INTERNATIONAL TRIBUNAL FOR CHECHNYA
Legal prospects of initiating individual criminal proceedings against persons, suspected of committing war crimes and crimes against
humanity in the course of the military conflict in the Chechen Republic
BY DMITRIEVSKY S.M., GVARELY B.I., CHELYSHEVA O.A., ET AL



This summary contains brief information on the most significant points of the research, its results and conclusions. Detailed substantiation and actual illustrations may be found in the original text of the research. It is being translated into English now.
1. The subject, goals and structure of the research, details on applied methodology
This research has been carried out with the aim to analyze massive violations of humanitarian and human rights laws in the course of the armed conflict in Chechnya in the light of the international criminal law. Applying this approach, the authors demonstrate that the violations under consideration hold all the necessary classifying indications
of international crimes, specifically war crimes and crimes against humanity and that those responsible for perpetrating them ought to be held criminally accountable.
The so-called «Chechen wars» of 1994-1996 and 1999-2008 were the most destructive and largest armed conflicts in the post-Soviet area. Their scale and tragic consequences can be compared with the conflicts that exploded the re-
publics of the former Yugoslavia in the 90s. According to different estimates, the number of fatalities during the two campaigns in Chechnya varies from scores of thousands to more than a hundred thousand people, civilians making up
the majority. Even if we make a start from the most conservative estimates, correlation between the population of the republic and casualties among them corresponds to half of the casualties that the Soviet Union suffered in the course of World War II.
The international community has repeatedly expressed deep concern with regard to outrageous crimes committed in the context of the armed conflict. Since armed actions resumed in 1999, the Parliamentary Assembly of the Council of Europe again and again condemned gross violations of human rights and of the norms of international humanitarian law by all sides of the conflict in their resolutions. In many cases, those violations were characterized as war crimes. The UN Commission on Human Rights, the European Commissioner on Human Rights, the European Committee for the Prevention of Torture and other international bodies also made statements on this issue. At the time of the conflict authoritative international and national non-governmental organizations as well as famous journalists collected significant data on the crimes. As for now, part of these facts has been confirmed by court rulings. The European Court on Human Rights has declared in 47 «Chechen» cases (as of October, 2008) and found the Russian Federation responsible for gross violations of fundamental rights, including the right for life enshrined in Article 2 of the European Convention, first and foremost.
Impunity was and remains the most crucial issue that various international bodies, human rights organizations and the ECHR have permanently raised. In all the «Chechen» cases the ECHR has held that there have been violations of
Article 2 relating to the authorities’ failure to carry out effective criminal investigation into the circumstances of the
crimes. Perpetrators have not still been brought to account. According to thousands of cases filed by human right organizations, the picture is the same. There have been few cases when the Russian military who committed grave offences against civilians have been brought to criminal accountability. Their singularity just accentuates the general tendency.
It would seem that the situation with holding criminals belonging to the Chechen side of the conflict to account is much better. The Russian courts have passed and keep passing hundreds of sentences with regard to Chechen militants accused of murder, terrorism and other severe crimes. However, evidence established by human rights organizations demonstrate that the majority of such cases have been fabricated and the use of torture to extort testimonies from suspects of the Chechen ethnicity have become systematic. Besides, the Russian courts habitually describe assaults by Chechen combatants against their armed enemy as «murder» and «terrorism». Thus, crimes against people protected by international humanitarian law are characterized as actions taken by the state against participants in an armed uprising.
This suggests a systemic bias, indicating that investigation and prosecution of crimes committed by representatives of the separatist movement cannot be regarded as either effective or impartial or compliant with international standards.
The issue of impunity in relation with the Chechen conflict was considered by the 13th session of the Parliamentary Assembly of the Council of Europe (PACE). We regard Resolution â„– 1323 from 2 April 2003 by the PACE as a reason for our research. Paragraph 10 (iii) of this document is the recommendation which could become historic. It states, “To ensure that those responsible for abuses are brought to justice, the Assembly <…> considers that, if the efforts to bring to justice those responsible for human rights abuses are not intensified, and the climate of impunity in
the Chechen Republic prevails, the international community should consider setting up an ad hoc tribunal to try war crimes and crimes against humanity committed in the Chechen Republic.»
Since the time the Resolution was adopted, there has been no tangible progress in Chechnya with regard to the problem of impunity. It is possible to argue whether the situation with human rights has improved or not in the Chechen Republic. However, it is undeniable that the Russian Federation either fails or refuses to hold effective investigation into the majority of grave crimes against civilians committed during the conflict.
It goes without saying that it was clear from the very beginning that a courageous call by the PACE to establish the international tribunal could be nothing more than a statement of intent, under current political circumstances. There are mechanisms in the current system of international relations that let the Russian Federation block establishment of such a tribunal at any stage. However, the improbability of establishing the tribunal on Chechnya right now does not
exclude its establishment in some foreseeable future. The world keeps changing and the fates of Slobodan Milosevic, Radovan Karadzic, Augusto Pinochet, Saddam Hussein, Ieng Sary and other international criminals are the perfect illustration of the rapidness of these changes. In addition, the prospect, even remote, of international criminal liability for the initiators of the Chechen tragedy may constitute a deterrent for potential future perpetrators if they would take this prospect to be realizable.

In setting out to conduct this research the authors decided to perform to the best of their abilities what the functionaries of the Council of Europe did not do after the adoption of the PACE Resolution â„– 1323. Namely, to present a legal rationale for establishing the international tribunal for Chechnya.
In March 2006 the Russian-Chechen Friendship Society, an NGO where most authors of the present research were working, addressed a letter to a number of reputable national and international human rights organizations in Russia, Europe and USA. The letter contained a proposal to join together the efforts of various organizations in order to establish, referring to the PACE Resolution â„– 1323 (2003), a joint non-governmental group aimed at systematic promotion of the idea of an international criminal tribunal for Chechnya and at working out correspondent legal and substantive provisions for such an eventual tribunal or other judicial body having jurisdiction over international crimes committed in the context of the Chechen conflict. We were sure that the preliminary work on collecting, fixing and analyzing the evidence and on preparing the legal basis for this judicial body should start as soon as possible in order to ensure not only the establishment of the Tribunal when political circumstances would permit it, but also its efficient functioning.
However, bringing up this proposal for a constructive discussion, we faced two considerable obstacles. The first one concerned the experts from the Russian human rights organizations who have been involved in activities on Chechnya for a long time and have accumulated a unique database on the crimes committed there. At the same time, unfortunately these experts demonstrated their inadequate possession of information on the contemporary state of the international criminal law. The second obstacle is a mirror image of the first. Practicing lawyers and advocates who treat the questions of the international criminal law are unaware of the real circumstances of the armed conflict in Chechnya or have only a general idea of it. Nobody asked them to evaluate the situation in Chechnya – on the one hand because of the inconsistency of the PACE and other bodies, on the other hand because the Russian human rights community has underestimated the value of this approach. On the whole, the experts have never raised the question of the international criminal responsibility for persons responsible for the gross violations of human rights and norms of humanitarian law during the Chechen conflict at the proper level.
Thus, an effective discussion of the problem of international criminal jurisdiction for Chechnya was prevented by the lack of cooperation between specialists of law and persons possessing facts. This research was conceived to become
a bridge over this chasm. From one hand it should disclose an overall view on modern international criminal law and norms applicable to crimes committed in Chechnya to Russian experts and activists. From the other hand it should give summarized information on the number and scale of crimes committed in Chechnya. In the synthesizing part we present our preliminary estimate of the stated facts in the light of the applicable international criminal law norms and try to shape the set of people allegedly responsible for international crimes committed during the armed conflict in Chechnya.
It is evident that the problem of the realization of the PACE Resolution â„– 1323 has two sides – legal and political.
The legal side includes issues of the definition of the committed crimes, identification of the allegedly suspected persons, examination of the judicial procedure, fixing the factual basis of the future accusation etc. The political side depends on the will of the international community and of the Russian Federation to establish such a Tribunal. The subject matter of our research study is the first – judicial – aspect of the problem. The political dimension of the international decision
is beyond the framework of the present study. But we hope that this study can urge state representatives, politicians and diplomats to promote actively the idea of the international criminal tribunal for Chechnya.
We think that the issue raised in the Resolution â„– 1323 is not limited to the creation of an ad-hoc international tribunal for Chechnya. It concerns to a wide extent the possibility of applying the mechanisms of international jurisdiction to the situation in Chechnya. We suggest the existence of four theoretically feasible methods to realize the international criminal jurisdiction for crimes committed in the context of the Chechen conflict:
– Establishment of an ad hoc tribunal by a resolution of the U. N. Security Council under the Art. 29, Chapter VII of the U. N.. Charter (like the ad hoc tribunals for the former Yugoslavia and Rwanda).
– Establishment of a combined criminal court under the agreement between the U. N. and the government of the Russian Federation (like similar courts in Sierra-Leone, East Timor, Kosovo and Cambodia. It is possible that in this case the first contracting party would not be the U. N. but the Council of Europe.
– Transference of the Chechen cases to the International Criminal Court provided that the Russian Federation ratifies the Rome Statute and recognizes the jurisdiction of the Court over the crimes committed during the Chechen conflict under the Art. 12 (3) of the Statute (in principle compliance with the last term even without ratifying the whole treaty would be sufficient). Considering this variant we should note that in the interests of justice for Chechnya it is the least acceptable because of the temporal jurisdiction of the International Criminal Court that starts on the 1 July 2002, when most of the crimes in Chechnya had already been committed.
– Prosecuting of the alleged perpetrator by the national courts in countries that have legislation providing for universal jurisdiction.
While the title of the present research study repeats the form of jurisdiction of the PACE Resolution â„– 1323 the authors take into consideration the possibility to apply each of the four mechanisms mentioned above.
Beyond all doubts the first three variants could not be realized under the existing political regime in the Russian Federation, i.e. under the power of Vladimir Putin and his successors. The fourth variant is the least perfect from the judicial point of view because the mechanisms of the international jurisdiction are in embryo condition for most countries. But their application is not bound to the political climate within Russia – at least theoretically; and the attempts of prosecution of the alleged perpetrators could be started even now if the necessary conditions and sufficient substantive provisions exist. It becomes easier because of the presence of a vast Chechen diaspora in the European countries, the most part of which are the victims of war crimes and their relatives.
The research which is offered to your attention is structurally made up of three parts.
1. The review of contemporary state of the international law and its applicable norms.
2. The review of factual circumstances of the armed conflict in the Chechen Republic, gross violations of human rights and norms of international humanitarian law committed in the context of the conflict.
3. The analysis of the aforementioned violations in the light of the applicable norms of the international criminal law.
To develop the first (theoretical) part, we used such sources as international treaties, statutes and rulings made by international courts and tribunals, documents of the UN and other international organizations, as well as state practice which expresses itself in public statements, domestic legislation and court decisions. The authors paid special attention to the case law of special UN tribunals on the former Yugoslavia and Rwanda. We also relied upon widely used special literature, including books by commentators whose authority is recognized in the world. The authors preferred to base our general conclusions on norms of customary international law or applicable treaty law. In cases when it was problematic to define the customary law or a law norm was vague, the authors tried to cite all the main interpretations of the tackled problem focusing upon the most conservative approach.
To develop the second (factual) part of the research, we used sources which documented gross human rights and norms of humanitarian law violations committed in the course of the armed conflict in the Chechen Republic. These were reports on human rights abuses and breaches of humanitarian law made by authoritative human rights organizations (both Russian and international), independent media outlets and rulings on the «Chechen» cases made by the European Court of Human Rights (ECHR) by the time the research had been accomplished (47 of them by that time).
We did not refer to the information coming from either of the sides of the conflict except in those cases when it was confirmed by independent organizations. Taking into account that even during the most «favorable» periods when the NGOs hardly covered more than third of the Chechen territory with their monitoring and not all human rights violations were revealed, the offered analysis cannot be exhaustive. Its results do not provide authentic information on either a number of human rights abuses or the number of their victims. It is obvious that it cannot give even a rough estimate of the final number of casualties of the armed conflict. The research was not aimed to fulfill this task, though. The reports considered in our research demonstrate the amount of crimes and approximate number of their victims. We based our approach upon the presumption of the least damage, in accordance with which any non-specificity of the source with regard to the severity of incurred damage or exact number of the victims was interpreted in favor of alleged perpetrators.
Thus, the given number of victims in the episodes under our consideration is the minimum of the actual. To all appearances, its real number was probably much higher. Thirdly, we by no means state that all episodes that we research, analyze or give as examples have been proved as legal facts (apart from those facts that have been established and confirmed by the European Court of Human Rights). We rather claim that the sources under our consideration make it possible to come to the conclusion that there are signs of crimes in the committed acts. Nevertheless, our analysis provides facts
that are representative and makes it possible to estimate the actual level of the violations and their legal aspect.
Another part of research within the second block was connected with analysis of open sources of information with the aim of establishing names of military commanders and other chiefs who had effective control over groups of troops and their units, which supposedly committed criminal offences. We used such sources as publications in various media outlets (articles, reportages, interviews, etc.), including those which are connected with the sides of the conflict or which
serve their interests as well as analytical reports and memoirs of participants in the conflict.
The research considers crimes committed by both sides of the armed conflict. At that, it is necessary to point out that the majority of identifiable representatives of the Chechen side of the conflict who can be regarded as possibly responsible for committing crimes in accordance with the international law, have been either killed (it mostly refers to top commanders) or sentenced by Russian courts. In contrast, the majority of identifiable representatives of the Russian side of the conflict who can be possibly taken to account for committing such crimes do not just go unpunished but in a number of cases they remain in high military and state positions. For this reason, we have paid particular attention to the issues connected with individual responsibility of representatives of the state in the conflict.
When we speak of the «parties of the conflict» we mean the Russian Federation (with its military forces and other law-enforcement structures) and the self-proclaimed Chechen Republic of Ichkeria (with its armed groups) and to wide extent the armed formations of the Chechen separatists, including those, which during some stages of the conflict seemed to operate independently of the separatist government. It is worth mentioning that as the Chechen armed conflict is not on the whole an interethnic conflict, the nationality of the participants cannot be regarded as the attribute defining any of the parties. Ethnic Chechens had been fighting for the federal side at different stages of the conflict and they are still fighting now. At present, ethnic Chechens form the police and many others Russian force structures. At the same time the ethnic Russians (mostly at the stage of the «first war») and other people of different nationalities inside the Russian Federation and even some foreign volunteers adopted the cause of the Chechen separatists. Thus, the main criteria to determine the belonging of a person to one or another conflict party is not the nationality but the participation in the armed formations (military or paramilitary) or in the administrative bodies of the conflict parties.
The research is structurally made up of eight parts which contain 58 chapters, an introduction and a conclusion.
[...]
Methods, which the parties of the armed conflicts applied to reach their aims, include serious and wide-scale breaches of international humanitarian and human rights laws. The Russian side of the conflict began to violate these norms en masse in the very first days of the armed confrontation (December 1994) and the Chechen side started to violate them not later than June 14, 1995. The «second» conflict was characterized by even more cruel, massive and systematic violations committed by both sides.
At that, breaches take, at least, objective elements (аctus reus) of the following types of crimes:
– assaults against the civilian population both by bombardment or by other means, including terrorizing large
groups of population;
– collective punishments;
– murders, torture, ill-treatment and outrages against human dignity, rape;
– enforced disappearances;
– indiscriminate and disproportionate attacks;
– attacks against either objects or individuals marked by distinctive emblems enlisted in the Geneva Conventions;
– delivering blows at protected objects or other types of attacks at them;
looting; destruction of civilians’ property;
– usage of «human shields»
The second part of the research (chapters 8-13) tackles general issues of international criminal law. We describe its principles, sources and links with other areas of law. This part also deals with definition of international crimes and their
classification. It introduces the universal principle and covers issues that are related to the international jurisdiction.
It also covers the areas of applicability of international immunities towards people suspected of committing international crimes. It describes peculiarities of constituent elements of international crimes, types of guilt and involvement in international crimes and other relevant topics. Defining the international criminal law as a hybrid sector of law, the authors pay special attention to providing analysis of those areas of international law which are also the sources of the
international criminal law. The issue of the traditional dichotomy between legal regimes of regulating armed conflicts of international and non-international character is analyzed in detail as well as how to overcome this dichotomy. The role
of a court precedent is also under scrutiny in the research.
The main conclusions with regard to the international crimes can be formulated the following way. Such crimes:
– are committed by individuals;
– are grave violations of the generally recognized norms of international law which are obligatory for both states and individuals and are aimed at protecting fundamental rights of people and/or international peace and security;
– entail individual criminal responsibility in accordance with international law;
– as a rule, are backed by the state, either directly or indirectly or are committed in the atmosphere of state negligence or failure to combat them. This factor either complicates or makes it almost impossible to bring the guilty under account of the domestic courts.
The last sign is optional as it doesn’t constitute the law element of international crimes. Thus, war crimes and genocide don’t require the obligatory proving of one or another form of the state involvement. However, in the majority of cases this involvement has factual proofs. Therefore, criminal prosecution of such crimes by individual states and the international community in general is obligatory.
The six following types of international crimes are regarded as such by the customary international law. They are subdivided into two groups. The first subgroup is made up of so-called «main offences» which includes crimes against humanity and the crime of genocide. The second subgroup is made up of such offences as aggression, torture (as a separate international crime different from the crime of torture as a form of war crime and crime against humanity), and international terrorism if it is either generated or financed by the state (also different from the crime of terrorism as a form of war crime and crime against humanity).
The nature of international crimes is demonstrated best not by their general signs, but by those legal consequences, which result from the defining of one or another act as an international crime. These consequences emphasize a difference between general crimes under jurisdiction of domestic law and international crimes.
It is possible to identify five most significant consequences:
1) International crimes are accountable as such regardless whether they are punished under domestic laws or not.
2) International crimes can be pursued by courts which would not have jurisdiction over them under usual circumstances. It means that people, supposedly responsible for such crimes, can be in principle held to account and punished by any state, independent of territorial connection with the crime, independent of the citizenship of a criminal or a victim and regardless of the fact whether a crime affects safety or national interests of a particular state. In other words,
the legal prosecution can be realized by a court even in the absence of traditional grounds for jurisdiction. Furthermore, states, either directly or through their participation in multilateral international organizations, can investigate international crimes or exercise legal prosecution of the suspects by establishing international or mixed (hybrid) courts. These two forms of the court jurisdiction with regard to international crimes are generally called «international jurisdiction».
In the first case, when prosecution is exercised via a national court, a narrower term «universal jurisdiction» is applied.
3) The court can be allotted with temporary jurisdiction with regard to international crimes committed before the establishment of such a court. It goes without saying that this rule is limited only to the cases, when such crimes were already criminalized in international law at the time of their occurrence, which guarantees the observance of the principle of non-retroactivity of law.
4) International crimes mitigate traditional norms which concern immunity from the legal prosecution of the heads of state and other senior officials. It means that if a person who committed a crime, acted as a high level official de jure in their official capacity or as de facto a representative of the state, on behalf of which a forbidden act was committed, the inviolability from the civil or criminal jurisdiction of foreign states and competent international courts is not extended to such an individual. Exception is made for serving heads of the state, Ministers of Foreign Affairs and diplomatic
representatives, who are granted inviolability from the jurisdiction of foreign courts while they keep their positions.
5) At least, the principle of remoteness can’t be applied to a number of types of international crimes such as genocide, crimes against humanity, torture and war crimes.
6) The reports of Amnesty International with respect to international crimes accepted by authorities within states, citizens of which are the assumed criminals or in the territory of which the assumed crimes took place, do not connect the judgments of other states and the International Court of Justice Considering forms of criminal liability and types of involvement in crimes, we paid special attention to the issue of
responsibility for the giving and implementation of a criminal order, aiding and abetting, co-involvement into committing crimes through a joint criminal enterprise and the doctrine of command responsibility of superiors in connection with crimes committed by their subordinates.
Thus, we show that the order is a type of criminal conduct which is committed by a commander or some other superior that is by individuals who are capable of issuing orders due to their official position. For this same reason, they are able to expect that such orders will be performed by people under their supervision or under their control. An order need not be given in any official form. The fact of issuing such an order can be determined, inter alia, via circumstantial evidences. Both issuing and executing a criminal order entails individual criminal responsibility. Providing detailed analysis in «Nuremberg» and «Rome» standards of responsibility for enforcing criminal orders, the authors come to the conclusion that the latter codifies a norm of customary international law.
There are the following legal elements of aiding and abetting in international criminal law: the objective side includes practical help, support, or moral support which has substantial effect on the perpetration of a crime. At that, an offender’s contribution should be significant. The subjective side expresses itself in the knowledge that these actions help to commit a crime. An aider and abettor need not share the intention to commit a crime of a principal offender but they should be aware of this intention and of main elements of a criminal act. At the same time, there is no requirement that the aider and abettor knew exactly what kind of offence was being prepared and was actually committed. If a person knew that, at least, one of many crimes are likely to be committed and one of them was actually committed and they intended to facilitate the commission of these crimes, then the person is guilty as the aider and abettor. Practical help, support or moral support of a criminal act may constitute an act or omission. Individual guilt can be determined on the basis of various circumstances, including the position of an individual as a superior and their presence at the scene of a crime.
International criminal law as well as national criminal law systems operate with the notion of complicity to the realization of common goals, plan or a project. This type of participation in a crime is characterized by the International Tribunals for the Former Yugoslavia and Rwanda as «joint criminal enterprise». Although the definition of a joint criminal enterprise does not appear explicitly in the Charters of the tribunals, it is now implicitly reflected in the Article 25
(d) of the Rome Statute of the International Criminal Court. Some commentators call the doctrine of a joint criminal
enterprise as «the most difficult and conceptually stimulating theory of international criminal law.»
The international case law distinguishes three types of a joint criminal enterprise.
The first type of a joint criminal enterprise refers to cases where all the defendants acting in accordance with the general intent, have the same criminal intent. For example, accomplices in crime have a plan which is aimed at killing.
Even if each of them performs a different role in the realization of a common objective, they all share the intention to kill. There are the following objective and subjective assumptions required for imposing criminal liability on a participant who didn’t personally kill or if the fact that he inflicted death cannot be proved:
– A defendant has to participate in realization of one of the aspects of common intent (for instance, inflicting non-lethal violence upon a victim, providing material assistance or facilitating the acts of accomplices);
– A defendant has to desire the approach of the final objective even if they didn’t themselves commit a murder.
The second form which is similar to the first in many aspects covers the so-called situation of a «concentration camp». In each case the guilt was established on the basis of the following criteria: 1) existence of an organized system designed for ill-treatment of detainees and committing various offences against them; 2) understanding of the nature of such system by a defendant; 3) the fact that the defendant actively participated in operating the system, that is by encouraging, assisting and abetting or participated in the realization of a criminal intent in any other way. Defendants may be ruled complicit in the crime because of their superior position in the hierarchy of a concentration camp, because
they had the authority to take care of detainees and make their existence satisfactory but didn’t use such an opportunity.
In this case the objective side (actus reus) of a crime is expressed in active participation of a defendant in a repressive system (to the extent to which it can be determined by analysis of their authority and certain functions which each of the defendants performed). The subjective side (mens rea) includes two elements: knowledge of the character of the system and general intent to subject detainees to maltreatment.
The third category is sometimes referred to as «the expanded form of a joint criminal enterprise». It refers to the situation when the general intent is aimed at following a single course of conduct and when a criminal act was a natural and foreseeable consequence of the implementation of a common criminal intent, regardless of it being beyond the scope of a general intent. According to this scheme, each party in the joint criminal enterprise is liable for all crimes committed by other parties. Thus, a person who didn’t actually intend to commit a crime and had no actual knowledge that his accomplices would commit a crime might be regarded as guilty if a criminal act was a foreseeable consequence of the realization of the common intent and «the accused willingly assumed such a risk». That a criminal act was foreseeable and willingness to take that risk block a possible reference to «an excess of a doer» in this case.
In accordance with the international case law, the objective side (actus reus), common to all three types of a joint criminal enterprise, is expressed in the following elements:
i. The multiplicity of persons. They may not be (but can be) organized in a military, political or administrative structure.
ii. The existence of a general plan, project or a goal, which includes or entails the commission of international crimes. There is no requirement that a plan, project or a goal were pre-prepared or formulated. The overall plan or purpose may be carried out in an improvised way and can be established on the basis of the fact that a group acted in concord. Arrangements or mutual understanding which constitute the common project or goal should not necessarily be specific: they can be unsaid and established by the Court on the basis of factual circumstances.
iii. Participation of the accused in an overall intent, which involves the commission of a crime. This participation should not result in the commission of certain crimes (e.g. murder, extermination, torture, rape, etc.) but it may take the form of assistance or contribution to implementation of an overall plan or common goal.
Mental element (mens rea) of a crime committed within a joint criminal enterprise may vary from an intention (premeditation) to recklessness, depending on the category. In the first form the element of fault is in the intention to commit a crime which is shared by all co-offenders. The second form requires knowledge of a defendant of the wrongful nature of the system and their intention to participate in operating this system. The third form requires the intention to be engaged in criminal activity or a criminal intent of a group and to contribute to a joint criminal enterprise or in any case, in commission of a crime by a group. Responsibility for the crimes that have not been agreed within a common plan occurs when (1) it was foreseeable that such a crime could be committed by one or more members of a group; and (2) the accused willingly took on this risk. Thus, in the third form of a joint criminal enterprise the same person may have the intention to commit certain crimes (which were within overall goal) and demonstrate negligence in respect of other crimes which were outside the overall goal but were its foreseeable consequences.
Commanders and other superiors are criminally responsible for crimes committed by their subordinates if they knew or should have known that their subordinates were about to commit or were committing such crimes and failed to take all necessary and reasonable measures within their power to prevent a crime or if a crime had been committed – to punish its perpetrators. Thus, this type of criminal responsibility is the responsibility for omission or failure to act in circumstances in which international law imposes a definite obligation to act. The subjective side may vary from an intention to recklessness or even criminal negligence and includes a compulsory element of knowledge.
The case law identifies three major elements of responsibility of a superior for criminal acts of subordinates. It must be proved beyond reasonable doubt:
– existence of «superior-subordinate» relations between the accused and the person who committed the crime;
– subjective element: the superior knew (actual knowledge) and had a reason to know (constructive knowledge) that the subordinate had committed or intended to commit a crime;
– failure to act or omission of the superior in a situation when he could prevent a crime or punish the perpetrators.
If the superior actually knew that their subordinate was committing or intended to commit a crime, such an officer may be charged not only with the doctrine of responsibility of commanders and other superiors, but also regarded as an
accomplice in a crime in accordance with general principles of the criminal law relating to complicity.
The third part (chapters 14-17) deals with the international and legal description of the armed conflict in the Chechen Republic as well as defining its chronological and geographical framework. We have come to the conclusion
that the armed conflict in Chechnya entails the application of the relevant provisions of the international humanitarian law and criminal responsibility under international law in cases of violations. At that, the explicit refusal of the Russian
Federation to recognize the existence of an armed conflict with respect to military actions which began in August 1999, has no legal significance in terms of applying norms of the international criminal law to them. For determining the existence of an armed conflict, we relied on the criteria set out in the case law of the UN ad hoc international tribunals. In particular, we have demonstrated the existence of the conflicting parties, reviewed the intensity of the conflict developing between them (in the light of such indicators as weapons and means of warfare used by the parties, human casualties, the number of displaced people, the level of destruction), time length, the territory covered with fighting. We also considered the official practices of international organizations and the Russian Federation with regard to the question of
existence of the conflict.
The authors demonstrate that there are strong arguments in favor of recognition of the Russian-Chechen armed conflict as an international armed conflict within the meaning of Article 1 (4) of the Additional Protocol I to the Geneva Conventions of 1949. However, the authors take another, more conservative, approach as the basis for further statements, according to which the conflict under our consideration is non-international.
The chronological framework of stages of the Russian-Chechen armed conflict is defined as follows:
1) 31 March, 1992 – 28 November, 1994. The conflict between the authorities of the self-declared Chechen Republic of Ichkeria and the armed opposition, which took on the role of the agent of the federal government as far as the
events were developing.
2) 28 November, 1994. – 31 August, 1996. The conflict between the self-declared Chechen Republic of Ichkeria and the Russian federal government.
3) 31 August,1996 – 3 August, 1999. The period of the temporary settlement of the conflict («inter-war period»).
Humanitarian law applies to this period with, at least, regard to people deprived of the liberty for reasons related to the conflict.
4) 3 August, 1999 – 14 September, 1999. The conflict between the Russian federal government and joint formations
of militant Chechen and Dagestani Islamists.
5) Since 25 August 1999 – up to now. The conflict between the self-declared Chechen Republic of Ichkeria (since October 2007 with armed formations of the so-called Caucasian Emirate) and the Russian federal government spreading to territories of adjacent republics as far as it has been developing.
With regard to the intensity of the conflict, it is obvious that «the first war» (2nd stage) should be fully described as a «conflict of Additional Protocol II to the Geneva Conventions of 1949» (this is consistent with its assessment by the Russian law and the rulings of the Russian Constitutional Court). The events of Dagestan (stage 4) must be undoubtedly described as a «conflict of Additional Protocol II» because of the level of its intensity and continuity of the armed conflict. Armed activities in Chechnya in the period from August 1999 to March 2000 are also a conflict within the meaning of Additional Protocol II. With regard to subsequent events, the transition of the Chechen side to the guerrilla tactics of warfare with subsequent weakening of the characteristics of «continuity» of fighting, can, perhaps, signal that
we are dealing with an armed conflict within the meaning of Article 3 common to the Geneva Conventions. Currently, however, it is difficult to give the exact estimation of the time of completion of this transformation as we have very little factual information about the military situation in the mountainous areas of Chechnya. To clarify this date during the next stages of solution of the problem, it is necessary to carry out complete systematization of the data and statistical evaluation of the media and other public sources that provide information on the hostilities developing during the entire period since March 2000.
The fourth part (chapters 18-21) deals with the «special part» of the international criminal law, more specifically with those sections that may be relevant to the context of the conflict under our consideration. We consider in detail common defining characteristics of such types of international crimes as war crimes, crimes against humanity and genocide as well as turn to legal characteristics of individual elements of such crimes as described in the sources of the contemporary international criminal law.
In particular, we demonstrate that a war crime is an act or omission committed in the context of an armed conflict, both of international and non-international character which (1) is a serious violation of customary or conventional humanitarian law, protecting important values; (2) causes serious consequences for people and objects protected by the international humanitarian law, and (3) entails individual criminal responsibility. The composition of a war crime involves three mandatory elements – the objective (material), the subjective (mental) and contextual.
Under the objective element we understand the wrongful conduct of the subject of crime and consequences of this behavior for the protected persons and objects. The contextual element (or contextual factors) is understood as an act which took place in the context of an armed conflict and was closely associated with it. Under the subjective element, we understand, firstly, a form of guilt (in most cases of intent or recklessness), and, secondly, the awareness of the perpetrator of factual circumstances that indicate the existence of armed conflict at the time of the crime. Thus, a war crime is different from any other criminal act, first and foremost, that it is committed in the context of an armed conflict, closely linked to it and the perpetrator is aware of the developing conflict. These conditions can be regarded as «general» descriptions of a war crime. All the elements are described in detail.
We separately demonstrate that individual criminal responsibility for war crimes committed in the course of internal conflicts has become the norm of customary international law by now. We further give criteria for establishing war crimes committed in the course of armed conflict of non-international character and then describe these elements of crime.
Next, we analyze the definition of crimes against humanity. The contemporary international law defines as such grave criminal acts that are part of a widespread or (and) systematic attack against any civilian population and committed with some form of participation of the State or organization – either as part of policy or plan or as a practice that is condoned by the State or organization. There is some disagreement as to whether the latter factor is an obligatory legal element of a crime or just a statement of the fact that such crimes are committed with the appropriate involvement of the State or organization, as a rule.
Under the objective element of the crime against humanity we understand the wrongful conduct of the criminal and the consequences of such behavior. Under the contextual element we understand the fact that a criminal act took place in the context of widespread or (and) systematic attack against any civilian population and was part of this attack.
Under the subjective element we understand, firstly, a form of guilt (usually intent or recklessness) and, secondly, the perpetrator’s knowledge of the existence of widespread or (and) systematic attack at the civilian population and awareness of, at least, likelihood that his own actions were part of this attack.
Thus, crimes against humanity are different from any other type of crime, including war crimes, in the following:
A crime against humanity is part of a widespread or (and) systematic attack against any civilian population (including attacks by agents of the State against its own citizens and stateless persons). Isolated acts, while constituting separate
attacks against the civilian population but not being part of a widespread or (and) systematic attack and, therefore, not constituting, in total, sustained pattern of criminal conduct, can not be qualifies as crimes against humanity.
Connection between crimes against humanity and existence of an armed conflict is not required. Both acts committed in the course of an armed conflict and connected with it and acts committed in the time of peace and not related to the conflict can be regarded as crimes against humanity.
The authors describe separate elements of crimes against humanity in detail.
Finally, this part gives a detailed legal description of the crime of genocide. In accordance with the Convention on Prevention and Punishment of the Crime of Genocide from 9 December, 1948, «genocide means any of the following
acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:
A) killing members of the group;
B) causing serious bodily harm to members of the group;
C) deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;
D) imposing measures intended to prevent births within the group;
E) forcibly transferring children of the group to another group.
In light of the international case law, the authors describe the elements of this crime, at greater length referring to the subjective side of the «crime of crimes» – a special intention. To establish the guilt, it must be proved that there was both an intention to commit the «main» crime (murder, causing serious bodily harm, etc.) and the special intention to commit genocide that is the intention to destroy a group as such completely or partially. The offender should not simply assume that such destruction would become a likely consequence of his actions but also seek these consequences to occur. The intention must be to destroy a group as such as separate and distinct from other communities, not just some people who belong to a particular group. In this regard, the UN General Assembly described the genocide as «the refusal
to recognize the right for existence of entire human groups» in contrast to murder as «a denial of the right to life to individual human beings».
The fifth part (chapters 22-26) deals with the organizational and command structure of the parties of the conflict.
The authors pay particular attention to the description of the chain of command from top to bottom and establishing those individuals who exercised effective control over personnel engaged in the armed conflict at its various stages.
The sixth part (chapters 27 – 41) – the largest one – gives the description and preliminary analysis of the actual circumstances of violations of international humanitarian law and international human rights law committed by parties
in the course of the armed conflict during the period from 1999 to 2005. Sustainable models of criminal conduct are also described in this part as well as components of criminal acts. It gives the statistical evaluation of the crimes under consideration.
The title of this part comprises the term «pattern of conduct» which means the steady repetition of similar criminal acts in time and space. Establishing «a pattern» or «system» of criminal conduct is «an instrument for dual use» in the international criminal law. On one hand, a pattern of conduct which expresses itself in committing widespread or systematic crimes against the civilian population is an indispensable element (qualifying element) of a crime against humanity. On the other hand, the pattern of conduct can serve as evidence to the subjective part of the crime. As it follows from Rule 93 of «The Rules of Procedure and Evidence» of the International Tribunal for the Former Yugoslavia and is emphasized in the report of the President of the Tribunal to the UN Secretary-General, «when the intent is not expressed directly and specifically, then one way to establish its existence is inquiry into the sequence of conduct of a group or units to find out whether it will be possible to prove the intent with their «system of conduct».
The sixth part analyzes criminal acts committed by parties of the conflict in Chechnya through the prism of the principle of «pattern» taking into account these two functions. This allowed, firstly, to identify those criminal acts which (with other necessary requirements) may constitute crimes against humanity and, secondly, to obtain evidence of intent to launch systematic attacks against civilians. Given the huge amount of facts, their presentation follows the principle «from the general to the particular». Chapter 28 gives a general review of committed crimes, dynamics of the criminal conduct giving the most typical examples as illustrations. Chapters 29-40 describe in detail each of established systems of criminal conduct accompanying it with statistics. Chapter 41 summarizes the statistical data.


In general, the methods of the research and presentation of the actual circumstances of the crimes applied by the authors can be called «contextual and compound». This means that specific criminal acts forming elements of crime are analyzed not as a set of individual episodes but as integral parts of the context in which they were committed. This allows to solve three problems: firstly, to structure statements of facts in format which is easy to understand; secondly, to carry out systematic statistical analysis of the entire array of criminal acts, and, thirdly, to establish main types of criminal conduct and evaluate the level of atrocities committed in their context.
It is easier to illustrate this method with examples. Let’s consider the criminal act of murder. In the course of the armed conflict in Chechnya killings of civilians were committed in many different circumstances and in different forms.
For example, in the course of indiscriminate attacks and direct strikes against civilians; during lootings and so-called «mopping-up operations». With respect to detainees, in places of detention (both legal and illegal), in the woods, on the roads, in ruins… With respect to other people, in their own houses, in streets and on highways, during marches of military convoys, as a result of snipers’ shootings… It was committed against one individual or dozens of civilians at the same time. The list of possible options can be even longer. On the other hand, within a short span of time in the limited area a whole range of different criminal acts, contextually closely related with each other, may have been committed by
representatives of the same military units. For example, during the same «mopping-up» operation carried out in a settlement there may have been cases of robbery, illegal detention, torture, enforced disappearance and killings. At that, some of these acts may have been committed consecutively against the same people. Also, in places of detention a variety of crimes may have been committed against people in custody, including robbery, ill-treatment, torture and murder. If, for example, we try to summarize all established cases of murder into a single database regardless of the context of their commission, we will achieve very limited results. Such generalizations do not tell us anything about patterns of criminal conduct and the extent to which they were spread, possible intent of the offenders, connections between this particular criminal act with other acts committed by either the same or different offenders.
Instead, we have taken another approach: the path of synthesizing various types of criminal acts committed in similar contextual circumstances in a unified database. Thus, they make sustainable lines (systems, models, patterns) of criminal conduct. We have carried out statistical analysis of certain types of criminal acts and their consequences for victims within each of these contextual units. We followed a strict rule: if a particular criminal episode was taken into account and reviewed in one of these units, its repetition in a different contextual unit was excluded. If the same pattern of criminal conduct was typical for both parties in the armed conflict, crimes committed by each party were taken into account separately.
Summary statistical tables were made to analyze each of the blocks. They are published as e-annexes to this book.
The vertical scale of the tables contains the list of criminal episodes in the chronological order of their occurrence with additional information on the date and place as well as the source of information. The horizontal scale provides particulars of the most important contextual circumstances, specific criminal acts, including data on the number and age and gender details of victims (separately for each of the criminal acts) and results of investigation of crimes at the national level. Special sections are developed to give reference to a source of information on individuals and entities allegedly responsible for committing criminal acts. The data on the number of criminal incidents, criminal acts, age and gender of victims was aggregated for each month of each year as well as for the entire period from 1999 to 2005. This approach
allowed assessing both the dynamics of commission of particular types of crimes in the course of the armed conflict and the overall level of inhuman acts the details of which are reviewed by our sources of information.
In total, we have allocated eight contextual units for our analysis. They cover the vast majority of breaches, the details of which are given in the sources that we used. The first seven of them cover crimes committed exclusively in the territory of the Chechen republic or, in other words, in the theater of hostilities.
We have chosen punitive mopping-up operations as the first contextual unit. A punitive operation is a military and police operation carried out in settlements during which civilians were subjected to massive terrorization (chapter 30).
Since this pattern of conduct was characteristic almost exclusively for the federal part of the armed conflict, all the data about criminal episodes establishing it has been accumulated into the same statistical table. The table contains information on the date and site of a punitive operation and the most significant contextual circumstances: presence (or absence) of a formal pretext, whether there was a clash in the course of an operation, its consequences for the parties and usage of armored vehicles. Then the information is given on the acts committed solely against protected persons.
This information about the level of restrictions of movement, establishing illegal places of detention («filtration points»), illegal arrests, torture and (or) ill-treatment, rape and sexual assault, enforced disappearances, assassinations (the information about people killed after they had been deprived of their liberty is given separately), injuries, serious bodily or mental harm inflicted intentionally, looting, destruction of property, destruction of life sustaining objects and other protected objects, shooting at settlements with heavy weapons and planting civilian objects with mines.
We have split all the crimes committed in the context of punitive operations into a separate group within the first contextual unit. All the subsequent units contain information only on crimes committed outside this context.
We have collected all criminal episodes, in which the initial criminal act was unlawful deprivation of liberty and which were committed outside the context of punitive operations (chapter 31-32). Data on this form of criminal act has been summarized in three tables. There is a separate table for cases in which the source gives highly credible information that representatives of the Russian side of the conflict bear the responsibility. A separate table has been developed for cases in which the responsibility can be attributed to the Chechen side. The third table contains information on cases in which the source does not give sufficient information to come to a conclusion about the liability of either of the sides. The tables contain information on dates and place of deprivation of liberty, availability of vehicles, armored vehicles or aircraft for the perpetrators, places of detention, release or offering official charges, as well as other crimes against the detainees:
looting, destruction of property, torture or (and) ill-treatment (both against other people if it occurred straight during the detention), injury, serious physical or mental harm which was caused intentionally, enforced disappearance and killings.
In chapter 33 we give the interim evaluation of the nature of the crimes associated with illegal deprivation of liberty.
The third contextual block deals with crimes committed against people deprived of their liberty in connection with their participation in armed actions (that is, in fact, against those who either surrendered or were taken prisoner). This information is given in chapter 34. The data is summarized in two tables in accordance with type of party which of the conflict had power over the captives (we use this term not in its legal but in its technical meaning in relation with the situation of internal conflict). The tables contain information on the date and place of capture, theft of personal belongings of prisoners, torture and (or) ill-treatment and subsequent serious injuries, disappearances and killings.
The fourth contextual block accumulates information on attacks against civilians by bombardment (chapter 35).
Both direct and indiscriminate attacks are included into this block. It is clear that the distinction between these two types of attacks is primarily linked to the establishment of their subjective element and therefore we give it as prima facie.
The tables describing the actions of each of the parties of the armed conflict contain information about the air strikes, strikes launched form different types of land installations, fire from small arms and other types of destruction as well as on the number of the killed, wounded and perished civilians and destroyed and seriously damaged civilian facilities.
The fifth unit gives information on killings of civilians committed outside of all aforesaid contexts (chapter 36). We encountered one methodological problem in connection with establishing acts constituting a pattern of criminal conduct. The problem emerged, due to the fact that the boundary between the attacks against the civilian population which result in their deaths and the act of murder is absolutely vague. It is especially relevant when it comes to a direct attack and if perpetrators applied conventional small arms, not heavy ones. What criteria should be used to distinguish between such attacks and «simple» killings? The authors have taken the following way of thinking: only «classical» cases were attributed to a criminal pattern of conduct in a way of killings (offenders acted against specific victims who were distinct for them and when there are reasonable grounds to believe that the perpetrators wanted to inflict death upon those specific individuals). Therefore, all the cases in which, for instance, offenders opened fire upon a crowd of people or a vehicle in which civilians were moving, which resulted in either death or injuries of these people were attributed to attacks against civilians. It is obvious that the distribution of cases has been organized prima facie and is purely descriptive. In a legal sense, in both cases we deal with killings. The difference is only in the context of their commission and, possibly, in some difference in the subjective element of the crime: in the case of murder the offender wants death of people selected by them whereas in the case of attack their victims are depersonalized. The offender either wants to inflict death upon all or some people from among the group under attack or is willing to allow that it happens.
Statistical data on these crimes has been summarized in three tables: separately for the Russian and Chechen sides of the conflict as well as for those offenders whose affiliation cannot currently be established beyond a reasonable doubt.
The sixth unit summarizes information on a number of cases of cruel treatment and torture outside all aforementioned contexts that is outside the contexts of deprivation of liberty, punitive operations, etc. (chapter 37). Beating combined with looting is a typical example of such situations. Another example is beating of a civilian or intentional inflicting of non-lethal injuries to them by combatants in streets, their houses, etc., for any discriminatory reason. Statistical information about these crimes is summarized in two tables: separately for the Russian side to the conflict and for cases when it was impossible to establish the affiliation of offenders to either party of the conflict beyond a reasonable doubt.
The seventh block (chapter 38) summarizes data on looting or destruction of property which was not connected with any other criminal acts (apart from possible threats to use violence in cases of attempted resistance to burglary).
The data on such crimes is summarized in one table.
Finally, the eighth contextual block contains information about attacks against civilians by way of terrorist acts committed outside Chechnya which were connected to the armed conflict developing there beyond a reasonable doubt (chapter 39). This block summarizes both the data on acts of terrorism for which the radical (Islamist) wing of the Chechen armed resistance took responsibility as well as information on those terrorist acts for which it is difficult to determine the responsible party, due to the insufficiency of the information. Those terrorist acts committed in the territory of the Russian Federation on which there is no credible evidence that connects them to the armed conflict beyond a reasonable doubt have not been considered in this block. The data on the dates and places of particular criminal episodes, hostage taking, killings and wounding hostages by terrorists, killing and wounding of people who were not hostages, torture and ill-treatment of hostages, murder of those terrorists who ceased to participate in a terrorist act by law-enforcement agents, inflicting serious bodily harm to hostages in the course of operations aimed at their release.
The data on these crimes is summarized in two statistical tables: one developed on terrorist attacks not involving hostage taking and the other one on terrorist attacks during which hostages were taken.
Chapter 40 gives brief information on other types of crimes.
In all the aforementioned chapters the statistical data is considered in the light of the numerous examples of specific crimes and where it was possible, in the light of relevant rulings made by the European Court on Human Rights on the cases of Chechen applicants. All the statistical analysis has been carried out only covering the period from 1999 to 2005 inclusive. It does not cover criminal episodes that occurred prior this period or after that.
Chapter 41 gives the synthesis of statistical data. The summarized data on the number of casualties inflicted by the Russian federal side of the armed conflict goes as follows. Our sources contain information on not less than 2335 people murdered from among those who did not participate in the armed conflict, 1386 of whom were killed in the course of assaults against civilian populations or indiscriminate or disproportionate bombardments. 484 out of those 2335 had been previously deprived of their freedom by either military or police forces and then subjected to extrajudicial executions and 465 more were killed under various circumstances of looting, robbery, in the course of massacres of the civilian population, at checkpoints, roadblocks, etc. Furthermore, our sources contain information on at least 35 people who died as
a result of torture, abuse and denial of medical aid. Then our sources contain information on not less than 1476 people subjected to enforced disappearances from among those who did not participate in the armed conflict; 10304 people
subjected to various forms of ill-treatment and torture; 1632 people who suffered severe injuries as a result of the crimes committed against them and 20234 people who were arbitrarily and unlawfully detained during that period of time, in-
cluding those who were subsequently killed or disappeared without any traces left.
Thus, our sources estimate the number of irretrievable losses among civilians (murdered, perished, missing without any traces left after unacknowledged detentions by agents of the state) of not less than 3746 people.
Given the extreme incompleteness of our data sources, the actual number of victims is likely to be a lot more: in a number of points approximately many times bigger and in the most of them exceeds by a factor of ten. However, the data is sufficient enough to establish the widespread character of the attacks at civilians committed by representatives of the Russian side of the conflict in the period under our consideration.
With regard to the age and gender characteristics of the victims, the vast majority of them were men of the fighting age in all the contexts in which perpetrators had a possibility to act selectively and in which crimes were massive (punitive actions, illegal deprivation of liberty and all the crimes against people deprived of their freedom, «direct» murder, the crime of ill-treatment not connected with the deprivation of freedom). In all the other contexts (attacks at civilians, including direct strikes and indiscriminate attacks) victims belong to equally the same age and gender groups.
The summarized data on the number of casualties inflicted by the Chechen side of the conflict goes as such. Our sources contain information about, at least, 784 people murdered from among those who didn’t participate in the armed
conflict, with 676 of them being killed in terrorist acts against the civilian population committed outside the territory of the Chechen Republic and the rest 108 people killed in other circumstances. Furthermore, our sources contain information on not less than four people subjected to enforced disappearance from among those who didn’t participate in the armed conflict, 2029 people subjected to ill-treatment and torture, 2058 people who suffered severe bodily harm as the result of crimes committed against them and 2039 people who were subjected to illegal deprivation of liberty including in the course of terrorist acts connected with taking hostage.
None of age and gender groups identified by us makes a significant majority among victims to the crimes committed by the Chechen side of the conflict.
The seventh part (chapters 42-46) analyzes the factual circumstances of the crimes in the light of the applicable norms of international law. It describes the aforementioned violations as international crimes, particularly as war crimes, crimes against humanity and (within those groups) as a separate group of crimes of special intention.
The factual circumstances stated in the sources that were under our consideration evidence that the overwhelming majority of the crimes committed by the Russian federal side of the armed conflict in Chechnya in the period from 1999 till 2005 fall under the following categories of crimes:
Criminal pattern of conduct In all the cases breaches of customary and/or applicable treaty norms of international humanitarian law makes the key element of a pattern of criminal conduct. At that, breaches make, at least, objective element (аctus reus) of
the following types of crimes: murder, torture, ill-treatment and attempts at human dignity; rape; enforced disappearances, assaults at civilian population; indiscriminate and disproportionate attacks; attacks at either objects or individuals marked by distinctive emblems enlisted in the Geneva Conventions; delivering blows at protected objects or other types of attacks at them; looting; destruction of civilians’ property; usage of «live shields» or collective punishment. All above-mentioned acts make the objective side of military crimes in accordance with customary international law regardless whether are committed in or outside the context of an international or non-international armed conflict.

The subject of crimes
In all the cases people and objects protected by the international humanitarian law, including Article 3 common to the Geneva Conventions, Additional Protocol II to the Geneva Conventions and applicable norms of customary humanitarian law of the internal conflict became victims/subjects of the crimes, including:
– People who didn’t directly participate in armed actions or stopped to participate;
– People deprived of freedom due to reasons connected with the situation of an armed conflict;
– The wounded and the sick regardless whether they participated in the armed conflict;
– Medical personnel;
– Civilian population in general and particular civilians;
– Civilian objects, including hospitals, medical units and vehicles, historical monuments, religious and educational objects and other objects that can’t be regarded as military ones.
Contextual circumstances
In all the cases the crimes were committed in the context of the armed conflict of non-international character which developed in the territory of the Chechen Republic. Criminals’ acts either were contributed to reach the final military goal of the conflict or were committed with application of the situation of the armed conflict. Subsequently, the factual circumstances imply existence of the necessary connection between criminal acts (infringes) and the armed conflict.
The subject of a crime In all the cases crimes were committed by people who were actively involved into the armed conflict, including military personnel, law-enforcement and security service agents as well as members of pro-Russian paramilitary units made up of ethnic Chechens who are combatants in the technical meaning of the term.
Therefore, criminal acts committed by representatives of the Russian federal side of the armed conflict developing in the Chechen Republic which are described and analyzed in the research are completely correspondent to all the necessary qualifying elements of military crimes according to the customary international law.
Besides, most of the described crimes committed by the Russian federal side of the armed conflict also satisfy the criteria of crimes against humanity as they are given in the sources of the operating international law.
Firstly, perpetrators’ acts are correspondent to the material elements of such crimes against humanity as murder, unlawful detentions, torture, enforced disappearances and other inhumane acts of similar kind which express themselves in deliberate infliction of physical injuries and severe suffering, or serious damage to mental or physical health.
Secondly, the described criminal acts are correspondent to the term «the attack at civilian population». At that, the entire civilian population of the Chechen Republic was targeted as well as its particular groups, selected by perpetrators to become their victims in relation with circumstances, or territorial, age and gender-related and other identifying elements.
Thirdly, all the cases of assaults that the research refers to were of widely spread. It is evidenced by a large number of casualties, almost every-day frequency and wide geographical area of the committed crimes. At that, large scale of assaults was reached by joint effect of inhumane acts as well as particular inhumane acts extra-ordinary in their scale and consequences.
Fourthly, all the referred assaults were of systematic character. Such indicators as their scale, geographical area, objects selected to be targeted in accordance with definite criteria, as well as repeated, customary and continuous character of violence prove that there is no likelihood of their accidental occurrence. Such patterns and stable modes of criminal conduct include attacks at civilian population and indiscriminate assaults by means of to deliver firing attacks, including with cases connected with hindrance to evacuation of the civilian population from the area under attack; unlawful detentions of civilians, including because of their gender and age; ill-treatment, torture, killings and enforced disappearances of civilians deprived of freedom; punitive operations of «sweep-up» type accompanied by unlawful detentions of civilians en masse because of their age and gender, crimes of maltreatment, looting and destruction of property, so called «operations by address» that is unlawful violent actions against civilians, including murder or unlawful detentions with subsequent torture, killings or enforced disappearances of victims; murder and ill-treatment accompanied by looting and destruction of civilians’ property that occurred in the period from December 1999 to February 2000; capturing relatives of alleged combatants as hostages in order to force the latter to surrender, etc.
Fifthly, assaults were committed with the involvement of the state. On the one hand, it can be regarded as an independent element of the crime against humanity (according to the Rome standard but not to customary law). On the oth-
er hand, it is one of most important indicators of the systematic character of committed crimes. Involvement of the Russian Federation into those attacks expressed itself in both actions and lack of actions in situations when the state ought
to act under the international law. It varied in the spectrum from straightforward planning and instigating to a number of crimes at different levels of state and military system of governance to aiding and abetting, connivance and tacit approval of crimes and indulgent attitude towards crimes.


46 rulings made by the European Court of Human Rights state responsibility of the Russian Federation for assaults at the civilian population of the Chechen Republic. It expressed itself in gross violations of their basic rights, including
the right to life, right to freedom and personal integrity as well as the ban on torture and ill-treatment.
In addition, there are a number of important indicators that evidence involvement of the state in the form of actions.
In all the cases assaults were delivered de-facto. In the overwhelming majority of the cases representatives of the state were involved de-jure. At that, the latter acted either in their official capacity or taking advantage of their official position and opportunities of public service.
A number of crimes, mass deprivation of civilians of their freedom in particular, were part of the politics approved by the state which is evidenced by rulings and decrees of the Russian Ministry of Internal Affairs and the Statement by the Government of the Russian Federation on establishing so-called «filtration points». The latter were illegal cites to keep people in custody that automatically results in infringes of the most significant procedural rights that detainees are granted with the international law.
Attacks were controlled that is the state could cancel and resume perpetrating of crimes. The state used those possibilities to reach desirable political goals.
Attacks were carried out in the coordinated and organized manner. Thus, they were developed in the context of state bodies operations (armed forces, police, and special services). Actors of attacks had their roles distributed among themselves both at the level of «superior – subordinate» structure and other levels of interaction, including the interdepartmental level.
The military command was widely involved into attacks. This involvement expressed itself in different ways: from attendance of the top superiors of the OGV (s) (Joint Group of Troops) on the sites while carrying out the attacks to direct involvement of those officers as well as officers of lower rank in organizing and planning the crimes (including within of a criminal group acting with a joint criminal purpose) at various levels of the vertical of command, giving orders to commit such crimes, aiding and abetting to committing crimes and, furthermore, to executing material elements of those crimes in particular cases.
Vast state resources, including the ones of the military forces and other state security agencies, were involved into carrying out attacks. Those resources included a lot of military force and vehicles, modern types of armament, including armored vehicles, assault and army aircrafts, artillery, rocket systems of firing volleys, operational and tactical missiles, etc.
Finally, in a number of cases we see that state bodies and officials, including those responsible for conducting investigation, carried out acts aimed at obstructing investigation, including destruction of evidence and intimidating victims and witnesses.
It is necessary to point out that particular types of crimes were planned, organized and carried out in the context of operations of the armed forces and other bodies of the state security of the Russian Federation, specifically such bodies as Joint Group of Troops (OGV (s)), operational army groups and their headquarters, particular army units, temporary and permanent bodies of the Ministry of the Interior, military commandants’ offices, etc. Each of these agencies is a state body, absolutely correspondent to the term «organization» in its meaning of «entity doer», on behalf of which a specific subject of a crime against humanity should act according to the international criminal law.
The state involvement was also expressed in continuous refusal to conduct effective investigations into crimes committed against civilian population of the Chechen Republic. It has been confirmed by 46 rulings made by the ECHR.
The authorities of the Russian Federation (1) have failed to conduct investigation into any of the most horrific crimes that resulted in killings of civilians en masse, including numerous facts of massacres; (2) have continuously refused to effectively investigate large-scale «systematic» crimes committed in order to support military operations, either on orders
or with support chief command of OGV (s) and superior bodies; (3) have continuously refused to effectively investigate superiors’ involvement into perpetrating crimes.
The statistical analysis that our research presents proves that the number of investigated crimes which resulted in convictions doesn’t exceed 1-2% from the entire number of committed crimes. However, these few court rulings, with just two exceptions, were taken against doers of the crimes who acted on their own will and pursuing their own motives.
In two exceptions from this practice, court rulings proved the guilt of low-rank officers (in the ranks of a mayor and lieutenant) for giving criminal orders. At that, in one of the cases the sentence is not connected with real imprisonment.
As a matter of fact, in the vast majority of cases, sentences imposed by the court were «conditional» (in both literary and figurative meaning of this word) and they didn’t correspond to gravity of the committed act and level of convicts’ accountability.
It is the way how such investigatory bodies as military and civil prosecutor’s offices carried out their work to investigate crimes that can be regarded as the primary reason for such deplorable situation with taking the guilty to account.
Their work can be characterized as overt sabotaging the investigation process. It expressed itself in refusal to hold the most essential investigatory steps to secure the evidence and establish criminals. In a number of cases they denied initiating criminal cases. There were also cases when prosecutor’s bodies did their utmost to shield the people suspected of committing brutal crimes connected with mass murder of the civilian population. This situation can be explained not only by conformism of the staff of prosecutor’s offices. The main cause for such sabotage is the politics run by
the authorities of the Russian Federation and Prosecutor General’s bodies. Due to refusal to make the most appropriate measures to support investigation process, those bodies that were responsible for conducting preliminary investigation happened to be completely dependent on people who were either involved into committing crimes or who acted as criminals’ accomplices. Thus, efficient investigation involved direct threat to the lives of investigators and prosecutors.
Involvement of the state in the way of failure to act also expressed itself in refusal to take efficient measures aimed at preventing crimes. A few orders and decrees made by state agencies that stated crime prophylactics as their goals were formal and were never supported by any real measures. Thus, such documents should be regarded as evidence that the responsible people were aware of the crimes and didn’t take combating crimes as their goal.
Due to all these factors, it is possible to make a conclusion that the refusal of the state to prevent and investigate attacks at the civilian population of the Chechen Republic should be characterized as deliberate failure to act aimed at instigating such attacks (or, at least, those of them that were perpetrated at a large scale to support military effort).
Finally, all or the absolute majority of committed crimes are correspondent to the criteria of the subjective element of the crime against humanity, according to the international criminal law. Crimes were committed with the necessary level of guilt. Doers of the crime acted either deliberately and being aware of the criminal character of an action or with the element of recklessness, or (in a few cases) their actions contained the element of the criminal negligence. At that, criminals were in full knowledge of the developing large-scale and systematic attacks at the civilian population of the Chechen Republic. They were aware that they own actions constituted part of those attacks and that it was civilians who became casualties of the attacks.
Therefore, the majority of severe crimes committed by representatives of the Russian federal side of the armed conflict against the civilian population of the Chechen Republic in the period from 1999 to 2005 can be regarded as crimes against humanity.


It follows from the facts analyzed in Part VI that all or the majority of violations committed by the Chechen party of the armed conflict in Chechnya in the period from 1999 to 2005 make war crimes.
Criminal conduct
In all cases, the criminal conduct constituted a violation of the customary international humanitarian law which is binding for all parties of any armed conflict. At that, the violations enlisted in Part VI constituted the objective element
(actus reus) of, at least, the following crimes: murder, torture, ill-treatment, abuses of human dignity, enforced disappearances, attacks at civilians, indiscriminate and disproportionate attacks, use of live shields, hostage-taking. All these
actions make the objective side of war crimes, irrespective of whether they were committed in the context of an armed conflict of international or non-international character.
Objects of a crime
In all cases, the objects of crime were persons and objects protected by customary international humanitarian law applicable both in circumstances of international and non-international armed conflict.
Contextual circumstances
In all cases, crimes were committed in the context of non-international armed conflict which developed in the territory of the Chechen Republic in the indicated period and they were closely connected with the conflict. It is necessary to point out that all attacks against civilians in the form of terrorism were committed outside Chechnya but had a close relationship with the armed conflict as they were aimed at maintaining the war effect or achieving the ultimate political objectives of the Chechen party of the conflict. The demands that the terrorists put forward and statements of the main organizer of the majority of terrorist attacks – Shamil Basayev – clearly demonstrates this connection. In the circumstances when those crimes were directly related to the armed conflict, their geographical remoteness from the main theater of military actions has no legal significance. It is due to the fact that the humanitarian law remains in force throughout the territory under control of any of the parties of the conflict regardless on which part of this territory violations occur.
In some other cases crimes were also committed to directly maintain the war effort. These are attacks on administrative buildings and indiscriminate attacks upon headquarters of the Russian law-enforcement agencies, killings, extrajudicial executions and enforced disappearances of people suspected of collaborating with the enemy (including assassinations of heads of administration), etc. Therefore, factual circumstances point out to the existence of the necessary link between criminal actions (omissions) and the armed conflict.
Subjective element
The factual circumstances set in Part VI indicate that all or the majority of analyzed acts were committed with the required degree of guilt, specifically either deliberately and intentionally or with the element of recklessness. At the same 574 time, in all or vast majority of cases the offenders (1) could not but realize that the armed conflict did exist (they could not be unaware of factual circumstances that determined the existence of the armed conflict); (2) could not be unaware of facts indicating that victims had the status of protected persons.
Subject of crime
As a matter of fact, those people who directly participated in the armed conflict were subjects of the crimes: members of the armed forces of the Chechen Republic of Ichkeria or other persons who their task in performing acts of violence in order to sustain the military effort of the Chechen party of the conflict, irrespective of what armed units they belonged to and who they obeyed.
Thus, criminal acts committed by the Chechen side of the conflict which were described and analyzed in Part VI fully satisfy all the necessary elements (qualifying attributes) of war crimes.
At least, one type of attacks against civilians carried out by the Chechen side of the conflict is consistent with the essential elements of crimes against humanity as described in the sources of the international law. These are attacks
against civilian population in the form of terrorist acts committed outside the Chechen Republic. Perpetrators’ actions are in line with material elements of crimes against humanity of murder, unlawful deprivation of liberty (to which hostage-taking belongs to without any doubt), torture (with regard to deprivation of hostages, including children, of food and water), and other inhumane acts of similar character. Such acts were done to intentionally cause a lot of suffering or serious harm to mental or physical health. The civilian population of the Russian Federation was the object of the attack of this form. They were selected by criminals as a convenient tool to blackmail the Russian authorities to achieve certain political goals. The attacks themselves were both widespread and systematic. They were carried out as part of policy and plan. All crimes that were elements of this type of attacks were committed with the requisite degree of guilt.
With regard to the crimes of special intent committed by the parties of the conflict, we have come to the following conclusions.
– Crimes of terrorism were committed by both sides of the conflict. On the Chechen side, they represented attacks against the civilian population of the Russian Federation committed outside the territory of the republic, arranged in forms of massacres by organizing explosions in crowded places, of vehicles and aircrafts as well as hostage-taking and inhumane acts against them. All aforementioned acts were committed with the primary purpose of terrorizing the civilian population and implemented as a measure to support political demands. On the Russian side, they represented seizure of hostages and subsequent brutal actions against them, attacks against civilians and indiscriminate attacks in the form of fire strikes as well as punitive operations of «raid» – type and other similar acts including mass arbitrary detentions of civilians of the able age and subsequent inhumane acts against detainees. The aforementioned acts were committed with the primary purpose of terrorizing the civilian population and implemented to support the military effort and the political agenda of the Russian party of the conflict. Some of them were committed for personal reasons (on discriminatory grounds) of some particular organizers and executives. Due to the presence of contextual circumstances, these criminal acts have to be considered as war crimes of terrorizing the civilian population and a crime against humanity in the form of «other inhumane acts».
– At least, some of widespread and systematic crimes were committed by the Russian side of the conflict with a discriminatory intent and, therefore, may be regarded as a crime against humanity of persecution.
– The evidence available for the authors was not sufficient to make a reasonable conclusion on whether the Russian federal party of the conflict committed the crime with the special intent to genocide during the considered period.
In connection with the facts under our consideration we have come to the conclusion that crimes of this type were not committed in the period under our consideration.
We start the eighth part (chapters 47-58) with formulating general principles which enable to determine the circle of persons allegedly responsible for these crimes and then after analysis of specific criminal episodes, we give the preliminary list of some individuals who can be allegedly responsible for committing crimes.
The latter should not be interpreted in a sense that the authors consider the responsibility of these people as an established fact or that the authors blame these very people for committing specific crimes. Stating that a person is allegedly responsible for commission of a crime, we just mean that the factual circumstances which we studied:
– Contain reliable information which evidence existence of commission of a particular international crime or crimes;
– Provide prima facie grounds to believe that the named person was involved into commission of a crime via their acts or failure to act, or didn’t take appropriate measures to prevent or punish the crimes in accordance with the requirements of the international law which indicates the relevant level of responsibility;
– Demonstrate that a named person has not been taken to criminal accountability;
– Show that the relevant national authorities either have not conducted investigation at all or it was not conducted independently and impartially and was actually purposed only at shielding the accused from criminal responsibility or
didn’t meet the goal to bring a perpetrator to account, due to some other formal reasons, despite the fact that circumstances of a crime were made public (this point to refers to exclusively the Russian side).
Secondly, referring to the alleged responsibility of this or that person the authors don’t mean that they personally participated in the execution of all material elements of above-mentioned crimes in all cases. The term «responsibility» covers all types of criminal responsibility envisaged by international law, including planning, aiding and abetting to planning, preparation and execution of a crime, carried out individually or jointly with other people within the framework of common purpose or plan, as well as responsibility of superiors.
Particular attention is given to the types of participation of such people in the reviewed crimes and the form of responsibility which may be liable with.
There are three main groups of sources of factual information about crimes committed by the Russian forces of the conflict at our disposal.
The first group which we mainly relied upon while developing part VI includes material collected by non-governmental organizations (reports, books, current observations, etc.) and publications of independent media which correspondents worked in the area of the armed conflict and held journalist investigation of violations of human rights and norms of the international humanitarian law. These sources contain stories about actual circumstances of the committed crimes, sometimes brief, sometimes extensive, with a lot of testimonies by victims and witnesses as well as some official documents obtained from bodies of preliminary investigation.
The second group of sources contains judgments made by the European Court on Human Rights. We also widely used them while working on part VI. Apart from description of factual circumstances of the crimes, these rulings contain
references to really significant documents that were developed at the national level of preliminary investigation and submitted by the Russian Federation for the consideration of the ECHR.
Finally, the third group which was also of paramount importance for the research was made of public official orders and decrees made by the President of the Russian Federation, the commander of the Joint Group Troops (OGV (s)), reference books, memoirs, publications of various media outlets, which contained references about armed forces and units involved into the armed conflict, their experience of combat, as well as superior commanders, including official and personal particulars of some commanders and superiors for some definite period of time and officials with the Ministry of the Interior of the Russian Federation. The information that this group of sources provided us with made it possible not only to get important information on the structure of management of forces involved into the armed conflict and on the participation of certain groups in certain operations, but also establish particular superiors who exercised command and had effective control over alleged perpetrators of crimes at different levels of the chain of authority. Chapter 25 of Part V summarizes conclusions of the analysis of these sources.
Correlation of information that these three groups of sources give has already enabled to start enough efficiently to carry out preliminary work to establish a circle of people allegedly responsible for committing crimes as well as forms of such responsibility. At that, it is necessary to bear in mind that the majority of date at our disposal (report, publications, etc.) cannot be regarded as full-weight proof. They are just indications at signs of crimes and possible sources to obtain real evidence. They will remain such until establishing of documentary and testimonial data base with information properly fixed.
As of present moment, the data which the aforementioned sources contain allows us:
– to establish immediate perpetrators of separate crimes in a limited number of cases;
– to reasonably claim in a limited number of cases that some particular known officials might have given particular orders;
– to establish in quite large number of cases that direct perpetrators belonged to an identifiable group of army or other force agencies which acted under effective control of some superior officers;
– to establish biographical particulars of these people and their position in the chain of command of an operation or army group;
– to establish actual attendance of some officials the sites of assaults at civilians;
– to reasonably claim that some officials who are known to us possessed actual or constructive knowledge of the crimes that had been prepared, committed or had been committed by their subordinates;
– to reasonably claim that some officials who are known to us failed to undertake necessary and appropriate measures to prevent and punish crimes that had been prepared, committed or had been committed by their subordinates;
– to make grounded conclusions on the circle of people who allegedly participated in planning and organizing some wide-scaled crimes, on the crimes that might have been realized according to coordinated plans, and on the crimes that were a natural and foreseeable consequence of implementation of some plans although they were coordinated by all their participants.
Therefore, we have an opportunity to preliminarily:
– establish presumable liability of some particular individuals in the execution of certain crimes;
– in a significant number of cases, establish presumable liability for complicity in crimes (by co-execution of crimes) within joint criminal enterprises, to determine the circle of their alleged participants or/and people who might have assisted in committing crimes;
– in a significant number of cases, establish presumable liability of commanders and other superiors in connection with the crimes committed by their subordinates under the doctrine of superior responsibility;
– establish presumed responsibility of commanders and superiors for their complicity in crimes committed by their subordinates in cases when there is enough information about their actual knowledge about crimes being planned
and committed by their subordinates, including continuous, on-going and repeated crimes within sustainable lines of criminal conduct;
– in individual cases, to establish presumed responsibility for ordering crimes.
At that, the greatest number of episodes promising to establish liability falls on crimes committed by representatives by representatives of the security agencies of Russia as they acted within structures and chains of command known for us which were regulated by laws and by-laws under commanders and superiors, also known for us in the majority of cases.
The organizational «skeleton» of these structures can be described in general terms as hierarchical chain of command made up of the following levels (from top to bottom): the President of the Russian Federation – Supreme Com-
mander-in-Chief – the Joint Headquarters – the Regional Operational Headquarters (this level existed as of the period from January 22. 2001) – the headquarters of the Joint Group of Troops (a commander and his deputies) – the operational groups (this level existed from 23 September 1999 to 22 January, 2001) – army formations, units and sub-units, military commandants’ offices, agencies and forces of the VOGOiP (temporary group of troops in the North Caucasus
at the Interior Ministry). At certain stages the General Headquarters and commandership of the SKVO (North-Caucasian Military Circuit) played significant role in management of the involved forces.
A lot more complications emerge when it is necessary to establish responsibility for crimes that were allegedly committed by members of the pro-Kremlin paramilitary formations made up of ethnic Chechens. Besides all, these difficulties are due to largely informal character of «superior – subordinate» relations in such formations, problems with identification of groups of perpetrators and shortage of detailed information on the organizational structure of such formations which kept changing.
If we proceed from the types of the criminal conduct, it makes it a lot easier to draw conclusions on officials who are allegedly responsible for crimes which constituted part of officially recognized practices to some extent, including launching fire strikes on densely populated areas in the initial period of the conflict, restrictions to evacuate civilians from combat areas, «filtering», punitive operations, of the «raid» type. It is quite obvious who makes the circle of people who, due to the positions they occupied, were involved into making decisions which resulted in committing crimes. At the same time, it is a lot more difficult to make any grounded conclusions on the actions of «death squads», groups involved into carrying out «targeted operations» which involved enforced disappearances of people. It is obvious that force structures attached to different agencies took part in them. However, there are no direct proofs evidencing existence of such bodies or persons, who either planned or coordinated this practice. The sources make it possible to establish that the leadership of the OGV (s) (joint group of troops) and superior command acquired actual knowledge of committed crimes as well as existence of wide-spread acceptance of such methods of conducting military and police operations in these circles.
In our opinion, the prospects to establish particular types of criminal responsibility are as follows.
First and foremost, it is obvious that the doctrine of superior responsibility, which is always regarded as the «silver bullet: of persecution can be applied. Taking into account (1) presumed efficient control of superiors over their subordinates, due to the nature of the state security agencies; (2) the repeated, customary and continuous character of violence and wide scale of crimes committed over a long period of time, (3) actual knowledge of all these crimes that all the levels of command possessed; (4) and persistent refusal to take necessary and reasonable measures to prevent crimes or punish them, it seems that this type of liability can be established for the for the majority of those individuals who occupied the main positions of command in the structure of the so-called «counter-terrorist operation» (OGV (s) – Regional Operational Headquarters – Joint Headquarters) as well as the Supreme Commander – in-Chief, the President of the Russian Federation, who exercised effective control over all those security agencies that were involved into committing crimes.
In connection with the proposal stated in the preceding paragraph, it seems likely to impose liability upon afore-said officials for complicity because their failure to act made a significant contribution to the crimes committed by their subordinates. This, of course, doesn’t refer to all the crimes but to only those which were part of continuing and systematically repeated patterns of criminal conduct (punitive operations of the «raid» type, «operations by address» which involved illegal detentions, murder and disappearances, massive strikes against civilians, etc.) These people beyond reasonable doubt possessed actual knowledge of the crimes being prepared but they failed to take necessary and reasonable measures to prevent or punish crimes. It created a strong, realistic and reasonably foreseeable risk of committing such crimes and led to their actual perpetration. Meanwhile, if those people had intervened, the commission of the crimes would have become impossible. It indicates to a direct link between the omission and occurrence of the crimes.
It is clear that this kind of complicity could be described as aiding and abetting to planning, preparation and perpetration of crimes. This form of accountability can be also established for the majority of people who occupied the main command posts, starting with the level of officers with the OGV (s) to the President of the Russian Federation, the Supreme Commander-in-Chief.
The position that some individual superior officials possessed permitted them to exercise effective control over forces perpetrating similar and widespread crimes during a long period of time. They also possessed actual knowledge of the crimes because of their positions. Thus, it is possible to assume that such officers might have given orders to commit crimes.


Further, the data at our disposal gives grounds to establish accountability for co-execution of crimes by individuals who acted within groups with a common criminal purpose to commit crimes against civilians that is under the doctrine of a joint criminal enterprise.
There are a lot of indicators which evidence that the overwhelming majority of crimes were of organized character:
their wide scale, existence of a stable pattern of conduct, including massive, systematic and organized violent acts which random character is unfeasible and which were repeated time after time in various places by representatives of various units, involved state resources, selection of specific groups of civil population at certain stages, wide involvement of the leadership into committing, at least, certain types of crimes, clear interaction between various power structures, orders, public statements, words and actions of individual officials. In other words, some of the crimes were planned, organized and instigated while others were, at least, deliberately allowed by officials who belonged to commanding bodies of the
military operation in Chechnya.
These circumstances indicate that a number of people capable of exercising effective control over forces engaged into the military operation in Chechnya at different levels in and in different periods acted with the overall primary purpose to commit crimes against civilian population of the Chechen republic. In other words, there existed a joint criminal enterprise within the command structure of the Russian party of the armed conflict which acted or its individual groups.
The ultimate military and political objective of the joint criminal enterprise underwent some transformation at different stages of the conflict. Initially (during the period from September 1999 to April-May 2000), the objective was to defeat the enemy, establish control over the territory and restoration of the Russian sovereignty over Chechnya. This objective having being reached, the Russian side started to pursue other objectives like combating the enemy applying methods of guerilla warfare, suppression of the guerilla movement and destruction of separatist and Islamist underground. Thus, from the standpoint of the international criminal law this ultimate goal is not criminal in itself. However, it was planned at all the stages of the military operation to achieve this ultimate goal by means of committing crimes, namely, through a campaign of illegal acts of violence against civilians, including those with were carried out with the intent to spread terror (fear, horror, intimidation) among the civilian population of the Chechen Republic which was generally perceived as hostile as well as against its individual groups selected in accordance with territorial, age and gender and other characteristics. Realization of such a campaign of illegal and violent actions was the primary objective of
a joint criminal group.
At the initial stage (September 1999 – April 2000) the primary objective was achieved through systematic launch of
direct attacks on civilians and civilian objects, including densely populated areas, unprotected settlements, gatherings
of people, civilians’ convoys and individual civilians vehicles as well as launching indiscriminate and disproportionate
attacks on settlements of the Chechen Republic regardless of the presence or absence of any military installations. This
practice was simultaneously carried out with measures specifically meant to prevent or impede the exodus of civilians
from the area under attack. It created the enhanced and foreseeable risk of annihilation of part of civilian population.
At the same time, the system of the so-called «filtration» was applied. It expressed itself in massive unlawful and arbi-
trary detention of people not taking part in armed activities, either on provisions of age (men of fighting age) or on the grounds of allegedly having bodily traces of participation in hostilities (skin attritions, hematomas, traumas and injuries). Victims were always subjected to ill-treatment and infringements of their personal dignity within the framework of this system. They were also everywhere subjected to torture and very often to killings and forced disappearance.
During the second phase (since the middle of 2000) the primary objective was achieved through: (1) massive and systematic punitive operations of the «raid» type, (2) the so-called «operations by address» which were multiple illegal detentions of civilians which resulted in their torture, killings and enforced disappearances. The system element of «raid» – type punitive operations was massive illegal detentions of civilian men of fighting age who were always maltreated or tortured and in some cases subjected to killings and enforced disappearances.
The third stage (since approximately 2004) was marked by a gradual transfer of punitive functions to paramilitary formations made up of ethnic Chechens. The primary objective was achieved through (1) multiple illegal detentions of civilians accompanied with their enforced disappearances, torture and murder, (2) seizure of hostages from among relatives of either actual or alleged militants.
During all the stages the established system of illegal places of detention in the Chechen Republic contributed to carrying out the politics of terrorizing the population and to committing crimes.
We do not claim that plans to commit offences were clearly and explicitly expressed in all the cases. However, there are no doubts that there was an agreement or clear mutual understanding among all participants in a joint criminal enterprise with regard to crimes within the common criminal objective.
Neither have we claimed that all the crimes that were actually committed by the Russian side of the conflict or their main types fell within the common objective of a joint criminal enterprise or, in other words, were agreed by all parties of the joint criminal enterprise. However, it is certain that its participants shared, at least, the following common objectives at different stages:
– wide-scaled and systematic assaults at civilians and indiscriminate fire assaults;
- obstructing evacuation of civilians and its separate groups selected according to their age and gender from the area under the assault;
– the practice of massive illegal detentions of men of fighting age in the course of «filtration» campaigns;
– the practice of massive illegal detentions of men of fighting age from among civilians of the Chechen Republic in the course of punitive operations of the «raid» type («total cleansings») and their subsequent ill-treatment;
– the practice of illegal detentions of civilians in the course of the so-called «operations by address»;
– terrorizing (intimidation) of the civilian population of the Chechen Republic and its separate groups (men of fighting age, alleged relatives of the combatants of the hostile party, etc.)
At that, participants of a joint criminal enterprise could, at least, foresee that crimes beyond overall common plan, including extrajudicial executions of detainees, enforced disappearances, severe torture, looting and destruction of civilians’ property, might be committed by one or more members of a joint criminal enterprise and they willingly took a risk of their commission, in spite of it.
Furthermore, members of a joint criminal venture (1) continued to pursue a common primary objective (objectives) of a joint criminal enterprise, (2) didn’t undertake necessary and reasonable measures to prevent the crimes and punish their perpetrators when such crimes were actually committed and their commission became a public knowledge in spite of irrefutable evidence of their level and severity.
Thus, a joint criminal enterprise under our consideration has signs of the third (expanded) form of a joint criminal enterprise as defined in the jurisdiction of the UN International Tribunals.
The character of crimes that were within the common criminal objective beyond a reasonable doubt, the level of their organization, planning and commission, leaves no doubt that a joint criminal enterprise was composed also of officers responsible for making the most important decisions and giving orders to all the major forces involved into conducting military operations. Thus, launch of systematic attacks on civilians and civilian objects would have been impossible without close interaction between leadership of task forces, the OGV (s) (joint group of troops) headquarters and command of 4th Air Army of the SKVU (North Caucasian military circuit). «Filtration» would have been impossible
without interaction between military forces and units at the Ministry of the Interior and the Ministry of Justice. «Total cleansings» (or «sweeps») would have been impossible without interaction among army units, forces and agencies at the Ministry of the Interior, interior troops, «special task» forces at the ROSh (regional operative headquarters), etc. Such observations are also confirmed by a number of orders and statements made by officials which are available in the public domain. Thus, there were top military officials among participants of a joint criminal enterprise at the rank, at least, of the commander of OGV (s) (Joint Group of Troops) and his deputies which were appointed to represent the main force agencies, possibly commanders of Groups of Troops and also the Head of the ROSh (regional operative headquarters) and his deputies since January 2001. These individuals’ involvement is presumed from their official authority.
The composition of a joint criminal enterprise was not static undergoing some changes with the course of time, due to staff movement, changes in management structure, etc.
By now, we have not established sufficient evidence indicating top leaders of force agencies of the Russian Federation, including the Supreme Commander-in-Chief – the President of the Russian Federation – were members of a joint criminal enterprise. As we have shown above, their alleged involvement into crimes should be characterized as aiding and abetting.
At the same time, it is possible to raise the issue of a few «force» ministers’ involvement into a joint criminal enterprise because of their membership in the Joint Headquarters. We also leave open the issue of possible issuing of orders to commit crimes by the Supreme Commander-in-Chief. In the light of temporary case law, it might be possible to establish issuing such orders from the set of indirect evidence.
In some cases we have information on individuals, who regardless of their attitude towards their own participation or non-participation in groups of people acting with a common primary objective to commit crimes, participated in direct execution of material elements of crimes and ordered them to be committed.



The situation with information which would enable us to identify representatives of the Chechen side of the conflict allegedly responsible for breaking international law is a lot worse.
There are, at least, four reasons to that.
The first reason is that the majority of individuals against whom there is convincing evidence that they were organizers or perpetrators of crimes are dead so far. The second reason is that crimes committed by the Chechen side of the conflict are effectively «suppressed by the jurisdiction of hostile party» (in contrast to the crimes committed by representatives of «their» own side). Thus, the majority of still alive people who are known as perpetrators of particular crimes have already been taken to criminal accountability. The third reason is lack of necessary information about the structure of the military leadership and people in position of authority. Since the beginning of the guerilla period of the armed conflict, relations «superior – subordinate» within the structure of the armed forces of the Chechen Republic of Ichkeria were getting increasingly informal. Parallel chains of command continued to co-exist, merge, divide and multiply.
More and more profound secrecy started to develop, due to persecution of combatants’ relatives. Even orders to appoint commanders of different fronts contained not particulars but pseudonyms. The forth reason is partly linked to the third.
This is lack of sufficient number of reliable sources on crimes and people responsible for them. In many cases it was impossible even to attribute the crime to representatives of either side. Therefore, we had to limit our research to the more
reliable assumptions, like in the majority of cases of killings officials working with the pro-Russian civil administration of the Chechen Republic, Thus, at present, we are capable to name alleged perpetrators of crimes under our concern who are still alive and enjoy freedom in extremely isolated cases. At that, as a rule, we have to rely on information coming from the official Russian cases.


Having introduced the above-stated general principles, we demonstrate by analyzing certain crimes and groups of their perpetrators how it is possible to carry out the work to establish individuals allegedly responsible for those crimes. The cases were selected on the principle, first and foremost, of having sufficient amount of facts which make it possible to make reasonable conclusions on alleged responsibility of various individuals and types of this responsibility in accordance with prima facie principle. We have selected two punitive operations as such examples. Both contain such a sign of mass murder (massacre) of civilians as pattern-making. These are punitive operations held in the settlement of Novye Aldy (carried out on 5 February, 2000) and in the settlement of Alkhan-Yurt (carried out in the period of December 1-19, 1999). They are covered in chapters 48 and 49. Among other examples there are indiscriminate attacks on civilians in the form of fire strikes (the village of Katyr-Yurt, February 5, 2000 and Grozny, October 20, 1999). Chapters 50 and 52 give accounts on these cases. There are also cases of crimes related to obstructing the evacuation of civilians from area targeted by massive fire attacks during the period of autumn-winter 1999 (chapter 51), attacks on civilians in the form of punitive operations developed in the period from 2000 to 2002 with the pattern-making sing of massive illegal detentions of civilians (chapter 53), as well as the retaliatory operation held in the village of Borozdinivskaja (chapter 54). Identification of a number of allegedly responsible people became the outcome of that review. Then we considered the issue of alleged responsibility of people who are on the top of the chain of command of the forces that were engaged in armed conflict by the Russian side – the President of the Russian Federation (chapter 55) and members of the operational headquarters (chapter 56).
All aforementioned examples contain detailed explanation of all the grounds on which alleged responsibility of particular individuals was established as well as its specific forms.
Chapter 57 briefly tackles some episodes which, in our opinion, raise the issue of responsibility for the crimes which we referred to in it preceding parts. The review doesn’t contain detailed argumentation but just references to the factual
circumstances outlined previously. Its objective was to outline the contours of the further work to develop the topic.
4. Conclusions and final points of the research In the final part of the research we summarize the findings and make some proposals on further actions to combat
impunity.
The factual circumstances that we have considered under the applicable norms of the international law demonstrate that international crimes committed in the course of the Russian-Chechen armed conflicts that took place in the last decade of the XX century and the first decade of the XXI century satisfy all the necessary criteria of military crimes and crimes against humanity as well as the criteria of such international crimes as torture.
All the crimes under consideration had been criminalized by customary international law for the time of their occurrence. According to the principle of superiority of international criminal law over national one, it means that that all the suspects can be prosecuted regardless whether their actions are criminalized by the internal law of the Russian Federation.
The severity of the committed crimes is such that they can’t be amnestied. There is neither period of limitation to such crimes. It means that the responsible for these crimes could and ought to be taken to account.
Military crimes and crimes against humanity were committed by both sides of the armed conflict. However, the majority of those who were responsible for them on the Chechen side of the conflict are either dead or sentenced to different terms of imprisonment in accordance with the national legislation. At the same time, the overwhelming majority of those who committed criminal acts representing the Russian state are enjoying ultimate impunity. The Russian Federation has been continuously ignoring its international obligation to prosecute such people according to the law.
Thousands or tens of thousands of victims are still denied access to justice.
Due to it, the criminal acts that are under consideration of our research could be considered under the principal of universality. According to it, any state, group of states or international community as the whole have the right to take people suspected of committing such crimes to court proceedings.
This right can be realized by states via establishment of a special international criminal tribunal (which was envisaged by the Resolution â„– 1323 from 2 April 2003 by the Parliamentary Assembly of the Council of Europe) or by creating an internationalized (hybrid, national-international) court.

Besides, this right can be realized by any state via their own court systems, regardless of the citizenship of a suspect and a victim or without any significant connection between this particular state and committed crimes. This possibility is limited by immunity of several acting state officials (for instance, the head of the government) from criminal prosecution by foreign (but not international!) courts.
Numerous detailed testimonies of the committed atrocities have allowed us to name some of those who should be the first to be taken to court in case any of the above-mentioned forms of jurisdiction is applied. It goes without saying that this list far from being complete. It contains data only on those whose alleged involvement into crimes is the most evident. However, it is important that there are names of both direct perpetrators of the low and middle ranks and organizers of such crimes as well as aiders and abettors from among military and civil officials of rather high ranks. The collected data base provide with enough information that would permit to charge some of them in accordance with the prima facie principle. It is certainly possible providing that identified witnesses and victims are ready to confirm their testimonies in court and the collected factual base is properly summarized.
The established group of alleged suspects is made up of many names of acting top officials in the Russian bodies of power. One of them, Vladimir Putin, is the head of the government de jure and the head of the state de facto. We state as a plain fact that the Dmitri Medvedev is just a decorative president and its «presidential authorities» is absolutely nominal.
Nevertheless, this factor makes impossible (for the time being!) to realize the two above-mentioned forms to jurisdiction, due to obvious obstacles. It is next to impossible to even imagine that the Russian authorities of nowadays would ever vote for establishing the Special Tribunal on Chechnya in the UN Security Council. It is highly unlikely that they would turn to the UNO with the request to establish a hybrid court or acknowledge, at least, the jurisdiction of the International Criminal Court in accordance with Article 12 (3) of the Rome Statute. Otherwise, many of them would either self-testify the following day or go on unlimited vacations to such countries of «sovereign democracy» as North Korea, Venezuela or Cuba.
Considering the aforesaid, victims and human rights organizations have the only legitimate way to seek justice by starting to prepare cases for the future international court cases and simultaneously demand that offenders be taken to account via criminal courts of those states that have developed legislation on the universal jurisdiction.
Today, the power of those who commit crimes in the North Caucasus and viciously trample seeds of liberty on Russia seems unshakeable. However, in the course of two years while the book was being developed, the opposition movement has emerged in Russia. Not a sham opposition which has got used to receiving endorsement from their «opponents» in the Kremlin but the one which deservedly denies legitimacy of the current regime and seeks to return to public politics. It is undeniable that it is still weak. However, the wheel of history is turning faster and faster. Forces that are drawing sarcastic smiles of skeptics can become a real force in future. It is very important to have reliable evidence in our hands and clear vision of the mechanisms of prosecution of offenders in courts at the time when we’ll get a real possibility to bring the criminals to justice. In this regard, the authors propose their concept of implementing the jurisdiction on the crimes that are considered in the study in the form of a hybrid national-international tribunal, modeled after the Special Court for Sierra Leone.
At the same time, the conclusions derived from this study raise issues that need to be resolved (or start to be resolved) already now. They should be addressed to a number of public people and organizations.
а) To international organizations
The authors are addressing international and inter-parliamentary organizations of democratic states with the proposal to set up an authoritative permanent commission to establish facts. It is clear that we don’t mean any usual «monitoring commission» the work of which results just in reporting many of which het forgotten the next day after they are considered. As a matter of fact, we refer to a long-term work aimed at thorough documenting the committed crimes.
The evidence has to be collected and processed in a way that it becomes acceptable for consideration by criminal courts.
It also has to be brought into the single data base.
It is highly improbable that the Russian authorities will agree to cooperate with such Commission. We are fully aware that the Commission won’t be able to conduct any effective investigation on the site of the events in the near future. On the other hand, (a) outspoken non-governmental organizations will readily cooperate with such a commission by providing the Commission with all the collected data base and NGOs will be also capable to conduct «field research» in the North Caucasus following the standards that the Commission might set (possibly, they might carry out their work on behalf of such Commission on a specially issued mandate); (b) victims and witnesses, including representatives of the vast Chechen Diaspora abroad; (c) and possibly moderate and Europe-oriented Chechen leaders based abroad.
The activities of such Commission should not be limited by definite temporal frame. Its aims would be to thoroughly and patiently conduct investigation into the crimes, to establish a unified data base and possibly to undertake necessary measures to prosecute the alleged suspects. It would be possible, first and foremost, if they move to stay, live or are just expected to turn up abroad, especially in the countries – members of the European Union and other states of democracy that have introduced norms of the universal jurisdiction into their domestic legislations. It goes without saying that the intermediate results of the work of such a commission should be summarized in regular reports (annual, preferably).
It will contribute to developing policy of the international community in regard to alleged criminals. However, part of
the collected information has to be strictly confidential to provide victims and witnesses with the necessary level of security and ensure the efficiency of possible prosecution of the suspects.


Obviously, such activities would require significant funding (including from private resources), as well as involvement of specialists of high level in the field of international criminal law and national legislations of particular countries.
b) To governments and judicial authorities of democratic states
The authors are calling upon governments and judicial authorities of democratic states to apply mechanisms of universal jurisdiction more frequently against people suspected of committing international crimes, also in the course of the Russian-Chechen armed conflict. We also hope that these politicians will be more outspoken with regard to their stand on people suspected of such crimes.
с) To Russian, foreign and international non-governmental human rights organizations Assuming that our appeal might not be supported by the authorities of the international community, due to the political sensitivity of the issues, we are once again calling on our colleagues to establish a special non-governmental body the purpose of which would be thorough documenting of the crimes and developing indictments to prosecute alleged criminals both through international or hybrid courts established in a proper manner (in remote perspective) and through courts of the states that have well-developed legislation on the universal jurisdiction (in the near future).
While creation of the international tribunal or a hybrid national-international court can be considered by such a body as an ultimate task, the collected evidence may form the basis for prosecution under principles of the universal jurisdiction. It is important, at least, to create the situation as soon as possible in which perpetrators won’t feel secure and possibility of criminal prosecution would be as something like Damocles’ sword for them. Drawing a new wave of international public attention to the crimes both committed and still being committed in the North Caucasus would be another result of this strategy.
Such a body may be organized as a permanent committee, a coalition of NGOs, and finally as a separate independent NGO established and supported by all project participants. Universities, law schools, professional organizations and lawyers’ guilds can be also founders or actual participants of such a body.
In our opinion, such a body should be established even if inter-governmental and inter-parliamentary organizations would support our proposal. The parallel existence and interaction of two agencies of inquiry – non-governmental and international – will, at least, push the latter to more efficient operation and serve as a possible obstacle for taking deci-
sions that are dictated not by law, but by consideration of «real politick».
We think that such a body should carry out parallel work in the following areas:
– Collecting and securing evidence of crimes, including written, certified and signed testimonies (possibly, notarized) backed up by video testimonies of victims and witnesses of the crimes; death certificates; medical certificates and other medical documents; photos and video footage, etc. Collecting and fixation of evidence has to be organized both inside Russia and abroad, in countries where Chechen have got asylum;
– Continuation of a systematic analysis of open sources of information on allegedly responsible individuals, military formations, headquarters and command bodies engaged in perpetrating of crimes;
– Developing a unified database of crimes, including criminal acts committed during the «first» Chechen war of 1994-1996 as well as criminal acts committed within the context of the conflict in the territories adjacent to Chechnya and in places of detention and deprivation of liberty in other regions of Russia. We believe that the contextual and component method used in this study can become the basis for the methodology for further research. It has to be adjusted for geographical and temporal coverage. Statistical tables developed by our research team can be used as basis for developing a unified database. The database should contain all available evidence and other information on each specific crime, groups of crimes and pattern of criminal conduct as well as on individuals and units involved into their commission. In order to protect victims, witnesses and information itself, this unified database should be developed outside the territory of the Russian Federation, possibly in the premises of some NGO involved into the implementation of the project or one of the universities. All the originals of the obtained documents should be also submitted there.
– Developing possible strategies of prosecution through an international or hybrid tribunal which can be established in future or through national courts of the states that have relevant norms of legislation based upon principles of universal jurisdiction;
– Preparing cases on the episodes perspective for their realization in the countries with the relevant legislation on the universal jurisdiction; their implementation in courts and investigative bodies of these states, including in case when suspects stay in its territory or are expected to come there. This is the most difficult part of the work as it requires application of the language (wording) of a national legislation (both material and procedural), translation of all necessary
documents into a national language, involvement of local lawyers, etc. To develop this direction of the project implementation, it will be necessary to create a broad international network based on national human rights NGOs, universi-
ties, legal organizations, private companies, etc. Obviously, it will be necessary to undertake an enormous effort to create
a bank of cases which can be developed in different countries depending on a specific situation;
– Developing regular public reports about results of the work (omitting information which can harm victims and witnesses or affect efficiency of a developed indictment;
– Promoting principles and mechanisms of international justice, universal jurisdiction and raising awareness.
The last point raises the issue of establishment of an international network of human rights organizations, groups of victims, and experts in the field of international and national criminal law in order to promote and contribute to the implementation of the universal criminal justice. Given the rapid development of the international criminal law and universal jurisdiction in recent years, we consider this task to be timely and feasible. There are tens of thousands of victims of war crimes, crimes against humanity, torture, ethnic cleansings and genocide scattered all over the world. Some of them are united in their own groups of support and organizations (such groups exist in Chechnya too, including the public association of victims of a «mop-up» in the settlement of Novye Aldy which took place on February 5, 2000).
Some of them have acquired unique positive experience in reaching justice (as in Chile, Argentina, Bosnia and Herzegovina). The established network on Chechnya might deal with such issues as combining the efforts of such groups, exchange of experience, coordinating the efforts, inviting outstanding lawyers and outspoken human rights organizations for cooperation, developing a unified strategy of combating impunity, interacting with the International Criminal Court, national and hybrid courts.
It is obvious that it will be possible to achieve any tangible results only if activities of such international network are properly coordinated. We have to point out that the planned work is unique in the history of the international human rights movement in either its objectives or envisaged scale. The only analogue is disinterested participation of dozens of students and lawyers in the UN Commission on the crimes in the Former Yugoslavia, established in accordance with the Resolution â„– 780 of October 6, 1992. Actually such an organization will have to assume the tasks of several departments which there are in the structure of international tribunals, including the office of attorney (to the extent it is possible within the framework of mechanisms of public inquiry), department on victims and witnesses, of media and information, etc. It is also clear that it will take more than one year of joint effort of a broad coalition of national and international human rights groups.
However, the authors believe that it will be possible to start the campaign of «tracking down» alleged war criminals in some three or four years. It will be comparable with the scale of activities of the «Documentation Center» by Simon Wiesenthal. We believe that the human rights community should not be afraid to challenge such ambitious tasks.
d) To the PACE
If the Parliamentary Assembly can’t find it possible or timely to establish the fact-finding commission that we have proposed, the authors are turning to the deputies to, at least, support the work of the non-governmental body referred to in the preceding paragraph. Especially as its work will be aimed at implementation of the PACE Resolution â„– 1323.
Such support could be expressed in a text of one of resolutions concerning the human rights situation in Russia. It would be also something like a «shield» to protect those who will participate in public inquiries in Russia.
We are also turning to the bodies of the Council of Europe to provide this initiative with the necessary financial, logistic and any other support.
f) to the Russian opposition The authors believe that the court prosecution of individuals responsible for committing international crimes in the context of the armed conflict in Chechnya as well as any other brutal offences of human rights in other contexts should become one of the key issues for the democratic opposition in Russia. The authors think that development of mechanisms of such prosecution (like the Charter of a Special Court or a special law regulating its work) must become the subject of legislative activities of the organizations and coalitions which are in opposition to the regime. The authors are ready to participate in development and discussion of such law bills as well as inviting specialists and experts to act as consultants.