certain intensity and length of time. There is no exact criterion for the distinction of the two categories. However, whether violent criminal acts in particular cases only actually have an isolated and sporadic character or not may serve as a starting point for qualification. If we accept this point of view, the Russians’ qualification of the conflict, at least the qualification of its crucial phases, is evidently unconvincing.
The two Chechen wars between 1994 – 1996 and 1999 – 2001 can be characterised as relatively long (months, even years of fighting) and considerably intensive (they claimed tens of thousands of lives and created hundreds of thousands of refugees and the Moscow government was forced to deploy the army). Thus, the wars cannot be considered only internal disturbances or tensions. The threshold of an armed conflict has definitely already been breached.
In contrast, the 1991 – 1994 period could possibly fit the Russian qualification. There were rebel attacks on the central government (for example the suppression of pro-Russian forces in Chechen society) as well as fighting among individual rebel factions (for example the confrontation between Dudayev and Mamadayev), but the clashes were always limited as to their space and length of time.
The period of 1996 – 1999, when Chechnya in fact gained independence, seems to be the most disputable. Russians and Chechens quite successfully managed to avoid direct confrontation, but their relations were regulated only by a provisional peace agreement (the Chassavyurt Agreements, August 1996), and both sides were counting on changes to the status quo in the future. Since after a few months of stability absolute anarchy and massive human rights violations (murder, kidnap, etc.) broke out in Chechnya in mid-1997, it would be possible to use the qualification of internal disturbances and tensions for this period as well.
2. WAR IN CHECHNYA – NON-INTERNATIONAL ARMED CONFLICT?
The war in Chechnya (at least its key phases in 1994 – 1996 and 1999 – 2001) is most often considered to be among non-international armed conflicts. That is, conflicts ”which break out under the jurisdiction of a particular state, i.e. on the territory of the state, between the government on the one side and rebelling armed groups on the other side.” (4) They differ from mere internal disturbances and tensions in facts and figures (higher intensity and longer period of time) as well as in legal qualification (they are subject to not only the legislation of a particular state but also the norms of international humanitarian law).
A number of countries (including Russia) hold the mistaken view that if they admitted the existence of a non-international conflict on their territories, they would forfeit the right to tackle the problem through their own means and that their position on the international scene would be weakened. In reality, a non-international conflict remains an internal problem of the state, with the legal positions of the parties to the conflict being just the same, as expressly asserted in article 3 of the Geneva Conventions. What are newly applied are just the provisions of international contractual documents that assert the humanitarian minimum and that are very close to the hard core human rights which in any case cannot be neglected by any member state.
Russia does not tend to take into account such an interpretation and denies admitting that the war in Chechnya has the character of a non-international conflict. However, the views of individual top Russian representatives are not entirely coherent. Vladimir Putin, the then Premier and current President of the Russian Federation said in an interview for the daily Financial Times in December 1999: ”Russia strictly pursues all obligations arising from the international humanitarian law in the process of this anti-terrorist operation.” Thus he implicitly admitted that international humanitarian law is applicable to the conflict in Chechnya. The Constitutional Court of the Russian Federation went even further stating in its verdict on 31 July 1995 that Protocol II is one of the sources of law relevant to the conflict in Chechnya. Finally, the amendment to the Federal act on damages for soldiers deployed in missions to extremely dangerous areas, passed on 19 December 1997, asserts a special provision concerning the soldiers who ”serve in the non-international conflict in the Chechen Republic.”
Non-international armed conflicts are according to their intensity divided into two groups: either those regulated by article 3 of the Geneva Conventions only, or those also regulated by Protocol II. The Protocol, as asserted in article 1 (1), becomes applicable if ”dissident armed forces or other organised armed groups which, under responsible command, exercise such control over a part of its territory as to enable them to carry out sustained and concerted military operations and to implement this Protocol.”
As regards the Chechen wars in 1994 – 1996 and 1999 – 2001, the applicability of article 3 of the Geneva Conventions is generally accepted. However, the possibility of using Protocol II is often thrown into doubt with reference to the absence of the two basic presuppositions, a responsible command and effective control over the territory. These reservations can be accepted in relation to the latest phase of the second war when the Chechens were spread out over mountainous areas of the country in small and poorly co-ordinated groups and launched guerrilla attacks. In contrast, the qualification of the first war (1994 – 1996) and the beginning of the second war remains disputable. What particularly causes problems is a rather unclear definition of the terms in Protocol II (for example, the text does not define ”responsible” command and which ”part” of the territory must be controlled) and an obsolete definition, based on the experience of the classic civil wars in Spain and Nigeria, that does not anticipate conflicts of a new type in which the warring factions are highly disproportionate to their respective might.
Protocol II was adopted with the aim of extending the guaranteed minimum protection to victims of non-international conflicts. It is this legitimate aim of international humanitarian law that should be taken into account when interpreting the individual provisions of Protocol II. Instead of a vehement defence of formalism, factors concerning time and place should be respected (such as the peculiarities of fighting in mountainous regions, or the clan-type society in Chechnya that makes it impossible to conduct long-term co-ordinated campaigns). If the evaluation of the first Chechen war and the beginning of the second one is carried out from this point of view, it is evident that Protocol II is fully applicable to them.
3. WAR IN CHECHNYA – INTERNATIONAL ARMED CONFLICT?
Current international law regulates four types of international conflict: typical international conflicts (A), conflicts in which a government acknowledges rebels as a warring faction (B), non-international ”internationalised” conflicts (C), and struggles for national liberation (D).
The conflict in Chechnya is definitely not category A or B. Typical international conflicts involve only ”High Contracting Parties”, (5) with Chechnya obviously not being among them. As regards the acknowledgement of the rebels as a warring faction, the number of such cases is quite low, and only the Anglo-Boer War is usually mentioned as a precedent. It is not very likely that Russia will choose this course.
The term ”non-international internationalised conflicts” was introduced into the judicature of the International Tribunal for the Former Yugoslavia. It refers to the conflicts whose character has changed, at least in some aspects, due to foreign interference. Although no doubts are raised about whether or not foreign fighters are present in Chechnya (the Jordanian Khattab is the best-known), nothing supports the fact that ”any participants to the conflict act as members of another state” or ”another state interferes with the conflict by means of its troops” (6). Thus, the conflict also does not fit category C.
The only type of international conflict the situation in Chechnya could theoretically correspond to is a struggle for national liberation as asserted in article 1 (4) of Protocol I. It expressly provides for ”armed conflicts in which peoples are fighting against colonial domination, alien occupation and against racist regimes in the exercise of their right to self-determination” qualifying as international armed conflicts. Then, it must be decided, first of all, whether or not the Chechens make up a nation with the right to self-determination, and, secondly, whether or not Russia partakes of colonial domination, alien occupation or racial discrimination in the territory of Chechnya.
The law strictly distinguishes between nation and nationality, placing great emphasis on the fact that only the former has the right to self-determination. This was confirmed by the International Court of Justice Advisory Opinion on the Western Sahara case 1975. The nation is defined on the basis of certain objective criteria (shared history, language, culture etc.) as well as subjective ones (the feeling of identity of the members, their will to consider themselves a nation). According to available information, it can be said that the Chechens meet these criteria, so they are nation in the legal sense of the word. The qualification of nations and nationalities in the Constitution of the USSR and the Constitution of the Russian Federation (7) upon which Russians claim that the Chechens are only a nationality is irrelevant. This is because the principles of International Law, with the principle of self-determination among them, are superior to the legislation of individual states.
It remains to be determined whether the Chechens are in any of the situations defined in article 1 (4) of Protocol I, i.e. whether they are struggling for national liberation. Because only in this case would current International Law allow them to exercise their right to self-determination by any means, including the use of force.
Those who support the idea of considering the war in Chechnya to be one of international armed conflict mostly tend to think that the government in Moscow exercises colonial domination in the Northern Caucasus. They claim that the Russian Empire has been established along the same lines as other colonial powers, always characterised by an unequal relationship between the centre and the dominated regions. Though the argument is reasonable, its acceptance would claim a re-evaluation and extension of the typical concept of colonialism defined in numerous resolutions of the General Assembly of the United Nations (8). Consequently, it is not very likely at the moment that the international community is willing to accept such a significant change that could bring a considerable destabilisation to a number of countries.
Other supporters of Chechnya’s independence say that what Russia does in Chechnya takes the form of alien occupation. They refer to the General Assembly Resolution no. 2625 1970, the Declaration of Principles of International Law concerning Friendly Relations and Co-operation among States which provides that ”no territorial gains realised by means of threat or application of force can be accepted as legal”. This was confirmed in the Advisory Opinion of the International Court of Justice on the case of the Presence of South Africa in Namibia, 1971. Opponents of alien occupation suggest that annexation of Chechnya by Russia in the 19th century was the result of aggression and thus it should be declared illegal as well as null and void. This suggestion is not very convincing, for current International Law cannot be used either for retrospective re-evaluation of past events or for the remedy of unjust historical acts.
Finally, there is a group who consider Russia to be a racist regime discriminating against the nations and nationalities of the Northern Caucasus, and therefore claim that the Chechens have the right to fight for independence by forceful means. Racial discrimination is expressly prohibited by article 1 (3) of the Charter of the United Nations as well as by the International Convention on the Elimination of All Forms of Racial Discrimination 1965 (9), which qualifies racial discrimination in article 1 (1) as ” any distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of life.” There is quite convincing evidence that Russia breaches several provisions of the Convention because, at least since 1999, it has been implementing discriminatory measures against the Chechens and other people living in the Caucasus (10) . However, disputes remain over whether breaches of the Convention are so serious that Russia can be declared a racist regime. Besides, great emphasis must be put on the fact that virtually all of the Russian measures criticized were approved after 1994 and 1999, i.e. only after the break out of armed conflict. Thus, it is impossible to legitimize acts on the grounds of measures that only followed rather than triggered such acts.
Consequently, though the Chechens make up a nation and can claim their right to self-determination, International Law does not allow them to exercise it by force. The war in Chechnya is not a ”struggle for national liberation” as asserted in article 1 (4) of Protocol I, and it cannot be classified as an international armed conflict.
The war in Chechnya is one of the most illustrative examples of new and de-structured conflicts at the turn of the century. De lege fereneda, (i. e. according to what is generally accepted as legal and what should be regulated by the law, with regard to the character of the war (total war) and its warring parties (a sovereign state on the one hand and a nation claiming its right to self-determination on the other)), it would probably be best and most logical to consider the conflict a ”struggle for national liberation”. However, the narrow definition of the term in Protocol I, Additional to the Geneva Conventions makes this impossible. Moreover, from the political point of view, such a solution seems to be unacceptable. De lege lata, (i.e. according to what is the law and what is currently regulated, provided, prohibited and allowed by the law), it is significant to say that the conflict in Chechnya has never been other than an internal problem of the Russian Federation, having only changed its form several times. Between 1991 – 1994 and with some reservations in the period of 1996 – 1999, the conflict remained limited to internal disturbances and tensions, whereas between 1994 – 1996 and 1999 – 2001, it changed into a non-international armed conflict. Definitely, a non-international armed conflict is subject to article 3 of the Geneva Conventions, and the first 1994 – 1996 war as well as the beginning of the second war, 1999 -2000, is also regulated by Protocol II, Additional to the Geneva Conventions. Its provisions should be construed with less formalism and ”with regard to the subject and purpose of the contract” (11) , i. e. in accordance with the best possible protection of victims.
The conflict in Chechnya is developing and now it is impossible to predict the character of the changes that may come in the near future. In any case, it is apparent that the Chechens (and other nations in the same situation on the territory of the Russian Federation as well as in other countries) are not willing to back down from their right to self-determination and are ready to enforce it by any means. Consequently, the number of conflicts similar to the one in Chechnya will probably rise and troubles over their legal qualification may have serious consequences. Thus, the question is whether it is high time that the international community seriously considered a revision of the contractual texts or, at least, a re-definition of the terms and concepts which have failed to reflect appropriately the reality of our post-modern world.
5. NOTES AND REFERENCES
1 See speeches of the former Russian President Boris Yeltsin: ”Chechnya is an internal problem and you have no right to criticise Russia for it.” (18 November 1999).
2 The USSR ratified the Four Geneva Conventions on 10 May 1954 and the Protocols on 29 September 1989. The contracts are binding on the Russian Federation as a legislative successor of the USSR.
3 MOREILLON, J., ‘Le Comité international et la protection des détenus politiques,’ Genève, 1973.
4 GASSER, H. P., ‘Le droit international humanitare,’ Institut Henry Dunant, Haupt 1993.
5 Article 1 of the Four Geneva Conventions.
6 The verdict of The International Tribunal for the Former Yugoslavia in the Tadic case on 15 July 1999.
7 The Constitutions of the USSR, declared in 1936 (art. 17) and 1977 (art. 72), asserted that only fifteen federal republics had the right of secession. This did not concern autonomous republics, with Chechnya – Ingushetia among them. According to the Constitution of the Russian Federation (art. 65), Chechnya is one of the twenty-one autonomous republics, with their citizens having only the rights of a minority.
8 The Resolutions of the General Assembly of the UN no. 1514/1960, 1541/1960, 2105/1965, 2621/1970 or 3103/1973.
9 The USSR ratified the Convention on 3 February 1969.
10 See ”Compliance of the Russian Federation with the Convention on the Elimination of All Forms of Racial Discrimination”. Memorial, Moscow 2000.
11 General principle of the interpretation of international contracts, asserted in art. 31 of the Vienna Convention on the Contract Law, 1969.
6. SOURCES AND BIBLIOGRAPHY
The International Convention on the Elimination of All Forms of Racial Discrimination. UN Office, New York 1985.
Les Conventions de Genève du 12 aout 1949. CICR, Genève 1999.
Constitution of the Russian Federation. www.memo.ru/prawo
Decision of the Constitutional Court of the Russian Federation, 31 July 1995. www.icrc.org/ihl-nat.nsf.
Declaration of Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations, 24 October 1970. General Assembly Resolutions 25th Regular Session.
BRUNOT, P., AVIOUTSKII, V., ‘La Tchéchénie (QSJ 3332)‘. Presses universitaires de France, 1998.
Čečensko – Krvavá cesta svobody. Supplement to Czech weekly Respekt, 6/1998.
The Situation with Violations of Human Rights in Chechnya. June-July 2000. Memorial, Moscow 2000.
B) International Human Rights
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BUIRETTE, P., ‘Le droit international humanitaire.’ La Découverte, Paris 1996.
DOSWALD, B., SYLVAIN, L. and V., ‘Le droit international humanitaire et le droit des droit de l’ homme.’ RICR 800/1993.
GASSER, H. P., ‘Le droit international humanitaire.’ Haupt, 1993.
HARROFF-TAVEL, M., ‘L’Action du Comité international de la Croix-rouge face oux situations de violence interne’. RICR 801/1993.
KHERAD, R., ‘De la nature juridique du conflict tchétchène.’ Revue générale de droit international public 104/2000/1.
MALENOVSKÝ, J., ‘Mezinárodní právo veřejné.’ Obecná část. Doplněk, Brno 1993.
POTOČNÝ, M., ‘Mezinárodní právo veřejné.’ Zvláštní část. C. H. Beck, Praha 1999.
SASSOLI, M., OLSON, L. M., ‘The Judgement of the ICTY Appeals Chamber on the merits of the Tadic case.’ RICR 839/2000.
www.amina.com (Chechen Republic Online)
www.amnesty.org (Amnesty International)
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