Legal Framework

 

The legal framework for evaluating the actions of the parties to the conflict is the international pacts and conventions on human rights; international humanitarian law; Russia’s national legislative norms.

 

The military campaign launched in the Chechen Republic in autumn 1999, as well as the first Chechen military conflict[1] was beyond the scope of the law. The issue in question was actually a large-scale abuse of power by the state.

To justify their actions the RF authorities referred to the need to fight against terrorism and used the term “counterterrorism operation”. However, when characterizing the events taking place in Chechnya, the officers of the coalition task force in the Northern Caucasus and civil functionaries often used the word "war". This is true, because during the armed hostilities the troops blocked whole regions, stormed towns and villages, used aircrafts, heavy artillery, tanks and missiles.

There are different opinions regarding the legitimacy of use of armed forces (weapons and army) in such situations. From our point of view, the use of armed forces is possible as a matter of principle, but strictly within the law of the Russian Federation.

Russia had no law on the defense emergency at that point[2]. When devising the operation in Chechnya, the government might substantiate the bringing of troops to Chechnya, from the point of view of Russia's current law, as use of armed forces and armament for the purpose beyond their intended role. According to the Federal Law (FL) “On Defense”, the use the RF armed forces in the accomplishment of missions beyond their intended role is allowed by the RF President with issuance of the special decree subject to approval by the Federation Council (FC); no such decree was issued.

Under the RF Constitution, the President can impose the state of emergency in the whole territory of the country or in some of its regions in order to ensure safety of citizens and protect constitutional order.

The RF law “On the State of Emergency” was approved in 1991, but was used neither in the first nor in the second Chechen campaign.

At first, those who opposed the imposing of the state of emergency in Chechnya insisted that the use of this law was impossible as, in the first place, it disagreed with the RF Constitution of 1993. Secondly, it did not provide for the participation of the army in the actions aimed to normalize the situation delegating this mission to the internal security troops.

Indeed, the Law “On the State of Emergency” of 1991 did not quite address the potential state of emergency that would justify the support participation of the armed forces in the maintenance of the state of emergency. However, by the spring of 2001, the new Federal Law on the State of Emergency was approved with all the norms conforming to the provisions of the Constitution, which makes it possible to use the armed forces for the protection of the constitutional order, rights and liberties of man and citizen. The majority of the reasons justifying the state of emergency, as listed in the new Law, can be found in Chechnya: armed mutiny, acts of terrorism, blocking or occupation of certain regions, preparation of and activity in illegal armed formations. However, the authorities still did not impose the state of emergency in the Republic.

It is obvious that the President’s unwillingness to take advantage of the Law On the State of Emergency can be explained by the fact that both the former and the current laws rather clearly and consistently outline the legal aspect of the state of emergency. The law demands that, in his decrees with regard to the imposing or prolonging of the state of emergency, the President provide a precise list of the temporarily restricted rights and freedoms of citizens and identify the state bodies responsible for the implementation of specific measures in relation to the state of emergency defining the authority limits of these bodies. The presidential decrees is subject to approval by the Federation Council. Finally, the law itself imposes a number of restrictions aimed to avoid arbitrariness in the public officials’ activities.

All this made the executive authorities unhappy. This situation resulted in the uncontrolled arbitrariness in Chechnya with the constitutional rights of citizens being limited, which is permissible only in the state of emergency:

-          freedom of movement (the restrictions are effective even at present, mainly, in the mountainous regions) was de facto cancelled;

-          towns, villages and even the whole ChR territory were blockaded. Russian citizens were restricted in their opportunity to get to Chechnya during the time of special operations; people were regularly disallowed to go to and from certain towns and villages (blockading of communities is presently undertaken only in extreme cases, access to the Chechnya territory is practically open for Russian citizens);

-          vehicles on the roads are subject to arbitrary checking;

-          the curfews were imposed de facto by the orders of commandants, while the authorities insisted that the there was no curfew but just a kind of "restriction of movement for vehicles and citizens during certain time” (this kind of restrictions has been presently cancelled);

-          the vehicles that did not stop on demand were subject to fire for effect without prior warning;

-          the prosecutors permanently practice unauthorized searches in people’s houses: the people carrying out such actions do not produce any documents and do not introduce themselves;

-          offices of commandants  having large powers in relation to civilians have been opened and are still functioning in towns and villages.

 

To justify this arbitrariness, the federal authorities resort to the extralegal and broad interpretation of laws having declared the military conflict a “counterterrorism operation”. Such operations were regulated by the RF “Law On Struggle Against Terrorism”, which appeared very convenient for the executive authorities as it allowed to restrict the rights of citizens in the “zone under the CTO” and involve the RF armed forces (“for the purposes beyond their intended role”) to perform the CTO without any parliamentary or other kind of control.

The strict legal analysis shows that under the provisions of the “Law On Struggle Against Terrorism” the actions undertaken in Chechnya could not be qualified as CTO. Thus, art.3 of the Law “On Struggle Against Terrorism” stated that “The zone where the CTO can be performed can mean a separate locality, or water area, vehicle, building, structure, construction or premise and the territories or water areas adjoining them, within which the specified operation takes place”. From this statement, it follows that the zone where the CTO is performed is limited, and cannot cover thousands of square kilometers of the territory of one or even several republics at the same time. It is equally true that a CTO is aimed to suppress a specific act of terrorism and is respectively limited in time. Any other interpretation would be arbitrary and loose making senseless the very concept of the act of terrorism as of a specific crime.

Under the “Law On Struggle Against Terrorism”, the CTO could be performed only in case the acts of terrorism had already taken place or were under preparation according to the available information.

In spring 2006, a new Russian Federal Law “On Countering Terrorism” was passed and came into force. The new law was basically adapted to the realities of the already implemented CTO in the Northern Caucasus. In particular, the new law did not stipulate for any territorial limitations of the CTO zone.[3]

Description of a punishable offense provided in paragraph I, art. 205[4] of the RF Criminal Code and in the “Law On Struggle Against Terrorism” defines terrorism as an action accomplished “for the purpose of violation of public safety, intimidation of the population or rendering influence on decision-making by the government authorities”, as well as potential threat of such actions intended for the same purposes. The purpose, in this case, is treated as the major constituent element of the act of terrorism. Lack of such an element presupposes absence of the given crime. This is the element that makes terrorism different from similar criminal offences, such as forcible seizure of power, subversive activity, participation in the informal armed formations, etc.[5]

Thus, only some of the acts by the armed formations’ members resisting the federal forces in Chechnya can be qualified as terrorism. This means that the CTO can be aimed only against the persons committing this kind of crimes. Should the federal forces strictly follow the law, they could perform certain local-scale CTO within one big military operation in the Northern Caucasus. In reality, those resisting the federal forces in the declared large-scale CTO[6] are no terrorists at all.

Thus, the authorities wrongfully used the “convenient” Law on Struggle against Terrorism intended for the regulation of local and rather limited in space and time operations, which, respectively, did not contain any clearly formulated long-term guarantees of human rights protection in the CTO zone. As a result, the security officials’ actions were practically uncontrolled and their arbitrariness was in no way restricted.

The lack of precise legal definition of the situation is, in some cases, to the disadvantage of the security officials. Thus, the commandants’ powers are ambiguous. Being formally responsible for the assurance of order in the region, they cannot even have different subunits of the Ministry of Defense (MD) and the Ministry of Interior inform them about the “special operations” they undertake in towns and villages.

The legal nihilism of Russia’s authorities resulted in grave consequences.


[1]              The first Chechen war campaign of 1994-96 was euphemistically defined as “disarmament of illegal bandit formations” and “restoration of constitutional order” without any legal reasoning provided. On July 31, 1995, the RF Constitutional Court actually recognized the armed conflicts in Chechnya as armed conflicts on non-international nature agreeing that these events fall under the Second Optional Protocol to the Jeneva Conventions. However, this fact did not entail any specific steps of the RF civil and military authorities.

[2]              The relevant law on defense emergency (law on state of war) was adopted in 2002 only.

[3]              For details, please see the report “State Governance as an Antiterrorist Operation” , submitted by Lev Levinson, expert of the “Human Rights Institute”, delivered as a special submission to the Eminent Jurists Panel in January 2007 in connection with the high-level public hearings on terrorism, counterterrorism and human rights in Russia.

[4]              Art. 205 of the RF Criminal Code was amended in July 2006.

[5]              Thus, the armed rebellion is undertaken not for the purpose of violating public security or for the purpose of population intimidation, but “for the purpose of overthrowing or forcible change of the constitutional order of the Russian Federation or infringement of the territorial integrity of the Russian Federation (art. 279 of the RF Criminal Code).

[6]  Absolute majority of the captured militants are accused under art. 208 of the RF Criminal Code (Organization of an Illegal Armed Formation or Participation in It) rather than under art. 205 (Terrorism – until July 2006, and Terrorist Act – as of July 2006 to the present).