BACKGROUND NOTE ON THE RUSSIAN OPERATION IN CHECHNYA
The Russian government has termed the operation launched in Chechnya in September 1999 as an "anti-terrorist" operation, grounded on the 1998 Law on the Suppression of Terrorism and the 1996 Law on Defense. This defines such operations as "special activities aimed at the prevention of terrorist acts, ensuring the security of individuals, neutralizing terrorists and minimizing the consequences of terrorist acts."12 Anti-terrorist operations are to be directed from an operational center, headed by a representative of the Federal Security Service (FSB) or the Ministry of Internal Affairs, who may use all necessary forces of the "bodies responsible for the suppression of terrorism."13 These include officials from the ministries of defense and internal affairs, the security services, and as yet unnamed federal and local executive bodies.14
In the Chechnya operation, the Russian government has deployed Ministry of Defense troops; the internal forces (vnutrennye voiska) of the Ministry of Internal Affairs; riot police (OMON and SOBR), which are also under the Ministry of Internal Affairs; Ministry of Justice riot troops, and FSB units. The riot police units are also called "temporary police," as they are staffed by police officers who are sent to Chechnya for limited periods of time from various regions in Russia. The regular police departments are staffed by Chechen police officers-many of whom served under the various past administrations in Chechnya-who do not directly participate in anti-terrorist operations. These police departments are currently weak structures, and many Chechen police officers reportedly have neither weapons nor access to vehicles or other equipment.
The Law on the Suppression of Terrorism gives extensive powers to anti-terrorist units, while limiting unduly rights provided for in the International Covenant on Civil and Political Rights (ICCPR)15 and the EuropeanConvention of Human Rights (ECHR),16 including the rights to liberty and security of person,17 to privacy, home, family and correspondence,18 to freedom of movement,19 and to the peaceful enjoyment of possessions.20 Under the anti-terrorist law, officials involved in anti-terrorist operations can perform random identitification checks and detain indefinitely individuals without proper identity documents.21 They may freely enter homes, search vehicles and perform body searches.22 They may restrict or prohibit the movement of persons and vehicles.23 They can use any means of communication and transportation belonging to private individuals.24
Both the ICCPR and the ECHR allow interference with these rights only under strictly defined conditions.25 Notably, the ECHR's exhaustive list of grounds for detention or arrest does not include the need to establish the identity of a person. Moreover, the law on the suppression of terrorism does not provide sufficient safeguards against abuse. It provides no indication at all as to the conditions under which and the extent to which these rights may be curtailed. The law is furthermore silent on due process that should be followed in case of interferences with these rights. Military, police, and security service units conducting the operation in Chechnya have routinely interpreted this silence to mean that no due process standards should be followed at all. Finally, the law even appears to encourage abuse of these provisions by explicitly stipulating that anti-terrorist units are exempt from liability for damage "caused to life, health and property of terrorists, as well as to other law-protected interests."26
In this legal framework, the Russian operation in Chechnya has been carried out with unprecedented arbitrariness, which in turn has led to mass violations of human rights. Russian troops have detained tens of thousands of people-most of whom were never officially acknowledged to be registered as detainees. Almost none of thesedetainees had access to a lawyer and many were held in unofficial and makeshift detention centers. Russian troops have freely entered and searched thousands of homes-frequently stripping them bare of valuables-but no official record is acknowledged to exist for the vast majority of these searches.
It is in this climate of arbitrariness and impunity that "disappearances" have become a systematic part of the Russian operation in Chechnya.
Tens of thousands of people have been detained at one point or another over the course of the current Chechnya conflict.27 The Ministry of Interior reported detaining 853 people during the month of January 2001 alone.28 Most of these people were detained for failing to have proper identity papers, or being in a place where they were not officially registered as residents.29 Many others were detained for no apparent reason and were never officially registered as detainees with the procuracy. Ministry of Interior figures do not reflect people who were detained by military servicemen, who also carried out widespread detentions.
The vast majority of the people detained were never officially registered with the procuracy, Ministry of Justice, or Federal Security Service as having been detained. Although many were detained for weeks or even months, most were released with no charges ever having been brought, or were amnestied.30 In many cases, relatives won releases by extortionate payments to those in command. Many of these detainees were never held in official detention facilities, such as the temporary holding cell (IVS) of the regular police or pre-trial facility (SIZO). To the contrary, many were kept in make-shift detention facilities such as pits in the ground.
12 Federal Law on the Suppression of Terrorism, signed into law on July 25, 1998, Article 3.
13 Ibid, Article 10.1
14 Ibid, Articles 6 and 7.
15 The Soviet Union ratified the ICCPR on October 16, 1973. Russia, as the Soviet Union's successor state, is a state party to the convention.
16 The Russian Federation ratified the ECHR on May 5, 1998.
17 Article 9(1) of the ICCPR states that "everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law." Article 5(1) of the ECHR contains a similar provision.
18 Article 17(1) of the ICCPR states that "no one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence . . ." Article 8(1) of the ECHR states that "everyone has the right to respect of his private and family life, his home and his correspondence."
19 Article 12(1) of the ICCPR states that "everyone lawfully within the territory of a State shall, within that territory, have the right to liberty of movement and freedom to choose his residence." Article 2(1) of Protocol 4 to the ECHR contains the exact same provision.
20 Article 1 of Protocol 1 to the ECHR states that "every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law."
21 Federal Law on the Suppression of Terrorism, Article 13(1.2).
22 Ibid., Article 13(1.4-5).
23 Ibid., Article 13(1.1).
24 Ibid., Article 13(1.6-7).
25 For any interference with the right to liberty and security of person, both the ICCPR and ECHR require that both the procedures and grounds for detention or arrest must be provided for by law. For interference with the other rights enumerated, both the ICCPR and the ECHR also pose a requirement of "necessity" for such restrictions. For example, article 12(3) of the ICCPR stipulates that the right to liberty of movement and freedom to choose one's residence "shall not be subject to any restrictions except those which are provided by law, are necessary to protect national security, public order (ordre public), public health or morals or the rights and freedoms of others, and are consistent with other rights recognized in the present Covenant."
26 M. Tamas Ban, M. Frederic Sudre, M. Pieter Van Dijk, "Consolidated report containing an analysis of the correspondence between the Secretary General of the Council of Europe and the Russian Federation about article 52 of the European Convention of Human Rights," SG/Inf(2000)24, June 26, 2000. The experts noted that "While the Convention allows interference with these rights under strictly defined conditions, these are not reflected in the law. Its provisions are not specific and detailed enough in order to provide sufficient safeguards against any abuse, it is difficult to see what effective remedies are guaranteed in case of excessive application of the law and the fact that the law does not contain any proportionality requirements may result in massive interferences with these rights even in circumstances where this is not warranted. Furthermore, it seems symptomatic that the law is not only silent as concerns the responsibility of the anti-terrorist units for any possible abuse of their powers, but even appears to encourage them to overstep the necessity threshold [in Article 21]."
27 On May 9, 2000, the Interior Ministry reported that 19,000 people and 10,000 vehicles were searched in Chechnya on the Victory Day holiday."Troops Check 19,000 People," ITAR-TASS news agency, May 9, 2000. Figures released by the Ministry of Interior in June 2000 indicated that 5,500 individuals were detained in Chechnya during the first five months of 2000."5,500 Detained in Chechnya This Year," ITAR-TASS news agency, June 7, 2000.
28 "Details of Russian Interior Ministry's Activities in Chechnya in January," Interfax news agency, February 1, 2001.
29 Human Rights Watch, Welcome to Hell: Arbitrary Arrest, Detention, Torture and Extortion in Chechnya (New York: Human Rights Watch, 2000).
30 Detentions that are not registered with the procuracy or Ministry of Justice are permissible only for a period of three hours under Russian law (police law). The law on suppression of terrorism permits detention for identification purposes for an unlimited period of time. This law thus provides a legal basis for informal detentions although it does not legalize secret, incommunicado detention.