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Legal Aspects of Conflict Analysis and Resolution: the Case Study of Tajikistan

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Legal Aspects of Conflict Analysis and Resolution: the Case Study of Tajikistan DOI: 10.12818/P.0304-2340.2017v71p593 LEGAL ASPECTS OF CONFLICT ANALYSIS AND RESOLUTION: THE CASE STUDY OF TAJIKISTAN SAITUMBAR RAJABOV* ABSTRACT: The article deals with theoretical and practical aspects of armed conflict, its qualification and types. It analyses the situation in Tajikistan right before the conflict, the phases the conflict has gone through and the applicability of laws in each phase of conflict. The article considers the mechanisms of conflict resolution which proved to be effective in Tajikistan. The purpose of this article is to present a conceptual framework for legal view on armed conflicts, apply it for the conflict analysis and resolution in the Republic of Tajikistan and draw conclusions and lessons from the case study. KEYWORDS: Non-international armed conflict. Geneva Conventions of August 12, 1949 and Protocols Additional to them. Commission on National Reconciliation. International organization. Contact state. 1 CONCEPTUAL FRAMEWORK FOR LEGAL VIEW According to the law of armed conflicts (sometimes this branch of law is called the Law of War or International Humani- tarian Law) all conflicts are divided into international and non- -international ones. The main international legal documents determining the types of the above-mentioned armed conflicts are the four Geneva Conventions of August 12, 1949 for the protection of war victims and two Additional Protocols to them of June 8, 1977. The Republic of Tajikistan joined the mentioned instruments 13 January 1993 and took obligations on implementation of the norms, contained in them, in its national (domestic) legislation and to observe them strictly. The Geneva Conventions of August 12, 1949 and Additional Protocols to them of 1977 provide objective facts and on the basis of these objective criteria one may classify armed conflicts. * Professor of International and European Law of the Russian-Tajik Slavonic University. LLD of International and European Law, Head of International Law Department of Institute of Philosophy, Political Science and Law, Academy of Sciences of the Republic of Tajikistan. E-mail: [email protected] Rev. Fac. Direito UFMG, Belo Horizonte, n. 71, pp. 593 - 606, jul./dez. 2017 593 LEGAL ASPECTS OF CONFLICT ANALYSIS AND RESOLUTION: THE CASE STUDY OF TAJIKISTAN According to these international instruments the situations that will lead to the international armed conflict are as follows: 1. Armed conflict between two or a number of states.1 2. Armed conflict in which peoples are waging national liberation wars in the exercise of their right of self- determination against colonial domination, alien occupation and racial regimes.2 It should be noted that since the end of the World War II most of armed conflicts were of non-international character, i.e. they did not take part between states but inside the states. These fratricidal conflicts (civil wars) caused a lot of sufferings and resulted in significant number of victims. Conflicts of non-international character fall into two types depending on the degree of intensity and scale of military actions. The first type of non-international conflict is characterized by confronting parties where on the one hand governmental armed forces and on the other hand dissident (anti-governmental) armed forces or organized armed groups. In such situation the latter should: 1. be under responsible command; 2. exercise control over a part of its territory; 3. enable them to carry out sustained and concerted military operations; 4. implement Protocol II.3 The second type of non-international armed conflict is characterized by the fact that it has not reached the extent of intensity, but still represents itself as an internal armed conflict. This type of non-international conflict is regulated by Article 3 common 1 See Article 2 (2) common to the four Geneva Conventions of August 12, 1949 // Geneva Conventions of August 12, 1949. – Switzerland: International Committee of the Red Cross, 1992. – 245 p. 2 See Article 1 (4) of Additional Protocol I of 1977// Protocols Additional to the Geneva Conventions of August 12, 1949. – Switzerland: International Committee of the Red Cross, 1992. – 134 p. 3 Additional Protocol II of 1977, Art. 1(1). 594 Rev. Fac. Direito UFMG, Belo Horizonte, n. 71, pp. 593 - 606, jul./dez. 2017 Saitumbar Rajabov to the 1949 Geneva Conventions for the protection of war victims, instruments on human rights and domestic norms. In this type of conflict, probably there do not exist such criteria as high organization of armed groups (though a certain level of organization is a must), control over the territory (just the presence on the territory is not qualified as control in the sense of Protocol II). It is necessary to make clear that the following is excluded from the notion of non- international armed conflict: a) cases of violation of internal order; b) situation of internal tensions, such as disturbances, isolated and sporadic acts of violence.4 Situation of the first type includes such violations of public order as demonstrations and processions without beforehand agreed plan, separate actions of protest, collisions and other similar actions. Situation of the second type includes situations of serious political, social and economic tension which are characterized by the following indicators: mass arrests, a great number of detained persons, announcement of emergency situation, application on disappearances, etc.5 These kinds of situations actually are regulated by International law of human rights and corresponding provisions of domestic law. Thus the sphere of the application of the International humanitarian law does not cover the internal disorder and situations of tension. However this does not mean that there does not exist international legal protection applicable in such situations. These cases fall under the effect of the instruments on human rights. Concerning Article 3 it should be emphasized that it is a corner-stone of the humanitarian law, applicable during non- international armed conflicts. It is a great achievement in the field of IHL. 4 Additional Protocol II Article 1(2). 5 See Commentaries to Additional Protocol II. –Moscow: ICRC, 1998, p.68-69. Rev. Fac. Direito UFMG, Belo Horizonte, n. 71, pp. 593 - 606, jul./dez. 2017 595 LEGAL ASPECTS OF CONFLICT ANALYSIS AND RESOLUTION: THE CASE STUDY OF TAJIKISTAN Article 3 common to the 1949 Geneva Conventions for the protection of war victims is regarded as a minimum standard that should be observed by all parties during any types of armed conflicts and its provisions are considered as the norms of customary law.6 Now we summarize some of expressed thoughts. First of all, armed conflicts differ by the juridical status of the conflicting parties. In situation of international armed conflicts the participants are sovereign states or states and nations who are struggling in the exercise of their right of self-determination. In situations of non-international armed conflicts the participants of military actions are not sovereign states, but the government of a single state which entered the conflict with one or more armed groups in its territory. One of the determining factors for the qualification of international and non – international armed conflicts is the state frontiers. In case of the first type conflict there is a violation of the territorial integrity of a state but in case of the second type conflicts actions take place basically within the territory of a state. It should be specially stressed that the humanitarian law shall not affect the legal status of the territories where the conflict is going on and the application of its rules shall not mean the recognition of the Parties to the conflicts as the subjects of International law and cannot claim for such status on the other bases. Now it is time for the transition from theory to practice and consider the armed conflict in Tajikistan (1992-1997) in a legal dimension. 2 THE TAJIKISTAN CASE STUDY The swift changes connected with the collapse of the Soviet Union in 1991 led to the destruction of the political, economic and social structures of once a powerful state. As the result there were created favorable grounds for struggling over the power, its re- division and change of character. The unplanned and non- civilized 6 See “Nicaragua v. the USA”//1986 Nicaragua case, ICJ Reports, p.114, available at: <http://www.icj-cij.org/docket/files/70/6503.pdf>. (last visited 4.08.2017). 596 Rev. Fac. Direito UFMG, Belo Horizonte, n. 71, pp. 593 - 606, jul./dez. 2017 Saitumbar Rajabov transition to the market economy led to the impoverishment of people, fall of production, unemployment, destruction of social protection system, health protection and education. All these events in combination with many other factors (geographical, Islamic, regional and etc.) exposed Tajikistan to the abyss of the civil war that deprived lives of thousands of people, created problems of refugees and displaced persons, caused huge economic damages and aggravated the heavy situation of the Republic more and more. Before the beginning of the civil war the situation in the Republic of Tajikistan has gone a number of changes. It can be characterized as violation of internal order and situation of internal tension. For instance, during the February 1990 events in Dushanbe demonstrators demanded the resignation of K. Mahkamov, the first secretary of the Central Committee of the Communist Party of Tajikistan that accompanied by separate and sporadic actions of violence, burning out the means of transport, robbery of shops and etc.7 At that time, the government of the republic resorted to militia forces and even internal troops in order to restore order in the capital of the country. In our opinion the legal qualification of this particular phase of the situation development in the republic was the following: we were dealing with the internal disorders and the situation characterized with its tension. However violation of the International Humanitarian Law was not the case at that particular time, in other words Article 3 common to the 1949 Geneva Conventions and the 1977 Additional Protocol II to them.
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