1 The first phase of the war lasted from 1994 to 1996. The war resumed in the fall of 1999 following the bombings of several apartment blocs in Moscow, which Russian authorities attributed to Chechen terrorists. For an informative overview of the Russian-Chechen wars, see Dmitri, V. Trenin, The Forgotten War: Chechnya and Russia’s Future (Carnegie Endowment for International Peace Policy Brief 28, 2003), at <http://www.carnegieendowment.org/pdf/files/Policybrief28.pdf>.Google Scholar

2 Convention for the Protection of Human Rights and Fundamental Freedoms, Nov. 4, 1950, ETS No. 5, 213 UNTS 222. The Convention and its protocols are available at <http://conventions.coe.int/>.

3 Khashiyev v. Russia, App. Nos. 57942/00 & 57945/00 (Eur. Ct. H.R. Feb. 24,2005); Isayeva, Yusupova & Bazayeva v. Russia, App. Nos. 57947/00, 57948/00, & 57949/00 (same); Isayeva v. Russia, App. No. 57950/00 (same). The judgments of die European Court of Human Rights are available online at <http://www.echr.coe.int>. The cases were each filed with the assistance of counsel from the London-based European Human Rights Advocacy Center and Memorial, the Russian human rights organization.

4 Earlier notable European Court of Human Rights cases involving the use of force in non-international armed conflicts include Gül v. Turkey, App. No. 22676/93 (Eur. Ct. H.R. Dec. 14, 2000) and Ahmet v. Turkey, App. No. 21689/93 (Eur. Ct. H.R. Apr. 6, 2004).

5 Khashiyev, para. 17. The factual details concerning the relatives’ deaths are set forth in paragraphs 13 to 27.

6 See, e.g., id., paras 41, 120.

7 Id., para. 133. Although the Court did not mention it, an analogy may be found in Corfu Channel (Alb. v. UK), 1949ICJ Rep. 4,18 (Apr. 9) (discussing the evidentiary presumptions available when one state has exclusive control over territory in which an alleged violation of international law occurred).

8 Khashiyev, para. 147.

9 Id., para. 153.

10 Id., para. 158.

11 Id., para. 166.

12 Id., paras. 172-73.

13 Id., para. 180. Related to the claims of an ineffective investigation, the Court also found that the Russian Federation failed to provide an effective remedy to the applicants as required by Article 13 of the Convention. See id., para. 185.

14 The facts presented here are found in paragraphs 11 to 17 of Isayeva, Yusupova & Bazayeva v. Russia.

15 Id., para. 18.

16 Id., para. 38. ,

17 Id., para. 21.

18 Id., para. 48 (statement to Russian investigators by the chairman of the Chechen Committee of the Red Cross and Red Crescent, who was with the convoy).

19 Id., para. 32.

20 Id.

21 Id., para. 79.

22 Id., para. 80.

23 Id., para. 88. Ultimately, however, a criminal investigation was closed for lack of corpus delicti. Id., para. 90. The judgment, id., para. 97, describes the military prosecutor’s final decision not to pursue an investigation:

The document concluded that harm to the civilians was caused by the actions of the pilots B. and P., who 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. Furthermore, the pilots did not intend to cause harm to the civilians because they did not see them until the missiles had been launched. The criminal investigation was closed for absence of corpus delicti in the pilots’ actions.

24 Id., para. 156. They also argued that the attacks were in violation of Common Article 3 of the Geneva Conventions of 1949. Id., para. 157.

25 Id., para. 160.

26 Id., para. 169. For the necessity element, the judgment draws from the Convention itself and the Court’s decision in Stewart v. United Kingdom, App. No. 10444/82, 39 Eur. Comm’n H.R. Dec. & Rep. 162, 169-71 (1984). For proportionality, the Court draws from McCann v. United Kingdom, 21 Eur. H.R. Rep. 97, para. 149 (1995).

27 Isayeva, Yusupova & Bazayeva, paras. 170-71.

28 Id., para. 181.

29 Id., paras. 187-89.

30 Id., para. 195.

31 Id., para. 199. Like the other cases, the Court goes on to find a violation of Article 2’s requirement for an adequate and effective investigation. See id., paras. 214-25. It found that the applicants’ Article 3 claim was subsumed under Article 2, id., para. 229, and that the attack interfered with one applicant’s “peaceful enjoyment of [her] possessions,” in violation of Article 1 of Protocol No. 1 to the European Convention, id., paras. 230-34.

32 Isayeva, para. 71.

33 Id., para. 173.

34 Id., para. 176.

35 Id., para. 185.

36 Id., para. 189.

37 Id., para. 191.

38 For discussion, see infra text accompanying notes 42-64.

39 Isayeva, para. 191 (cross-reference omitted).

40 Id., paras. 195-97.

41 Id., paras 200-01. As in the other cases, the Court went on to find a violation of the requirement implied by Article 2 that allegations of violation be given an adequate and effective investigation.

42 See supra text accompanying note 39. The Court does not make a similar assertion in the two other Chechnya cases reported here, but the approach of the Court appears consistent across all three cases.

43 See supra text accompanying note 37.

44 Article 15 of the Convention provides for derogation in the context of public emergency, but it does not provide for derogation from the obligations under Article 2 “except in respect of deaths resulting from lawful acts of war.”

45 See Isayeva, paras. 165-67; Isayeva, Yusupova & Bazayeva, paras. 155-58, 161-67.

46 See especially Meron, Theodor, The Humanization of Humanitarian Law, 94 AJIL 239, 266–73 (2000)Google Scholar, and Watkin, Kenneth, Controlling the Use of Force: A Role for Human Rights Norms in Contemporary Armed Conflict, 98 AJIL 1 (2004).Google Scholar See also Meron, Theodor, Human Rights in Internal Strife: Their International Protection (1987)Google Scholar; Schindler, Dietrich, Human Rights and Humanitarian Law, 31 Am. U.L. Rev. 935 (1982)Google Scholar; Dinstein, Yoram, The International Law of Inter-state Wars and Human Rights, 7 ISR. Y.B. Hum. Rights 139 (1977).Google Scholar

47 See Meron, supra note 46, 94 AJIL at 266-67.

48 Threat or Use of Nuclear Weapons, 1996 ICJ Rep. 226, para. 25 (July 8).

49 Michael, J. Matheson, The Opinions of the International Court of Justice on the Threat or Use of Nuclear Weapons, 91 AJIL 417, 421–22 (1996)Google Scholar. France, the Netherlands, Russia, the United Kingdom, and the United States asserted this position. See id. at 422 n.37.

50 See Abella v. Argentina, Case 11.137, ReportNo. 55/97, para. 161, Inter-Am. C.H.R, OEA/Ser.L/V/II.95 Doc. 7 rev. at 271, para. 161 (1997).

51 Isayeva, Yusupova 6f Bazayeva, para. 178; see also Isayeva, para. 180.

52 Such an acknowledgment tracks how several governments ratifying Additional Protocol I (Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Victims of International Armed Conflict, June 8, 1977, 1125 UNTS 3, available at <http://www.icrc.org/ihl.nsf/>) understood the legal test for the necessary precautions militaries must use in exercising force. See Statement of the United Kingdom upon Ratification of Protocols Additional to the Geneva Conventions of 12 August 1949, in Roberts, Adam & Guelff, Richard, Documents on the Laws of War 510 (2000)Google Scholar (conveying its understanding that actions must be assessed on the basis of “information from all sources which is reasonably available to them at the time.”). Spain, id. at 509, Italy, id. at 507, Germany, id. at 505, Canada, id. at 502, Belgium, id. at 501, and Austria, id. at 500, made similar or nearly identical statements. See also McCann v. United Kingdom, 21 Eur. H.R. Rep. 97, para. 200 (1995); accord Prosecutor v. Galić, No. IT-98- 29-T, para. 58 (Dec. 5,2003) (concluding that, “ [i] n determining whether an attack was proportionate it is necessary to examine whether a reasonably well-informed person in the circumstances of the actual perpetrator, making reasonable use of the information available to him or her, could have expected excessive civilian casualties to result from the attack”).

53 Isayeva, Yusupova & Bazayeva, para. 181; see also Isayeva, para. 181 (“[a]ccepting that the use of force may have been justified in the present case”).

54 See Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-international Armed Conflicts, June 8, 1977, 1125 UNTS 609, and common Article 3 of the 1949 Geneva Conventions, at <http:zywww.icrc.org/ihl.nsf/>.

55 Common Article 3 is also said to reflect customary international law. See, e.g., Military and Paramilitary Activities in and Against Nicaragua (Nic. v. U.S.), 1986 ICJ Rep. 114 Google Scholar, para. 218 (June 27); Jean-Marie, Henckaerts & Louise, Doswald-Beck, 1 Customary International Humanitarian Law 311–19 (2005).Google Scholar

56 Isayeva, para. 191 (emphasis added).

57 Isayeva, Yusupova & Bazayeva, para. 173.

58 Isayeva, para. 181.

59 The definition of military objectives in Additional Protocol I, for instance, provides much more room for argument— what is a military objective in a given situation?—than the European Convention allows. See Additional Protocol I, supra note 52, Art. 52(2). Military objectives, in any event, are not defined under Additional Protocol II. But see Henckaerts & Doswald-Beck, supra note 55, at 26-29; see also Gardam, Judith, Necessity, Proportionality and the Use of Force by States 7–8 (2004)Google Scholar.

60 Isayeva, para. 181; see also Isayeva, Yusupova & Bazayeva, para. 169 (“the force used must be strictly proportionate to the achievement of the permitted aims”).

61 Additional Protocol I, supra note 52, Art. 51(5). For the argument that the rule on proportionality applies in non-international armed conflict, see Henckaerts & Doswald-Beck, supra note 55, at 48-50.

62 See, e.g., Gardam, supra note 59, at 125 (concluding that Additional Protocol II “is of little assistance in protecting civilians against the effects of armed conflict, including attacks that result in disproportionate civilian casualties and damage to civilian objects”).

63 See Additional Protocol I, supra note 52, Art. 57 (requiring, in international armed conflict, that “those who plan or decide upon an attack shall... do everything feasible to verify that the objectives to be attacked are neither civilians nor civilian objects”). For the assertion that such rules of international armed conflict apply in internal armed conflict as a matter of customary international law, see Prosecutor v. Tadić, Appeal on Jurisdiction, No. IT-94- 1-AR72, paras. 119, 127 (Oct. 2, 1995). See also Rogers, A. P. V., Law on the Battlefield 231–32 (2004).Google Scholar

64 The Court may have missed the chance for such a duel when the Banković case—which involved a NATO attack on a television station in Belgrade—was found inadmissible on jurisdictional grounds. See Banković v. Belgium, Admissibility, App. No. 52207/99 (Eur. Ct. H.R. Dec. 12, 2001); Ruth, Alexandra & Trilsch, Mirja, Case Report: Banković v. Belgium (Admissibility), 97 AJIL 168 (2003).CrossRefGoogle Scholar