The Implementation of International Humanitarian Law in the Russian Federation
Total Page:16
File Type:pdf, Size:1020Kb
06_article Tuzmukhamedov 22.7.2003 8:32 Page 385 Affaires courantes et commentaires Current issues and comments The implementation of international humanitarian law in the Russian Federation BAKHTIYAR TUZMUKHAMEDOV* The object of this article is to identify several issues pertinent to imple- mentation of international humanitarian law in the Russian Federation. It first examines the relevant provisions of the Russian Constitution of 1993 and discusses the extent to which they provide for the incorporation of inter- national norms. An overview of current Russian legislation is then given, focusing on some specific examples of legislative incorporation of interna- tional humanitarian law. That overview will not be confined to laws adopted solely by the Russian parliament. References to international law and more specifically to international humanitarian law can also be found in military field manuals that are binding on the Russian armed forces and other uni- formed armed services. Finally, a notable case decided by the Russian Constitutional Court in 1995 with regard to the implementation of interna- tional humanitarian law is discussed. In its decision, the supreme body of judicial review in the Russian Federation made remarkable references to the Additional Protocol II of 1977 to the Geneva Conventions of 1949.1 The Russian Constitution of 1993 The Russian Constitution of 1993 states in paragraph 4 of Article 15 that “generally accepted principles and rules of international law and inter- national treaties of the Russian Federation shall be an integral part of its legal system. If an international treaty of the Russian Federation establishes rules, other than provided for by the law, the rules of the international treaty shall be applied.”2 The Constitution stops short of declaring that interna- tional law forms an integral part of Russian legislation. It refers instead to the * Associate Professor of International Law, Diplomatic Academy of the Russian Ministry of Foreign Affairs, Rapporteur of the Committee on Arms Control and Disarmament Law of the International Law Association. Views expressed herein are those of the author and should not be attributed to persons or insti- tutions with which he may be associated. 06_article Tuzmukhamedov 22.7.2003 8:32 Page 386 386 Affaires courantes et commentaires Current issues and comments rather vague term “legal system”. The use of this term has prompted some commentators to suggest that in order to divine its exact meaning “the law- applying authorities should apparently be guided by theoretical postulates and treat it as objective law, that is, as a conglomerate of laws, the practice of application of legal norms, as well as legal ideology”.3 Assuming that the framers of the current Russian Constitution considered the term “legal sys- tem” in a conscious and enlightened manner, it might be interpreted as reflecting a transition from the cautious approach to the incorporation of international law into domestic law, which was characteristic of former Soviet doctrine and practice, to a new willingness to apply international norms more directly. The general referral to international law in Article 15(4) of the Russian Constitution is supplemented by subject-specific refer- ences in other current legislation. These include numerous laws adopted in Russia following the entry into force of the Constitution of 1993. It may be noted that the introduction of Article 15(4) gave rise to a sense of euphoria in some Russian students of international law. Those mem- bers of the Russian international legal community seemed to conclude that international law was about to permeate the fabric of Russian law and that all courts, from the lowest to the highest, would be applying rules enshrined in international treaties along with domestic statutes. However, in this author’s opinion the Constitutional Court, when employing international law in the exercise of its powers, is properly applying that law only if it views particular questions of law brought before it through the prism of the letter and spirit of international legal decisions and if, in doing so, it analyses and interprets a norm of international law. But the Russian Constitutional Court is not authorized by the Constitution and implementing statute to do this. A mere reference to an international treaty or decision in an opinion of a domestic judicial authority does not amount to the application of interna- tional law. The proponents of the extreme internationalist view seem to overlook paragraph 1 of the said Article 15, which clearly states that “the Constitution 1 Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), of 8 June 1977. 2 An English-language version of the Constitution of the Russian Federation is available on the website of the Constitutional Court at http://ks.rfnet.ru/english/rus_eng.htm. 3 Kommentariy k Konstitutsii Rossiyskoy Federatsii (Commentary to the Constitution of the Russian Federation), Moscow, 1996, p. 80. 06_article Tuzmukhamedov 22.7.2003 8:32 Page 387 RICR Juin IRRC June 2003 Vol. 85 No 850 387 of the Russian Federation shall have the supreme legal force (...). Laws and other enactments adopted in the Russian Federation shall not contra- vene the Constitution”.4 A reader familiar with the Constitution of the United States may discover some similarities between this provision of the Russian Constitution and the supremacy clause of the US Constitution.5 Furthermore, Article 15(4) of the Russian Constitution implies that in the event of a conflict between a domestic law and an international treaty obligation the latter does not necessarily repeal the former. Rather, the treaty regulates a specific situation to which both the treaty and the law may apply. The domestic law remains valid and may be applied under different circum- stances in which there are no applicable international treaty rules. As for “generally accepted principles and rules of international law”, there are no provisions in the Constitution that could be construed as affording them a legal force superior to that of domestic laws. On the other hand the Law on International Treaties that was enacted in 1995 does state in its preamble that “the Russian Federation adheres to strict observance of conventional and customary norms”.6 However, the very fact that customary norms are referred to only in the preamble to that law, and that it provides no further guidance as to how these norms are incorporated into Russian law, may serve as evidence of a reluctant attitude towards the integration of uncodified cus- tom into domestic law. In a perceived effort to make the life of courts of general jurisdiction easier, the Plenary Conference of the Russian Supreme Court in 1995 passed a resolution offering courts some guidelines for application of the Constitution. While the resolution is non-binding, the well-established pattern of the relationship between the Supreme Court and lower courts strongly suggests that the latter will follow the advice given. With regard to Article 15(4) of the Constitution, the resolution of the Russian Supreme Court suggested that courts should look for the “generally accepted principles and rules of international law” in international 4 Constitution of the Russian Federation, Art. 15(1), op. cit. (note 3). 5 Art. VI(2) of the Constitution of the United States reads as follows: “This Constitution and the Laws of the United States which shall be made in Pursuance thereof and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land, and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” 6 Sobraniye Zakonodatelstva Rossiyskoy Federatsii (Collection of Legislation of the Russian Federation), hereinafter SZ RF, 17 July 1995, No. 29, Art. 2757. 06_article Tuzmukhamedov 22.7.2003 8:32 Page 388 388 Affaires courantes et commentaires Current issues and comments documents, primarily in treaties, but also in other sources, such as the Universal Declaration of Human Rights.7 As for international treaties, the resolution advised lower courts of general jurisdiction that only those treaties that have been incorporated into a federal law should take pre- cedence over national legislation. That Supreme Court resolution in effect relieved courts of the task of identifying international customary norms that have not been codified. In this respect, if a Russian court were to look for an applicable norm in the cor- pus of international humanitarian law, it is likely first to search for such a rule in a codified national law, and then in international treaties to which Russia is a party. Incidentally, the said resolution in a certain sense amounted to an interpretation of the Constitution, a task which is normally the exclu- sive prerogative of the Constitutional Court. This observation notwith- standing, the resolution has been referred to and supported by the latter on several occasions.8 Incorporation of international humanitarian law into Russian legislation9 Russia is a party to all four Geneva Conventions of 1949, as well as to the two Additional Protocols of 1977. It is also a party to other major relevant treaties, including the Biological Weapons Convention of 1972,10 the Environmental Modification Convention of 1976,11 the Conventional Weapons Convention of 198012 and its four protocols and the Chemical Weapons Convention of 1993.13 It has signed but, at the time this article is being written, 7 Byulleten’ Verkhovnogo Suda Rossiyskoy Federatsii (Bulletin of the Supreme Court of the Russian Federation), No.1, 1996. 8 See, most recently: Ruling of the Constitutional Court of the Russian Federation No. 290-O of 21 December 2000, in SZ RF, op. cit. (note 6), No. 11, 12 March 2001, Art. 1069. 9 For a general discussion of the subject in Russian, see V.A.