BACKGROUND

The second armed conflict in Chechnya in less than a decade broke out after Chechen rebel forces attacked neighboring Dagestan in August 1999 and, in September 1999, bomb explosions in apartment buildings in Moscow and elsewhere in Russia killed almost three hundred people. Quickly blaming these attacks on Chechen forces, Russia launched a military campaign-officially dubbed an anti-terrorist operation-in Chechnya. By spring 2000, Russian troops had established nominal control over most of Chechnya and large-scale hostilities ceased.

Since then, the conflict has primarily taken the form of ambushes by Chechen rebels and subsequent operations by Russian security forces. The Russian operations, purportedly designed to seek out rebel fighters and their supporters and ammunition depots, take various forms. Large-scale "sweeps" of entire communities (proverka registratsii po mestu zhitel'stva i po mestu prebyvania) are designed to check registration documents of all residents, whereas in "targeted operations" (adresnaia operatsia), a single household or street is checked. Both, though, share common characteristics: persons are detained without warrant, ostensibly on the grounds of verifying their identity, and with a view to determining whether they are involved in rebel activity. Persons detained in such operations are frequently held at unofficial detention facilities. They are always questioned but almost never given access to legal representation. In many cases detainees are tortured or otherwise mistreated, or executed. Authorities frequently deny that the persons detained in such operations are in their custody.

Since the renewal of hostilities in 1999, Russian forces have detained tens of thousands of civilians in this manner.³ Most are released within days or weeks. But some are never seen again. Relatives of "disappeared" victims know nothing of their fate, and lack even their remains, unless the bodies were discovered later in an unmarked grave. Human Rights Watch has documented more than two hundred cases of "disappearance" since 1999. A leading Russian nongovernmental organization, the Memorial Human Rights Center (hereafter Memorial), has documented at least 150 more. The real total is believed to be much higher.⁴ As of December 1, 2001, there were 793 outstanding cases of "missing" persons registered with the office of Vladimir Kalamanov, although the list makes no distinction between persons "disappeared" in the custody of federal forces and those who simply go missing.

Defining Forced Disappearance

"Disappearance" is defined as any situation where:

...persons are arrested, detained or abducted against their will or otherwise deprived of their liberty by officials of different branches or levels of Government, or by organized groups or private individuals acting on behalf of, or with the support, direct or indirect, consent or acquiescence of the Government, followed by a refusal to disclose the fate or whereabouts of the persons concerned or a refusal to acknowledge the deprivation of their liberty, which places such persons outside the protection of the law.⁵

"Disappearance" occurs when there is evidence of detention by government authorities at any level or with government support or acquiescence, and when authorities refuse to disclose the fate or whereabouts of the detainee.

Rising incidents of "disappearance" by states in the 1970s led the United Nations Commission on Human Rights in 1980 to establish a Working Group on Enforced or Involuntary Disappearances. In 1992, the General Assembly adopted the Declaration on the Protection of All Persons from Enforced Disappearances (the "Declaration on Enforced Disappearances"), which recognizes the practice of "disappearances" as a violation of the rights to due process, to liberty and security of person, and to freedom from torture.⁶ The declaration urges states to take "effective, legislative, administrative, judicial or other measures to prevent and terminate acts of enforced disappearance in any territory under its jurisdiction." ⁷ The declaration emphasizes that "no circumstances whatsoever...may be invoked to justify enforced disappearances." ⁸

Russia's Obligations under International Law

While the Declaration on Enforced Disappearances is a non-binding standard, the elements that make up "disappearance" are expressly prohibited under international human rights law and can be considered violation of customary international law. According to Professor Manfred Nowak, a member of the United Nations Working Group on Enforced or Involuntary Disappearances: "The act of enforced disappearance constitutes a multiple human rights violation."⁹ These rights are set out in the International Covenant on Civil and Political Rights (ICCPR) and the European Convention on Human Rights (ECHR). The Russian Federation is a state party to both treaties, and is obligated to respect them.¹⁰

Article 9 of the International Covenant on Civil and Political Rights guarantees the right to liberty and security of person.¹¹ Where a person is deprived of his or her liberty by arrest or detention they have the right under article 9 "to take proceedings before a court, in order that the court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful."¹² Further protections are offered by article 6 (right to life), article 7 (prohibition of torture), and article 17 (protection from arbitrary interference with privacy, family and home).

Similar protections are offered by the European Convention on Human Rights, which protects the right to life and liberty (article 2), prohibits arbitrary arrest and detention (article 5), prohibits torture (article 3), and protects the right to privacy and family life (article 8). The protections under article 5 of the ECHR are even more extensive than those under article 9 of the ICCPR. Detention is permitted only under narrowly prescribed circumstances. Persons detained on suspicion of having committed an offense are entitled to "be brought promptly before a judge or other officer authorized by law to exercise judicial power and entitled to trial within a reasonable time or to release pending trial."¹³

Both the ECHR and ICCPR allow states to temporarily suspend (or derogate) some of their provisions in times of national emergency, including war, but only to the degree strictly necessary under the circumstances. Under the ICCPR, the right to life and protection from torture can never be derogated whatever the circumstances.¹⁴ Other rights under the ICCPR can be derogated only where the signatory state has informed other member states through the auspices of the secretary-general of the United Nations.¹⁵ Russia has not formally sought to derogate rights in relation to Chechnya. In the case of the ECHR, protection from torture can never be suspended, and the right to life can only suspended in relation to deaths resulting from lawful acts of war.¹⁶ Other rights under the ECHR can be derogated only if the signatory state has informed the Secretary General of the Council of Europe.¹⁷ Russia has not done so.

The acts that comprise "disappearance" are also prohibited under international humanitarian law (also known as the laws of war).¹⁸ Russia is a state party to the four Geneva Conventions of 1949 and its two additional Protocols.¹⁹ Common article 3 of the Geneva Conventions, which applies to "conflicts not of an international character" (i.e. internal armed conflicts), requires that persons taken into custody, whether civilians or captured combatants, be treated humanely in all circumstances. Such persons may never be subjected to murder, mutilation, cruel treatment or torture; or the passing of sentences and carrying out of executions without a proper trial by a regularly constituted court.

These prohibitions are enumerated in article 4 of Additional Protocol II. Article 5 of Protocol II sets out the minimum standards for treatment of detainees, which includes access to relief and communication with relatives by letters and cards. Protocol II in article 6 details the due process requirements that apply to all persons detained in connection with offenses arising out of the conflict - which include being charged without delay, the presumption of innocence, the prohibition on forced confessions, and the right to an adequate defence.

Domestic Law

The Russian government has termed the operation launched in Chechnya in September 1999 as an anti-terrorist operation, grounded in the 1998 Law on the Suppression of Terrorism and the 1996 Law on Defense. The 1998 anti-terrorism law 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."²⁰ 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."²¹ These include officials from the Ministries of Defense and Internal Affairs, the security services, and other unspecified federal and local executive bodies.²²

In Chechnya, Russian forces deployed under the anti-terrorism law include 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. ²³ Police units, which are under the Ministry of Internal Affairs, are deployed to Chechnya for limited periods of time from various regions in Russia, after which they are rotated to duties outside of Chechnya. They are deployed throughout Chechnya, and in particular to Temporary Departments of Internal Affairs (TDIAs), also referred to as "temporary police precincts," which supplement, presumably for a limited period, regular police departments in Chechnya. Regular police precincts are staffed by Chechen police officers. Chechen police departments are beginning to conduct serious investigations into allegations of abuses by Russian security forces and to critique the apparent unwillingness of civilian and military procurators to pursue complaints.²⁴

The Law on the Suppression of Terrorism significantly widens the categories of officials that have a law enforcement mandate. Under the anti-terrorism law, all officials involved in anti-terrorist operations can perform random identification checks and detain for up to three hours individuals who do not hold proper identity documents.²⁵ They may enter homes, search vehicles, and perform body searches.²⁶ They may restrict or prohibit the movement of persons and vehicles.²⁷ They can use any means of communication and transportation belonging to private individuals.²⁸ Prior to the adoption of the anti-terrorism law, such actions could be undertaken only by the police, as regulated by the 1997 Law on the Police. In Chechnya, these actions are being carried out by military servicemen of the Ministries of Defense and Internal Affairs, as well as Ministry of Internal Affairs special riot troops, who were not specifically authorized to do so under the Law on the Police, and who may or may not have had prior experience or training in law enforcement.

The anti-terrorism law does not specify the circumstances under which fundamental human rights may be curtailed, or the degree to which they may be restricted. This means that procedural provisions contained in more general laws, such as the criminal procedure code and the Law on Police, are applicable to anti-terrorist operations. Thus, officials participating in an anti-terrorist operation may check an individual's identification only when they have a reasonable suspicion that the individual has committed a misdemeanor or a criminal offense;²⁹ they may detain individuals without proper identity documents only for a three-hour period; in order to detain an individual in the context of a criminal investigation, they must first obtain an arrest warrant from the procuracy;³⁰ and they may search homes and vehicles only with an official sanction and in the presence of independent witnesses.³¹

In practice, military, police, and security service units conducting operations in Chechnya have routinely interpreted the anti-terrorism law's silence on procedural matters to mean that no due process standards should be followed at all. The procurator general of the Russian Federation on July 25, 2001 issued Decree No. 46 "On intensifying oversight of observance of citizens' rights during identity checks at permanent or temporary residence in the Republic of Chechnya."³² As noted, the decree regulates the conduct of sweep operations and is intended to reduce incidents of abuse by security forces It requires that an official from the prosecutor's office-or procuracy-be present whenever such an operation is carried out, together with a representative of the local administration, or a local religious or community leader. Whenever a person is detained in such an operation, the decree requires that the time of their detention and the name of the detention facility in which they are detained must be recorded, and that their relatives must be informed. Civilian and military procuracy officials and the commander of the United Group of Forces in Chechnya reportedly agreed on a joint directive on the decree's implementation soon after it was issued.³³

Although the decree offers some potential for curbing "disappearances" at the hands of federal forces, it has significant constraints, notably in that it does not appear to apply to "targeted" raids. Moreover if the cases of disappearance investigated by Human Rights Watch since July 2001 are indicative, the decree is being ignored regularly (see section on the response of state authorities, below).

A Note on Methodology

Human Rights Watch has conducted more than two hundred interviews with relatives of the "disappeared" in Chechnya and with victims and witnesses since 2000. The interviews for this report were carried between December 2001 and February 2002. The majority of the "disappearances" documented in this report occurred during 2001; some occurred during the last quarter of 2000 but did not come light until 2001.

Wherever possible Human Rights Watch conducts research at the site where the abuses occur. In the case of Chechnya, Human Rights Watch has been unable to obtain such access. Despite repeated requests to Russian authorities, Human Rights Watch researchers are not permitted to enter Chechnya. All Human Rights Watch interviews with relatives, victims, and witnesses from Chechnya are therefore carried out in neighboring Ingushetia.

Relatives of victims often kept copies of requests to Russian authorities for information regarding a detention. The denial by those authorities that the individual was in custody is an element of "disappearance." In many cases documented in this report Human Rights Watch inspected copies of correspondence between relatives and Russian authorities. In many cases, Human Rights Watch retained copies of this correspondence.

³ As of May 2000, the Russian Ministry of Internal Affairs publicized having detained more than 10,000 people in Chechnya. Current figures are not available. See "RIA reports results of successful crime fighting in Chechnya in 2000," RIA News Agency/BBC Monitoring, May 28, 2000.

⁴ Council of Europe, Information Documents, "Supplementary Data and information on the work of the Office of the Special Representative of the President of the Russian Federation for ensuring Human Rights and Civil Rights and Freedoms in the Chechen Republic," SG/Inf (2001) 41 Addendum II (December 14, 2001).

⁵ United Nations Declaration on the Protection of All Persons from Enforced Disappearances (A/RES/47/133), December 18, 1992.

⁶ Ibid.

⁷ Ibid, Article 2.

⁸ United Nations Declaration on the Protection of all Persons from Enforced Disappearances (A/RES/47/133), December 18, 1992, Article 7.

⁹ United Nations Commission on Human Rights, "Report submitted by Mr. Manfred Nowak, independent expert charged with examining the existing international criminal and human rights framework for the protection of persons from enforced or involuntary disappearances, pursuant to paragraph 11 of Commission resolution 2001/46." (E/CN.4/2002/71), January 31, 2002), p. 36.

¹⁰ 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. The Russian Federation ratified the ECHR on May 5, 1998.

¹¹ 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."

¹² ICCPR, Article 9(4).

¹³ ECHR, Article 5(3).

¹⁴ ICCPR, Article 4(2).

¹⁵ ICCPR, Article 4(3).

¹⁶ Article 15(3) ECHR states: "Any High Contracting Party availing itself of this right of derogation shall keep the Secretary General of the Council of Europe fully informed of the measures which it has taken and the reasons therefore. It shall also inform the Secretary General of the Council of Europe when such measures have ceased to operate and the provisions of the Convention are again being fully executed."

¹⁷ ECHR, Article 15(2).

¹⁸ The applicability of international humanitarian law to the conflict in Chechnya has been recognized by the U.N. Commission on Human Rights, in resolutions of 2000 and 2001. See United Nations, Situation in the Republic of Chechnya of the Russian Federation, E/CN.4/RES/2001/24, April 20, 2001, and United Nations, Question of the Violation of Human Rights and Fundamental Freedoms in Any Part of the World, E/CN.4/2000/L.32, April 12, 2000.

¹⁹ The Geneva Conventions of August 12, 1949 were ratified by the Union of Soviet Socialist Republics on May 10, 1954 and the Additional Protocols were ratified on September 29, 1989. As successor state to the Soviet Union, the Russian Federation has formally indicated that it is a party to all international agreements in force signed by the USSR.

²⁰ Federal Law on the Suppression of Terrorism, enacted on July 25, 1998, Article 3.

²¹ Ibid, Article 10.1.

²² Ibid, Articles 6 and 7.

²³ OMON stands for Otriad Militsii Osoboyo Naznachenia; SOBR stands for Svodnyi Otriad Bystrogo Reagirovania; FSB stands for Federalnaia Sluzhba Bezopasnosti.

²⁴ See Patrick Tyler, "Police in Chechnya Accuse Russia's Troops of Murder," The New York Times, January 25, 2002; see also Anna Politkovskaia, "Bronirovannaia Griaz': na boevykh mashinakh s zamazannymi nomerami oruduiut provokatory i marodery," Novaya Gazeta № 94-95, Dec 27, 2001 (hereinafter "`Armored Filth').

²⁵ Federal Law on the Suppression of Terrorism, Article 13(1.2).

²⁶ Ibid., Article 13(1.4-5).

²⁷ Ibid., Article 13(1.1).

²⁸ Ibid., Article 13(1.6-7).

²⁹ Article 11(2) of the 1997 Law on the Militsia.

³⁰ Article 122(1 and 2) of the Criminal Procedure Code allows for the detention of individuals on suspicion of commission of a crime without prior sanction for arrest only in narrowly defined circumstances and requires that the procuracy be informed of the detention within twenty-four hours:

1. The organ of investigation has the right to detain an individual, suspected of committing a crime for which the punishment could be imprisonment, only if one of the following criteria is met:1) the individual is caught in the act of committing the crime, or immediately following; 2) witnesses, including victims, directly identify the individual as the one who committed the crime; 3) on the body of the suspect, on his clothing, in his possession, or in his place of residence, are found clear traces of the committed crime.
2. In the presence of other information that gives grounds to suspect the individual of committing the crime, he can be detained only when the individual has attempted to escape, he does not have a permanent place of residence, or the identity of the suspect has not been established.
3. In all cases of the detention of a person suspected of having committed a crime, the investigative agency is required to write a detention report indicating the grounds, motive, day and hour, year and month, place of detention, explanation of the suspect, time of writing of the detention report, and to report in writing to the procurator. The detention report is signed by its author, as well as the suspect. Within forty-eight hours from the moment of receiving the detention report, the procurator must give sanction for either taking of the person into custody, or his release.

³¹ Article 168(3) of the Criminal Procedure Code allows law enforcement officials to conduct house searches without prior warrant in certain narrowly defined circumstances:

3. Searches are conducted according to a motivated decision of the investigators and only with the sanction of the procurator.... In cases that do not allow for any delay, a search may be conducted without sanction from the procurator but the procurator must be informed of the search within twenty-four hours.

³² Discussed in Office of the Commissioner for Human Rights of the Council of Europe, "Report by Mr. Alvaro Gil-Robles, Commissioner for Human Rights, on his visit to Moscow, September 13-14, 2001," CommDH (2001)11 (September 19, 2001), paragraph 4 and footnote 1. The decree can be found at http://www.memo.ru/hr/hotpoints/northkavkaz.htm (accessed March 7, 2002).

³³ Council of Europe Parliamentary Assembly, Political Affairs Committee, "Report: Conflict in Chechnya," Doc. 9319 (January 16, 2002), paragraph 23.