| |
|
 |
|
 |
|
 |
|
 |
|
  |
|
 |
|
  |
|
 |
|
 |
|
 |
|
 |
|
 |
|
 |
|
 |
|
 |
The Armed Conflict in Chechnya before the Russian Constitutional Court
Paola Gaeta1
Full text available: PDF format *
I. Introduction
The constitutionality of four decrees of the central government in the prosecution of the Chechen conflict was challenged in the Russian Constitutional Court by a group of deputies of the State Duma and the Federal Council of the Russian Federation (hereinafter RF).2 Among other things, the applicants argued that two of the decrees at issue, namely those providing for the dispatch of armed forces on the territory of the Chechen Republic,3 had resulted in a violation of international treaties to which the Russian Federation was a party,4 and of Article 15, paragraph. 4, of the Constitution, by virtue of which both general and conventional international law shall be part of the Russian legal system.5
It is not unusual for domestic courts to be called upon to settle cases relating to armed conflict taking place within the territory of a sovereign state. Nevertheless, this decision can be regarded as unique in national case-law, since the Russian Constitutional Court was asked to pronounce upon the lawfulness under international law of coercive measures by a State against a segment of its own population seeking to secede from the state. In fact, this could well be the first time a national court has been called upon to scrutinise compliance by a state's armed forces with international rules concerning the protection of civilians and the conduct of hostilities during an armed conflict6.
This paper will briefly comment upon the determinations of the Court. It will focus in particular on two issues, namely (i) whether the Chechen Republic had a right of secession under international law and (ii) whether Additional Protocol II of 1977 to the 1949 Geneva Conventions or other rules of international humanitarian law applied to the armed conflict in Chechnya.
* The free viewer (Acrobat Reader) for PDF file is
available at the
Adobe Systems.
1 European University Institute, Florence.
2 The acts whose constitutionality was challenged were: (1)
the Decree of the President of the RF of 2 November 1993 No. 1833 on the Main
Provisions of the Military Doctrine of the Russian Federation; (2) the
Decree of the President of the RF of 30 November 1994, No. 2137 on Measures to
Restore Constitutional Legality and Law and Order on the Territory of the
Chechen Republic; (3) the Decree of the President of the RF of 9
December 1994, No. 2166 on Measures to stop the Activities of Illegal Armed
Formations on the Territory of the Chechen Republic and in the Zone of the
Ossetian-Ingush Conflict, and (4) the Resolution of the Government of
the RF of 9 December 1994, No. 1360 on Ensuring State Security and Territorial
Integrity of the Russian Federation, Legality, the Rights and Freedoms of
Citizens and Disarmament of Illegal Armed Formations on the Territory of the
Chechen Republic and Adjacent Areas of the Northern Caucasus. It must be
pointed out that the Federal Council of the Russian Federation disputed the
constitutionality of all four decrees at issue, while the group of deputies of
the State Duma challenged only two of them; the Presidential Decree of 9
December 1994, No. 2166 and the Resolution of the Government of 9 December
1994, No. 1360. The Court delivered its decision on 31st July 1995. An
unofficial English translation of this judgement has been published by the
European Commission for Democracy through Law of the Council of Europe, CDL-INF
(96) 1. This paper will refer to that text.
3 The Decree of the President of the RF of 2 November 1993 No. 1833,
and the Resolution of the Government of the RF of 9 December 1994 No.
1360.
4 The RF is a party to the 1949 Geneva Conventions. The Soviet Union
ratified both the 1977 Additional Protocols on 29 September 1989 to become
effective on 29 March 1990. The Russian Federation deposited a notification of
continuation on 13 January 1992.
5 Paragraph 4 of this Article states: `The commonly recognised
principles and norms of the international law and the international treaties of
the Russian Federation shall be a component part of its legal system. If an
international treaty of the Russian Federation stipulates other rules than
those stipulated by the law, the rules of the international treaty shall
apply'. The Russian text as well an official English translation of the
Constitution of the Russian Federation can be found in Blaustein, Flanz (eds),
Constitutions of the Countries of the World (1994), XVI.
6 For some recent cases relating to internal armed conflict see,
among others, Dreyfuss & Co. v. Duncan in 82 ILR (concerning whether
or not damage caused by rebel troops was covered by an insurance policy which
did not specifically refer to war risks but merely to riot, social disorder and
malicious damage); Echeverria-Hernandez v. Ins in 95 ILR
(concerning a request for asylum of a citizen of El Salvador on the grounds
that customary international law requires states to grant temporary asylum to
refugees fleeing from an internal armed conflict);. See also Linder v.
Portocarrero in 99 ILR at 55 ff. (concerning a US citizen who resided in
Nicaragua and was wounded, tortured and murdered by the Contras while working
for the Nicaraguan Government).
© 1990-2004 European Journal of International Law
All comments and suggestions should be sent to webmaster
This site is part
of the Academy of European Law online, a joint partnership of the Jean Monnet Center at NYU School of Law and the Academy of European
Law at the European University
Institute.
This file was last modified:
Tuesday, October 14, 2003 12:29PM