International Conference KNOWLEDGE-BASED ORGANIZATION Vol. XXV No 2 2019 THE ROMANIAN REVOLUTION OF 1989 - AN ARMED CONFLICT? Sabin GUȚAN “Nicolae Bălcescu” Land Forces Academy, Sibiu, Romania [email protected] Abstract: The violent events of December 1989 in Romania, which led to the removal of the Communist regime from power are still shrouded in mystery today. The social disorder and the political chaos of those days overlapped with the violent use of the armed forces that used all kinds of weapons. During the armed confrontations, many casualties (military and civilian) and destruction of goods, including cultural ones, took place. In the years following these events a series of theories, hypotheses, controversies, and trials have emerged, but no one has clearly defined the legal nature of this social-political crisis. The purpose of this scientific approach is not to analyze the events and crimes committed in December 1989, but to determine whether and to what extent the international humanitarian law can be applied to these events. Keywords: the 1989 Romanian Revolution, international humanitarian law, non- international armed conflict 1. Introduction force, and secondly, one must determine The violent events of December 1989 in what kind of crimes were committed. Romania, which led to the removal of the The 1989 Revolution began in Timișoara, Communist regime from power, are still on December 16, with protest shrouded in mystery. The social disorder demonstrations, initially peaceful. The and the political chaos of those days authorities' response was brutal, a overlapped the violent use of the armed retaliation, including using war forces that used all kinds of weapons. ammunition. In the early days, dozens of During the armed confrontations, many protesters died. Events spread throughout casualties (military and civilian) and the country, culminating in the revolt of the destruction of goods, including cultural capital's population on December 22. At ones, occurred. In the years following these this point, a revolutionary body made its events a series of theories, hypotheses, presence felt, the National Salvation Front, controversies, and trials have emerged, but which assumed the leadership of the no one has clearly defined the legal nature revolutionaries and the subordination of the of this social-political crisis. What armed forces. After the dictator's escape, happened in December 1989: internal and even after his capture and execution, tensions and disturbances or a non- the fighting continued with armed groups international armed conflict (NIAC)? Why supporting the former regime until the end are we interested in this issue? First of all, of December. In total, the violent events of one needs to know the applicable law and December 1989 produced more than 1,200 the correctness of the use of the armed deaths and thousands of injured. DOI: 10.2478/kbo-2019-0068 © 2015. This work is licensed under the Creative Commons Attribution-NonCommercial-NoDerivatives 3.0 License. 128 2. Hypothesis of non-international armed applicable to the 1989 Revolution, but conflict guiding the clarification of certain issues) In the classical theory of international law does not provide clear criteria for (prior to the adoption of the Geneva determining the difference between them Conventions of 1949) a distinction is made and the situations of armed conflict either. between rebellion, insurgency and This issue has been addressed by the case belligerency, only the latter being law of international criminal tribunals that considered an armed conflict [1]. Rebellion specified that in order to establish the is a riot, reduced in intensity, duration and existence of an NIAC, unlike in the case of participation of the population, with a brief internal disturbances and tensions, two organization of the rebels, often criteria must be considered: the intensity of spontaneous, and its repression is reduced the conflict and the organization of the to the use of police forces. The rebellion is parties [5]. not considered an armed conflict, being In the case of the first criterion, the subject to the applicable internal law during intensity of the conflict, the jurisdiction of peacetime. When the state fails to restore the international criminal tribunals states order, the rebellion is considered to have that: reached the insurgency level [2]. „Relevant for establishing the intensity of a Insurgency has a higher level of intensity conflict are, inter alia, the seriousness of and participation of the population, with a attacks and potential increase in armed form of organization sufficient to represent clashes, their spread over territory and over a serious threat to the government. Such a a period of time, the increase in the number situation draws the attention of foreign of government forces, the mobilisation and states and the international community. the distribution of weapons among both Insurgency can reach a level of struggle and parties to the conflict, as well as whether an organization of parties leading to the the conflict has attracted the attention of the recognition of the state of war and the United Nations Security Council, and if so application of international humanitarian whether any resolutions on the matter have law (IHL). In fact, a revolt can go through been passed” [6]. all phases, starting with the rebellion The level of armed violence required for the (Timișoara 1989), becoming insurgency, application of Article 3, common to the and then belligerency. Belligerency, as a Geneva Conventions of 1949 (ratified by form of NIAC accepted in the doctrine and the Romanian state in 1954) (Com.Art.3), practice of traditional international law, must be high enough to exclude isolated or must be given formal or tacit recognition so sporadic violence, but sufficiently low to that IHL can be applied [3]. include situations of internal conflict in Compared to traditional international law, which hostilities do not necessarily take the application of the rules of IHL in the place continuously [7]. case of insurgency is now recognized [4]. However, IHL can not be applied to any In order to determine the moment of the form of manifestation of violence in beginning of the NIAC, there are no society. The coercive force of the state must regulations, each state assessing, on a case- be applied gradually and in proportion to by-case basis, the existence of this moment, the intensity of the violence, with respect especially through the internal or for human rights. Recourse to armed forces international courts, when it does not do so and to lethal weapons is ultimately to be during the fightings. made when non-lethal means of re- As far as internal tensions and disturbances establishing order have failed. Although it (peacetime crisis situations) are regarded, would be to the advantage of states to the Additional Protocol II of 1977 (not declare any social violence as a state of 129 armed conflict, in international practice, and the attribution of tasks to the jurisprudence and doctrine such situations organization, the manner in which members are not acceptable [8]. Determining the of the central body were involved in character of NIAC should be made with as negotiations with representatives of the much objectivity as possible. Even though European Community and those of other states use the armed forces in some States [11]. In the Milosevic case, for the situations of tension and internal organization of the non-state armed group disturbances, not all of these situations can "With respect to the organisation of the be considered NIAC. parties to the conflict, Chambers of the In international jurisprudence we encounter Tribunal have taken into account factors situations where confrontations, of short including the existence of headquarters, duration and reduced as geographical areas, designated zones of operation, and the are considered NIAC (the case of an ability to procure, transport, and distribute Argentine rebel group that captured a arms"[12]. government military base for two days - La For the war crimes represented by the other Tablada, a case solved by Inter-American serious violations of the laws and customs Human Rights Commission) [9]. It is applicable to NIAC within the framework important to note, given that the events took established by international law, Article 8 place in the same year as those in Romania (f) of the Statute of the International - 1989 - but during a shorter period of time, Criminal Court provides that these are to be taking place on a smaller area and with less committed only in armed conflicts "that intensity. take place in the territory of a State when With respect to the second criterion, the there is protracted armed conflict between organization of the parties, the idea of the governmental authorities and organized minimum organization of the parties taking armed groups or between such groups." part in the NIAC is generally accepted, but Another example that supports our there is no consensus on the level of approach is the so-called war on terrorism organization required for the application of waged by the US against Al-Qaeda. The the Com. Art.3 [10]. In connection with this perspective of the American authorities on issue, we must ask ourselves what is ahead: the existence of this (extraterritorial) NIAC, the aggressor's obligations or the rights of as well as the idea of the organization of the the victims? If aggressors (generally parties and the intensity of the conflict are insurgents)