LEYLA MADATLI VS. OPPONENTS OF INTERNATIONAL CRIMINAL JUSTICE REGARDING CHECHEN CONFLICT

Protocol of the Mock Trial
conducted in Tbilisi
on 05.12.2009
by participants
from Azerbaijan, Georgia and Armenia

Plaintiff: Leyla Madatli
Respondent: Simon Paupashvili

Chairwoman: Karine Asatryan

Comission members: Aleksey Mamvelyan, Bela Dallakyan, Gunel Guliyeva, Prof. Niyazi Mehdi, Zakaria Kusnashvili, Tamara Kvintradze, Temur Kighuradze

Implemented by
The Alliance of women for civil society - Azerbaijan
Caucasian Center of Civil Hearings - Georgia
Caucasus Center of Peace-Making Initiatives - Armenia
with support of
National Endowment For Democracy - NED


Prof. Niyazi Mehti informed the audience about the programme of three organizations on running Caucasus court hearings and introduced the chairwoman of the court. The chairwoman gave the floor to the Plaintiff.

THE PLAINTIFF’S SPEECH

All of us witnessed that there has been a conflict between the Russia Federation and Chechen Republic of Ichkeria and so far the tension is continuing. Both parties to the conflict are claiming on the crimes committed during the conflict.

There is a saying that “True peace is not the absence of tension, but justice”. Achieving justice, particularly so called transitional justice is very complex and challenging task. In the context of ongoing conflict this task becomes more challenging. One of the ways of dispensing justice is adjudicating the cases on the crimes committed during the conflict. Today I am recalling the arguments on behalf of the Chechen party to the conflict on the tools of accountability under the international criminal law for the international crimes committed during the conflict. However, I would not like to become limited with representing interests of only chechens, since both the Chechens and Russians committed crimes in the course of the conflict and they should be responsible irrespective of their ethnicity.

What happened between Russia and Chechen Republic and which crimes were committed?

At least during certain period of time armed conflict of non-international character took place in Chechen-Russia conflict and the tensions are still continuing. The fact that Russia did not announce war for some period of time is not determinative in assessing the conflict as an armed conflict.

As it appears from the factual circumstances reflected in the numerous sources, including the authoritative reports of the international organizations, during the mentioned conflict international crimes have been committed by the Russian forces against the Chechens. Allegation that the crimes were committed requires specific assessment on the basis of facts, deep analyses, but reach data helps us to claim that international crimes have taken place. First of all, reported data indicates that during the armed conflict in Russia war crimes have been committed. The fact that Russia Federation did not announce war officially particularly in respect of the second war (after 1999) and did not apply provisions of international humanitarian law does not change the status of the committed crimes and most of the atrocities still can be assessed as war crimes. Among the mentioned crimes the ones such as intentionally directing attacks against the civilian population as such or against individual civilians not taking direct part in hostilities; intentionally directing attacks against civilian objects, that is, objects which are not military objectives are, wilful killing, torture can be mentioned.

Besides, crimes against humanity such as murder, torture, rape, sexual slavery, sexual violence of comparable gravity, enforced disappearance had been committed in the course of the conflict. Who is responsible, who are the perpetrators? In international criminal law only the individuals carry responsibility. The database collected by the relevant national and international NGOs and other sources, including the evidences allow identifying of some of the alleged perpetrators and this list includes direct perpetrators as well as aiders and abettors of the low, middle and high ranks among military and civil officials. However, the provisions of personal and functional immunity under international law are to be taken into account while prosecuting the perpetrators.

The ways of prosecution of the international crimes

It raises serious concern that there is impunity in the field of tackling the atrocities committed in the course of the Chechen-Russia conflict as criticized by local and international NGOs, international organizations. One of the main indicators of impunity in the national level is that the investigations into the crimes are not provided as evidenced by the case law of the European Court on Human Rights. Russia has to date failed to hold a single individual accountable for the violations found in these rulings. “In more than 100 decisions with many more pending, the Court has held Russia responsible for serious human rights violations in Chechnya - including torture, enforced disappearances, and extrajudicial executions” (Parliamentary Assembly of the Council of Europe (PACE) debate on the state of human rights in Europe, June 24, 2009). Assassination of several human rights defenders particularly those addressing the Chechen-Russian conflict is an example to ongoing impunity.

So, in the light of mentioned context it would be interesting to analyze the possible mechanisms of dispensing the international criminal justice for the international crimes committed in the course of the Russia-Chechen conflict.

Adjudication of the cases in the national courts of Russian Federation

There are numerous challenges regarding the prosecution of the international crimes in the national courts of Russia Federation. On the one hand, Russia Federation ratified some of the relevant international conventions such as Geneva Conventions. The legislation of Russia Federation has some loopholes that might deny the victims their right to justice regarding cases on most of the international crimes. The legislation envisages the possibility to prosecute the international crimes in the local courts; however, it is not complete to address all of the international crimes committed in the course of Chechen-Russia conflict. For instance, the crimes against humanity are not criminalized as such in the criminal legislation of Russia Federation (Criminal Code of Russia Federation, chapter 34). Torture is envisaged in the Article 302 of the Criminal Code of Russia Federation not as an independent crime, but as a circumstance aggravating the criminal responsibility of the national crimes against justice. Despite the problems with the legislation still there is possibility to prosecute some of the mentioned crimes in the national level. However, Russia failed to prosecute the perpetrators of the crimes and to prevent the ongoing impunity so far and only the Chechens alleged to commit crimes have been prosecuted so far. So, the main challenge is a lack of political will to prevent impunity. Even if under the pressure the investigations are instituted and the national courts consider the mentioned cases, still there are several challenges some of which are the following:

- lack of fair trials in Russia Federation

- lack of specialists in the field of the international criminal law among the judges or other lawyers in the national judicial system of Russia Federation

- bias of the judges, particularly for the reason that continuing conflict affected both parties to the conflict so deeply that there are serious suspicions about the impartiality of the judicial system

The mentioned challenges make this remedy not very reliable in terms of providing justice to the victims of the conflict in the context of Russia.

Prosecuting the crimes in the national courts in countries that have legislation envisaging universal jurisdiction

This remedy envisages that a state exercising universal jurisdiction is entitled to adjudicate the cases regarding the international crimes mainly in the absence of the territorial or nationality links of the perpetrator or victim. Number of countries allowing true universal jurisdiction, that is, option for prosecution of the perpetrator without any link such as territoriality or nationality is very few. As an example it can be recalled that several months ago the national court of Spain claiming universal jurisdiction decided to consider the case instituted by several Palestinians against Israel. Otherwise, for adjudication of the case there should be a link between the prosecuting state and victim or the perpetrators (Belgium). There are several challenges concerning exercise of the universal jurisdiction:

- Much depends on the political will of the state claiming universal jurisdiction for the crimes committed abroad;

- Difficulties with filing and running the case in the foreign court exercising universal jurisdiction, particularly because of the language barriers, complexities with translation, finding experts, lawyers at least on legal system of the state having recourse to universal jurisdiction

- This possibility is limited by personal immunity of several state officials (e.g. heads of state) from criminal prosecution.

Ad hoc tribunal

Establishment of such mechanism was envisaged by the Resolution № 1323 dated 2 April 2003 by the Parliamentary Assembly of the Council of Europe.

Challenges of creating such tribunal for Chechen-Russia conflict:

- Establishment of such tribunal might be possible upon a request of the relevant state interested in tribunal for the crimes committed in its territory and a resolution of the UN Security Council under the Article 29 of the Chapter VII of the UN Charter and requires concluding of the agreement between the UN and the state wherein the international crimes have been committed. It is for sure that currently, Russia will block creation of such a tribunal;

- Establishing and running such courts requires huge amount of resources, including money and it is highly unlikely that UN finds enough resources to spent for such court, thus, despite several initiatives in the past such ad hoc tribunals after special international criminal tribunals for the former Yugoslavia and Rwanda were not established;

- Cooperation by the state is indispensable for operation of the court, otherwise the activity of the court can be considered as deadlock which means failure in dispensing justice;

- Requires belief of the local population to such court, which might be challenging issue in Russia.

So, in the face of abovementioned factors establishment of such ad hoc tribunal for the sole purpose of prosecuting persons responsible for serious violations of International Humanitarian Law committed in the territory of Russia seems very problematic.

A hybrid national-international tribunal

Hybrid tribunal is an internationalized court composing both the national and international judges. The trends in the current international criminal justice show that establishment of the hybrid courts are in principle possible unlike the international ad hoc tribunals. Similar courts have been established in Sierra-Leone, East Timor, Kosovo and Cambodia. The main challenge is that establishment of a combined criminal court is possible only under the agreement between the UN and the government of the Russia Federation, which seems problematic. In comparison with the abovementioned mechanisms this remedy seems more feasible taking into account the following factors:

- Not only the international crimes, but the national crimes can be adjudicated in this court (particularly, those committed by the law enforcement bodies);

- Direct implementation of the court decisions, however, this issue is considered as one of the main problems for the international justice system;

- The court can play a role of the appellate instance in respect of the court judgments delivered by Russia Federation courts;

- Existence of the national judges in the court can be helpful in persuading or formulating belief of people in the justice.

There are different models of hybrid court as well, since in some cases it can be created as part of national judicial system, or as an independent international tribunal. Even after establishment of such courts still there are many issues to be addressed. Particularly those regarding the number of judges and the international judges, applicable law, procedure, guarantees of judicial or prosecutorial independence, witness protection program and others in order the tribunal to meet fair trial standards.

International Criminal Court

Transfer of the Chechen cases to the International Criminal Court provided that the Russian Federation ratifies the Rome Statute and recognizes the jurisdiction of the Court over the crimes committed during the Chechen conflict can be one of the remedies for addressing international crimes. Under the Article 12 (3) of the Statute in principle compliance with the last term by Russia is possible even without ratifying the whole treaty if Russia voluntarily cooperates with the Court. Thus Russia must be called to ratify the Statute of the International Criminal Court. However, it should be taken into account that even if Russia accepts the jurisdiction of the ICC, since the temporal jurisdiction of the International Criminal Court starts on 1 July 2002, the crimes committed in Chechnya until the mentioned date will not be addressed, hence, this remedy cannot be considered as ideal justice option for the Chechen-Russia conflict. Besides, at least for improving legislation of Russia Federation on prosecution of international crimes, addressing the international crimes that are /will be committed in Russia Federation the latter is urged to ratify the Statute of International Criminal Court as mentioned in several international reports.

Choice of forum?

In the face of the numerous challenges concerning the transitional justice it is not possible to choose only one mechanism to redress the impunity in Russia. While assessing the justice options it is taken into account that transitional justice is very complex issue and particularly, in the context of Chechen-Russian war one cannot only limit with legal assessment of the abovementioned remedies for international crimes, since the roots and the nature of the conflict requires to take into account many factors, including political, social considerations. The huge challenges with the rule of law, democracy, and political regime in Russia affect deeply the choice of the forum of the prosecution of the international crimes.

All of the abovementioned mechanisms have their strong and weak features and theoretically each of them could be applied. Particularly, the international mechanisms are more preferred in this respect. The inertia of the national judicial system of Russia Federation strengthens the necessity for international criminal tribunals.

International tribunals present number of advantages over domestic courts for some merits. First of all, international courts may be more impartial than domestic courts,

- They are made up of judges having no link with the territory or the state where the crimes were perpetrated.

International judges, being selected on account of their competence in the area of international humanitarian and criminal law, are better suited to pass judgments over crimes that markedly differ from ordinary criminal offences;

- Such tribunals act on behalf of the whole international community and is therefore entitled to pronounce upon crimes that offend universal values; - Such courts are not bound by national approaches and traditions.

Main problems with besetting international criminal proceedings;

The crucial problem international criminal courts face is the lack of enforcement agencies directly available to those courts for the purpose of collecting evidence, searching premises, seizing documents, or executing arrest warrants and other judicial orders. They are totally dependent on international diplomacy and states’ good will.

Another problem is excessive length of international criminal proceedings. Another major flow of international trials is that international criminal courts must confine themselves to trying those who bear the heaviest responsibilities for international crimes, the leaders or the high-ranking military officers, not the thousands of people who have physically carried out murder.

Among the mentioned remedies establishment of ad hoc tribunal seems not realistic for the objective reasons, since the current trend in international community shows that this remedy is not resorted to anymore. While considering all of those options it should be taken into account that in principle all of those mechanisms could be realised or become effective if there is a political will of Russia Federation. The international or hybrid court can be considered as the most appropriate forum for prosecution of the international crimes in Russia, however, their establishment depends upon political will of the state, thus, in the recent future its establishment can not be foreseen. So, from the legal point of view, even in the absence of political will of Russia the only mechanism to address the international crimes committed in Russia is exercise of the universal jurisdiction over those crimes by some states.

Conclusion - The way ahead

So, in the face of the abovementioned arguments it can be concluded that all efforts should be directed to use the appropriate international remedies. However, taking into account the lack of resources the efforts should be strengthened for setting at least the hybrid tribunal for the crimes committed in the Chechen Republic and urging Russian Federation to ratify the Statute of the International Criminal Court. Besides, preparing certain cases to be tried by the states exercising universal jurisdiction shall be of priority taking into account that at least consideration of the cases do not depend on the will of Russia Federation.

All other avenues to pursue accountability for the crimes, including interstate complaints before the European Court of Human Rights shall be resorted to. Besides, filing individual applications to the ECHR shall be continued.

There are multiple reasons, including social, political causes hindering transitional justice and dispensing international criminal justice in the context of Russia is much more challenging task. The roots of the conflict or the causes aggravating the tension shall be brought to particular attention of those fighting for the justice. The challenge of accountability, the rule of law, lack of democracy is central to impunity in Russia. Despite the importance of addressing these challenges for long term stability and peace, relatively limited attention was given to many of these issues. Accordingly, even if theoretically Russia agrees to have recourse to any of the mentioned remedies, still there is a risk of achieving just “procedural justice” or appearance of justice instead of “substantive justice”. Both the national and international remedies established for Chechen-Russia conflict shall meet international standards, particularly those of fairness, due process. Therefore activities aimed at monitoring, researches, preparation of the databases, collecting evidences for the future cases must be continued. Special emphasis should be made on establishment of truth-finding commission to be involved into the issues such as truth identification and reconciliation, even as quasi-judicial body entitled to consider the cases on low rank of officials-perpetrators.

The way to justice for Chechen-Russia conflict to be pursued through long and complex fight for democracy, therefore, the justice for international crimes shall be included into the agenda of the fight for democracy.

At the same time, the democracy and rule of law does not guarantee that justice for Chechen war will be dispensed properly, since there are other causes/results of the tension, including the stereotypes, hatred among population and they also should be redressed.

Therefore, there is a long way which requires proper strategy to work with different target groups such as Russia Federation, other states, civil society, mass media, international organizations, etc.

History changes, things that we are sceptic about turn to be reality. Thus, it is very important to have reliable evidence and clear vision of the mechanisms of prosecution of international crimes for to be able to dispense the justice at the time when there is a real possibility.

Justice should be done!!!

DEBATE ON THE STATEMENT OF THE PLAINTIFF

Gunel Guliyeva (member of commission): Do you think that cases of the European Court of Human Rights can somehow contribute to proving that the international crimes have been committed in the course of the Chechen-Russia conflct?

Plaintiff: I have already mentioned that the judgements issued by the European Court of Human Rights on the chechen cases play an important role in proving commission of the international crimes. The European Court of Human Rights delivered more than 100 judgements on the basis of the applications of the Chechens against Russia Federation, and still there are many pending cases of similar character. In most of those cases it has been found that Russia is responsible for violation of fundamental human rights such as the right to not to be subjected to torture, the right to life. As regards follow-up of these cases, Russia was limited only with payment of compensation to the applicants. It has to date failed to hold a single individual accountable for the violations found in these rulings. Failure in execution of the judgments of the European Court is an evidence of the lack of will of Russia to deal with the international crimes in the national level as well. This urges to have recourse to the international mechanisms for achieving justice. Besides, we should take into account that systematic nature of the offences is an intrinsic element of some of the international crimes. In this respect the same violations found almost in most of the ECHR judgments can be helful to prove the commission of some crimes.

Gunel Quliyeva: What are the prospects of inter-state complaints in the European Court of Human Rights for the international crimes that you have mentioned about?

Plaintiff: The inter-state complaints might address only some of the human rights violations committed in the course of the conflict, but it is not a pure tool of international criminal law to redress the international crimes. However, it should be mentioned that number of the inter-state complaints in the practice of the European Court of Human Rights is very few; a political will for the states to file applications against other countries is in general absent. I do not think we can witness the recourse to this remedy against Russia at least in recent future.

Bela Dallakyan (commission member): Do you think it could be useful to establish bodies such as the truth-finding commission? The main aim is to achieve justice for the international crimes committed in the course of the Russian-Chechen conflict. In this respect truth-finding missions or quasi-judicial bodies might be very useful. They could be helful in finding ways to reconcile the parties to the conflict, collecting evidences, even could consider some cases not related with high officials.

Niyazi Mehdi (commission member): Are there enough evidences proving that international crimes have been committed in the course of the Chechen-Russia conflict?

Plaintiff: It is really huge and challenging task to prove commission of the international crimes, particularly to collect data on facts. However, there are several NGOs in Russia (*) and in the world that are involved into the fact-finding mission and that collected some data, evidences on international crimes. However, this task should be continued. For these reasons we ask to establish the mechanisms for the international crimes as soon as possible in order to be able to have access to the evidences that are in possession of Russia Federation as well. Besides, we call the international community to support the activity of the NGOs, or individuals who are involved into collecting evidence.

* With the financial support of the National Endowment for Democracy the NGOs called Russian-Chechen Friendship Society and Nijni-Novqorod Fund on Support to Tolerance published study providing useful legal and factual background to the conflict and the crimes committed in the course of the conflict. The collective monography is titled “International Tribunal for Chechnya” (“Международный Трибунал для Чечни: Правовые перспективы привлечения к индивидуальной уголовной ответственности лиц, подозреваемых в совершении военных преступлений и преступлений против человечности в ходе вооруженного конфликта в Чеченской Республике”), 2009; S.М.Dmitriyevskiy (editor), S.М.Dmitriyevskiy, B.I.Qvareli, O.А.Chelisheva; http://www.scribd.com/doc/17647465/-1, http://www.scribd.com/doc/17647576/-2

SIMON PAUPASHVILI'S RESPONSE

Introductory Remarks

The core allegation of my opponent is that Government of Russian Federation: a. has committed crimes that are of international character and b. that Government of Russian Federation has failed to investigate those crimes that were committed during the internal armed conflict in Chechnya by the representatives of the Russian Armed forces. My opponent also argues that the only way to have those crimes investigated in through involvement of international community in one way or another. More specifically she proposes several alternatives including: a. prosecuting crimes in the national courts in countries that have legislation envisaging universal jurisdiction; b. Ad hoc tribunal; c. hybrid national-international tribunal; d. International Criminal Court;

As a response to the arguments proposed by my opponent, I will argue that 1. Russian Armed Forced have not committed a serious international crimes; 2. Government of Russia has already undertook everything it could in order to effectively investigate the crimes committed; 3. Government of Russia is responsible for the respect and protection of human rights within its jurisdiction and attempts to impose blurry notions of international law on Russian authorities constitutes action against the sovereignty of the country that I represent.

(1) Alleged commission of international crimes by the Russian forces during the internal armed conflict in Chechnya.

The First Chechen War, also known as the War in Chechnya, was a conflict between the Russian Federation and the Chechen Republic of Ichkeria, fought from December 1994 to August 1996. After the initial campaign of 1994–1995, culminating in the devastating Battle of Grozny, Russian federal forces attempted to seize control of the mountainous area of Chechnya but were set back by Chechen guerrilla warfare and raids on the flatlands in spite of Russia's overwhelming manpower, weaponry, and air support. The official figure for Russian military death toll is 5,500. The Second Chechen War, in a later phase better known as the War in the North Caucasus] began on 2 August, 1999, when Chechen militants launched an armed invasion of Dagestan. Russian federal military forces supported Dagestani units to repel the invasion. On 1 October, following the Russian apartment bombings which were organized by Chechen separatists, Russian troops entered Chechnya.

In both situations Government of Russian Federation had no choice other than of using force to protect it’s own nationals from the imminent threat that was coming from the side of Chechen terrorist groups who were blatantly violating the rights of the people residing within the Russian jurisdiction. I would like ask a simple question to all of you: what would be the reaction of any democratic government to such atrocities happening on a continuous basis. Indeed the answer is very simple. Any government is obliged to do everything it could do to protect individuals residing in its territory from such a violent and Russian Government, as a democratically elected government, which respects its own people and Constitution has acted accordingly.

Allegations of the war crimes and crimes against humanity remain to be ungrounded and unjustified. Whilst, Chechen militants were the ones who were blatantly violated the laws of war, none of the reports of so called “independent observers” reflect the realistic picture.

Russian military is one of the world’s most well trained armed forces which is very well aware of the rules of combat. Every person who enters the Russian military receives the necessary training which also includes the key aspects of the law of wars and anyone who does not respect Russian legislation is punished with the maximum severity.

I would like to emphasize that in very rare circumstances when actions of the Russian armed forced led to the civilian casualties or destruction of civilian property: a. it was caused by the illegal actions of the Chechen militants who often were firing from the densely populated places; b; force used by the Russian Authorities was always proportional to the aim sought.

Therefore any allegation concerning war crimes or crimes against humanity that allegedly took place from the side of Russian Armed Forces are groundless.

(2) Actions undertaken by the Russian Federation to investigate the crimes that took place during the armed conflict

I would like to stress out that criminal justice system of Russian Federation is working well and rate of investigation of the crimes that lead to prosecution is well over 80%. Moreover, I would like to declare that crimes that took place during the armed conflict are not exception and are dully treated by Russian investigative authorities.

I would like to cite the case of Salatkhanovy v Russia dealt by the European Court of Human Rights, where the European Court has clearly acknowledged that investigation carried out by Russian authorities in relation to the alleged violations of several provisions of the European Convention, was effective. In particular the Court stated the following:

“The Court observes, firstly, that at the time of the events Ch. (M.) was engaged in a military service. It notes, at the same time, that Ch. (M.) did not shoot at Ayub Salatkhanov within a framework of any military operation and that no order had been given to him in this respect. Furthermore, domestic courts found Ch. (M.) guilty of murder, sentenced him to ten years’ imprisonment and acknowledged the second applicant’s right to claim damages. The question arises whether, in accordance with Article 34 of the Convention, the applicants can still be regarded as “victims” of a violation of Article 2.

The Court reiterates that, according to its case law, the applicant may lose the status of “victim” in instances where “the national authorities have acknowledged, either expressly or in substance, and then afforded redress for, the breach of the Convention” (see Dalban v. Romania [GC], no. 28114/95, § 44, ECHR 1999 VI).

As regards the acknowledgement of the violation, the Court observes that the domestic investigation was instituted immediately on the date of the shooting. In the days which followed the authorities took significant investigative measures, having examined the crime scene and the military vehicles that formed part of the convoy, questioned numerous witnesses and conducted investigative experiments. The Court does not find the fact that Ch. (M.) was not charged immediately after the events to be evidence of the inefficiency of the investigation, since from the materials in the case it follows that the investigating authorities made diligent efforts to establish the circumstances of the events and to reconcile conflicting versions of events. Likewise, the Court considers that the long duration of the investigation did not detract from the acknowledgement of the violation, since in the present case it was caused by Ch.’s (M.’s) absconding from the investigating authorities and the need to establish his whereabouts, which was further complicated by his change of name. The Court has no evidence to imply that the authorities either acted in bad faith or failed to take all appropriate steps to locate him. It further notes that in the present case the applicants did not allege that they had not been duly informed of the progress of the investigation. Finally, the domestic investigation resulted in a trial which led to the serviceman who had killed the applicants’ son being convicted of murder and sentenced to ten years’ imprisonment. The Court thus finds that the domestic investigation was effective for the purposes of Article 2 of the Convention and that the conviction constituted express acknowledgement by the authorities of a violation of Ayub Salatkhanov’s right to life.”

The effectiveness of the investigative authorities was moreover recognized by the European Court in the admissibility decision in the case of Elsanova v Russia.

Indeed there are numerous cases dealt by the domestic courts which prove that Government of Russia is indeed willing and capable to respect human rights and punish those who violate them.

(3) The need for respect of the state sovereignty

Sovereignty is a notion which is essential requisite for the existence of the state in a modern day world. Sovereignty is the quality of having supreme, independent authority over a territory. It can be found in a power to rule and make law. Internal sovereignty is the relationship between a sovereign power and its own subjects.

It is within the sovereign power of the Russian state to decide upon the issues of criminal responsibility which includes: a. Decision upon which actions to recognize as punishable acts, e.i. criminal acts. b. Decide upon the severity of such crimes. d. To actually carry out prosecutorial functions, which in practice means identification and punishment of those who commit acts which are punishable under the domestic or international law.

Indeed the state sovereignty is not an absolute notion and can be restricted in certain circumstances. One of the clearest grounds for restrictions is blatant violations of human rights by domestic authorities. Some even argue that international community has a responsibility to protect when domestic authorities are blatantly violating human rights of persons residing within its jurisdiction. Responsibility to Protect is a recently developed concept in international relations which relates to a state's responsibilities towards its population and to the international community's responsibility in case a state fails to fulfill its responsibilities. One important aim, among others, is to provide a legal and ethical basis for "humanitarian intervention": the intervention by external actors (preferably the international community through the UN) in a state that is unwilling or unable to prevent or stop genocide, massive killings and other massive human rights violations. Supporters of the theory view it as a method of establishing a normative basis for humanitarian intervention and its consistent application.

Nonetheless, solutions offered by my opponent are clearly aimed at unjustifiably restricting the sovereign authority of the Russian state, since Russian authorities do exercise their power in terms of protections of individuals residing within its jurisdiction and this among others includes investigation of those illegal acts that allegedly took place during the internal conflict in Chechnya.

Conclusion

As a conclusion, I would like to once again repeat that 1. There is no evidence that Russian Armed Forced have committed a serious international crimes; 2. Government of Russia has already undertaken everything it could in order to effectively investigate the crimes committed and the jurisprudence of the European Court is a clear example of this; 3. Government of Russia is responsible for the respect and protection of human rights within its jurisdiction and attempts to impose blurry notions of international law on Russian authorities constitutes action against the sovereignty of this country.

DEBATE ON THE STATEMENT OF THE RESPONDENT

Niyazi Mehdi: Does the indication to the statistics that the 80% of the reported crimes are investigated in the Russian Federation mean that the alleged war crimes that have taken place during and after two wars in Chechnya are also treated in the same way.

Respondent: The given statistics more or less also applies to the war-crimes. One moment that has to be taken into consideration and which can affect the effective investigation is the context in which the crimes have been committed and difficulties which are related to the implementation of the investigative activities.

Question of a wathcer: Russia claims that it can deal with the crime, including organized crime facts which take place within the jurisdiction of Russian Federation. What about the crime of terrorism and international cooperation?

Respondent: Despite the fact that the Russian Government is effectively dealing with the crime prevention and investigation, it does not exclude the cooperation. Quite the opposite Government of Russia is actively cooperating with states that are fighting terrorism through international efforts. This cooperation moreover also includes joint work with relevant international agencies dealing with organized crime.

Niyazi Mehdi: Is Russian Government complying with the decisions of the European Court?

Respondent: Russian Government is fully complying with the judgments of the European Court. In those cases where there are difficulties in execution sometimes there are delays, but these delays are related to the practical circumstances rather than political will.

Karine Asatryan (Chairwoman of the comission): What is the position of Russian Federation towards International Criminal Court?

Respondent: Russian Federation has signed a treaty and intends to ratify it. However, the process of ratification is delayed due to the politization of the matter in international relations.

The chairwomen announces about commentaries.

GIORGI MAGHULARIA COMMENT

I'd like to make a few comments in connection with defendant's speech.

First of all, you said that Russia defends and will always defend its nationals notwithstanding their ethnic background… I'd like to note that this statement sounds quite strange to say the least, especially if we remember how "well" and "efficiently" Russia defended its citizens during the various crises like the so-called 2002 Nord-Ost Siege (129 hostages dead) and especially the Beslan tragedy (334 hostages killed including 186 children – all Russian nationals)… But it's just an observation on my part…

Secondly, when you say that Russia is a sovereign country and it demands that its sovereignty be respected I can only say that yes, sovereignty of all countries must be fully respected, but such a demand sounds a bit hypocritical from the representative of the country that cares very little about the sovereignty of other countries, especially the neighboring, small countries… that's just another observation. As for your "argument" about the necessity to protect your nationals in Georgia during the August War of 2008, I'd like to remind you that the so-called Tagliavini Commission clearly stated that distribution of Russian passports among the residents of South Ossetia was completely illegal as far as international law is concerned and according to the findings of that Commission, as far as international law was concerned there were no Russian nationals on that territory (well, at least civilian Russian nationals), therefore Russia had no business interfering in that conflict.

You also mentioned in your speech the fact that about 80% of all crimes are investigated in Russia, it may seem like positive statistics (their accuracy is another issue – no neutral international body has ascertained that and it's very hard to believe Russian statistical data as it's fully controlled by Russian authorities), but only if we're talking about small or average crimes; but if we're talking about international war crimes I believe 20% (unresolved cases) is a very high figure, because Russia is a vast country and in this case we're maybe talking about hundreds of unsolved grave crimes against humanity.

And finally you said several times that Russia has nothing to hide and that your country investigates everything to the best of your ability etc. In this case I'd like to urge you to not hinder the process of submission of war crime cases perpetrated during the Chechen War to International Court of Human Rights, because as you yourself claimed a lot of times the Chechen rebels are funded by such notorious international terrorist organizations as Al-Qaeda, therefore if you have nothing to hide and if you really have substantial evidence of connections between Chechen rebels and Al-Qaeda terrorist network then what better place for you to clear your name once and for all than International Court of Human Rights?! You could prove there for the whole wide world to see how unjustly Russia is accused of war crimes and how valiantly you're fighting international terrorism in Chechnya and North Caucasus! I believe that especially in the light of your allegations of Al-Qaeda's involvement in the Chechen conflict the war crimes perpetrated during the Chechen War should be investigated and considered by International Court of Human Rights. The chairwomen announces about voting.

Who consider the arguments and opinion of the Plaintiff more reasonable?

For - 14
Against - 11
Withholding - 9

Chairwomen: As it appears from the reaction of our audience, they think that it would be more substantiated if Russia agrees to establish international mechanisms for the international crimes committed in the course of the Chechen-Russia conflict.