New Zealand Yearbook of International Law
Following the Khasav Yourt Accord of 30 August 1996, which ended the ‘first Chechen war’, conflict broke out once more in Chechnya in 1999. Intensive fighting took place with the Russian armed forces operating in strength and using air attacks, artillery bombardment and ground forces.
Between these two periods of conflict, on 5 May 1998, the Russian Federation ratified the European Convention on Human Rights 1950 (“the Convention”) having joined the Council of Europe in 1996. It is not surprising therefore to see individual applications being made to the European Court of Human Rights (ECtHR) based on events which took place in 1999 and 2000. This paper discusses the ‘Chechen cases’, on which judgment was given by the ECtHR from 2005, and the effects of these cases in limiting the physical power of the armed forces of a State when engaged in military operations. It also considers, in this context, the relationship between two branches of international law, namely, international human rights and international humanitarian law.
It appears now to be trite to state that human rights treaty law continues to apply during an armed conflict. In three recent cases the International Court of Justice has said so. In the Nuclear Weapons Advisory Opinion (1996) the Court concluded that:
the International Covenant on Civil and Political Rights [ICCPR] does not cease in time of war, except by operation of Article 4 of the Covenant whereby certain provisions can be derogated from it in times of national emergency. Respect for the right to life is not, however, such a provision. In principle, the right not arbitrarily to be deprived of one’s life applies in hostilities. The test of what is an arbitrary deprivation of life, however, then falls to be determined by the applicable lex specialis, namely the law applicable in armed conflict which is designed to regulate the conduct of hostilities.
In the Wall Case (2004) the Court drew further attention to the relationship between these two strands of international law. It considered there were “three possible situations: some rights may be exclusively matters of international humanitarian law; others may be exclusively matters of human rights law; yet others may be matters of both these branches of international law”. In Case Concerning Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v Uganda) (2005) the Court relied upon the Wall Case in concluding that both branches applied.
What does all this mean? In particular, when does international humanitarian law apply as the lex specialis and when does international human rights law apply exclusively? In both cases one of these branches of international law will predominate over the other. It is natural, however, to expect a human rights body to give preference to that body of human rights law upon which it is adjudicating or considering. The right to life may be expressed differently under different human rights treaties. Thus, under the ECHR the right to life is provided with exceptions - where the killing is “no more than absolutely necessary… in defence of any person from unlawful violence [or] to effect a lawful arrest or to prevent escape [or]… for the purpose of quelling a riot or insurrection”. In addition, a State may derogate from the right to life “in time of war or other public emergency threatening the life of the nation” providing that the death results from “lawful acts of war”. There is considerable scope here for the ECtHR to remain exclusively within its own jurisprudence unless the State has notified a derogation in which it may have to consider whether the killing resulted from lawful acts of war. To date no State has made such a derogation.
On the other hand, the drafting of article 6 of the ICCPR makes reference to international humanitarian law virtually inevitable. This is because that article stipulates that “no one shall be arbitrarily deprived of his life”. In the context of an international armed conflict (which the International Court of Justice had in mind in the Nuclear Weapons Advisory Opinion) only international humanitarian law could supply meaning to the term, ‘arbitrary’.
Given the difference in wording it is not surprising to see the ECtHR eschew any reliance on international humanitarian law in cases involving international armed conflicts. Had the application in Bankovic v Belgium [and other NATO States] been declared admissible it is unlikely that the Court would have felt the need to rely on international humanitarian law in determining whether the attack on the broadcasting station in Belgrade by an aircraft assigned by NATO resulted in a deprivation of the right to life under article 2 of the Convention. In addition, where the events take place within a particular State, exclusive reliance upon the ECHR and its case law avoids the Court having to decide whether an armed conflict is taking place.
This denial of international humanitarian law as the lex specialis has not been followed by the Inter-American Commission on Human Rights which has relied upon international humanitarian law to interpret the meaning of ‘arbitrary’ in the right to life, a term similar to that adopted in the ICCPR. One has to be careful in drawing comparisons since the types of cases brought before the two bodies have not been on all fours. To date the ECtHR, unlike the Inter-American Commission, has not faced an application in respect of those killed whilst actually taking an active part in the hostilities. Were it to do so within its own territory it is likely that the justifications for killing provided in article 2(2) may still be wide enough for the Court not to have to rely in international humanitarian law as a lex specialis, even assuming it was clear that an armed conflict was taking place.
Much can be made of the similarities between human rights law and international humanitarian law but it must not be assumed that the same facts will lead to the same conclusions in each branch of international law. International humanitarian law, for instance, does not prohibit the killing of civilians taking no part in the armed conflict as an unexpected result of an attack on a military objective. It is difficult to accept that the ECtHR would come to the conclusion that, in such circumstances, there was no deprivation of the right to life of those civilians. Both would, however, accept that the killing of those who were clearly civilians by ground troops as a form of punitive action would be a breach of each branch of international law.
It might be wondered whether international humanitarian law has any purpose at all to serve when the ECtHR is considering an application in which the facts show an armed conflict in existence. Given that the ECtHR has felt no need to rely upon this branch of international law it has, however, tended to use it to distinguish the scope of the ECHR from that of the Geneva Conventions, to show that it does not apply exclusively during time of armed conflict and to show similarities with the ECHR. Otherwise it is a branch of the law concerned, to some extent, with the direct responsibility of individuals for infringement of its detailed injunctions. This will be the case where the crimes set out in the Rome Statute of the International Criminal Court have, for instance, been implemented into the national law of the State concerned but an individual may find himself being prosecuted before the International Criminal Court in certain circumstances. Whether a State is or is not a party to the Rome Statute, it is not, in practice, inevitable that he will be brought before an international court or, indeed, a national court for breaches of international humanitarian law, although he may be prosecuted before his military court for a breach of military law. In practice it will be national courts, courts-martial or otherwise, which will play the main role in holding those accountable for what are, in effect, breaches of international humanitarian law or international human rights law if that national law so provides. States parties to the Rome Statute will wish to ensure that they retain jurisdiction over their own nationals through the complementarity provisions whilst the ECtHR has stated on a number of occasions that it does not wish to replace national courts as a first instance tribunal.
Similarly, it will be national procedures which will be invoked to initiate investigations into deaths or torture, degrading or inhuman treatment carried out by State agents. The purpose of such investigations is stated to be to:
secure the effective implementation of domestic laws which protect the right to life and, in those cases involving State agents… to ensure their accountability for deaths occurring under their responsibility.
The existence of an armed conflict within a State will show the effectiveness, or otherwise, of how those who have breached international humanitarian law or international human rights law can be held accountable. Limiting discussion to an armed conflict occurring within a State avoids the need to consider whether the ECHR applies when a member State carries out military operations outside the State.
The fighting in Chechnya looked very much like an armed conflict between the Chechen fighters and the armed forces of Russia, and, if it was, it would bring into play international humanitarian law applicable to a non-international armed conflict. The situations in Northern Ireland and in Turkey by contrast were, or are, at a much lower intensity of military operations.
The ECtHR gave three judgments on 24 February 2005 concerning applications made by those who claimed that their human rights had been infringed as a result of acts of the Russian armed forces committed during the period of fighting with Chechen fighters in the ‘second Chechnya war’. In none of the cases did the ECtHR feel the need to determine that an armed conflict was taking place, nor indeed was there a need to do so. It was clear, however, that the Russian Federation had not issued a derogation notice nor had they passed any emergency law to cover the situation in Chechnya.
Of the three cases, the facts of Isayeva and those of Isayeva, Yusupova, Bazayeva bore the closest resemblance to a typical armed conflict. In both cases civilians, not taking part in the conflict, were killed or injured as a result of attacks by Russian military aircraft whilst they were attempting to leave an area where fighting was taking place in the belief that safe passage had been granted to them by the Russian authorities. In Isayeva the Russian air force used “heavy free-falling aviation bombs… with a damage radius exceeding 1,000 metres [and] other non-guided combat weapons… against targets both in the centre and on the edges of the village” [of Katyr-Yurt]. A forward air controller was deployed to direct the aircraft onto their targets but it seems that the visibility of the targets by the pilots was poor.
The ECtHR took the view that:
using this kind of weapon [sic] in a populated area, outside wartime and without prior evacuation of the civilians, is impossible to reconcile with the degree of caution expected from a law enforcement body in a democratic society.
Since no derogation had been notified to the Secretary-General of the Council of Europe it was for the Russian government to prove that the use of force was “no more than absolutely necessary” to protect persons from unlawful violence.
Based on these facts it is not unreasonable to conclude that a breach of customary international humanitarian law by individual members of the Russian armed forces could be made out. The customary international law rule has been put as follows:
launching an attack which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated is prohibited.
It is stated to apply in non-international armed conflicts. Attacking a village in which there are Chechen fighters by aircraft with the weaponry deployed and in conditions of poor visibility could be “expected” to cause loss of civilian life “which would be excessive in relation to the concrete and direct military advantage anticipated” (the killing or disarming of the rebels).
The Russian Federation is a party to the Geneva Conventions 1949 and the Additional Protocols 1977. There is, however, no international court with jurisdiction to try any members of the Russian armed forces for the events in Katyr-Yurt and Grozny since Russia has signed, but has not ratified, the Rome Statute 1998. Any allegation of a breach of international humanitarian law would have to be tried by a Russian court. A practical issue would be whether distinct breaches of international humanitarian law had been implemented into Russian law. It seems that such legislation, following ratification by Russia of Additional Protocol II had not been implemented. This, in itself, would not prove to be fatal to holding individual members of the Russian armed forces accountable in a criminal or disciplinary process since it is likely that there would have been military offences drawn widely enough to catch such acts or omissions. Indeed, a criminal investigation was conducted into the air attack on the village of Katyr-Yurt but no criminal charges were brought against individuals.
In this case it was relatively easy to discover the identity of the aircrew who were involved in the attack on the village. Indeed, they were questioned by a criminal investigator. In Khashiyev v Russia (2005) the applicants found the bodies of their relatives ‘with gunshot wounds and other marks’ following an operation begun in December 1999 by the Russian army to take control of Grozny. It appeared that the individuals had been killed in the course of a check on the identities of those whom the Russian army had detained. Unlike Isayeva and Isayeva, Yusupova, Bazayeva the identities of the military unit responsible for the deaths of the individuals in Khashiyev could not be established by a criminal investigation. To this extent the facts resemble a number of cases heard by the Inter-American Commission on Human Rights and are typical of a so-called ‘dirty war’.
In all four cases Russia was held to have infringed the right to life of the applicants (including failure to conduct an effective investigation) and had failed to provide to them an effective remedy.
There are many more cases awaiting determination by the ECtHR from applicants relating to Chechnya. This will prove to be a real challenge to the Court, not least because of the difficulties experienced in the cases discussed above of obtaining all the information needed by it, particularly, in respect of investigations conducted by the Russian authorities and of military logs.
In assessing whether the law is ‘effective’ it is necessary to enquire what the purpose of it is. The ECHR recalls in its preamble that the States parties to it are resolved to “take the first steps for the collective enforcement of certain of the rights stated in the Universal Declaration [of Human Rights, 1948]”. Additional Protocol II (1977) to the Geneva Conventions 1949 confirms in its preamble that “international instruments relating to human rights offer a basic protection to the human person” but emphasises “the need to ensure a better protection for the victims of those armed conflicts”. The former concentrates on enforcing the rights of individuals within the jurisdiction of the State whilst the latter sees the need to go beyond this to ensure better protection for the victims of an internal armed conflict.
From this analysis it would appear that the international humanitarian law route is designed to offer ‘better’ protection to individuals (although concentrating on the obligations of those taking part in an armed conflict) than the human rights approach. Is this a fair assessment?
In respect of the Russian federal army operations in Chechnya from 1999 there has been no international tribunal in existence to prosecute individuals, despite a recommendation from the Parliamentary Assembly of the European Council “to the international community [to set up] an ad hoc tribunal to try war crimes and crimes against humanity committed in the Chechen Republic”. As mentioned above, Russia signed the Rome Statute on 13 September 2000 but it has not ratified it although it has been encouraged to do so. Whilst the norms of international humanitarian law applicable to a non-international armed conflict may, or may not, have been implemented into Russian criminal or military law there is some evidence that soldiers have been prosecuted for acts relating to the actual conduct of hostilities. Between 1999 and 2003 some 12 cases concerned murder. It appears, however, that “in the majority of cases, the sentences were conditional or were lifted in application of an amnesty”.
The requirement under the jurisprudence of the ECtHR to carry out effective investigations and to prosecute those responsible for a deprivation of life or for torture, degrading or inhuman treatment relies upon the national law. There is clearly no impediment to holding a State liable for a breach of the ECHR where the soldiers concerned cannot be identified.
A failure to identify individual soldiers responsible for egregious acts may be the result of a bond of loyalty amongst them as a small group, the withholding or falsification of military logs, the deliberate decision to avoid any form of identification of themselves, or a lack of military discipline in the chain of command. In addition, some officers may seek to protect more senior officers from investigation. Investigators, whether military or civilian, may not be able to pierce any of these relationships to proceed further with disciplinary or criminal proceedings even where a complaint has been made.
Other factors leading to an inability to carry out an effective investigation and to prosecute soldiers are the unavailability to State authorities of the bodies of alleged victims, lack of photographs of the bodies or of an autopsy report. In addition, there may be an attitude amongst State authorities that alleged victims are, in reality, dead fighters or have been killed by the fighters or by ordinary criminals or that the claims of atrocities committed by soldiers are in reality propaganda issued by the fighters.
It is, however, crucial to hold soldiers individually liable for breaches of disciplinary or criminal law if an attitude of impunity amongst them is not to prevail. This is the basis of military law and its link with maintaining discipline within the armed forces. The effect of a “climate of impunity… encourages further human rights violations and denies justice to the thousands of victims”. The fact that their State may be liable to pay damages to victims awarded by a national court or, eventually by the ECtHR, is unlikely to be of much concern to the soldier unless the State takes its obligation to conduct effective investigations seriously where the circumstances suggest that a breach of human rights may have occurred and to bring criminal or disciplinary charges against the soldiers concerned.
Soldiers fighting rebels, who do not distinguish themselves from civilians not taking a part in the fighting, are particularly prone to egregious acts. The rebels may be seen to have an unfair advantage since they can pass themselves off as ordinary civilians and can then attack soldiers with a greater element of surprise than would be possible if they wore some distinguishing feature recognisable at a distance. Soldiers may face considerable risks of being killed or injured in this way rather than through air or artillery bombardments since the rebels are unlikely to possess such weapons. In Isayeva there are accounts of substantial Russian soldier casualties. Add to this perception of an unfair advantage in close-combat fighting an attitude by the soldiers that the rebels are of a different or of an inferior ethnic group to themselves, a lack of awareness of human rights principles, an unwillingness to prosecute soldiers where their actions have strong public support especially where their casualty numbers are high and the conditions precedent for a breakdown in military discipline are present.
Military commanders can play a crucial role in preventing a breakdown in discipline but to be able to do so the soldiers themselves must see that their commanders are concerned about them as a group. Thus, if they are badly treated or believe that their commanders will not control their ill-treatment by more senior soldiers there are further risks of ill-discipline. In the Russian federal army this appears to be a long-standing problem.
The facts in Isayeva show that the air and artillery bombardments of the village of Katyr-Yurt could only have been ordered by senior commanders. For an effective investigation to take place into the ordering of such military operations military investigators will need to be independent of the chain of command, any civil court involved will need also to be independent and the civil authority must have effective control over the military. There is some evidence that the military investigation was independent since Major-General Nedobitko had to appeal a decision to close criminal proceedings on the ground of a lack of a corpus delicti. He wanted the investigation to be closed on the ground that no crime had been committed. There is, however, evidence that the “although the foundations for establishing civil control existed in the Russian Federation at many levels, it was inhibited and violated in the armed forces”. In these circumstances the ability of the State to comply with its human rights obligations is made much more difficult, particularly if abuses are not brought to light. Human rights organisations, such as ‘Memorial’ reporting alleged human rights abuses in Chechnya had, however, “forced the State to take action and launch follow-up investigations”.
The Committee of Ministers of the Council of Europe is given the task of enforcing the judgments of the ECtHR. This procedure is designed to place considerable pressure on States to comply with decisions, not only to pay the ‘just satisfaction’ ordered by the Court but also to carry out investigations required by it. In addition, the Parliamentary Assembly of the Council of Europe may urge the Committee of Ministers to address particular measures to a member State, as it did in respect of the Russia Federation in Recommendation 1733 (2006). In this recommendation the Parliamentary Assembly:
continues to urge the Russian authorities to implement the individual and general measures in respect of all ECtHR judgments, in particular, those relating to violations committed in the course of the armed conflict in Chechnya.
It will be unlikely to achieve this if it offers an amnesty to any of the soldiers convicted of offences relating to the fighting or even if an amnesty might be expected. An amnesty was granted to both sides for crimes, other than for “serious crimes such as murder” committed between December 1993 and June 2003.
In the circumstances considered in this paper, namely fighting between the Russian federal armed forces and those who wish to establish an independent Chechnya, two branches of international law, human rights law and international humanitarian law have been drawn into the picture. Given, however, the attitude of States towards recognising the existence of an armed conflict within their territories international humanitarian law is unlikely to form the basis of any judicial proceedings unless another State initiates it. As a means of protecting individuals from being unlawfully deprived of their life or from torture, inhuman or degrading treatment the mechanism established by the ECtHR’s jurisprudence is dependent, in practice, upon criminal or disciplinary proceedings being taken against soldiers. This should normally follow independent and effective investigations into conduct which may be thought to give rise to possible breach of the ECHR.
If this mechanism works well at the national level an attitude of impunity will not gain a stronghold in the minds of soldiers and their conduct on operations is more likely to be consistent with the human rights obligations owed by the State, whose agents they are. To ensure adherence to the human rights obligations of the State, the criminal law or military law applying to the soldier should be aligned with the obligations of the State under the ECHR. The scope of the military law, in particular, needs to be sufficiently wide as to cover those who do not actually take part in military operations but who are responsible for the planning of them.
The drawback of the ECHR mechanism as a means of curbing attitudes of impunity within the armed forces is that it lacks the degree of publicity which is likely to follow if a soldier is tried by an international criminal court or tribunal. Had the Rome Statute of the International Criminal Court been in force at the time of these ‘Chechnya cases’ before the ECtHR and had Russia been a party to it is likely that the Prosecutor would have had to consider whether Russia was unwilling or unable to prosecute those against whom crimes against humanity or war crimes might be alleged. Again, this will work well where the crimes within the jurisdiction of the International Criminal Court are aligned with those under national law.
The ECtHR has been able to hold Russia to account for the activities of its soldiers in Chechnya. It may well be that this (along with the Council of Europe procedures) will encourage that State to take steps to ensure that its soldiers respect the human rights of those with whom they come into contact during military operations.
What the ECtHR has not been able to do is to hold the Chechen fighters liable for breaches of the ECHR simply because it is only the State which can be held responsible for breaches of the Convention carried out by its organs. Moreover, Chechen fighters against whom it is alleged criminal offences have been committed, can only be placed on trial if captured by the Russian federal army or by other enforcement agencies. In reality, it is they (more easily than soldiers) who can acquire an attitude of impunity. The UN Commission on Human Rights strongly condemned “all terrorist attacks as well as breaches of international humanitarian law perpetrated by Chechen fighters”. In other conflicts the ICRC has been able to play a part in reminding those taking part in the conflict of their international humanitarian obligations but “since the resumption of hostilities in Chechnya in 1999 the ICRC has not had reliable contact with opposition groups”.
Although the armed forces of a State may be faced with a rebel force which carries out acts of indiscriminate violence against innocent civilians and attacks those armed forces using the civilian population as shields, the State is unable to rely on the actions of the rebels as any justification for its failure to comply with the ECHR. In shooting dead the suspected IRA terrorists in Gibraltar in 1988 the British soldiers concerned acted in the belief that they were saving the citizens of Gibraltar from the explosion of a car bomb. In McCann v United Kingdom the ECtHR held that the right to life of the suspected IRA suspects had, nevertheless, been infringed through failures in the planning and control of the operation prior to the shooting. The force used had been more than “absolutely necessary… in defence of any person from unlawful violence”. The same broad arguments have been used by the Russian Federation for the activities of their armed forces in Chechnya. It is not surprising that the ECtHR has held them to the high standards required by article 2, the right to life. It has done this on the basis that that article forms part of a law enforcement package rather than a power given to the State to use armed force to kill those who would use violence or otherwise break its laws.
Whilst this paper has concentrated upon the activities of State agents, at least one function of the law under discussion must be to provide an opportunity for the victims of breaches of international human rights law or of international humanitarian law to “tell their stories” and, where appropriate, to receive compensation. In modern practice the enforcement of obligations under international human rights and international humanitarian law along with the place of the victim relies upon the use of national legal procedures. A human rights adjudicating body (such as the ECtHR) and the International Criminal Court take the form of a default procedure. These bodies can play a critical role where the national legal system is unable to function fully (or at all) or impartially because of the civil unrest occurring in the territory.
Purely international procedures have, however, become more common since the establishment of the ICTY in 1993 in the form of the trials of individuals for breaches of those crimes set out in the statutes of the various individual tribunals. In addition, States have invoked the jurisdiction of the ICJ (Case Concerning Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v Uganda) (2005)) or have agreed to submit claims to a claims commission (Eritrea and Ethiopia, 2004 onwards) in order to obtain a ruling on the legality under international humanitarian law and, where relevant, human rights law of the actions of their erstwhile foes. In an international forum the opportunities for an individual victim to tell his or her story may be limited by the practicalities of attendance or the issues before that body. In practical terms human rights bodies are often better able to cope with large numbers of written statements made by those affected by egregious acts on the part of the State’s armed forces. To this extent the ‘Chechnya cases’ may have delivered some justice to some of the victims of the acts of the Russian armed forces.
[∗] Professor, Law School, University of Lancaster, England. I am grateful to Professor Bill Bowring, who appeared as counsel for a number of the applicants in the ‘Chechnya cases’, for his comments on an earlier draft of this article. Any errors remaining are mine.
 European Convention on Human Rights 1950, opened for signature 4 November 1950 (“the Convention” or “ECHR”).
 See Bill Bowring, ‘Russia’s Accession to the Council of Europe and Human Rights: Four Years on’ (2000) 10 European Human Rights Law Review 362. In Dunayev v Russia, Application No 70142/01, the ECtHR decided on 2 February 2006 that the destruction of the applicant’s house in 1995 was “incompatible ratione temporis with the provisions of the Convention”. It was, on this point, declared inadmissible.
 (1996) ICJ Rep, 226, 240, para 25. See generally, William Abresch, ‘A Human Rights Law of Internal Armed Conflict: The European Court of Human Rights in Chechnya’ (2005) 16 European Journal of International Law 741, 744-747.
 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (Advisory Opinion) (2004) ICJ General List no 131, para 106
 Case Concerning Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v Uganda)  45 ILM 271, 562, para 216.
 ECHR, art 2(2).
 ECHR, art 15.
 The Final Report to the Prosecutor [of the ICTY] by the Committee Established to Review the NATO Bombing Campaign Against the Federal Republic of Yugoslavia (2000) 39 ILM 1257, considered the aerial bombing of the RTS (Serbian TV and radio station) in Belgrade on 23 April 1999 (the attack which led to the Bankovic case) in which “between 10 and 17 people are estimated to have been killed” (para 71) and concluded that “the civilian casualties were unfortunately high but [they] do not appear to be clearly disproportionate” (para 77). It recommended that the office of the Prosecutor “not commence an investigation related to the bombing of the Serbian TV and Radio Station” (para 79). See also note 15 below.
 See, for example, the ‘Chechnya cases’ discussed below; McCann and Others v United Kingdom  ECHR 31; (1996) 21 EHRR 97; Gul v Turkey (2002) 34 EHRR 28. In no case has the ECtHR made any such determination; neither has Russia, the United Kingdom or Turkey accepted that an armed conflict (non-international) has been in existence on their territories: Abresch, above n 3, 756.
 American Convention on Human Rights 1969, opened for signature 22 November 1969, OAS Treaty Series No 36, 1144 UNTS 123 (entered into force 18 July 1978) art 4. See, for example, Case 11.137, Abella v Argentina, Report No.55/97 (18 November 1997) para 157.
 When a State party is conducting military operations outside its own territory it will be necessary to show that an applicant has come “within the jurisdiction” of that State: See Noam Lubell, ‘Challenges in Applying Human Rights Law to Armed Conflict’ (2005) 85 International Review of the Red Cross 737; Ralph Wilde, ‘The “Legal Space” or “Espace Juridique” of the European Convention on Human Rights: Is it Relevant to Extraterritorial State Action?’  European Human Rights Law Review 115; Michael Dennis, ‘Application of Human Rights Treaties Extraterritorially in Times of Armed Conflict and Military Occupation’ (2005) 99 American Journal of International Law 119; R (on the application of Al-Skeini et al) v Secretary of State for Defence  EWCA Civ 1609.
 Although article 17 of the Convention may need to be considered as an implied limitation on article 2(2).
 See, for example, Jean-Marie Henckaerts and Louise Doswald-Beck, Customary International Humanitarian Law (Cambridge University Press, 2005) chapter 32.
 Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts 1977 (“Additional Protocol I”) opened for signature 8 June 1977, art 51(5)(b): commanders are required to “do everything feasible to verify that the objectives to be attacked are neither civilians nor civilian objects”; art 57. The Final Report to the Prosecutor by the Committee Established to Review the NATO Bombing Campaign Against the Federal Republic of Yugoslavia, above n 8, confirms that “the obligation to do everything feasible is high but not absolute”: para 29. It also confirms that it was too simplistic to argue that “civilians had been killed… inviting the conclusion to be drawn that crimes had therefore been committed”: para 51. The Committee recommended that no further investigation by the Office of the Prosecutor of the ICTY be carried since “either the law is not sufficiently clear or investigations are unlikely to result in the acquisition of sufficient evidence to substantiate charges against high level accused or against lower accused for particularly heinous offences”: para 90. Similar conclusions are drawn by the Eritrea-Ethiopia Claims Commission  45 ILM 397, para 97, concerning Eritrea’s claim of unlawful aerial bombardment by the Ethiopian air force of six civilian ‘targets’. See generally, Chris Jochnik and Roger Normand, ‘The Legitimation of Violence: A Critical History of the Laws of War’ and ‘The Legitimation of Violence: A Critical Analysis of the Gulf War’ (1994) 35 Harvard International Law Journal 49 and 387. For the purposes of this discussion it is assumed that under the ECHR the victims of the attack are within the jurisdiction of the State, the subject of the application. This would be the position if the attack is made by a State within its own territory and customary international law is accepted to have a similar basis to that as set out in article 51(5)(b) of Additional Protocol I; see Rule 14 in Henckaerts and Doswald-Beck, ibid 46. Nor does international humanitarian law prohibit the destruction of property which is “imperatively demanded by the necessities of war”: Hague Regulations annexed to the Hague Convention (IV) respecting the Laws and Customs of War on Land and its annex: Regulations concerning the Laws and Customs of War on Land 1907 (“Hague Convention IV”), opened for signature 18 October 1907, art 23(g). Such a rule is also applicable under customary international law to non-international (as well as international) armed conflicts: see Henkaerts and Doswald Beck, ibid Rule 50. Moreover, international humanitarian law requires the actor to cause the prohibited consequence either intentionally or by recklessness (or through the mental element required for command responsibility). No such requirements are present in the ECHR.
 Bankovic v Belgium et al, Application No 52207/99 (2002) ILM 517.
 Engel et al v The Netherlands  ECHR 3; (1976) 1 EHRR 647, para 72. Parties to individual cases have also relied upon international humanitarian law to show that acts prohibited by that branch of law should also be prohibited under the ECHR, see, for example, Akkum and others v Turkey, ECtHR, Judgment 24 June 2005 (final), para 252. It is certainly the case that in setting out what the authors believe to be customary international humanitarian law use has been made of international human rights law to “support, strengthen and clarify analogous principles of humanitarian law”: Henckaerts and Doswald-Beck, above n 13, 299.
 The Rome Statute of the International Criminal Court, opened for signature 17 July 1998 UN Doc A/CONF.183/9 (entered into force 1 July 2002) (“Rome Statute”).
 In relation to British armed forces in Iraq see the conviction of Corporal Kenyon and others in the ‘Operation Breadbasket’ court-martial, 23 February 2005; the acquittal of Guardsmen McCleary and McGing and Colour Sergeant Selman by court-martial on a charge of manslaughter, 6 June 2006.
 Rome Statute, art 17. See generally, ‘Prosecutions of Service Personnel in Iraq’ in Background to the Forthcoming Armed Forces Bill, House of Commons (UK) Research Paper 05/75, 11 November 2005.
 Khashiyev v Russia  ECHR 132; (2006) 42 EHRR 20, para 135; Isayeva, Yusupova, Bazayeva v Russia  ECHR 129; (2005) 41 EHRR 39, para 173; Shevchenko v Ukraine (Application No. 32478/02); Judgment 4 July 2006, para 49; Imakayeva v Russia (Application No.7615/02) Judgment 9 November 2006, para 118, which referred to hearings by the ECtHR.
 Isayeva v Russia  ECHR 128; (2005) 41 EHRR 38, para 210; Isayeva, Yusupova, Bazayeva v Russia  ECHR 129; (2005) 41 EHRR 39, para 209.
 It has been styled an ‘armed conflict’ by the UN Human Rights Commission through its invocation of common article 3 to the Geneva Conventions 1949, opened for signature 12 August 1949, and Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts 1977 (“Additional Protocol II”), see, for example, UN Commission on Human Rights Resolution 2000/58 and Resolution 2001/58; by the Parliamentary Assembly of the Council of Europe through its references to “the relevant provisions of the Geneva Conventions and the protocols thereto”: Resolution 1323 (2003), para 9 and see Recommendation 1444 (2000), para 8; by the Committee Against Torture, CAT/C/CR/28/4 (6 June 2002) para 9(a); and by human rights groups such as Memorial, ‘Appeal to the UN Commission for Human Rights’ (March 2003), online: <http://www.memo.ru/eng/memhrc/ texts/uno2003b.shtml> (last accessed on 14 April 2007). See also the decision of Senior District Judge Workman in Government of the Russian Federation v Akhmed Zakaev (2003), online: <http://www.hrvc.net/west/15-11-03.html> (last accessed on 14 April 2007). It would appear that international bodies are too willing to join human rights obligations with those of international humanitarian law in the absence of clear evidence that the conditions for the applicability of the latter branch of international law are present.
 Khashiyev and Akayeva v Russia (Application No 57942/00 and 57945/00)  ECHR 132; (2006) 42 EHRR 20; Isayeva v Russia (Application No 57950/00)  ECHR 128; (2005) 41 EHRR 38; Isayeva, Yusupova, Bazayeva v Russia (Application No 57947/00, 57948/00 and 57949/00  ECHR 129; (2005) 41 EHRR 39. The judgments became final on “6 July 2005 [when] the Court rejected Russia’s application to the Grand Chamber”: Bill Bowring,  Counsel 14.
 See Bill Bowring, above n 2, 377, who states that this began when “Russian forces entered Chechnya at the beginning of October 1999”. For the background to this conflict see John Dunlop, Russia Confronts Chechnya: Roots of a Separatist Conflict (Cambridge University Press, 1998); Tarcisio Gazzini, ‘Considerations on the Conflict in Chechnya’ (1996) 17 Human Rights Law Journal 93, who discusses issues relating to the first Chechen war (1994-1996). That conflict ended with the Khasav Yourt Accord 1996, see (1996) 17 Human Rights Law Journal 239, 241.
 The applicants in Isayeva, Yusupova, Bazayeva v Russia  ECHR 129; (2005) 41 EHRR 39 had, however, referred to common article 3 to the Geneva Conventions 1949, para 157. Compare the linking of international human rights with international humanitarian law by the Human Rights Commission, above n 23.
 Isayeva v Russia  ECHR 128; (2005) 41 EHRR 38, para 133.
 Isayeva v Russia  ECHR 128; (2005) 41 EHRR 38, para 190. Similarly, the air controller who gave permission for the pilots to fire guided missiles in Isayeva, Yusupova, Bazayeva was unable to see the convoy. For the nature and effect of the weapons used in both cases see the notes at the end of the Judgment and at para 195 respectively. The ECtHR was concerned only with the alleged breach of the ECHR in relation to the applicants. For a fuller account of the military operations in the area of Katyr-Yurt drawn from interviews given by two of the commanders in the region, see Isayeva, ibid para 111-112.
 Ibid para 188.
 Ibid para 196.
 Ibid para 191. Compare the view in Isayeva, Yusupova, Bazayeva v Russia  ECHR 129; (2005) 41 EHRR 39, where the Court “accepted that the situation that existed in Chechnya at the relevant time called for exceptional measures on behalf of the state in order to regain control over the Republic and to suppress the illegal armed insurgency. These measures could presumably include employment of military aviation equipped with heavy combat weapons”: para 178. The Court concluded that “even assuming that the military were pursuing a legitimate aim in launching [the air-to-ground missiles]… the Court does not accept that the operation… was planned and executed with the requisite care for the lives of the civilian population”: para 199. See also the Human Rights Commission, “the right of the Russian authorities to take appropriate measures to counter illegal activities is recognised… all measures taken should be in full conformity with international human rights standards”: Human Rights Commission, Report of the United Nations High Commissioner for Human Rights on the situation in the Republic of Chechnya of the Russian Federation, E/CN.4/2001/36, para 47.
 The government argued that its acts were proportionate given the risk to servicemen and to civilian lives and the “real threat to the interests of society and the state… the weapons were specifically directed against previously-designated targets”: See Isayevya v Russi, n 27, para 170.
 Henckaerts and Doswald-Beck, above n 13, 46, rule 14.
 The German Federal Government has “repeatedly reminded Russia of the latter’s duty to abide by its obligations under Protocol II”: German Bundestag, Document 13/718, 13th legislative period (9 March 1995) set out in Marco Sassoli and Antoine Bouvier, How Does Law Protect in War? (ICRC, 1999) 1404.
 See Judgment of the Constitutional Court of the Russian Federation of 31 July 1995 on the constitutionality of the Presidential Decrees and the Resolutions of the Federal Government concerning the situation in Chechnya, para 5, although the Court went on to say that the “provisions [of this Protocol] are binding on both parties to the armed conflict”; judgment in (1996) 17 Human Rights Law Journal 133; Paola Gaeta, ‘The Armed Conflict in Chechnya Before the Russian Constitutional Court’ (1996) 7 European Journal of International Law 563. There were no findings of fact by the Court as to whether the conditions, set out in article 1 for the Protocol to apply, had been met. The Plenum of the Supreme Court of the Russian Federation, Resolution No 5 of 10 October 2003, re-iterated that “international treaties the norms of which cover the attributes of elements of punishable criminal acts may not be directly applied by courts… [unless] the norm of the Criminal Code of the Russian Federation directly establishes the need to apply the international treaty”: (2004) 25 Human Rights Law Journal 108, para 6. It was drawn to the attention of the Human Rights Committee in CCPR/C/SR 1426, para 26 (24 July 1995) and to the Committee Against Torture, CAT/C/SR.265, para 22 (27 January 1997) that international law took precedence over national law in the Russian Federation but this cannot now withstand this Resolution of the Supreme Court of the Russian Federation. Courts in the Russian Federation “must have regard to the practice of the European Court of Human Rights so as to avoid any infringement of the [ECHR]”: ibid para 10.
 Isayeva v Russia  ECHR 128; (2005) 41 EHRR 38, paras 107 and 160. See also Isayeva, Yusupova, Bazayeva v Russia  ECHR 129; (2005) 41 EHRR 39, para 40. The Human Rights Committee was informed in 1995 that “the President had forbidden the aerial or artillery bombardment of civilian installations or settlements [and that] indiscriminate bombing or shelling was considered a criminal offence”: CCPR/C/SR.1428 (24 July 1995) paras 5 and 38. The Committee Against Torture described the process of investigations in Chechnya as “continuing to be passed from one official to another and back, without resulting in the initiation of prosecutions”: CAT/C/CR/28/4 (6 June 2002) para 7(d). See also Parliamentary Assembly, Council of Europe, Resolution 1479 (2006) para 5.
 Isayeva v Russia  ECHR 128; (2005) 41 EHRR 38, paras 87 and 91. Tank crews in the area were also questioned: para 92. The two pilots who had fired missiles at the convoy and the air controller were also identified and interviewed by military investigators: Isayeva, Yusupova, Bazayeva v Russia  ECHR 129; (2005) 41 EHRR 39, para 78. The criminal investigation had concluded that the two pilots had “acted in permissible self-defence and had tried to prevent damage to the legitimate interests of the society and state from members of illegal armed groups”: para 97 since there was some evidence of holes in their aircraft caused by “large calibre machine-gun bullets”: para 94, also see para 180.
 Khashiyev v Russia  ECHR 132; (2006) 42 EHRR 20, paras 16 and 17.
 Ibid paras 39, 41, 64 and 65. Memorial, above n 23, 2, drew attention to this problem and asserted that “servicemen… entering… houses during mop-ups never introduced themselves, their faces were frequently covered with masks… The military vehicles they used normally had no designated registration numbers; plates with numbers were intentionally wiped in dirt or paint. This made it very difficult to determine who committed atrocities against civilians”. See also European Committee for the Prevention of Torture, ‘Second Public Statement Concerning the Chechen Republic of the Russian Federation’  25 Human Rights Law Journal 470, para 6.
 See also Bazorkina v Russia (Application No.69481/01), Judgment (27 July 2006); Estamirov v Russia (Application No.60272/00), Judgment (7 October 2006); Luluyev v Russia (Application No. 69480/01), Judgment (9 November 2006); Imakayeva v Russia (Application No.7615/02), Judgment (9 November 2006). All these cases concerned disappearances. In these types of case the ECtHR has been prepared to raise strong presumptions of fact against the Government where the “events in issues lie, wholly or in part, within the exclusive knowledge of the authorities”: Imakayeva v Russia, para 114. See generally, Peter Rowe, The Impact of Human Rights Law on Armed Forces (Cambridge University Press, 2006) chapter 6.
 An infringement of article 2 of the European Convention on Human Rights can occur where the use of force is such that it amounts to ‘attempted murder’: Isayeva, Yusupova, Bazayeva v Russia  ECHR 129; (2005) 41 EHRR 39, para 171; it can be an “unintended outcome of the use of force”: para 168; McCann v United Kingdom  ECHR 31; (1996) 21 EHRR 97, para 148.
 In both cases this related to the right to life, art 2 and, in addition, in Khashiyev v Russia  ECHR 132; (2006) 42 EHRR 20, art 3.
 Note, however, the dissenting opinions of Judges Kovler and Zagrebelsky on the issue of the right to a remedy under article.13.
 See Bill Bowring,  Counsel 14; UN Commission on Human Rights E/CN.4/2001/36, para 34(e). Such cases will involve allegations under article 3 of the ECHR. Indeed, the European Committee for the Prevention of Torture has issued two public statements concerning detention facilities in Chechnya, see  22 Human Rights Law Journal 338;  25 Human Rights Law Journal 470. One such case was Chitayev and Chitayev v Russia (Application No.59334/00), Judgment (18 January 2007) which found torture to have been proven. A large number of other cases have been determined by the ECtHR to be admissible and are awaiting hearings on their merits. These include allegations of killings, disappearances, looting and destruction of property.
 See Isayeva v Russia  ECHR 128; (2005) 41 EHRR 38, para 93; Khashiyev v Russia  ECHR 132; (2006) 42 EHRR 20, para 138.
 Council of Europe, Resolution 1323 (2003) para 10(iii); Recommendation 1600 (2003) para 3(v). See also Recommendation 1456 (2000) in which the Council of Europe made an appeal to the “member states… to make use of Article 33 [inter-State cases] as a matter of urgency and to refer to the [ECtHR] alleged breaches by the Russian Federation of the provisions of the Convention and its Protocols”: para 18. This Recommendation also referred to the need for the Russian Federation to conduct investigations into alleged “war crimes in the Chechen Republic”: para 19(v).
 Resolution 1323, ibid para 10(iv).
 In Isayeva v Russia  ECHR 128; (2005) 41 EHRR 38 the Russian government failed “to invoke the provisions of any domestic law governing the use of force by the army… in situations such as the present one”: para 199. The Court compared this position with McCann v United Kingdom  ECHR 31; (1996) 21 EHRR 97. In McCann the Court concluded that “the Rules of Engagement issued to soldiers… provide a series of rules governing the use of force which carefully reflected the national standard as well as the substance of the Convention standard”: para 156. In Nachova v Bulgaria  ECHR 465; (2006) 42 EHRR 43 there was a considerable difference between the law in Bulgaria which permitted the use of force in order to arrest a member of the armed forces and that of article 2 of the ECHR.
 An account of criminal prosecutions against soldiers for crimes committed against civilians can be found in Khashiyev v Russia  ECHR 132; (2006) 42 EHRR 20, para 72. This relates to the period since the beginning of the “counter-terrorist operation”; the document referred to by the Court is dated April 2003. It is not clear whether all or some of these offences relate to private criminal conduct as compared with criminal conduct (breaches of international humanitarian law) in the manner of carrying out military operations. See also Committee Against Torture, Doc CAT/C/SR.523 (23 May 2002) paras 18, 20, 24 and 25, which relate to the period 2000-2001. In Resolution 1323 (2003) the European Parliamentary Assembly concluded that “criminal investigations of gross human rights violations… are nevertheless few and far between… and mostly fail to secure convictions in court (if they reach that stage, which is rare)”: para 5; Resolution 1315 (2003), para 5. This Resolution also invited the Russian authorities to provide the Assembly with a “detailed list of all criminal investigations by military and civil enforcement agencies into crimes against the civilian population”: para 7; Russia had previously committed itself on becoming a member of the Council of Europe to bring to justice those “found responsible for human rights violations… notably in relation to events on Chechnya… [and] to respect strictly the provisions of international humanitarian law, including in cases of armed conflict on its territory”: see Opinion No 193 (1996) Parliamentary Assembly, paras 7(vii) and 10(xxiv) respectively. The UN Commission on Human Rights also called on Russia to investigate “violations of human rights and breaches of international humanitarian law in the Republic of Chechnya… with a view to bringing [those responsible] to justice and preventing impunity”: Resolution 2000/58. See also the European Committee for the Prevention of Torture, Second Public Statement Concerning the Chechen Republic of the Russian Federation  24 Human Rights Law Journal 470, para 8.
 Khashiyev v Russia  ECHR 132; (2006) 42 EHRR 20, para 72.
 Technically, the same position is maintained by international humanitarian law at least as a result of an international armed conflict, see the Hague Regulations 1907, art 3; Additional Protocol I, art 91; Frits Kalshoven, ‘State Responsibility for Warlike Acts of the Armed Forces’ (1991) 40 International and Comparative Law Quarterly 827. These provisions do not provide any international mechanism by which to claim compensation and depend on national or agreed international procedures. See also the conclusion of the Eritrea-Ethiopia Claims Commission  43 ILM 1249 that “the extinguishment of these claims does not affect Eritrea’s claims that Ethiopia is liable for illegal conduct by members of its armed forces”: para 15. It is claimed that the responsibility of the State applies also concerning a non-international armed conflict under customary international humanitarian law in Rule 149: Henckaerts and Doswald-Beck, above n 13.
 See generally, Frederick Manning, ‘Morale, Cohesion and Esprit de Corps’ in Reuven Gal and A David Mangelsdorff (eds), Handbook of Military Psychology (John Wiley & Sons, 1991) chapter 23.
 For an example see Eritrea-Ethiopia Claims Commission: Partial Award Regarding Ethiopia’s Central Front Claim 2 (2004) 43 ILM 1275, para 73(2).
 A common allegation of applicants before the ECtHR is that the soldiers concerned wore masks and had removed vehicle identification marks on their vehicles.
 The obligation to carry out an effective obligation is not dependent upon an individual making a complaint, McKerr v United Kingdom  ECHR 329; (2002) 34 EHRR 20 although in the absence of press coverage of allegedly unlawful acts an investigation is more likely to follow from a complaint by a person affected by the actions of the soldiers.
 The Committee Against Torture referred to the difficulties in mounting prosecutions caused by “local religious traditions and burial customs… relatives often refused to allow bodies to be exhumed and sometimes did not even report the deaths of family members, for fear of reprisals”: Doc CAT/C/SR.523 (23 May 2002) para 26.
 Some of these arguments were made by the Russian government in Khashiyev v Russia  ECHR 132; (2006) 42 EHRR 20, para 129. See also Akkum and others v Turkey, ECtHR, Judgment (24 June 2005) (final), para 30. For the consequences of the absence of a corpus delicti, see Isayeva v Russia  ECHR 128; (2005) 41 EHRR 38, para 107.
 It is also a fundamental basis of the concept of prisoner of war during an international armed conflict.
 Parliamentary Assembly, Council of Europe: Resolution 1323 (2003) para 8; Resolution 1403 (2004) para 8; Resolution 1479 (2006) para 4; Recommendation 1600 (2003) para 2; Recommendation 1679 (2004), para 4; Recommendation 1733 (2006) para 3. The UN Commission on Human Rights also called on Russia to investigate “violations of human rights and breaches of international humanitarian law in the Republic of Chechnya… with a view to bringing [those responsible] to justice and preventing impunity”: Resolution 2000/58; Doc CAT/C/CR/28/4 (6 June 2002) para 5(c).
 As in Khashiyev v Russia  ECHR 132; (2006) 42 EHRR 20, where the Nazran Town Court had awarded the first applicant EUR 20,000 “on the ground that his relatives had been killed by unidentified servicemen”: para 127. The argument of the Russian Government that the various applicants had not exhausted their domestic remedies was not accepted by the Court largely on the ground that “the law enforcement bodies in Chechnya were not functioning properly at the time”: Isayeva, Yusupova, Bazayeva v Russia  ECHR 129; (2005) 41 EHRR 39, paras 147-151. See also Musayeva v Russia, Application No.74239/01, Admissibility Decision (1 June 2006).
 The Russian government indicated that in the military operation around Katyr-Yurt “53 servicemen were killed and over 200 were wounded”: Isayeva v Russia  ECHR 128; (2005) 41 EHRR 38, para 27.
 The use, for example, of pejorative terms to describe their enemies is a common feature of armed conflict.
 There is some evidence of this. See Human Rights Committee, Doc CCPR/C/79/Add.54, para 25 (26 July 1995); Commission on Human Rights Resolution 2000/58 which requested the Russian Federation “to disseminate, and to ensure that the military at all levels has a knowledge of, basic principles of human rights and international humanitarian law”: para 5. This request may not be easy to implement. See the view expressed by Mr Rybakov to the Committee Against Torture, who stated that “he was a member of the Russian legislature with 12 years human-rights-related experience… [but there was a] lamentable tradition-deeply rooted in Russian history-of non-observance of human rights, which persisted at all levels of society… It was standard for Russians to accord an instinctive priority to the interests of authority rather than to those of the individual”: CAT/C/SR.523 (23 May 2002) paras 2 and 3.
 See the “brutalisation of soldiers” in the Russian federal army referred to in Committee Against Torture, Concluding Observations, Doc A/52/44 (14 November 1996) para 42(d); Doc CAT/C/SR.268 (18 November 1996) para 12(d); to “mistreatment and abuse of army recruits” in CCPR/C/79/Add.54 (26 July 1995) para 39; ‘“hazing’ as well as torture and other cruel, inhuman or degrading treatment or punishment in the armed forces” in Doc CAT/C/CR/28/4 (6 June 2002) para 5(b). The Committee Against Torture had been informed that “in 2001, steps had been taken to enhance the supervision of compliance with the law, and to suppress violations of the military law relating to the conduct of superiors towards servicemen”: Doc CAT/C/SR.253 (23 May 2002) para 29. The mere deployment of “young conscripts in the military campaign in the Chechen Republic” was “deplored” by the Council of Europe Parliamentary Assembly, Recommendation 1456 (2000), para 9(v). Quaere whether this is a justifiable ground to ‘deplore’ the actions of the Russian Federation.
 Isayeva v Russia  ECHR 128; (2005) 41 EHRR 38, para 108. For an example of lack of independence of a military investigation see Shevchenko v Ukraine, ECtHR, Judgment (2 April 2006) para 70.
 Committee Against Torture, Doc CAT/C/SR.523, (23 May 2002) para 46, comments by Mr Bortchev of the Russian Federation to the Committee.
 See, for example, Council of Europe, ‘Violations of the European Convention on Human Rights in the Chechen Republic: Russia’s Compliance with the European Court’s Judgments’, Doc CM/Inf/DH (2006); and Council of Europe Resolution 1516 (2006), para 13.
 Council of Europe Parliamentary Assembly, Recommendation 1733 (2006) para 5.5.
 Isayeva v Russia  ECHR 128; (2005) 41 EHRR 38, para 134. Under Additional Protocol II the government is encouraged to “grant the broadest possible amnesty to persons who have participated in the armed conflict”: art 6(5). See generally Rowe, above n 40, 220- 223.
 On 1 October 1991 the USSR also became a party to the Optional Protocol to the International Covenant on Civil and Political Rights 1966, opened for signature 16 December 1966, but this paper considers only the ECHR.
 Compare McCann v United Kingdom  ECHR 31; (1996) 21 EHRR 97 with Nachova v Bulgaria  ECHR 465; (2006) 42 EHRR 43, para 150. In the case of Russia, the Committee Against Torture was informed that there was no definition of torture within Russian criminal law: Doc CAT/C/SR.265 (27 January 1997) para 6; Doc CAT/C/CR/28/4 (6 June 2002) para 6(a). Carefully drawn up rules of engagement have a major part to play in ensuring that what is expected of soldiers complies with national law (including military law) and with the international law obligations of the State.
 McCann v United Kingdom, ibid. They could, in theory, be prosecuted by any other State if that State had given itself jurisdiction to do so. A precedent is the trial and conviction of Fairyadi Zardad, a former ‘Afghan Warlord’ by a jury in London on 18 July 2005. He was sentenced to 20 years imprisonment by Treacy J, who commented, “you represented the only form of authority, law and government in the areas under your control and you grossly abused your power”: Timesonline, <http://www.timesonline.co.uk/tol/news/uk/article545603.ece> (last accessed 17 May 2007).
 Parliamentary Assembly of the Council of Europe, Resolution 2001/24 (20 April 2001) para 4. It also condemned “the continued use of disproportionate force by Russian military forces…against Chechen fighters”: para 3. See also the Parliamentary Assembly of the Council of Europe Recommendation 1444 (2000) para 11 and Recommendation 1456 (2000) para 10.
 ICRC, Operational Update (30 October 2004), available at <http://www.icrc.org/web/ eng/siteeng0.nsf/iwpList412/5D0A4915A846943441256F480030A1A2> , (last accessed 17 May 2007).
 ECHR, art 2(2)(a).
 This is often spoken of as ‘justice for the victims’: see Parliamentary Assembly, Council of Europe Recommendation 1323 (2003) para 8. It is also one of the purposes of a truth and reconciliation commission. For discussion of the relationship between the Special Court for Sierra-Leone and that State’s Truth and Reconciliation Commission, see Neil Boister, ‘Failing to Get to the Heart of the Matter in Sierra-Leone?’ (2004) 2 Journal of International Criminal Justice 1100.
 In all four Chechen cases the applicants were awarded non-pecuniary damages and, in addition, in two of the cases, pecuniary damages. See also Hazel Fox, ‘Reparations and State Responsibility: Claims Against Iraq Arising out of the Invasion and Occupation of Kuwait’ in Peter Rowe (ed), The Gulf War 1990-91 in International and English Law (Routledge and Sweet & Maxwell, 1993) 261, who discusses the UN Compensation Commission, established by UN Security Council Resolutions 687 (1991) and 692 (1991). See also Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Serbia and Montenegro), public hearing completed 9 May 2006. See also note 51 above.
 Even if remedies are available for an applicant to pursue with his or her national legal system, the fear involved in attempting to invoke them in a situation like that prevailing in Chechnya in 1999 and 2000 may make them, in reality, ineffective. See also Parliamentary Assembly Council of Europe, Resolution 1403 (2004) para 11, in which the Assembly expressed its “outrage” that applicants to the ECtHR had been the subject of serious crimes which “may deter applications to the Court” and its statement that it was “intolerable that reprisals against applicants to the [ECtHR] take place and remain unpunished”: Resolution 1479 (2006) para 6.
 Compensation or reparation was also awarded to the Democratic Republic of Congo and Eritrea respectively.
 See, for example, the Eritrea –Ethiopian Claims Commission  45 ILM 397, para 6.
 The ECtHR in Isayeva, Yusupova, Bazayeva was able to rely, in addition, on a report produced by Human Rights Watch based on eye-witness accounts of incidents: see Isayeva, Yusupova, Bazayeva v Russia  ECHR 129; (2005) 41 EHRR 39, para 102. In a number of cases involving activities in Chechnya and declared by the ECtHR to be admissible reports of Human Rights Watch are cited in order to set out the factual background to individual applications. The Fact Finding Commission established by Additional Protocol I, art 90, is able to investigate serious violations of the Geneva Conventions 1949 or its first Protocol.