The current legal status of Chechnya is undefined: Russian officials insist that Chechnya is undisputedly a subject of the Russian Federation and that Russian law must apply there; Chechen officials insist on the independence of Chechen government institutions (but are careful to state their willingness to cooperate with Russian governmental and legal bodies) and allow that Russian law may apply so long as it does not contradict Chechen law. Regardless of whether Chechnya is ultimately recognized as an independent state, Human Rights Watch/Helsinki considers that Chechen officials are obligated to uphold those human rights instruments to which Russia is a party.11 Those instruments include, among others, the International Covenant on Civil and Political Rights, the International Convention Against Torture and Other Cruel Inhuman or Degrading Treatment or Punishment, and the Helsinki Final Act.
During the armed conflict both Russian and Chechen forces were obliged to uphold Common Article 3 of the 1949 Geneva Conventions and Protocol II, to which the Russian Federation is a party, as well as customary international law. The application of these laws does not imply any recognition of the independence of Chechnya or the belligerent status of the Chechen forces; rebel fighters and commanders were, however, bound to observe these standards even though they lacked the capacity to sign the Geneva Conventions.12 Because the Chechen forces are not recognized as privileged combatants in an international armed conflict, they may be tried and punished by the Russian government for common crimes; nor do they enjoy prisoner of war status under the Geneva Conventions if captured. Russia may, however, agree to treat captives as prisoners of war, and the Chechen forces may do the same. Common Article 3, which governs the conduct of internal armed conflicts, states:
(1) Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria.
The provision goes on to list specific acts which are prohibited "at any time and in any place whatsoever" with respect to persons who take no active part in hostilities. "Violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture" is the first set of acts explicitly condemned by Article 3. Protocols I and II of the Geneva Conventions elaborate on this and other prohibited acts, such as hostage-taking, as well as the observance of "humane treatment."
In addition, Russian and Chechen forces are bound by the OSCE Code of Conduct, paragraph 36, which obliges all states involved in internal conflicts to ensure that the use of force by their armed forces "must be commensurate with the needs for enforcement" and that "armed forces will take due care to avoid injury to civilians or their property."
11 See, e.g. The Vienna Convention on State Succession in Respect of Treaties, Art. 34, United Nations Document A/CONF.80/31 of August 22, 1978, as corrected by A/CONF.80/31/Corr.2 of October 27, 1978 (treaty obligations of predecessor State continue in force in successor State formed by separation). The Human Rights Committee has taken the view that human rights treaties such as the ICCPR devolve with the territory, and that States continue to be bound by the obligations under the Covenant entered into by a predecessor state. See, "Human Rights Committee Concludes Review of Report on Hong Kong," U.N. Information Service press release, October 24, 1995.
12 The commitment made by a state not only applies to the government but also to any established authorities and private individuals within the national territory; thus they bear the same obligations to the same extent as the state. International Committee of the Red Cross, Commentary on the Additional Protocols of 1977 ( Geneva: International Committee of the Red Cross, 1987) ("ICRC Commentary"), p. 1345.