International Law, Human Rights and the Wars in Chechnya

By Ib Faurby

Chief Adviser, Royal Danish Defence College

During the two Russian-Chechen Wars (1994-96 and 1999-?) extensive violations of international law and human rights have taken place. The purpose of the following is to give a brief overview of the nature of these violations and, even more briefly, to discuss the implications for international law and the observance of human rights in intra-state conflicts.

Background
When the Soviet Union dissolved in late 1991, Chechnya (until then the major part of the Chechen-Ingush Autonomous Republic in Northern Caucasus) declared itself independent. During the following three years Moscow made some half-hearted attempts to force Chechnya back into the Russian Federation but mostly ignored developments in the rebellious republic.  

                      Then in December 1994, after the failure of a Russian supported attempt by the pro-Russian opposition to overthrow the separatist regime, a regular Russian military intervention took place. I lasted until August 1996, where the Russian forces suffered a humiliating defeat and the Khasavyurt Agreement brought an end to the hostilities.

                      In January 1997 Chechen Chief of Staff, Aslan Maskhadov, was elected president in an election which international observers characterised as "free and fair". A Peace Treaty was signed between Maskhadov and Russian President Boris Jeltsin in May the same year. However, due to the devastations brought about by the war, the absence of the promised Russian war reparations, external meddling by Islamic radicals, escalating crime and inter-Chechen rivalries, Chechnya degenerated into a chaos which Maskhadov was unable to control.

                      Contrary to Maskhadovs policy, Chechen "field commander" Shamil Basayev and his foreign brother-in-arms al-Khattab in August 1999 lead an attack into neighbouring Dagestan in order to support radical Islamic groups there and with the declared purpose of establishing a Chechen-Dagestani Islamic Republic. The attack was repelled by Russian and local Dagestani forces. Moscow, however, lead by the new Prime Minister, Vladimir Putin, used the crisis as the pretext for new war against Chechnya, allegedly in order to combat "international terrorism", but clearly with the purpose to force Chechnya back into the Russian Federation.[i]

                      The new war, though several times declared over and won by Moscow, continues as a guerrilla war with considerable losses on both sides and with no prospects for an early political solution.   

International Law
During both wars massive violations of international humanitarian law and human rights law have taken place. These two bodies of law are defined in the following way:

Human rights law consists of international conventions and declarations, most of which have become customary international law binding all states and having general applicability; and

International humanitarian law only applies to armed conflicts - international or internal conflict.[ii] 

The number of international conventions and other relevant documents on human rights is large. They include:

-          The Universal Declaration of Human Rights from 1948

-          The Convention for Prevention and Punishment of the Crime of Genocide from 1948

-          The International Covenant on Civil and Political Rights from 1966

-          The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment from 1984

-          The Convention relating to the Status of Refugees from 1951 and its Additional Protocol from 1967

-          The Convention on the Rights of the Child from 1989

In a regional, i.e. European, context there is - after Russia's membership of the Council of Europe in February 1996:

-          The Statute of the Council of Europe,

-          The European Convention on Human Rights and its additional protocols as well as

-          The European Convention Against Torture, Inhuman and or Degrading or Punishment from 1987. 

Besides these legal documents there are also a number of so-called "politically binding" documents, primarily drawn up within the CSCE - from 1994 the OSCE. These are the Helsinki Final Act (1975), the Vienna Final Act (1989) and the Paris Charter (1990) as well as the Copenhagen and Moscow Documents on the Human Dimension (1990 and 1991). Furthermore, there is the Politico-Military Code of Conduct, signed in Budapest less than a week before the first Russian-Chechen war. 

As for international humanitarian law - which applies to armed conflict - the most important texts are the Four Geneva Conventions from 1949 and the two Additional Protocols to these conventions. Only the common article 3 of the Geneva Conventions and Additional Protocol II from 1977, which specifies the principles of the common article 3, applies to internal conflicts such as the Russian-Chechen conflict. However, there can be no doubt that Protocol II does apply to that conflict. This has also been confirmed in a ruling by the Russian Constitutional Court in July 1995.

Finally, with the decision to establish the International Criminal Court under the auspices of the UN, which is soon to come into force, there is the Rome Statute of the International Criminal Court.[iii] This statute clearly defines what constitutes the most serious crimes of concern to the international society, namely genocide, crimes against humanity, war crimes and the crime of aggression.  

Documents on Violations
The massive violations of human rights and international humanitarian law during the two wars in Chechnya are extremely well documented by inter-governmental and governmental institutions as well as by highly respected non-governmental organisations. They include, just or mention the most well-known:

-          The Russian President's Human Rights Commission[iv]

-          The U.S. State Department's Annual Report on Human Rights Practises[v]

-          Numerous reports from Committees of the Parliamentary Assembly of the Council of Europe[vi]

-          Weekly Situation Reports from OSCEs Assistance Group in Chechnya during the first war (unpublished)

-          Reports from the International Committee of the Red Cross[vii]

-          Numerous reports from Human Rights Watch[viii]

-          Reports from Amnesty International[ix]

-          Reports form M�decins sans Fronti�res[x]

-          Numerous reports from the Human Rights Centre "Memorial"[xi], the most important Russian human rights NGO

-          Reports from the Dutch Pax Christi[xii], to mention one of many respected national NGOs from the west.

-          Finally, The Danish Refugee Council's has produced very useful Situation Reports, particularly about the conditions of internally displaced persons. 

It is beyond the scope of this article to quote systematically from these very detailed reports. However, they do exist and prove in gruelling details the systematic and very serious human rights violations, which have taken place.        

Types of Violations
Both parties to the war have committed serious violations of international humanitarian law and human rights law. In the west this has sometimes lead to the attitude that both parties are equally guilty. The Russian side continuously draws attention to Chechen violations - something, which has not been lost on some western media, commentators and politicians.

It is, however, beyond any doubt that during both wars the Russian forces committed the largest number of and the most serious violations. That is the unanimous conclusion of several of the above mentioned reports, including reports by the Parliamentary Assembly of the Council of Europe, the US State Department, the Russian Presidents Human Rights Committee (in 1996) and Human Rights Watch, Amnesty International as well as other humanitarian NGOs.

To quote from a report by the Committee of Legal Affairs and Human Rights of the Parliamentary Assembly of the Council of Europe dated April 2000:

". . .the scale and number of human rights violations and violations of international humanitarian law on the Chechen side cannot even remotely compare to those of the Russian side, which are of much greater magnitude, and, due to Russia being a state party to the European Convention on Human Rights and thus bound by duty to protect the rights she is violating, much more serious".[xiii]

Among the most serious Chechen violations were the two hostage actions during the first war in Budjonnovsk and Kizlyar which included the murder of hostages. These reprehensible acts must be condemned, but it should not be forgotten that in both instances most of the hostages killed, were killed by Russian forces.[xiv]

There have been numerous other cases of hostage taking in Chechnya, though it has been difficult to ascertain to what extend they have been cases of individual crime or part of a deliberate policy on behalf of the Chechen authorities.

Chechen violations include fighting in and from housing areas and thereby exposing the civilian population to Russian counter attacks. That was the case during the extended battles for Grozny as well as the battles in and around many towns and villages.[xv]

There are also reports about Chechen fighters having executed, physically molested or threatened the execution of village leaders and others who would not co-operate with them or who co-operated with the Russian authorities or the Russian installed Chechen administration.[xvi]

The Russian side has also claimed that Chechens kept prisoners of war or other captives as slaves or in slave-like conditions.  

Finally, there have been Russian claims that Chechen fighters have tortured or in other ways maltreated Russian prisoners. There are, nevertheless, many instances where former Russian prisoners have said that they were well treated by their Chechen captors.

The nature and extend of the Russian violations of humanitarian international law and human rights law are, as mentioned, well documented. The list is long and includes almost all categories of human rights violations.

The Russian conduct of the war has shown that the purpose is not the claimed fight against international terrorism but a collective punishment of the Chechen people.

During both wars there have been numerous instances of disproportionate and indiscriminate bombing of the civilian population (the most striking - but certainly not only - example being the destruction of Grozny during both wars).

Already on 6 January 1995, the International Court of Justice denounced the indiscriminate use of force by the Russian army against civilian targets in and around Grozny. The court stated that "the Russian army violated the right to life of unarmed civilians on a massive scale".[xvii]

The Russian President's Human Rights Commission, of which Mr. Sergej Kovaljov was then chairman, estimated that the original battle for Grozny during the first war cost 27.000 civilian lives.[xviii] Due to censorship and other restrictions there are no figures for the loss of civilian lives in Grozny during the second war.[xix]

In both wars immense destruction was served on towns and villages throughout Chechnya. "The attacks on populated areas must be characterised as a war against the civilian population", wrote the OSCE Assistance Group in Chechnya in a report in March 1966.[xx]

Often towns and villages were surrounded by Russian forces and their populations threatened with attack if they did not hand over an arbitrary number of weapons or pay considerable sums of money to the Russians.

A particularly gruelling example is the town of Samaskij, which twice during the first war was the scene of massacres on women, children and elderly men. The Russian human rights organisation "Memorial" has documented the killing of more than one hundred civilians in Samaskij during the attack in April 1995.[xxi] Almost one year later, in March 1996, 174 persons were killed and approximately 200 men taken to so-called filtration points. Many houses were set on fire.[xxii] A similar massacre took place in Sernovodsk in March 1996.

Other examples abound from the second war.[xxiii] From the first 18 months there are three cases of mass killings of the civilian population by Russian troops, which have been particularly well documented by Russian and international NGOs.[xxiv] To this should be added a number of suspected mass killings during the same period as well as the revelation of a mass grave at a village less than a kilometre from the main Russian military base at Khankala in the eastern part of Grozny. 51 bodies were found, several of which belonged to persons who had been taken into custody by the federal forces.[xxv] Besides mass killings there are numerous well-documented cases of summary executions of individual Chechens - men, women and even children.[xxvi]

From both wars there are reports about columns of refugees being attacked by air planes, helicopters and artillery as well as by soldiers with light arms. Russian helicopters have also attacked refugees trying to cross the mountains into Georgia. In many cases Russian officers demanding payment in order to let civilians escape from areas under attack. Likewise Russian border troops have been demanding payment for letting refugees pass the border from Chechnya into Ingushetia.

During both wars Russian authorities established so-called filtration camps where boys (from 10 years old and upwards) and men – and occasionally women as well – have been arbitrarily interned ostensibly in order to check whether or not they are “terrorists”. Conditions in the camps are primitive not to say inhuman. In some cases the interned have been placed in unheated box cars. Supply of food and water was insufficient.[xxvii] The Council of Europe has, among other, criticised that the interned get no legal council. Based on interviews with former detainees several international humanitarian organisations claim that internees have been tortured and raped.[xxviii] The two following illustrations are from a Human Rights Watch report from 2000:

"Detainees at Chernokozovo were beaten both during interrogation and during night time sessions when guards utterly ran amok. During interrogation, detainees were forced to crawl on the ground and were beaten so severely that some sustained broken ribs and injuries to their kidneys, liver, testicles and feet. Some were tortured with electric shocks".

"The majority of former detainees interviewed by Human Rights Watch reported that they were only released after their families had paid substantial bribes to their Russian captors and predatory intermediaries, ranging from 2,000 roubles to US $ 5,000".[xxix]  

During both wars Russian forces have pillaged and stolen Chechen property, often carried away in military vehicles and stored at military bases until it could be transported out of Chechnya. Russian officers have clearly known about this without intervening to stop the traffic in stolen goods.[xxx]

In direct violation of international humanitarian law Russian civilian and military authorities have obstructed the work of humanitarian organisations, including the International Committee of the Red Cross, whose access to detainees and victims is guaranteed by the Geneva Conventions.[xxxi]

Finally, Russian authorities have been very negligent in bringing legal proceedings against officers and men who have committed human rights violations and war crimes. This has been severely criticised by the Parliamentary Assembly of the Council of Europe. Already during the first war the Committee on Legal Affairs and Human Rights stated that it was “unacceptable” that there was no investigation or legal proceedings against Russian soldiers who were suspected of violations of human rights.

This criticism has been repeated during the second war. In January 2001 the Committee on Legal Affairs and Human Rights wrote:

". . . the key problem from a human rights perspective remains the lack of accountability for crimes committed by federal servicemen and the personnel of law-enforcement agencies against civilians and the resulting impunity which in turn, encourages further human rights violations by the Russian federal forces operating in the Chechen Republic and leads to unnecessary and unacceptable suffering among the civilian population".[xxxii]               

Thus, there can be no doubt about the seriousness and scale of the Russian violations. To quote once again from the April 2000 report from the Committee on Legal Affairs and Humans Rights of the Parliamentary Assembly of the Council of Europe: 

"The Russian side has continued its indiscriminate and disproportionate military campaign in the Chechen Republic . . ., including direct attacks on the civilian population. The Russian federal troops have committed - and apparently continues to commit - grave human rights violations and even war crimes. Peaceful civilians have been - and still are at risk of being - shot dead, raped, arrested and arbitrarily detained, tortured and ill-treated; their homes destroyed and looted. . . Most violations of human rights by the Federal troops in Chechnya go unreported, due to the restrictions imposed on the free movement of journalists in Chechnya, and the non-admittance of non-governmental human rights organisations, and stay unpunished."[xxxiii]   

The most serious violations
It must be emphasised, that this article is not just about what is euphemistically called "collateral damage", something which, regrettably, occurs during all armed conflicts. More than any thing else it is about deliberate and systematic violations of international humanitarian law and the rights of civilian non-combatants.

The legal definitions of the most serious crimes are as follows:

          Genocide (as defined in Article 6 of the 1998 Statute of the International Criminal Court and Article II of the 1948 UN Convention on the Prevention and Punishment of Genocide) is

- characterised by the specific intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such

Crimes Against Humanity (as defined in Article 7 of the 1998 Statute of the International Criminal Court) are

- characterised by part of a widespread or systematic attack against any civilian population

War Crimes in Non-international Armed Conflicts (as defined in Article 8, 2 c and e of the 1998 Statute of the International Criminal Court and the Common Article 3 of the Geneva Conventions) include

- wilful killing, torture or inhuman treatment of persons protected by the Geneva Convention as well as extensive destruction of property, not justified by military necessity, and the taking of hostages. 

It is not the purpose of this article to analyse whether or not the Russian violations in Chechnya can be characterised as genocide. The accusation of genocide is a serious one and should not be used lightly. The definition of genocide requires that there was an intention to destroy, in whole or in part, a national, ethnical, racial or religious group as such. To determine whether or not that has been the case during the two Russian-Chechen wars necessitates an in-depth legal and empirical study.

However, it seems from the reports referred to above, that there can be little doubt that the Russian forces in Chechnya have committed serious violations, some of which clearly fall within the definitions of crimes against humanity and war crimes. Furthermore, the Russian conduct of the wars is in violation of the Statute and the Conventions of the Council of Europe, as has been stated in numerous reports from the Parliamentary Assembly of the Council of Europe.   

Russia's Responsibility
In the international debate over human rights violations in Chechnya, Russian representatives have continuously referred to Chechen violations as justification for Russian acts. Many Western governments seem, at least in their rhetoric, in part to have accepted that justification.

However, as the Committee on Legal Affairs and Human Rights of the Parliamentary Assembly of the Council of Europe has written:

"The scale of Russia's military intervention in Chechnya was and is of such a magnitude that it cannot be justified in terms of an anti-terrorist operation, and must in itself be condemned as a violation of human rights and international humanitarian law."[xxxiv]

The Chechen violations cannot be used as justification for Russian violations. It is Russia who is signatory to international conventions and other legal instruments concerning the conduct of war and the protection of human rights. It is Russia, who, by signing these instruments, has committed itself to a set of legally binding norms.

In a report to the Parliamentary Assembly of the Council of Europe, Lord Judd has stated it in this way:

"While recognising that human rights violations have been, and are still, perpetrated by both sides in the conflict, the assembly considers that membership of the Council of Europe requires a commitment to a higher order of conduct. The Assembly cannot accept that a member state's failure to comply with the organisation's standards is justified by the behaviour of its adversaries".[xxxv] 

International Reactions
During both Russian-Chechen wars Russian political leaders repeatedly claimed that the conflict was an "internal matter" for the Russian Federation, which other states had no right to meddle in. What was even more remarkable and discouraging was that several western leaders seemed - openly or tacitly - to accept this argument.[xxxvi]

Treating human rights law and international humanitarian law as "internal matters" is not just politically problematic, it is in clear contradiction of well established international law.

"Indeed, the most fundamental norms of human rights law and international humanitarian law are now considered legally binding upon all states as part of customary international law. The norms are obligations of all states towards the international community as a whole".[xxxvii]

This view has been confirmed by several resolutions by the UN General Assembly and as well in rulings by the International Court of Justice. A strong testimony to this view was adopted by the World Conference on Human Rights in Vienna in 1993. In the concluding Vienna Declaration and Programme of Action, which was unanimously adopted by all member states of the UN, it is unequivocally stated that, "the promotion and protection of all human rights is a legitimate concern of the international community".[xxxviii]

In a European context, this view has been reaffirmed through declarations made within the context of CSCE/OSCE beginning with the 1975 Helsinki Final Act. In the 1991 Moscow Document from the Conference on the Human Dimension of the CSCE it says that "issues relating to human rights, fundamental freedoms, democracy and the rule of law are of international concern, as respects for these rights and freedoms constitute one of the foundations of international order" and the participating states "categorically and irrevocably" declare "that the commitments undertaken in the field of the human dimension of the CSCE are matters of direct and legitimate concern to all participating states and do not belong exclusively to the internal affairs of the state concerned".[xxxix]

It is outside the scope of this article to analyse the motives and goals behind the reluctance of international organisations and western governments to take stronger action in relation to the Russian violations. But clearly, Russia's great power status and importance for international security has played an important role.

Similar violations by smaller and less important states would not have gone unchallenged. The seriousness and magnitude of the atrocities committed by Russian forces in Chechnya are no less than the violations committed by military and para-military forces in the Balkans, for which the international community brings accused war criminals to trial in the Hague.

For the western countries, the policy - sometimes referred to as "Russia First" - was motivated by considerations of Russia's importance for international security in general and the hope of Russia's cooperation on arms control and the situation in the Balkans in particular as well as Russia's tacit acceptance of NATO enlargement.

These motives are both serious and legitimate. The point is certainly not that such considerations should have been thrown over-board. The question is in stead, why it was not possible to strike a more balanced policy, which was based on respect for international law and human rights as well as on considerations of western security interests. It would indeed be sad, if one had to conclude that no such balance is possible.

Even so, many in the west, including western political leaders, seem to have believed that President Yeltsin personally was the guarantee for political and economic reforms in Russia and thought that any criticism of him and his policies would weaken the democratic forces in Russia and threaten to bring extreme nationalists and communists to power. However, the weak western reactions - particularly during the first war - were a great disappointment for the democratic forces, which opposed the war. To quote the leading Russian human rights advocate:

"If Kohl and Clinton had taken a different stand", on Chechnya", a principled, uncompromising, honest stand, the war would not have gone on like it did. But they were thinking of Yeltsin's prestige, they were afraid of political chaos in Russia. This lack of principles was paid for with tens of thousands of human lives".[xl]

Similarly, during the second war many western leaders seem to see President Putin as the person who can bring stability and liberal economic reform to Russia. After September 11, 2001 Putin furthermore is seen as an important partner in the fight against terrorism.

However, there can be little doubt that the western caution served to confirm Yeltsin's belief that he could continue the first war and initiate the second war without major international consequences. Similarly, it seems to be President Putin's belief that the new war can be fought at limited costs to Russia's international position. This has been confirmed by the almost total absence of western interest in Russian human rights violations in Chechnya since September 11, 2001.

Conclusion
In the half-century since the Second World War, human rights have come to play an increasing role in international relations. A large number of treaties, declarations etc. have been drawn up and ratified by the majority of states and, as mentioned, become part of customary international law. Furthermore, in the years following the end of the Cold War human rights language has found its way into the foreign policy declarations of many governments.

The widespread reluctance to challenge the Russian human rights violations in Chechnya has, however, had serious consequences for international law. It has been clearly demonstrated that large and politically important states can defy international law with impunity. This should not surprise anyone, but it is a sobering reminder at a time where ritualistic declarations of commitments to human rights have become politically popular.

More specifically, the willingness of the Council of Europe to admit and uphold the membership of a state which continues to violate the Council's Statute and Conventions is a testimony to the demise of what for long was considered to be the world’s most effective human rights regime.[xli]    

Notes