CIVIL AND POLITICAL RIGHTS IN POST-WAR CHECHNYA

In several respects Chechnya requires urgent reform in order to meet with standards of respect for basic rights. There is reason to fear that the legacy of wartime cruelty may leave its stamp on Chechnya's criminal justice system. In the first few weeks after the war ended, for example, Chechen field commanders summarily executed a handful of people for a variety of suspected crimes. The Chechen criminal code currently allows for an alarming level of violent punishment, invasions of privacy, and violations of other basic, internationally recognized human rights. In addition, one must recognize the especially vulnerable position of those ethnic Russians who remain in Chechnya. While the present report does not address this topic future reports most certainly will.

Post-war Summary Executions

The OSCE Assistance Group has tended to downplay credible reports of post-war summary executions, characterizing them as the fighters "settling personal accounts," overlooking the responsibility of the Chechen government must face to punish crimes committed by its forces. Memorial reported to Human Rights Watch/Helsinki convincing evidence of the summary execution of Amir Zagayev, head of the Vedeno district under the Zavgayev government, in early September, 1996.81 Memorial also reported that Chechen fighters summarily executed a husband and wife in Chernorechiye in August, allegedly for having provided information to Russian forces concerning their neighbors and about Chechen fighters in the area. Four other summary executions - including of two Chechen women - by Chechen fighters targeted looters and those suspected of looting. In one case, a Memorial member witnessed a fighter shooting an unarmed suspect in the back and then in the head after the suspect had fallen to the ground. In a more recent case, towardsthe end of September, fighters detained Vladimir and Galina Shovchenko, residents of Ulitsa Krayevaya in Grozny, for interrogation at the DGB for allegations of looting and also allegedly concerning their son, who worked as a kontraktnik in Chechnya. The couple was never seen again, and extremely reliable sources believe they had been executed.82

Aslambek Ismailov, co-commander of the Grozny central joint kommandatura, acknowledged to Memorial not only that looters were summarily executed during the August fighting in Grozny but that he had headed a military field court, created under a decree issued by Yandarbiyev on August 12, that executed twelve people for aggravated looting. This court ended its activities when the joint kommandaturas were created following the Khasavurt agreements.

Chechnya Minister of Internal Affairs Kazbek Makhashev dismissed the problem of summary executions directly after the war as "myth."

They were sent to the kommandaturas. We did not shoot marauders, we just arrested and detained them. During the war the Ministry of Internal Affairs was functioning, DGB, the military procurator and the military tribunal, all functioning. They did not stop for one minute. You have not been informed properly. The general procedures were also functioning, as well as DGB. There were no violations.83

This categorical denial, combined with the lack of any plans to punish their perpetrators, cast a pall on the future of respect for human rights in Chechnya is law enforcement structures. While the summary executions were isolated incidents rather than a systematic practice, they nonetheless set an example of arbitrary cruelty untenable under international human rights law.

The Chechnya Criminal Code

Law enforcement is currently based on the constitution of Chechnya, Chechen laws and the laws of the Russian Federation that do not contradict the Chechen constitution.84 The December 17, 1996 murder of six delegates of the International Committee of the Red Cross, the subsequent murders of elderly Russians and a rash of kidnappings since the end of the war are but the most tragic and extraordinary examples of what many believe to be a severe crime problem in Chechnya. Chechen authorities understandably seek to "tak[e] drastic measures to ensure law and order and crack down on crime in the republic,"85 but the legal basis for such efforts, the new Criminal Code of Chechnya,86 includes many provisions that violate the ICCPR, the Helsinki Final Act, the International Convention Against Torture, and other human rights instruments.87

First, it prescribes for capital punishment-which Human Rights Watch as a policy opposes in all circumstances - for at least eight crimes. Moreover, the criminal code (article 27) specifies types of executions that inflict horrible pain and suffering on their victims: decapitation, stoning (applicable, notably, for adultery, see article 146), or "the manner in which the criminal deprived the life of his victim" for those crimes that fall under the category of "eye for an eye"cases, i.e. if the convicted person poisoned the victim then the method of execution would be poisoning. It allows for theexecution of minors for crimes whose jurisdiction is shariat88 courts, and for "eye for an eye" cases, and no mention is made of sparing pregnant women from the death penalty.

Second, it provides for amputations of the right arm or left foot for robbery (article 167) and for corporal punishment (in the form of caning) for minors over the age of ten "for educative purposes" (article 47); for creating a public disturbance in relation to the use of alcohol (article 78); for gambling or operating gambling establishments (article 80); and a variety of other crimes including consensual sodomy (article 148), rape (article 149), indecent conduct (article 151), insulting public morality (article 152), debauchery (article 154), seduction (article 156), stealing (article 174), and robbery (article 167). These provision are in clear violation of The Convention Against Torture And Other Cruel, Inhuman or Degrading Treatment or Punishment, which obligates each each State Party to "take effective legislative, administrative, judicial or other measures to prevent acts of torture."[Article 2(1)] There are no exceptional circumstances whatsoever that may be invoked to justify torture. Torture is defined by the convention as "any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as . . . punishing him for an act he or a third person has committed or is suspected of having committed . . ."

Apostasy, defined in article 126 as "[openly] propagandizing the idea of rejecting the religion of Islam" is punishable by death in the Chechnya Criminal Code. Criminalizing apostasy is a gross violation of freedom of conscience (article 18) of the ICCPR. That only Muslims are subject to apostasy and alcohol violations means in effect that all citizens are not equal before the law, and, because such a dual system deprives Muslims as a group of their internationally protected rights and freedoms. The provision amounts to a form of discrimination against Muslims.89

The Criminal Code also seriously transgresses other fundamental rights and freedoms. Article 125 provides for a maximum six-month prison term for "publicly insulting or humiliating any religion or its symbols or its faithful." While this article seeks to protect the faithful of all religions, it makes untenable incursions into freedom of speech, guaranteed in article 19 of the ICCPR, and its vague formulation would allow it to be applied in an entirely arbitrary way.

The criminal code is an extremely disturbing document, but Chechnya officials present divergent views on it and on the degree to which it will be implemented. In a recent interview for Russian television, Minister of Internal Affairs Kazbek Makhashev made vague assurances that "measures would be taken" to provide individuals with full protection of their rights under international law.90 Makhmud Magomadov, a deputy to the procurator general, described the code to Human Rights Watch/Helsinki as having been "adopted to war conditions and applied in limited areas." He noted, for example, that while the code established shariat courts, in practice they had not yet been created. Scoffing at the Russian media for "playing up" corporal punishment, he commented, "Good people do not consider it as too brutal, however. There is a history in Russia itself of whipping or lashing as punishment." Concerning the actual use of corporal punishment, the same official stated that lashing was used in some cases in Grozny, during and after the war. He noted that, "There have not been any amputations, not one case," and "[I] don't think this part of the law will be applied."91 One local law enforcement official in Grozny, when interviewed for this report, denied having applied corporal punishmentto civilians, in particular to people who were drunk in public, contrary to earlier press reports.92 Jabrail Dadakayev, procurator of the Vedeno region, told Human Rights Watch/Helsinki that theft and hooliganism are punished in the district by caning and attempted to justify the practice by explaining measures codified by law to make sure the victim is not severely injured.

Parts of this report are taken from Russia/Chechnya: Human Rights Watch/Helsinki, "Report to the OSCE Review Conference," A Human Rights Watch Report, vol. 8, no. 16 (D), (November 1996). It was written by Rachel Denber following a research mission to Chechnya conducted by Jemera Rone and Alexander Petrov in October 1996. The report was edited by Holly Cartner and Cynthia Brown. Malcolm Hawkes provided invaluable technical assistance. We are deeply grateful to Khussein Khamidov, Victims of War and, the Memorial Human Rights Center (Hot Spots Project and the Search Project), and the Soldiers' Mothers Committee for their insights and help. Our conclusions, however, are solely our own.

Human Rights Watch/Helsinki

Human Rights Watch is a nongovernmental organization established in 1978 to monitor and promote the observance of internationally recognized human rights in Africa, the Americas, Asia, the Middle East and among the signatories of the Helsinki accords. It is supported by contributions from private individuals and foundations worldwide. It accepts no government funds, directly or indirectly. The staff includes Kenneth Roth, executive director; Michele Alexander, development director; Cynthia Brown, program director; Holly J. Burkhalter, advocacy director; Barbara Guglielmo, finance and administration director; Robert Kimzey, publications director; Jeri Laber, special advisor; Lotte Leicht, Brussels office director; Susan Osnos, communications director; Dinah PoKempner, acting general counsel; Jemera Rone, counsel; and Joanna Weschler, United Nations representative. Robert L. Bernstein is the chair of the board and Adrian W. DeWind is vice chair. Its Helsinki division (formerly Helsinki Watch) was established in 1978 to monitor and promote domestic and international compliance with the human rights provisions of the 1975 Helsinki Accords. It is affiliated with the International Helsinki Federation for Human Rights, which is based in Vienna, Austria. Holly Cartner is the executive director; Rachel Denber is the Moscow office director; Fred Abrahams, Erika Dailey, Christopher Panico and Diane Paul are research associates; Alexander Petrov is assistant Moscow office director; Maxine Marcus is research assistant; Malcolm Hawkes and Emily Shaw are associates. Jonathan Fanton is the chair of the advisory committee and Alice Henkin is vice chair.

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81 Vedeno procurator Jabrail Dakayev acknowledged in an October 15 interview with Memorial that Zagayev had been shot. Human Rights Watch/Helsinki interview with Oleg Orlov, Memorial Human Rights Center, November 4, 1996.

82 These sources wish to remain anonymous.

83 Human Rights Watch/Helsinki interview, Grozny, October 18, 1996. General Maskhadov told Human Rights Watch/Helsinki on October 17 that he did not remember whether he had issued orders for summary executions of looters.

84 Human Rights Watch/Helsinki interview, Kazbek Makhashev, Minister of Internal Affairs, Grozny, October 18, 1996

85 A citation attributed to Deputy Prime Minister Movladi Udogov, Itar-Tass, December 25, 1996.

86 The code was published in Ichkeria, a Grozny newspaper, on September 17, 1996.

87 Chechnya is obliged to observe these instruments, regardless of the republic's legal status. See above, Legal Obligations.

88 Islamic religious court.

89 For an elegant elaboration of this argument, see "a Letter by the Human Rights Observer Mission in the Armed Conflict Zone in Chechnya to the President, Parliament and Government of the Chechen Republic of Ichkeria, and to All Candidates for President and Parliament of the Chechen Republic of Ichkeria." Available through Memorial. The letter also notes that the criminal code's vague definitions of the terms "court proceedings," "crime," "state authority," and "court" allow for arbitrariness on the part of the state, that the code makes no provision for the presumption of innocence (in violation of the ICCPR's article 14) , and that it allows for new criminal laws to have retroactive force, in violation of the ICCPR's article 15.

90 Interview on Hero of the Day (Geroi Dnya), Independent Television (NTV), Tuesday, January 14, 1997.

91 Human Rights Watch/Helsinki interview, Grozny, October 20, 1996.

92 Human Rights Watch/Helsinki interview with Aslanbek Ismailov, co-commander of the Grozny Joint Kommandatura, Grozny, October 19, 1996.