Introduction.

“When grief-stricken, hold your head high. Bow your head before other people’s grief.”

-         A Chechen proverb

The conflict in Chechnya remains as “one of the most extreme cases of the complex and painful process of secession.”[1] Secession is defined as “the fact of an area or group becoming independent from the country or larger group that it belongs to.”[2] In this context, Chechnya, in all its struggle, is pursuing to establish an internationally recognized state by separating itself from Russia.[3] 

What drive Chechnya towards partition can be understood when one would like to study the historical context of this conflict and the nature of its people. Roman Khalilov who is acting as the head of the Political Department of the Chechen Foreign Ministry addresses this issue by stating that, “The reasons why the Chechens want to create their own state is clear. For centuries, Chechens have been victimized and persecuted by Russian authorities. Russian czars in the 17^th, 18^th and 19^th centuries, Bolsheviks in the early 20^th century, Stalin in the mid-20^th century, Yeltsin in the 1990s and now Putin, they all have had the same policy towards the Chechens. The Czarist regime in Russia was replaced by a Bolshevik one in 1917, that in turn was replaced by a so-called ‘democratic’ regime in 1991. And yet, the Chechens felt little difference. They have always been victims of Russian imperialistic policies. The Chechens have been given only two options: to become Russians by assimilating to the Russians and accepting “Russian moral” (as General Shamanov put it) or to die as Chechens. We have always chosen the second option. Therefore, what the Chechens want to achieve is security. Under the current world order, only statehood is able to provide security for the Chechens. Thus, this is the aim of our struggle, nothing less than full independence is acceptable.”[4]

As much as the issue of secession is being contended, the conflict is also being portrayed to the rest of the world as a destructive war, which “many experts evaluate as unprecedented since World War II because of its catastrophic outcome.  For example Medicins Sans Frontiers labeled it as ‘world’s cruelest war’.”[5]  Western criticism always has always put the blame on the Russian handling of the war. But recent world events that drive the anti-terrorism war provided an avenue for Moscow to “silence what Western criticism there was.”[6] Fareed Zakaria, who is editor of Newsweek International wrote, “Thank goodness for moral clarity. President Bush’s black-and-white picture of the war on terror has apparently made sense of Russia’s complicated struggle with the Chechens. The White House offered its wholehearted support to President Vladimir Putin in the aftermath of the Moscow theater siege, despite accounts of a heavy-handed Russian operation that had little regard for the lives of the hostages or the terrorists. (the latter were shot dead despite being unconscious.) But that’s all understandable. Russia is, after all, fighting terrorism.

Bush’s spokesman, Ari Fleischer, revealed that, ‘the president’s first reaction [to the events in Russia] is sorrow that other nations around the world are being victimized  by terrorist.’ The notion of Moscow as victim in this conflict is strange.”[7]

It is really strange since all the while the Russian has been accused of barbaric behavior in the Chechen war. Since international law on the law of the war governed the conduct of war, hence weather Russia is really a victim can be analyzed historically by the application of this law.

Therefore, the aim of this paper is to explore the justification of Chechnya to pursue secession from Russia in the lights of international law. This will be conducted by analyzing the historical context of the struggle, Russian treatment towards his Chechen subjects and the application of international law with regards to secession.

The conclusion derived from this analysis will be assessed in respect to the current international community standing on this subject.

Historical Context of the Secession.

“Take no step forward before you’ve seen where you go, utter no word before you’ve taken a look at where you’ve come from.”

                                                                        -A Chechen proverb.

            Chechnya is situated on the Russia’s southwestern border (figure 1), in the eastern part of Northern Caucasus.  It is surrounded by Georgia, Dagestan, Ingushetia, Northern Ossetia and Stavropol Territory. They are all part of Russian Federation.

            Historically, “the Chechens have evidently been in or near their present territory for some 6000 years and perhaps much longer; there is fairly seamless archeological continuity for the last 8000 years or more in central Dagestan, suggesting that the Nakh-Dagestanian language family is long indigenous.”[8]

The Chechens always identify themselves as Nokhchii and speak a distinct language which belongs to the Nakh group of Caucasian languages.[9] Ninety seven percent of them also speak Russian as their second language. They are addressed as “Chechen” by the Russian. Historically, the name “Chechen” has been assigned by the Russian in connection with the village of Chechenaul, a place where the Russian were defeated by the Nokhchii tribe in the Russian expansionist war.[10]

                                            Figure 1: Regional Map of Chechnya.[11]

            “In the history of the difficult relations between Chechen and Russians, two episodes are central: the War of the Caucasus (in the 19^th century) and the deportation of Chechen by Stalin to Kazakhstan and to Kirguizstan (1944-1957)…The first contacts between Chechen and Russians date to the early 18^th century.”[12] Throughout the conflicts which developed into the Caucasian War of 1817-64, the Chechen “have never undertaken the battle[s] except in [self] defense. The Russian conquest of the Caucasus was difficult and bloody, and the Chechens and Ingush with their extensive lowlands territory and access to central pass were prime targets and were among the most tenacious defenders.”[13] Grozny was founded by the Russian during this Caucasian War to serves

                                             Figure 2: Map of Chechen Republic[14]

“as one of a number of fortresses from which they waged a ruthless and destructive campaign.”[15] This period witnessed savageness of Russian conducts of the war. Villages were destroyed, civilian population were deported, exiled or slaughtered. Russian finally took Chechnya in 1858. Consequently, many Chechen become refugees who migrated or were deported to the Middle East, especially to Ottoman Empire. “Sporadic resistance to Russian rule continued and with the coming of the Russian Revolution a Chechen Oblast                          

(autonomous province) was established in 1922. It merged with that of the neighboring Ingush in 1934 and became a Soviet Republic in 1936, though Stalin’s purges of that period cost the lives and liberty of thousands of Chechens and did nothing to win their support as war with Germany loomed…In 1944, Chechnya paid a shocking price for continued defiance of Russian rule which, Stalin charged, went so far as collaborating with the German invaders. On Feb. 23 and 24, 400,000 Chechen and Ingush people—almost the entire population—were rounded up and deported, mostly to Kazakhstan. 30-50% of them are estimated to have died within the year—one of the most devastating incidents of ethnic cleansing in the 20^th  century. Yet, amid the turbulence of the war, the episode went largely unnoticed outside the region. In the issue of July 8,1946, TIME sourly noted: ‘The Soviet Union has a social system of its own but borrows from others…from tribal jurisprudence, group punishment for individual guilt…Because ‘many’ Chechens and Crimean tartars fought on the side of Germans and the ‘main mass of the population…did not give opposition, their ‘autonomous’ republics were expunged by Moscow. Charged with treason, sabotage and collaboration, an estimated 400,000 men, women and children were driven from the land on which their ancestors had lived for untold generations, and ordered to trek eastward. Where? Nobody knew—probably to the vast Kazak steppes beyond the Caspian Sea.’ Only with the passing of Stalin did Russia begin to acknowledge its inhumane crime against the Chechens.”[16] In 1957, the Chechen nation was allowed to return to their homeland. There they found ruined houses, destroyed villages, wrecked mosques, and strangers (Russian and Georgian) occupy their homes and farms.[17]

            Since 1990, there has been an active pro-independence movement within Chechnya and with the breakup of the USSR in 1991, Chechnya tried to break away by declaring its independence and proclaiming it as “The Chechen Republic of Ichkeria”. That prompted the 1994 Russian clampdown and a brutal war in which some 100,000 people were killed, mainly innocent civilians. Boris Yeltsin, who was the Russian president during that period had always manipulated the war in Chechnya for his political advantage. But eventually the war turns its table and become an “unmitigated disaster for Yeltsin personally and for Russia generally…Politically, the war only deepened Chechen enmity toward Moscow, making it all but inconceivable that Chechnya will never become a normal ‘subject of the federation.’ It also dealt a severe blow to Russia’s international prestige, placed additional burdens on an already strained budget, and badly damaged Yeltsin’s approval ratings.”[18]

                                        Figure 3: Russian Penetration into Chechnya

            On 12 May 1977, Yeltsin signed a peace accord with Grozny. “Entitled ‘Treaty on Peace and the Principles of Mutual Relations between the Russian Federation and the Chechen Republic of Ichkeria,’ the terse agreement included only three provisions: the first stipulated that both sides had ‘renounced forever (navsegda) the use of force and the threat to use force in resolving all disputed issues’; the second affirmed that they both agreed ‘to construct (stroit’) relations in accordance with the generally recognized principles and norms of international law, and to deal with one another on the basis of specific agreements’; while the third indicated that the treaty would ‘serve as the basis for additional treaties and agreements on the entire complex of mutual relations.’….Having won a military victory against improbable odds, and having suffered enormous losses in defeating an invading army, the Chechens have understandably concluded that their republic is now defacto, if not de jure, independent.”[19]

            The peace accord only survived for two years. When Vladimir Putin won the Presidential election,[20] he chose to reverse the peace accord by sending 80,000 Russian troops to invade the republic.

            As for the situation in Chechnya today, it can be vividly pictured by Anna Politkovskaya’s  article in a Russia newspaper, Novaia Gazeta:

            “Chechnya is an isolated enclave within Russia, a 21^st century ghetto. No one may freely enter or freely leave – neither men nor women; neither children, nor the old. Military checkpoints are everywhere. In order to pass these checkpoints, civilians must place a form ‘Form # 10’ (a 10-rubble bribe) in their passport. Without such bribes, soldiers might shoot you in the back or simply detain you, the consequences of which are also usually fatal.

            The most characteristic feature of life in Chechnya today is the uncontrolled blizzard of bullets and shells all around you. No one is safe. Any discussion of human rights is silly: Such rights simply do not exist. As Sultan Khadzheiv, one of the few surgeons remaining in Chechnya, stated, Chechnya is a place where some people can do anything they like, while the rest have to put up with it.

            In this drama, the leading roles are played by the military and the supporting roles by the civilian population. As for the fighters and other militants, they are nothing more than extras, providing the necessary background and scenery for a dirty little war.

            A brief look at the events on a typical day this month illustrate the point. Nov.4: Federal troops at a checkpoint open fire on a passing tractor. Fifty-two-year old tractor driver Sultan Suleimanov and his assistant, 42-year-old Akhmed Sadullayev, are lucky. They are in intensive care, but they are alive.  While proceeding along a road bordering the town of Akhchoi-Martan, a military column opens fire on a roadside café. A 19-year-old waitress, Larisa Bugaeva, a refugee from Grozny is killed immediately; another waitress, a 30-year-old Larisa Khatimova, is seriously wounded and is taken to the intensive care unit. The column, meanwhile, continues toward the mountain without even slowing down.”[21] This make one wonder whether the Russian are just in their campaign in Chechnya, whether law of war is adhered to by the invading forces.

Jus Ad Bellum, Jus In Bello and Human Right Abuses.

If Moscow will find a way to kill the very last Chechen, then Moscow will not stop for anything. They understand that the only way you [they] can bring us to our knees is by the complete annihilation of our nation.”[22]

                                             - Dzhokhar Dudayev (killed in Russian missile attack which homes on his mobile phone signal on 21^st April, 1996)

            The Russian justified that they have the right to go to war in order to preserve their territorial boundary. The justification is more pressing when the issue of security and economics are put into the equation. Hence the official reason stated by Russia “is to stamp out Islamic guerilla who in summer [1999], had launched a separatist insurrection in neighboring Dagestan, whom Moscow blames for a series of terrorist bombings inside Russia [some speculations pointed out that these are the provocation carried out by Moscow to rally public support for the invasion[23]]. But Moscow is well aware that President Mashkadov has no control over the guerillas operating from his increasingly anarchic country; in fact, they have demanded his ouster. The full-scale invasion therefore seems in part an opportunity for the Russian military to redeem itself from what was a humiliating failure in the last Chechnya war.”[24] But that reason that does not stop there. The main goal of Moscow decision to attack Chechnya back in December 1994 “was to ensure control of the oil pipeline which runs from Baku, via Grozny, the Chechen capital, to the Russian city of Tikhorestsk. The pipeline ends at the Russian Black Sea port of Novorossiysk, designed by Russia to be the terminal for the purposed Kazakh and Azerbaijani pipelines.  In addition, Grozny boasts a large refinery with a processing capacity of 12 million ton per year.”[25] But even if jus ad bellum is on the side of the Russian, the jus in bello tells a different story. The conducts of the Russian Federal Forces in Chechnya are very gruesome. Consider some of the Russian soldiers’ blatant confessions on their crime in Chechnya:

·        “I remember a Chechen female sniper. She didn’t have any chance of making it to the authorities. We just tore her apart with two armored personnel carriers, having tied her ankles with steel cables. There was a lot of blood, but the boys needed it.” – Boris, Russian soldier.

·        “We would also throw fighters off the helicopters before landing. The trick was to pick the right altitude. We didn’t want them to die right away. We wanted them to suffer before they died. Maybe it’s cruel, but in a war, that’s almost the only way to dull the fear and sorrow of losing your friends.” – Boris, Russian soldier.

·        “It’s much easier to kill them all (Chechens). It takes less time for them to die than to grow.” – Valery, Russian personnel officer.

·        “Our hatred is against all Chechens, not just the individual enemies who killed your friends.” – 23-year-old Russian Army officer.

·        “Our commander told us all the time, ‘There’s no such thing as Chechen civilian.” – Russian conscript[26]

“Russian and Western human rights group have extensively and meticulously documented hundreds of war crimes by Russian troops, including extrajudicial executions, torture, extortion and reduction to rubble of Chechen towns with indiscriminate bombing an shelling. A typical Russian “military operation” in Chechnya consists of invading a village or town, rounding up all of its inhabitants and separating out men and older boys for detention in open pits. Most are released to their families in exchange for bribes, but many are tortured and some are summarily executed, their bodies left at dumps or sold back to relatives.”[27]

The summary from the Russian President’s Commission on Human Rights report indicated that the war in Chechnya is considered “as an armed conflict not of an international nature, which is covered by Article 3 in all four Geneva Conventions, dated August 12, 1949, and by the Protocol Additional to the Geneva Conventions and Relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II). The Russian Federation ratified these agreements and is bound by their provisions regardless of whether they have been incorporated into domestic legislation.”[28] This report, which addressed the  1994-1995 Chechnya conflict listed down six major areas of human right violation by the Russian Federal Forces:

·        “The most flagrant violation of humanitarian law regarding the protection of victims of non-international conflicts has been the massive assault on the life and physical integrity of the civilian population.”

·        “Deliberate attacks on civilian targets [which] are a gross violation of international humanitarian law.”

·        “Kidnapping, the detention of people without due cause, and execution without judicial procedure.”

·        “Throughout the armed operations in the Chechen Republic, the federal forces widely applied the principle of collective guilt and collective punishment which is expressly prohibited by Protocol II of the Geneva Conventions.”

·        “The unlawful detention of civilians, harsh and degrading treatment of detainees, and the use of torture [which] are serious violations of humanitarian law and ethical principles.”

·        “Looting and destruction of civilian property has been widespread in the combat zone.”[29]

Russian complete disregards to the terms of all agreements that they signed on the highest level, the cruel war and the gross abuse of human rights, makes one wonder why does the Chechen struggle for its independence does not received a favorable response from the international society. The answer may lie in the conflict of “two foundational principles of international law: the principle of self-determination of peoples and the principle of the territorial integrity of states”.[30]

The International Law on Secession.

“Two enemies can hardly live under one roof.”

- A Chechen proverb.

            “No area of international law is more confused, incoherent, and unsatisfactory than the law of self-determination.”[31]  This incoherency lies in the fact that the law affirms at the same time the inalienable right of self-determination that peoples have and the right of existing states (its sovereignty) to maintain their territorial integrity. The international law also lacking the criteria to know when a self-determination or secession claim is sound. As R. Teson observes, “An international lawyer confronted with a secessionist movement reasons as follows. If the secessionists win, then they form their own state, which third states must recognized because it is effective (i.e., the new government effective exercise political power over the population in the territory), and the right of self-determination has been exercised. If the government wins, then there is no new state, third states ought to refrain from recognition because the rebels have no effective government, and the right to territorial integrity has been vindicated. As a consequence, if our imaginary lawyer is consulted in advance about the dispute he has to say that there are no preexisting principles and that the outcome can only be decided in the battlefield! In my view, this is not law but antilaw. Such unconditional surrender to the most brutal realities of power politics has no place in a philosophy of international law: we want to know whether or not secessionist are justified in their demands, regardless of whether or not they win the struggle.” In conducting the analysis on the philosophers and political scientist’s approaches to fill this gap in international law, Teson comes to a conclusion that “there are three factors to be considered in the moral evaluation of self-determination claims. The first is the moral urgency to escape serious political injustice against a group. In this case, self-determination, autonomy, group rights and even secession may be the only viable forms of political reorganization to end the injustice. The second is need to remedy past territorial injustice against the group…Political injustice occurs when members of the group are denied human rights; territorial injustice occurs when the group’s governance over the territory has been forcibly replaced by outsiders…The third factor is the need to take into account the legitimate interest of third parties, in particular, of people in the parent state. Those legitimate expectations of third parties, however, ought always be either moral reasons (e.g., a fear that larger autonomy for the group would impair the democratic institutions in the parent state) or strong prudential reasons (e.g., a danger that larger group autonomy will jeopardize a vital food supply).”[32]

            Looking back at the Chechen secessionist struggle, the first factor qualified in this analysis since the current and historical evidence displayed that the Chechen subjects are always  being victimized by the Russian (and previously Soviet) government. Since the principle responsibility of a state (in the concept of an international society), is to provide security and welfare to its citizen or subjects, the breach of this principle or the inability to honor it, justified the demand of the afflicted for self-governing. The aggression and occupation carried by the Russia on Chechnya territory and forcibly annexed it to the Russian empire also substantiated the claim that there is a pressing need to address the issue on the territorial injustice. As for the third factor, availability of natural resources within Chechnya, or the necessity of oil pipeline routing via this territory does not justified the denial of its independence, since it can be overcome by bilateral agreement or what ever trade mechanisms which exist within the international society.

Conclusion.

“A river may change its course”

                                                                    - A Chechen proverb.

Given the historical context of the Chechen’s struggle, the forced annexation with Russia, the repetitive inhumane treatment by Russian on his Chechen subjects, which include the genocide carried out by Stalin and the latest attempted genocide[33] by Russian forces, with the application of the concept concluded by Teson, the Chechen has the very right to secede within the framework of international law.

But this right has not been honored by the international community since “the international community default position is overwhelmingly in favor of territorial integrity, not self-determination.”[34] Moreover the international community does not wish to “create ‘a moral hazard’ whereby the legitimization of secession in certain cases induces others to launch wars of secession elsewhere.”[35]  This is more so for the states that already facing “active or potential separatist threats within their own borders.”[36] Fearful of severed diplomatic relation with Russia also stopped many states from proclaiming diplomatic recognition of Chechnya independence.[37]

This disjuncture between the right according to the law and the right to apply the law, characterizes the international law in the absence of sole enforcement authority. As the tragedy of Chechen nation attracts worldwide attention, this issue will certainly become a subject of future debates among historians of modern history, academics of International Relations and Lawyers of International Law.[38]

Written by Mej Abdul Latif Mohamed TUDM for International Law And Organization Seminar Paper. 

Microsoft word count: 3805 words.

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