25 October 2003, 11:40
Nature abhors vacuum
The situation with human rights in the armed conflict area in the Chechen Republic has not been discussed essentially lately. To be more precise, the discussion chiefly boils down to interpreting orders - either issued by the command of the federal forces or by the Prosecutor General - orders that are first issued and then not observed.
Meanwhile, it is the third year an amazing law experiment is on. The situation is consistently removed beyond the limits of law, both national and international. A legal vacuum has artificially been created in Chechnya.
Nature abhors a vacuum
By issuing orders, the federal party in fact tries to fill this vacuum - without much success, however.
The offered brief review of some aspects of the situation with human rights and law enforcement practices in Chechnya is also just an attempt to break the lengthy silence.
Alexander Cherkasov, May 2002
The legal basis for considering the situation with human rights in the Chechen Republic is unique compared with other Russian regions. This is the only region where:
- consideration of the situation with human rights requires proceeding from international humanitarian law documents, as a non-international armed conflict is present;
- the federal power has difficulty in exercising the state sovereignty and the very operation called "counter-terrorists" is aimed at restoring the sovereignty;
- de facto, substantial restrictions on human rights have been introduced and these restrictions were introduced without observing procedures enshrined in international pacts;
- these substantial restrictions were also introduced without observing procedures codified in national legislation;
- units of the Armed Forces and other security and law enforcement structures have been used extensively without the corresponding legal foundation;
- the law "On fighting terrorism" was used as this foundation, which also grounded the large-scale and substantial restrictions on citizens' rights;
- in the artificially created legal vacuum, special role belonged to administrative documents issued by the leadership of militarized structures.
The second and in part the fifth topics have more than once and in great detail been considered - at least because they are directly connected with the political positions of the parties to the conflict. The remaining subjects are too special for one party to use them in polemics and too unfavorable for the other party. Meanwhile, these issues directly concern specific citizens in Chechnya, i.e. restrictions on and violations of their rights. We will dwell on these issues.
1. The events in Chechnya: an armed conflict or...?
The situation in the Chechen Republic in the context of international humanitarian law.
Chechnya is Russia's only region where consideration of the situation with human rights requires proceeding from documents on international humanitarian law along with pacts on human rights, since a non-international armed conflict is present in Chechnya.
Defining what is going on in the North Caucasus, supporters of the Chechen Republic of Ichkeria talk about "aggression and invasion" on the part of Russia, i.e. about an international armed conflict. Federal representatives, in turn, try to avoid the very combination "armed conflict," but prefer the definition "counter-terrorist operation (1)." What the latter definition implies will be discussed below; more important is what it does NOT imply: there is no CONFLICT; so lengthy large-scale military action is presented as a police operation. Therewith, the federal center, firstly, removes the developments beyond international humanitarian law and insists restrictions on and violations of human rights in Chechnya are Russia's internal affair. Secondly, the absence of an armed conflict means the absence of the parties to the conflict, which removes the issue of political settlement from the agenda: negotiations are impossible with bandits and terrorists (see above). Speaking different languages, the parties to the conflict thereby appeal to different law systems.
The dispute is primarily about the formal aspect: is there at all an armed conflict (2) - i.e. is there its second party? The circumstance that de facto an armed conflict is present seems a priori obvious, at least owing to the dimension of what is going on: the area is tens of thousands of sq km; the duration is over two years and half; the Joint Group of Troops (Forces) numbers more than 80,000; its casualties during this time are more than 3,000 killed and over 10,000 wounded (3); and so on, which definitely goes beyond the limits of "riots, isolated and sporadic acts of violence and other acts of a similar nature (4)." But the dispute is about meeting the formal definition: an armed conflict is present if there is the second party to the conflict.
International humanitarian law defines that nongovernmental armed groups can be recognized as a "party" of the conflict if they, "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 (5)." These terms in the case in question are obviously fulfilled - despite federal propaganda efforts to prove the reverse. These efforts have been focused not as much on the factual side of the case (the dimension of military action, casualties, and so on) as on the formal one: "a split between militant commanders" is an argument against "responsible command"; three successive years of talking about "one thousand and half uncoordinated militants in the mountains" against "control over the territory" and "sustained and concerted operations"; crimes, taking of hostages and mercenary service against the requirement to observe humanitarian law norms.
The second thesis might seem to be the most correct and obvious: what sort of "control of the territory" by separatists can be discussed when by summer of 2000 federal forces already were in all of Chechnya's districts and had had enough time to "clean up" nearly all of the republic's settlements? Since then there is no village legally retained by Ichkeria's armed units, nor a single area where they could be safely based for a long time (6). However, even in a village that had undergone more than twenty "clean-up operations" a unit controlled by Aslan Maskhadov acted openly as soon as in a couple of days after another "special operation (7)."
Meanwhile, it would be equally correct to ask whether the "federal party" meets the abovementioned terms. Does it meet the criteria of "responsible command" and observing humanitarian law norms (8)?
The lack of coordination in actions of units and formations belonging to different agencies - the Defense Ministry, Interior Ministry, Federal Security Service (FSS), Federal Border Service and so on even within one agency (land and airborne troops within the Defense Ministry, as well as marines and special units) - sometimes leads to entire units killed (9). However, such instances probably exist in any army conducting a large-scale military campaign. A more serious (and closer!) example is how units, formations and structures of the Joint Group of Troops (Forces) for months fail to fulfill orders N145 of May 24, 2001, and N80 of March 27, 2002, issued by the commander of the Group and aimed at preventing crimes against civilians, primarily against "disappearances" and extrajudicial executions of civilians (10). This case displays the reluctance of subordinates to fulfill orders and the inability of the command to ensure they are fulfilled (while violations of human rights in this case should obviously be qualified as "excessive acts"). So where is the "responsible command"?
There can be (and it is often voiced) an objection: from the very beginning the orders were not issued to be fulfilled but for propaganda, in order to demonstrate seeking to observe human rights. In reality, however, fulfilling the command's orders is exactly what troops and security services do in the course of "special operations" and "targeted activities" according to this version. This suggests continuity of command, so it is the military command and the nation's top leadership that bear responsibility for violations of human rights, crimes against humanity and war crimes committed by service men and officers of other federal militarized structures (11). In this case, the "federal party" ceases to be such, as it malignantly and consciously fails to fulfill the requirement to "implement this Protocol."
That is, an attempt to interpret the definitions of article 1 of the Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), poses no fewer questions with respect to the federal party than to the Chechen party. In conclusion of this discourse, let's remark that the goal of removing representatives of the Chechen party beyond the context of humanitarian law is pursued even in the definition, name given to its representatives: "terrorists (12)" instead of the term "separatists" that is obviously equitable and neutral - in order to make them the subject of a usual police operation.
By defining the events in Chechnya as an "armed conflict" we primarily introduce them to the context of humanitarian law (13), first and foremost the August 12, 1949, Geneva Conventions and Protocols Additional to them. Human rights in an armed conflict can be limited by declaring a state of emergency or martial law, but the core of human rights, a set of inalienable rights must be observed under any circumstances. This is the goal humanitarian law pursues, designed to confine military action to a civilized framework (14).
The most important principles that serve as a basis for humanitarian law in general can be reduced to the following (15): the right to choose means and methods to wage war is not unlimited; it is prohibited to attack civilians; one must always distinguish between participants in an armed conflict and civilians.
Norms of protection of individuals from abuse during armed conflicts are codified in the four Geneva Conventions (16) that have become part and parcel of international law; although they are chiefly devoted to problems of international conflicts, they contain a third article which is common to them and devoted to non-international conflicts. It protects people taking no part in military action, including soldiers who yielded themselves or were taken prisoner; those sick and wounded and all civilians - prohibited are attempts on their lives and human dignity and physical inviolability - cruel treatment, torment and torture; prohibited are taking of hostages and conviction or punishment without a court decision. In 1977 two Protocols Additional to the Geneva Conventions were adopted, devoted to the protection of victims of international and non-international armed conflicts respectively. Although governments as a rule do not want international interference or control in the process of domestic armed conflicts, after the adoption of the Geneva Conventions and Protocol II the issue of observing humanitarian law rules in a domestic armed conflict is not just a state's internal affair.
This is what international organizations' assessments are based on: thus, the UN is "...Guided also by the provisions of... the Geneva Conventions... in particular common article 3 thereof, and Additional Protocol II thereto,... as well as other instruments of international humanitarian law,... recalling further that the Russian Federation is a party to the Geneva Conventions of 12 August 1949 and Additional Protocol II thereto... (17)." Meanwhile, by condemning "violations of international humanitarian law by Chechen fighters (18)" the Parliamentary Assembly of the Council of Europe (PACE) does not only introduce the developments to the corresponding context but also recognizes the militants as a party to the conflict (19)!
Thus, willing to avoid international interference or control in the armed conflict area in Chechnya Russia's authorities were consistently and consciously trying to remove the situation beyond humanitarian law norms, with hope to present the developments as an "internal affair of the state," thereby violating their international commitments.
2. The rightfulness of using force and objectives of the parties to the conflict - fighting terrorism or restoring the sovereignty?
Chechnya is Russia's only region where the federal power encounters substantial difficulty in exercising the state sovereignty. As a matter of fact, although the operation in Chechnya is called "counter-terrorist" it is the sovereignty that is Russia's aim and the subject of the conflict (although only the opposition talks openly about it), while Russia's opponents are separatists.
Two systems of state power and government nominally exist (and actually function!) in Chechnya, each claiming itself the only legitimate one; there are also two legal systems that correspond to them - legal in terms of a "system of legislation," which doesn't automatically imply the lawful nature of these laws.
On the one hand, in accordance with article 67 of Russia's Constitution, Chechnya is its integral part, "subject of the federation (20)." On the other hand, the Constitution of the Chechen Republic of Ichkeria defines Chechnya in the Preamble as an independent state - a "self-dependent sovereign state," a "full member in the system of world commonwealth of nations (21)." Chechnya's sovereignty was unilaterally declared by President Jokhar Dudayev's November 1, 1991, decree, but the international community did not acknowledge this republic. Meanwhile, neither international law, nor Russian legislation suggested ways and mechanisms to resolve this contradiction: the Russian Constitution does not entitle republics to withdraw from the federation (22). Thus, a crisis emerged ten years ago, a contradiction between nations' right to self-determination declared in a series of international documents and the universally recognized principle of inviolability of state borders (23).
In 1994 the federal center made an attempt to solve the Chechnya problem by force, which led to a bloody armed conflict that has already claimed tens of thousands of lives and made hundreds of thousands of people leave their homes. In twenty months after the beginning of military action, in August 1996, federal forces suffered a military defeat in the city of Grozny; on August 31, 1996, the parties signed peace treaties in the town of Khasavyurt that stipulated determining Chechnya's status in the course of five-year talks (24) - the principle of "deferred status" was adopted. By 1997 the federal troops were fully withdrawn from Chechnya and on May 12, 1997, Presidents Boris Yeltsin and Aslan Maskhadov (25) signed in the Kremlin the Peace Treaty and Principles of Interrelation between the Russian Federation and the Chechen Republic of Ichkeria"; its articles 1 and 2 codified the parties' obligations to "give up forever the use or threat of using force in the settlement of any disputes" and "build their relations in accordance with universally acknowledged principles and norms of international law."
Thus, both parties' arguments were subsequently equally irrelevant in the issue of Chechnya's status - either in favor of Chechnya's independence or in favor of Russia's sovereignty. In addition, Russia had even less grounds to use force because as an OSCE member it was bound by its commitment to settle such issues politically (26).
Meanwhile, neither ceasing the military action, nor concluding bilateral pacts meant the conflict was settled - the situation in Chechnya was steadily growing worse after 1997. Abductions of people acquired the nature of an epidemic. Russian-speaking population continued to leave Chechnya, having become the first victim of bandits. Willing to "avoid civil war," Aslan Maskhadov delayed using force and power against uncontrolled armed units, abductors and religious extremists. The federal center which had not conducted any consistent policy since late 1996 ("perhaps it fades away by itself"), after the defiant and demonstrative abduction in Grozny of Russia's Interior Ministry representative Major-General Shpigun, when "turning a blind eye" was no longer possible, in February 1999 again started to prepare to solve the problem by force (27). In the meantime, Chechen extremist leaders uncontrolled by Maskhadov were already preparing the invasion of Dagestan. In summer of 1999, a new armed conflict was already unavoidable, more so, that on both sides there were influential powers willing to see the situation grow worse (28).
After in August 1999 Basaev's and Khattab's units had invaded Dagestan, the federal power was not only allowed but also liable to use force to protect its citizens and repulse bandits and terrorists - but the issue of Chechnya's status could not be settled by force. Meanwhile, the federal power not as much ignored Aslan Maskhadov's proposals for joint fight against extremists as by trying to make them identical in every possible way ruled out the very possibility of dialogue with him and believed it was the issue of the republic's status that was automatically settled (29). At the same time, the 1996-97 agreements were neither denounced by the Russian authorities nor declared invalid by the Constitutional Court - so one must ascertain the Russian party violated those agreements (30).
This is what determined the demand to launch political regulation of the conflict in Chechnya and negotiate with representatives of the president legally elected in January 1997 and the parliament of the Chechen Republic of Ichkeria. This demand was constantly and openly put forward by Russian organizations for human rights (31); political regulation was also demanded by international organizations - more definitely by the PACE (32) and more restrainedly by the Office of the UN High Commissioner for Human Rights (33).
Thus, in the course of the armed conflict in Chechnya the Russian authorities consciously and consistently identified (or actually substituted) the notions of fighting terrorism and fighting separatism, liquidating bandits and restoring the sovereignty; thereby they rejected political regulation of the crisis thus violating their international commitments.
3. Restricting human rights in Chechnya in the context of international law
Chechnya is Russia's only region where consideration of the legal situation in light of pacts on human rights requires talking about not only observing human rights but also possible grounds to restrict them.
While talking about violations of human rights in the armed conflict in Chechnya in the context of international documents on human rights, one should first of all address the International Covenant on Civil and Political Rights (34); the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (35); and the European Convention for the Protection of Human Rights and Fundamental Freedoms (36).
The International Covenant on Civil and Political Rights allows the states parties to it to restrict or suspend exercising a series of rights, but only for the period of an officially declared state of emergency and "to the extent strictly required by the exigencies of the situation." The state shall inform the UN about such steps and in doing so, on no account may it suspend or restrict exercising some fundamental rights: the right to life (including an absolute ban on the death penalty without a trial); freedom from slavery; the right to protection from imprisonment for failure to pay a debt; freedom from the retroactive effect of criminal legislation; freedom of thought, conscience and religion. Torture, cruel and degrading punishment and treatment remain prohibited, as well as discrimination on the ground of race, color, sex, language, religion and national or social origin.
The European Convention for the Protection of Human Rights and Fundamental Freedoms also allows governments to restrict or suspend exercising a series of rights for the period of a formally announced state of emergency, but solely on condition that the procedure of derogation (37) is observed, with notification of the Council of Europe. Suspension or limitation of some fundamental rights is also impossible in this case.
Meanwhile, the substantial limitation of human rights by federal structures in Chechnya was not accompanied by either announcing a state of emergency (see below) or corresponding notification of UN structures (as required by the International Covenant on Civil and Political Rights); or observing the derogation procedure (as required by the European Convention for the Protection of Human Rights and Fundamental Freedoms) and even less so timely notification of COE structures. Moreover, there were large-scale violations of those rights that can be limited under no circumstances.
Thus, by limiting human rights in the armed conflict area in Chechnya while being reluctant to face international interference or control the Russian authorities consistently and consciously violated international pacts on human rights with hope to present the developments as an "internal affair of the state."
4. Restricting human rights in Chechnya in the context of Russia's national law (38)
Chechnya is Russia's only region where human rights were limited in a vast area and for a long time. According to Russian legislation, the legal basis for that can be a state of emergency or martial law which is introduced observing the relevant legal procedure. International pacts on human rights say the same (see above).
According to article 88 of the Russian Constitution, when there is a real threat to the security of citizens or the constitutional system which is impossible to eliminate without using extraordinary measures, the President issues a decree introducing a state of emergency throughout the country or in some of its regions and informs about it the Federation Council and the Duma without delay. The corresponding decree must be approved by the Federation Council.
The formulation of this constitutional norm does not clarify whether introducing a state of emergency is the right of the President which he or she can exercise at his or her own discretion - or whether it is his or her duty. At the moment when the armed conflict in Chechnya began, effective was Law N1253-1 on emergency passed on May 17, 1991, but it was not applied (like during the "first Chechen war") - although to substantiate the operation proper the federal authorities referred to the circumstances stated in paragraph "a" of article 4 of the Law as the ground for introducing a state of emergency (39). It appears the law was not used for three pragmatic considerations.
Firstly, it does not provide using the army to normalize the situation, but only Interior Ministry troops (40).
Secondly, the automatic approval of the decree introducing a state of emergency by the Federation Council was not guaranteed in circumstances of the yet unfinished "hierarchy of power": this could mean political bargaining between the branches of power or at least parliamentary control of the executive.
Thirdly, the law on emergency in its articles 8, 17, 18 and others quite clearly and consistently related the legal regime in a state of emergency. It required a precise indication of the government organs responsible for taking relevant measures; and a quotation in the corresponding decree of emergency measures and limits to them and a complete list of temporary restrictions on citizens' rights and freedoms. It also provided for guarantees of citizens rights and mechanisms of their protection (41) - which no doubt "tied up the hands" to federal security and law enforcement structures and considerably limited the "degree of discretion," i.e. abuse (42).
The May 30, 2001, federal constitutional law on the state of emergency significantly expanded the authority of security and enforcement agencies and reduced the possibility of control of how they utilized this authority - but even this new law is not used to put the situation in Chechnya on a legal basis.
Another possible way for legal limitation of citizens' rights in a vast area and for a long time is martial law introduced in accordance with article 19 of the Russian Law "On defense" and determined as a special legal regime of operation of federal and local government organs that suggests limiting some rights and freedoms.
But firstly, this is possible admitting some foreign aggression was present in this case (43).
Secondly, according to the Constitution the martial law regime must be regulated by the federal constitutional law, but no such law has yet been passed (44).
Martial law in the armed conflict area in Chechnya was not declared - apparently not in the least because of the absence of aggression as a reason or the absence of the law as a directive. Most probably, a third reason played the main part: according to article 87 of the Russian Constitution martial law is formally declared by the President with immediate notification of that to the Federation Council and the Duma; besides, the corresponding decree must be approved by the Federation Council. Meanwhile (like with a state of emergency - see above), the executive sought to avoid parliamentary control.
Thus, by restricting human rights in the armed conflict area in Chechnya while willing to avoid parliamentary or any other control the Russian authorities were consistently and consciously removing the legal situation in the region beyond national legislation.
5. The "counter-terrorist" operation regime as a basis for using the Armed Forces in Chechnya (45)
Chechnya is Russia's only region where units of the Armed Forces, interior troops and other security and law enforcement structures were extensively used, which is impossible without a relevant legal foundation.
The destination of the Armed Forces and limits of their use are regulated by Russia's May 13, 1996, Federal Law "On defense" N61-FZ. According to it, "the Armed Forces of the Russian Federation are destined for repelling aggression against the Russian Federation; for armed protection of the integrity and inviolability of the territory of the Russian Federation; and for execution of tasks in accordance with international treaties of the Russian Federation. Involvement of the Armed Forces of the Russian Federation in the execution of tasks utilizing arms not as intended is exercised by the president of the Russian Federation in accordance with federal laws" (article 10, paragraph 2, 3).
Firstly, if the legal basis for using Russia's Armed Forces was aggression (46), the Russian president in accordance with article 87 of the Russian Constitution would have been liable to declare martial law with immediate notification of that to the Federation Council and the Duma - but martial law was not declared (see above).
Secondly, there were no international treaties of the Russian Federation either, which could have provided a basis to use the Armed Forces in Chechnya.
Thirdly, talking about "armed protection of the integrity and inviolability of the territory of the Russian Federation," this was a legal basis for military action in Dagestan, but bilateral agreements with the Chechen Republic of Ichkeria did not permit using force to resolve territorial disputes; they were to be settled in negotiations by late 2001 (see above).
Accordingly, one can talk about involvement of the Armed Forces utilizing arms not as intended - which basically is not ruled out by Russian legislation.
The national security concept (47) does not rule out involvement of the Armed Forces utilizing arms NOT AS INTENDED. Although presently there are no legal acts that would explicitly regulate the terms and procedure of using arms and military contingents "not as intended," this is how using the Armed Forces can be interpreted proceeding from the July 25, 1998, federal law "On fighting terrorism" N130-FZ. Article 7 of the law on fighting terrorism allowed involving the Armed Forces beyond their destination, to take part in the "counter-terrorist operation" - this is how the Russian authorities from the very beginning called the armed conflict in the North Caucasus (48).
When making the decision to use the Armed Forces beyond their destination proceeding from article 10 of the Federal Law "On defense," the Russian president was liable to determine in a standard act a legal basis for and a procedure of using them. Article 5 (paragraph 1, subparagraph "3)") of the Law "On defense" says involvement of the Armed Forces and other armed units utilizing arms to execute tasks not as intended must be codified by the President's decree approvable by the Federation Council. Since this document could not help but entail restriction on citizens' rights, it was necessarily publishable (49) (footnote: "...any standard legal acts infringing on the rights, freedoms and duties of the person and citizen cannot be implemented unless published officially and for general information" - paragraph 3 of article 15 of the Russian Constitution) - but no such a document is published for a long time (50).
One should also observe the National security concept suggests that "using a military force against civilian persons or to achieve domestic political goals is not permitted. At the same time, with respect to illegal armed formations posing a threat to national interests of the Russian Federation, joint actions by individual formations of the Armed Forces of the Russian Federation with other troops, military formations and organs are permitted in strict accordance with the Constitution of the Russian Federation and federal laws." The concept also emphasized the need to "observe norms of international law and Russian legislation in taking forcible measures (including utilizing a military force)."
The Russian authorities' using the law "On fighting terrorism" and the "counter-terrorist operation" regime was in 1999 conditioned solely by the wish to somehow involve the Armed Forces in the armed conflict in Chechnya without parliamentary control (51). Although after September 11, 2001, this terminology was employed by Russian diplomacy and propaganda on the international arena, "any coincidences should be considered accidental."
6. Implementing the legal regime of a "counter-terrorist operation area" as a basis for restricting human rights in the armed conflict area in Chechnya (52)
Chechnya is Russia's only region where the Law "On fighting terrorism" is used for large-scale and substantial restriction on citizens' rights.
In the last two years the law has repeatedly been subjected to criticism - by both national and foreign experts: among the substantial grievances of the COE against Russia is that the law on fighting terrorism is not in line with European standards, so considerable amendments are suggested to the law. This criticism was chiefly concerned with opportunities for ungrounded violations of human rights codified by the Law on fighting terrorism and conducting large-scale military operations and massive and indiscriminate bombardments and firings as part of the "counter-terrorist operation" (see above for a brief account of these aspects).
However, most violations of human rights by federal militarized structures in the armed conflict area in Chechnya in 2001 were connected with "clean-up operations," "filtration" and disappearances of people - i.e. with sweeping unsanctioned searches of homes, large-scale indiscriminate detentions, placing detainees in illegal confinements, cruel treatment, torture and extrajudicial executions. These actions taken as part of the "counter-terrorist operation" obviously contradict the law on fighting terrorism itself (53).
Power representatives can penetrate citizens' homes against the will of those dwelling in them (according to article 25 of the Russian Constitution) only "in cases established by federal law"; also, only "federal law" can limit the right to inviolability of the home (part 3, article 55 of the Constitution), in particular under a state of emergency (article 56 of the Constitution).
In Chechnya where the milder regime of a "counter-terrorist operation area" is effective, established by the July 25, 1998, Federal Law "On fighting terrorism," according to article 13, part 1, paragraph 4 of the law, persons conducting the mentioned operation have the right to "freely enter (penetrate) homes and other premises owned by citizens" under the two combined conditions:
1) in preventing a terrorist act, i.e. according to article 3 of the mentioned law, direct commission of a terrorist crime in the form of explosion, arson, and other similar actions that threaten human deaths, significant property damage or other socially dangerous consequences; or in pursuit of persons suspected of having committed a terrorist act;
2) if procrastination can produce a real threat to human lives and health.
However, while dealing with a citizen's home power representatives involved in the counter-terrorist operation are bound with the requirements of the law and obliged to have sufficient grounds for an unsanctioned penetration into the home. These grounds must not be with respect to some "plot of area" (settlement) in general, but this specific dwelling apartment individually protected by the law. Service men's unsanctioned penetration into citizens' homes against their will: after a terrorist act has been committed or when it has been prevented; not in pursuit of a suspect whom law enforcement agencies know to have hidden in a definite apartment, but to search the person suspected of having committed a terrorist act; or after the lapse of a real threat to human lives and health - is a pronounced abuse of power by authorities, i.e. an illegal action violating the constitutional right of the person and citizen to inviolability of the home.
Thus, the matter is not about fulfilling the law, but its arbitrary and broad interpretation; not about defects of the legal act, but of the law enforcement practice. The law on fighting terrorism was originally intended to regulate local and short-term use of force where immediate response is required and there is no time for parliamentary sanction. The counter-terrorist operation regime in August 1999 was used to employ the Armed Forces without declaring a state of emergency, which would require parliamentary sanction (see above). The law "On fighting terrorism" has already been applied over several years in an area of thousands of sq km.
Usually, to justify large-scale unsanctioned searches and detentions during "clean-up operations" and "targeted special operations" officials refer to article 13 of the Law. This article which allows to enter homes during a counter-terrorist operation and basically abrogates inviolability of the home actually dates back (like, however, the law itself) to the "hue and cry" rule from Anglo-Saxon law: when chasing a criminal, if he or she disappears in a building, police can instantly enter there without a special sanction for that, thus violating habeas corpus. When the law was passed, human rights advocates' concern was roused by the very expansion of security and law enforcement structures' authority in a counter-terrorist operation, because with the present-day state of discipline in these structures its sweeping and uncontrolled implementation inevitably leads to large-scale violations of human rights. However, arbitrary and broad interpretation of the law even aggravated these consequences. The law itself still suggests the "unity of place and time," but its significant extension in space and time disconnects the consequence (actions of security and enforcement structures) with the cause (actions of terrorists), actually making the cause unnecessary (54).
Security and enforcement structures were granted the vastest authority - with no legal base to regulate it. This fact is presently admitted in particular by the military prosecutor's office (55).
Thus, by using the law "On fighting terrorism" and the "counter-terrorist operation" regime to limit human rights in the armed conflict area in Chechnya, the Russian authorities consciously created an unregulated legal vacuum that entailed large-scale violations of human rights.
7. Norms and directives meant to regulate actions or federal units and formations in the course of the "counter-terrorist operation (56)."
Since mid-2001, the leadership of federal security and enforcement structures - both at the level of the United Group of Troops (Forces) in the North Caucasus and the federal level - has issued a number of directives aimed at improving the situation with human rights and preventing grave personal crimes in the armed conflict area in Chechnya. In legal discourse, these documents and their implementation have for the past year been almost the only subject of debate - very detailed one - but here is just a brief account.
On May 24, 2001, UGT (F) Commander Lieutenant-General Vladimir Moltenskoi signed order N145 "On measures for increasing the activity of local government organs, the population and law enforcement agencies of the Russian Federation and efficiency of special measures in settlements aimed at exposure and detention of leaders and members of gangs (57) in the Chechen Republic (58)."
The order suggested a simple way to "prevent possible violations of laws":
"2. ...shall be involved: military commandants of administrative centers and districts of the republic; heads of administration; chiefs of village police departments; military prosecutors of administrative centers (districts) in areas (districts) where special activities are carried out.
The mentioned officials shall be invited to the command post of the officer in charge of the special activity upon the beginning of the special activity (operation) in the immediate district where the activity (operation) is carried out..."
What is especially remarkable is that even military prosecutors are supposed to be invited "upon the beginning of the special activity," along with local government heads - apparently the prosecutor was viewed as a potential "associate of bandits."
No wonder that with this, mildly put, formal approach Order N145 had no effect - its consequences were also absolutely formal. Thus, in mid-June of 2001 in the Kurchaloi district, officials including heads of administration, military commandants and police department chiefs were introduced to their rights, with a series of brutal "clean-up operations" carried out simultaneously, certainly without any hint of observing Order N14559. "Special operations" continued practically in all of Chechnya's districts for several weeks (60).
"Clean-up operations" in the settlements of Sernovodsk and Assinovskaya in early July, accompanied by robbery, extortion and large-scale illegal detentions - hundreds of people were delivered to "filtration points" where they underwent beating and torture with two of them "disappearing" (61) - became widely known, aroused international resonance and provided a formal ground for Russia's Prosecutor General Vladimir Ustinov to issue order N46 "On strengthening control over the observance of citizens' rights in checking up their registration at the place of residence and the place of stay (62) in the Chechen Republic (63)."
The role of prosecution workers in the course of "clean-up operations" is clearly determined (64):
"1. ...a system of measures shall be developed without delay to ensure control over the lawfulness of actions of officers and service men of police units and interior troops, the Interior Ministry, Defense Ministry, Justice Ministry and FSS of Russia in check-ups..., timely interception and prevention of violations of the rights and freedoms of the person and citizen.
2. It shall be established that in check-ups in settlements... territorial prosecutors must be present at the administration of the settlement, carry out control over the lawfulness of actions of units... in the immediate locality or examine the grounds for detention of citizens and seizure of their documents and property not later than on the next day."
Order N46 once again restated provisions of order N145 as to interaction with local government heads, military commandants and chiefs of village police departments:
"3. In carrying out control, it shall be ensured that representatives of the military commandant's office of the town or district where the settlement is located; representatives of the temporary or permanent police department; local government chiefs; and, if necessary, the religious leader or elders are informed about the check-up before it begins and invited to the place where it is carried out."
"Clean-up operations" that followed in the settlements of Starye Atagi, Chiri-Yurt, Alleroi and others (65) in late July and August 2001 showed the Russian Prosecutor General's order N46 was not either able to change the situation quickly and noticeably (66).
In a few weeks after order N46 had been issued, prosecutors started to emerge in the process of "clean-up operations" - and it turned out at once this was absolutely not enough to introduce the situation into a legal framework. One prosecution worker at the headquarters of a group conducting a "clean-up operation" can at the "temporary filtration point" located there prevent killings and disappearances of detainees - but he or she is not able to control actions of thousands of officers of security and enforcement structures simultaneously examining dozens of homes throughout the settlement. In addition, service men and officers of security and enforcement structures openly sabotaged efforts of prosecution workers. In their attempts to control actions of the military, the latter encountered actually the same difficulties as human rights advocates: thus, any records were absent in places where detainees were kept, so inspection actually became impossible.
Order N46 individually and in detail regulated measures aimed at the prevention of "disappearances" of detainees (67):
"4. Special attention shall be paid to the lawfulness and sufficient grounds for detention of citizens and obligatory records of detainees with complete particulars, mentioning of the date, time and grounds for detention and a note of who conducted the detention and where the detainee was installed.
4.1. In the event that detainees are transferred to temporary police departments (or to representatives of other security or enforcement structures) for a check-up of their connection with illegal armed formations or other offences, the presence shall be checked of a note which of the detainees, when and to what specific structure was transferred, as well as the presence of the signature of the officer who received the detainee.
4.2. It shall be ensured that close relatives are notified of each detention of citizens, the grounds for detention and the place of detention..."
This paragraph of the order, provided it is fulfilled, could stop the "killing machine," the system of illegal places of detention, inquest and extrajudicial executions effective behind the facade of official detention centers. "Disappearances," torture and homicides in Chechnya were not and are not reduced to "individual defects," "excessive acts." The facade of the official system of detention centers hides a parallel one which is still effective and is headquartered in Khankala, the principal federal base. This system uses cruel torture of detainees and "missing" persons, which often soon leads to death, and extrajudicial executions. In fact, what is happening is an extrapolation of methods of military reconnaissance and special units to everyday practices of law enforcement agencies which thus turn into "death squadrons." It is obvious inquest is fragmented in this unofficial system, violence is "privatized" and in fact inquest is destroyed as a government institution (68). Meanwhile, control over investigation, inquest and detention centers is the function of the prosecutor's office. Vladimir Ustinov's attempt to regain control of these spheres is not only a step towards recovering law. Above all, paragraph 4 of the order can be evaluated as a healthy "administrative reflex (69)."
This paragraph of order N46 can be called a new and actually the most important one. But exactly this paragraph of the order was not fulfilled.
It turned out the prosecutor's office was not able to establish the very fact that a person "disappeared" during a "clean-up operation" at the time when the detainee can still be saved. It is impossible (70) to establish who exactly or what structures detained the person - their faces are covered by masks, they do not introduce themselves nor produce grounds for detention. It is impossible to establish what vehicle carried the detainee away to trace his or her subsequent destiny - vehicles have no license plates or they are covered in mud. Finally, it is impossible to find out if the detainee was placed in a legal detention center under control of the prosecutor's office or "disappeared" - detainee names are not read out after "clean-up operations." Attempts of the Chechen prosecutor's office and military prosecutor's office to establish control over "temporary filtration points" and other illegal detention centers were unsuccessful, short-lived and not too insistent. There are some examples when people "disappeared" right "from the hands" of the Prosecutor of the Chechen Republic (71).
Attempts to regulate actions of the militarized structures continued. A discussion at the Civil Forum in Moscow (November 20-21, 2001) and a roundtable on problems of the armed conflict in Chechnya led to contacts between the leadership of militarized structures and human rights advocates becoming regular: meetings were arranged - monthly in Chechnya and quarterly in Moscow. At the very first meeting in the settlement of Znamenskoe on January 12, 2002 (72), UGT (F) Commander Vladimir Moltenskoi agreed with the obvious demands: in the course of "clean-up operations" the seniors of groups entering homes must introduce themselves; vehicles must have perceptible license plates; detainee names must be read out right at the end of a "clean-up operation." However, at the second meeting on February 28 representatives of the command denied the very need for such actions. Only after a meeting on March 22 in Moscow in the presidential administration these requirements were secured in the UGT (F) Commander's order N80 of March 27, 2002, "On measures for increasing the activity of local government organs, the population and law enforcement agencies of the Russian Federation in fighting breaches of law; on official responsibility for breaches of law and order in conducting special operations (73) and targeted activities in settlements in the Chechen Republic (74)":
"2. ...while conducting special operations... shall be involved: military commandants of administrative centers and districts of the republic; heads of administration of settlements; clergy; elders; chiefs of village police departments; military prosecutors of administrative centers (districts), chiefs of Russian FSS organs in administrative centers (districts)...
In completing a targeted activity... a statement shall be drawn up, signed by the officer in charge of the special operation, head of administration of the town (district, settlement), prosecutor of the administrative center (district), chief of the temporary police department (chief of the village police department)... The statement shall be approved by the UGT (F) commander in the North Caucasus. Enclosed with the statement shall be records of persons detained in the course of the operation; a list of seized arms, ammunition, explosives, drugs, documents, money, assets and so on...
3. The officer in charge of examination groups... shall without fail introduce themselves to the owners of the house with their name, military rank and the purpose of the check-up (examination) clearly stated. Using masks without operative need shall be excluded... Tact, restrain and politeness shall be displayed in the course of check-ups...
4. Every vehicle, including combat ones,... shall have state license plates and well perceptible side (turret) numbers."
Two paragraphs of order N80 were devoted to stepping up discipline and control in troops:
"1. ...special operations and targeted activities... shall be conducted only with the personal permission of the UGT (F) Commander in the North Caucasus and in accordance with plans approved by him.
5. While preparing and conducting special operations... additional organizational and auxiliary measures shall be taken to exclude cases of looting, physical or moral offence against civilian persons. ...Every case of looting shall be thoroughly investigated, reported to the UGT (F) headquarters and provide a basis for legal actions..."
The UGT (F) Commander's order N80 became the only "solid residual," the only real result of six months of meetings and consultations between NGO and government representatives (75). But even this single result would invest the entire negotiating process with meaning: provided it was essentially fulfilled, the order could become a noticeable first step towards improvement of the situation with human rights in the Chechen Republic. The law did become "noticeable" - radio and television (especially in Chechnya) broadcast representatives of different levels of power time and again reporting on it as a "significant breakthrough in the cause of protecting human rights in Chechnya."
However, the period since it was issued on the contrary has shown that provisions of the order were everywhere malignantly unexecuted, so the situation more likely even worsened (76). None of the multiple "clean-up operations" was conducted in accordance with order N80. As before, officers of federal security and enforcement structures without introducing themselves to the homeowners entered their homes by force, insulted and beat the dwellers, robbed and brought people away without indicating the destination. Side and turret numbers on armored vehicles were absent, covered in mud or with tarpaulin. Local government was not involved in conducting "clean-up operations." Detainees were as before beaten and tortured. No detainee lists were handed to heads of administration. Only one provision of the order was fulfilled: when a "clean-up operation" was over the military demanded that local government heads sign a statement of no grievances. Obviously, all this could take place either by direct order or with the connivance of the officer in charge (77). In the course "targeted activities" "people in camouflage arriving in armored personnel carriers" as before abducted natives from their homes. Corpses of some of the abducted were later found in abandoned buildings, along borders of woods and so on. More frequently than before the order had been issued, bodies of detainees were exploded - so it was not only difficult to identify the remains, but sometimes even to establish the number of people they belonged to.
This is what, actually, "contemporary law enforcement practices" in Chechnya consist in.
The overall conclusion: orders are issued, but not fulfilled. Why?
There are several simple answers to this natural question. Perhaps, control over federal forces in Chechnya was lost, so neither the command nor the prosecutor's office are able to influence actions of direct executors. It is also quite possible that orders are issued formally, while in reality the persons issuing them are not in the least concerned about large-scale violations of human rights. It appears both these answers are correct, but only in part - like all simple explanations (78).
While posing this question, the author takes the liberty not to search for the answer in this text, but confines himself to some considerations prompted by the very modality of the orders.
At first sight, the very fact that orders N145, N46 and N80 were issued can seem surprising or at least illogical. After all, as is shown above, since mid-1999 Russian officials - including ones at the top level - have been consciously and consistently trying to remove the events in the North Caucasus beyond the context of law, both national and international. Published by journalists and human rights advocates, reports on violations of human rights, humanitarian law norms, war crimes and crimes against humanity were dismissed out of hand (79). NGO statements and resolutions on the situation in Chechnya, while actually ignored, formally were declared interfering in Russia's internal affairs based on inauthentic information (80).
No doubt, the need to issue directives protecting civilians did not arise out of crimes, but a lot of publicity they received from journalists and human rights advocates, as well as the response of the international community. This publicity did not improve Russia's image on the global arena and the image of security and enforcement structures inside the country.
"Imposed from the outside" - this is the exact impression left by order N145 which in particular said:
"Complaints of civilians of the Chechen Republic about supposedly existing cases of 'unlawful actions' [here and below accentuation by A. Ch.] on the part of units of the United Group in the course of special activities have become more frequent lately..."
With a view to preventing possible breaches of laws of the Russian Federation... I ORDER..."
References to the "supposedly existing cases of 'unlawful actions' on the part of units" and the "possible violations of laws" are especially remarkable; issuing this order the commander continues to deny that his subordinates are committing crimes.
In two months Russian Prosecutor General Vladimir Ustinov begins his order N46 with an unexpectedly tough statement openly announcing the direct ground for issuing it:
"On July 3-4, 2001, officers and service men of formations of the United Group of Troops (Forces), in the process of carrying out the counter-terrorist operation in the Chechen Republic in the settlements of Assinovskaya and Sernovodsk, conducted a check-up of the observance by citizens of rules of registration in the place of residence and stay.
Upon completion of the check-up, organs of the republican prosecutor's office received multiple addresses from the population about illegal detention of residents, application of forcible actions to them and other violations of the rights and freedoms of the person and citizen, which served as a basis for a series of criminal cases.
This situation shows the prosecutor's office of the Chechen Republic and territorial and military prosecutors have not yet attained rigorous observance of the established check-up procedure..."
Two years ago after the start of the "counter-terrorist operation," one of Russia's top officials in control of the observance of law does not only publicly admits the situation is unfavorable, but ascertains federal security and enforcement structures commit large-scale violations of civilians' rights in conducting "clean-up operations."
Eight months later, the UGT (F) Commander's order N80 contains even more distinct formulae:
"Analysis of service and combat activities... shows... unlawful actions of federal forces service men in respect of civilians continue to take place.
Complaints of citizens and local government chiefs have repeatedly provided a basis for internal investigations and prosecutor's check-ups leading to the exposure of looting, insult, rudeness and abuse of power on the part of federal forces service men.
Cases of service men's unlawful actions in respect of civilians produce a very negative effect on the process of stabilizing the situation in the republic thus negating the command's efforts aimed at security, law and order and favorable conditions for restoring socioeconomic life. Moreover, they lead to the incitement of anti-Russian moods and provide leaders of illegal armed formations with the opportunity to recruit new members and associates for their gangs.
When published, these facts are efficiently used by leaders of gangs, their associates... to discredit the Russian leadership, command of the group of troops and service men participating in the counter-terrorist operation and fuel information warfare against Russia. ..."
Thus, all efforts of the military command and law enforcement agencies aimed at filling the legal vacuum in the armed conflict area in Chechnya can be characterized as: too late and too little.
Order N80 is grounded by references not to individual episodes, but "analysis of service and combat activities" of the group in general, results of repeatedly conducted "internal investigations and prosecutor's check-ups."
Translated from the bureaucracy's "new language," order N80 sounds as a sentence the power passed on itself.
Thus, the Russian authorities in the armed conflict area in Chechnya:
- willing to avoid international interference or control and still hopeful to present the developments as an "internal affair of the state" were consistently and consciously trying to remove the situation beyond humanitarian law norms, thereby violating their international commitments;
- consciously and consistently substituted the notions of fighting separatism for fighting terrorism and restoring the sovereignty for liquidating bandits - to find a ground to reject a political settlement of the crisis; thereby they also violated their international commitments;
- by limiting human rights while being reluctant to face international interference or control provided by international pacts on human rights, consistently and consciously violated these pacts, once again with hope to present the developments as an "internal affair of the state";
- willing to avoid parliamentary or any other internal control, consistently and consciously strived to remove the legal situation in the region beyond national legislation;
- used the law "On fighting terrorism" and the "counter-terrorist operation" regime to involved the Armed Forces round parliamentary control, but sought to present the developments as "part of the global war against terrorism";
- by using this law to limit citizens' rights, consciously created an unregulated legal vacuum that entailed large-scale violations of human rights, war crimes and crimes against humanity;
- made efforts to fill the legal vacuum by issuing individual orders that, however, can be characterized as: too late and too little.
(1) A different euphemism was used during the "first Chechen war" of 1994-96 - "disarmament of illegal armed formations."
(2) This term was first used in an international law document (The Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict of 14 May 1954) in 1954 and comprises any situation regardless of its legal qualification in which TWO OR MORE PARTIES confront each other using arms.
(3) Assessment "from below," according to official figures.
(4) "...as not being armed conflicts" - Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), passed on July 8, 1977; article 1.
(5) Protocol II, article 1.
(6) Although at times they demonstratively entered settlements - even district centers! - conducted "clean-up operations" there and put up posts; apparently, all this was made solely to display this "control over a part of its territory."
(7) "...the very fact that "clean-up operations" in one and the same settlement are carried out endlessly one after another provides evidence of how inefficient they are. One human rights advocate... came to a village in the foothills (being also endlessly "cleaned-up") right after a regular special operation and at once "came under solid guard" of one militant structure. Guys with a two-way radio escorted him everywhere... then reprimanded him: how could he have come to the village without warning. "It's good we've found you, 'cause there are others here, too." He also ran up against the others... All of a sudden a Zhiguli car turned up and quite different young men poured out, also with two-way radios, and started a furious bicker in Chechen with those who escorted him. ...It turned out the escort were Maskhadov's gunmen who have awfully bad relations with Wahhabi units. ...Both groups are fine... literally in two days after a "clean-up operation." (G. Kovalskaya, Word and Deed, Yezhenedelny Zhurnal, N20, May 28, 2002, pp. 12-15).
(8) "Control over a part of its territory" is the only strictly observed criteria, because the remaining 88 subjects of the federation, save Chechnya, do not question their status.
(9) In February-March 2000 alone: paratroopers from the 76th Pskov airborne division and special troops from the Leningrad military district who received no backup from other units of the United Group; and - which is an outrage! - a special police unit from the Moscow region fired by another special police unit, also from the Moscow region.
(10) See section 7 of the present article.
(11) Numerous examples of which are on this site.
(12) Or "bandits" as they were called during the "first Chechen war."
(13) International law norms aimed at making consequences of war milder by limiting the choice of means and methods of conducting military operations and protecting people who do not take part or who have ceased to take part in hostilities, as well as assets that do not directly serve military purposes.
(14) International law prohibits wars, save for states to exercise their right to protection from an attack - but the existence of humanitarian law does not contradict the principle of prohibiting war as such: it just becomes effective as soon as an armed conflict begins, regardless of whether or not the use of armed forces is justified.
(15) UN Resolution N2444, adopted unanimously in 1968 by the General Assembly, and relating to all armed conflicts - international and non-international.
(16) Adopted on August 12, 1949; they, in turn, developed the "Nuremberg law." The sentence of the International Military Tribunal in 1946 mentioned that humanitarian law norms stated in a series of conventions should be considered part of international law obligatory for all countries regardless of whether or not they were parties to these conventions. At its first session on December 11, 1946, the UN General Assembly unanimously resolved that the "Nuremberg law" was an integral part of international law.
(17) UN Commission on Human Rights resolution E/CN.4/2001/L.24 of April 20, 2001.
(18) Parliamentary Assembly of the Council of Europe Resolution 1240 of January 25, 2001.
(19) There is an opinion this conflict should be considered in the context of the Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol 1). Paragraph 4 of its article 1 says it is applicable in "armed conflicts in which peoples are fighting against colonial domination and alien occupation and against racist regimes in the exercise of their right of self-determination, as enshrined in the Charter of the United Nations and the Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations" - in this case the assessment of actions of both parties to the conflict would be more severe without being different in substance.
(20) "The sovereignty of the Russian Federation extends to all its territory. The Constitution of the Russian Federation and federal laws have the rule over the entire territory of the Russian Federation. The Russian Federation ensures the integrity and inviolability of its territory" - article 4 of the Russian Constitution.
(21) "The Chechen Republic is a sovereign and self-dependent democratic constitutional state established as a result of self-determination of the Chechen people. It possesses the supreme right with respect to its territory and national wealth; independently determines its foreign and domestic policy; adopts the Constitution and Laws which have the rule over its entire territory. The state sovereignty and independence of the Chechen Republic is indivisible and steadfast and it does not relate to the authority of state government organs" - article 1 of the Constitution of the Chechen Republic of Ichkeria.
(22) Both in the Constitution of the RSFSR and the new Russian Constitution adopted in 1993.
(23) For more information about Russian-Chechen relations before 1994 (before the "first war"), see: V. Kogan-Yasny, The Political Aspect of the Relationship between the Federal Organs of Government of the Russian Federation and the Chechen Republic, 1990-1994; and A Chronicle of Events // Russia-Chechnya: Chain of Mistakes and Crimes (edited by O. Orlov and A. Cherkasov), Moscow, Society Memorial - publishing house Zveniya, 1998.
(24) In the treaties, the parties, "admitting the inadmissibility of the use of threat of armed forces in the settlement of disputes; proceeding from the universally acknowledged right of peoples to self-determination, the principles of equality, voluntariness and freedom of will, the strengthening of interethnic peace and the security of peoples; expressing their will to the unconditional protection of the rights and freedoms of the person and citizen without discrimination on the ground of nationality, religion, place of residence or any other criteria - and prevention of acts of violence to political opponents; proceeding furthermore from the Universal Declaration of Human Rights of 1949 and the International Covenant on Civil and Political Rights of 1966, have jointly developed the Principles of Interrelation between the Russian Federation and the Chechen Republic of Ichkeria providing a ground for further negotiations." Article 1 of the Principles says "The Agreement of Interrelation between the Russian Federation and the Chechen Republic determined in accordance with the universally acknowledged principles and norms of international law shall be achieved by December 31, 2001."
(25) Elected at a universal election under international control on January 27, 1997.
(26) This is, by the way, what explains that in 1995 the OSCE Assistance Group was admitted to the armed conflict area and played an active part in the settlement; the federal party believes the Group fully utilized its political settlement mandate by 1997, with the election conducted and the bilateral treaty signed. Meanwhile, the Office of the UN High Commissioner for Human Rights in its Resolution E/CN.4/2001/L.24 of April 20, 2001, "... Calls upon the Government of the Russian Federation to ensure an immediate return of the Organization for Security and Cooperation in Europe Assistance Group to the Republic of Chechnya and to create the necessary conditions for the fulfilment of its mandate, and underlines that a political solution is essential and that the assistance of the Organization for Security and Cooperation in Europe would contribute to achieving that goal; ...".
(27) There are, however, some other opinions. According to one of them, with the absence of STATE policy for Chechnya, Russian special services consciously and CONSISTENTLY supported extremist forces there; thus, they encouraged taking of hostages to prevent Aslan Maskhadov's regime from becoming firmly established and create objective and subjective conditions to possibly reattempt, when the situation in Russia alters, to return the rebellious republic "to the bosom." If this plan existed, one cannot but admit its success: the abduction of General Shpigun by the gang of the brothers Akhmadovs, Wahhabis from Urus-Martan, Chechnya, "cocked the gun of war"; Basaev and Khattab, by invading Dagestan with Wahhabi troops, "pulled the trigger." There is no direct evidence in favor of this scenario, like the one related in the text above; so the author's preferences are more likely to be based on the "Ockham's razor" principle. Some indirect evidence in favor of special services' complicity in abductions (or at least in covering up and patronizing extremists) lies in the arrest in May 1999 in Moscow of Turpal-Ali Atgeriev who was holding talks; if these talks had been a success, they would have made it possible for Chechnya on its own to destroy the leaders of abductors. The arrest was carried out by the FSS that time headed by Vladimir Putin; it frustrated the Russian-Chechen talks and as is now clear, made the second Chechen war unavoidable. On the other hand, this event belongs to the period when the military machine was already launched, and it proves nothing with respect to the preceding thirty-two months. As for the most consistent version, it attributed all crimes committed in Chechnya to the "agent network of Russian special services" and among others, included well-known militant commanders in this list. This version was voiced by some supporters of Ichkeria's independence; thereby they paradoxically denied this very independence, because years of unhampered criminal activities of Russian special services meant the absence of any other power in Chechnya...
(28) In Russia it was the "power" seeking to ensure "continuity," "Project Successor;" in Chechnya on the contrary it was the opposition that needed the situation growing worse for political survival.
(29) In this light, official propaganda texts remarkably identify or in fact substitute the notions "terrorist" and "separatist." Meanwhile, the former is in any case an outlaw, but the latter is quite able of using legal, nonviolent methods.
(30) For more information see: Position of the Society Memorial in connection with the Armed Conflict in Chechnya, December 1999: "The Society Memorial views the means used as a continuation of the surviving Soviet tradition of using indiscriminate violence (mass terror) to achieve political goals."
(31) See e.g. Resolution of the All-Russian Extraordinary Congress in defense of Human Rights on the Situation in Chechnya (January 21, 2001): "...We... demand that President Vladimir V. Putin of Russia begin negotiations without any prior conditions with president Aslan Maskhadov of the Chechen Republic of Ichkeria whose legitimacy was acknowledged by the international community and the Russian government itself. ..."
(32) See: Parliamentary Assembly of the Council of Europe Resolution 1240 of January 25, 2001: "...3. The Assembly reiterates its conviction that the Russian Federation has not acted in accordance with the Council of Europe's principles and values in the conduct of its military campaign in the Chechen Republic. Therefore, the Assembly considers that many of its requirements of the Russian Federation with regard to the conflict are still valid and must be implemented. No dialogue on a political solution with elected representatives of the Chechen Republic has been entered into by the authorities of the Russian Federation since 1999.... 16. ... the Assembly stresses that without a political solution which is acceptable to the majority of the Chechen people there cannot be any lasting stability in the Chechen Republic, whatever the financial means allocated for this purpose."
(33) The UN Commission on Human Rights in its resolution E/CN.4/2001/L.24 of April 20, 2001, "...Calls upon all parties to the conflict to take immediate steps to halt the ongoing fighting and the indiscriminate use of force and to seek as a matter of urgency a political solution with the aim of achieving a peaceful outcome to the crisis which fully respects the sovereignty and territorial integrity of the Russian Federation;..."
(34) The International Covenant on Civil and Political Rights, adopted by the UN General Assembly on December 16, 1966; entered into force on January 3, 1976.
(35) The European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment, adopted by the UN General Assembly on December 10, 1984; entered into force on June 26, 1987.
(36) The convention was ratified on March 30, 1998 and entered into force in Russia on May 5, 1998.
(37) Article 15. Derogation from observing obligations in time of public emergency. 1. In time of war or other public emergency threatening the life of the nation any High Contracting Party may take measures derogating from its obligations under this Convention to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with its other obligations under international law. 2. No derogation from Article 2, except in respect of deaths resulting from lawful acts of war, or from Article 3, 4 (paragraph 1) and 7 shall be made under this provision. 3. Any High Contracting Party availing itself of this right of derogation shall keep the Secretary-General of the Council of Europe fully informed of the measures which it has taken and the reasons therefor. It shall also inform the Secretary-General of the Council of Europe when such measures have ceased to operate and the provisions of the Convention are again being fully executed.
(38) For more information, see also the legal examination by M. E. Petrosian, Human Rights Center Memorial: Some Legal Aspects of Conducting Military Action in Chechnya; and Resolution (in connection with an inquiry from the Human Rights Center Memorial) on the rightfulness: of using the Russian Armed Forces in military operations in the Republic of Dagestan, the Chechen Republic and its neighboring republics; of restricting citizens' rights in the Chechen Republic and its neighboring territories; of using special units of the Russian Justice Ministry to block roads and prevent the movement of forced migrants from the Chechen Republic to Ingushetia. Done by M. F. Poliakova, chairperson of the regional public organization Independent Expert Law Council, Ph.D. (Kandidat nauk "candidate of sciences") in Law, justice adviser, member of the Permanent Chamber for Human Rights for the Russian President. // Baisaev U. V. et al, Violations of Human Rights and Humanitarian Law Norms in the course of Military Action in Chechnya. Fascicle 2. Clean-up Operation: Settlement of Novye Aldy. February 5, 2000. Premeditated Crimes against Civilian Population. Moscow: Zveniya, 2000. Pp. 11-17.
(39) "...attempts of violent replacement of the constitutional system; mass riots accompanied with violence; interethnic conflicts; blockade of individual areas; a threat to the life or security of citizens or normal operation of government institutions."
(40) Using the Armed Forces was only allowed in extraordinary cases when carrying out repair and rescue work to eliminate consequences of natural disasters, man-caused catastrophes, etc.
(41) Article 27 indicated that a state of emergency "cannot serve as a basis for using torture, cruel, inhuman or degrading treatment"; articles 28 and 33 indicated that the procedure of using force and firearms is regulated by the law and is not subject to change in conditions of an emergency and that unlawful use of force by officers of interior organs and service men, as well as their abuse of power, including violation of citizens' rights, entails responsibility and so on. For more information, see the legal examination by M. E. Petrosian.
(42) That is why the draft law on emergency was, as it seems, the first one proposed in summer 1988 by human rights advocates to the yet Soviet leadership. In 1999, back before the armed conflict began, the federal authority had refused to use the law on emergency to limit - within a legal framework - citizens' rights and freedoms in areas adjacent to the Chechen Republic (see e.g. the reference "Situation in the Kursky district of the Stavropol territory" of April 8, 1999; and the "Open letter of the Human Rights Center Memorial to President Boris N. Yeltsin of Russia with respect to events in the North Caucasus" of June 29, 1999). In doing so, the arguments it used were far-fetched and contrary to fact - from the "unavoidable abolishment of elections" in this case to the indication the law on emergency had ceased to be effective in 1993.
(43) "In time of martial law the Armed Forces of the Russian Federation and other troops and militarized formations and organs can conduct military operations to repulse aggression regardless of whether war has been declared."
(44) The federal constitutional law "On martial law" of January 30, 2002, was passed right in the period of the "second Chechen war." The law was approved by the Duma in the first reading on April 19, 2001; it was approved in the third reading on December 17, 2001. The Federation Council approved the law right after Christmas holidays, on December 16, 2002. It was signed by the president and came into effect on February 2, 2002. The passing of the law did not exert any influence on the events in Chechnya though.
(45) For more information, see also the legal examination by M. E. Petrosian and the resolution by M. F. Poliakova.
(46) Let alone that even if one proceeds from acknowledging the independence of the Chechen Republic of Ichkeria, there was no aggression against Russia, but penetration of some armed units uncontrolled by the Chechen authorities to the Republic of Dagestan, a Russian region.
(47) Approved by Decree of the President of January 17, 1997, N1300, the Concept, however, as is directly indicated in it, is a "political document" but not a legal one.
(48) See e.g. the October 23, 1999, Statement by the Russian government "On the situation in the Chechen Republic and measures to regulate it."
(49) "...any standard legal acts infringing on the rights, freedoms and duties of the person and citizen cannot be implemented unless published officially and for general information" - paragraph 3 of article 15 of the Russian Constitution.
(50) In 2002 this Decree is partially published.
(51) Officials started to talk about the "counter-terrorist operation" as far back as in August 1999, before the terrorist acts in Russian cities.
(52) For more information, see also the legal examination by M. E. Petrosian and the resolution by M. F. Poliakova.
(53) See: S. A. Pashin, member of the Independent Expert Law Council, Ph.D. (Kandidat nauk "candidate of sciences") in Law, honored lawyer of the RSFSR, REFERENCE "On the rightfulness of large-scale unsanctioned intrusion of power representatives into homes" of March 19, 2002.
(54) E.g. a "clean-up operation" in a village can be conducted without due registration, with reference to an explosion committed much earlier and in another district.
(55) From the speech of a military prosecutor's office representative at the meeting in Znamenskoe, Chechnya, on February 28, 2002: "...A clear legal base regulating conducting a "special operation" or even the counter-terrorist operation in general, it is undeveloped. There is the law, the key basic law "On fighting terrorism" that entitles to detain people until they are identified and confirmed. At the same time, that law doesn't mention the time limits of detention - you probably have read article 13 of the law. The mechanism itself needs to be perfected: you were right to notice the law had most likely been passed underdeveloped - even more than that! That's why one has to involve here, say, attract a series of standard acts: the Code of Administrative Offences, criminal procedure legislation, the presidential decree "On fighting vagrancy and mendicancy" - that is, an entire complex of laws is involved here..."
(56) There are lots of examples to this section; see files of the Human Rights Center Memorial on the situation in the armed conflict area in Chechnya in the second half of 2001 and in 2002, posted on the site in Events in the North Caucasus.
(57) I.e. "clean-up operations."
(58) See the fax of an extract from Order N145 attested by Chechnya's Deputy Prime Minister Yu. P. Em on Memorial's website.
(59) See: "Clean-up operations" in Kurchaloi district, news of July 9, 2001, on Memorial's website.
(60) See e.g. "Clean-up operations" in Chiri-Yurt: May-July 2001, news of July 30, 2001; and "Clean-up operation" in Chernorechie, news of July 10, 2001, on Memorial's website.
(61) See the file "Clean-up operation" in Sernovodsk and Assinovskaya - punitive action; posted on July 5, 2001, on Memorial's website.
(62) I.e. once again in conducting "clean-up operations."
(63) See Order by Prosecutor General Vladimir V. Ustinov of Russia of July 25, 2001, N46 on Memorial's website.
(64) Now they are not "bandits' associates."
(65) See: "Clean-up operations" in Chiri-Yurt: May-July 2001, news of July 30, 2001; "Clean-up operation" in Tsotsin-Yurt, news of August 6, 2001; "Clean-up operation" in Starye Atagi, news of August 13, 2001; "Clean-up operation" in Alleroi, news of September 2, 2001; and others on Memorial's website.
(66) For more information, see the file Epilogue to Prosecutor General's Order on Events in Sernovodsk, Assinovskaya on July 3-4, 2001; posted on September 12, 2001, on Memorial's website.
(67) Such "disappearances" may total one to two thousand. Along with "clean-up operations," they are the most monstrous manifestations and at the same time the very substance of the "counter-terrorist operation" in the Chechen Republic. Several hundred such episodes are enumerated in the "List of civilian persons detained in the armed conflict area in the Chechen Republic by representatives of federal security and enforcement structures who subsequently 'disappeared' or were killed"; posted on Memorial's website.
(68) For more information, see e.g. the Human Rights Center Memorial's Report on the Use Torture in the Armed Conflict Area in Chechnya; submitted to the UN Committee against Torture; posted on Memorial's website.
(69) In fact, any "system of containments and counterbalances" rests exactly on competition in bureaucratic egoism and fighting for "spheres of influences."
(70) Here and in what follows the word "impossible" means: impossible for relatives filing an application to the prosecutor's office, while it takes a prosecution worker considerable efforts, spending time and being prepared to conflict with officers and officials.
(71) Thus, Magomed-Emin Soipovich Alsultanov, b. in 1979, with his cousin Khan-Ali Imalievich Alsultanov, b. in 1970, resident in 36, Kavkazskaya Ul., Alleroi, the Chechen Republic, was detained on August 17, 2001, during a "clean-up operation" by federal forces in the settlement of Alleroi under the command of General Bogdanovsky. The Alsultanovs were kept at a military unit on a hill between the settlements of Alleroi and Tsentoroi - the military calls this "filtration point" Titanic. Chechnya's Prosecutor V. Chernov saw them there during a check-up. Then the Alsultanovs "disappeared." Their relatives applied to various official institutions; the Chechen prosecutor's office took a legal action. Inquest led to establishing "the brothers Alsultanov were transferred to the filtration point, taken charge of by S. N. Baryshev, officer of the FSS Administration for Chechnya [Lieutenant-Colonel Sergei Nikolaevich Baryshev, chief of the filtration point - A. Ch.], who in turn transferred the detainees to service men for delivery to the detention center of the temporary police department in Kurchaloi; however, the brothers Alsultanovs were not transferred to the detention center in Kurchaloi and there is presently no knowing of their whereabouts; the case of abduction of the Alsultanovs is investigated by the military prosecutor's office of the Chechen Republic" (from reply N117 by R. V. Tishin, acting prosecutor of the Argun inter-district prosecutor's office, of February 12, 2002). Multiple examples of similar "disappearances" are enumerated in the "List of civilian persons detained in the armed conflict area in the Chechen Republic by representatives of federal security and enforcement structures who subsequently 'disappeared' or were killed"; posted on Memorial's website.
(72) The shorthand record of this meeting, as well as the following ones in Znamenskoe on February 28, Moscow on March 22 and Grozny on April 25, are posted on Memorial's website.
(73) I.e. again "clean-up operations" - already a third official definition!
(74) The UGT (F) Commander's Order N80 of March 27 is posted on Memorial's website.
(75) For more information, see: A letter from a number of nongovernmental organizations to Yu. P. Puzanov, chief of staff for the Special Representative of the President of the Russian Federation for the Promotion of Human Rights in the Chechen Republic, and S. V. Yastrzhembsky, aide to the Russian President; posted on Memorial's website.
(76) For information about the impact of Order N80 on the situation in Chechnya, see the following files posted on Memorial's website in April-June 2002: On Order N80 by UGT (F) Commander in Chechnya; "Clean-up operation" in Tsotsin-Yurt (March 25 - April 1, 2002); "Clean-up operation" in Alkhan-Kala on April 11-15, 2002, - Moltenskoi's order unfulfilled; A letter to Lieutenant-General V. I. Moltenskoi, UGT (F) Commander in the Chechen Republic, V. G. Chernov, prosecutor of the Chechen Republic, and A. D. Pavlenko, commandant of the Chechen Republic; A letter to Lieutenant-General V. I. Moltenskoi, UGT (F) Commander in the Chechen Republic, and V. G. Chernov, prosecutor of the Chechen Republic; Communique on the third meeting of representatives of nongovernmental organizations for human rights and representatives of state power institutions of the Chechen Republic; Settlement of Kirov - disappearances and murders. April 27 - May 3, 2002; "Clean-up operation" in Alkhan-Kala on April 25-30, 2002. Order N80 - just empty talk?!; Instances of malignant non-execution of UGT (F) Commander's Order N80 in May 2002.
(77) One of them is known - General Igor Bronitsky who was in charge of "clean-up operations" in Alkhan-Kala.
(78) Overall, speculating on someone's intentions is as attractive as empty - in the mouths of those who are not present at decision making. However, in this case such contemplations to some (very small) extent make sense only from January 2002, when after the Civil Forum regular talks began between human rights advocates and chiefs of security and enforcement structures.
(79) Or at best, data were quoted as counter-evidence, on crimes committed by Chechen armed formations (or more often by criminal gangs) during the conflict (or chiefly within the period between the wars, in 1996-1999) - as if these deeds can justify and ground crimes committed on behalf of the Russian Federation, international entity and party to pacts on human rights!
(80) Thus, in spring 2001 Russia's Foreign Ministry claimed Russia did not view Commission on Human Rights resolution E/CN.4/2001/L.24 of April 20, 2001, as binding.
Author: Alexander Cherkasov, Memorial Human Rights Center (Moscow);