Political
conflictologu
Ospanova
A.N., Ph.D
Anel
Abdrakhmanova
Postgraduate
student 2 course,
Regional
Studies Departament,
International
Relations Faculty,
L.N.Gumilyov
Eurasian National University
Astana
Case study
Non–international armed conflict in Kyrgyzstan, 2010
The Report of the International Law Association in
August 2008 concluded that all armed conflicts have as a minimum two necessary
characteristics: (1) the presence of organized groups that are (2) engaged in
intense armed fighting [1].
This form of conflict occurs very often in our society
and raises many questions of lawyers. The case study is limited to the
applicability of customary and international humanitarian law and analyses
non-international armed conflict in Kyrgyzstan took place in April – June,
2010.
Prerequisites
Kyrgyzstan – is a small country situated in Central
Asia and borders with Kazakhstan, Uzbekistan, Tajikistan and China. The
republic is independent and sovereign since USSR collapse. Politically,
Kyrgyzstan has become an unstable since first tulip putsch in 2005, which led
to overthrow of power and President Askar Akayev had to run away from the
country. Then there were a series of interethnic conflicts: in 2005 between the
Kyrgyzs and the Dungans, in 2009 - the Kyrgyzs and the Russians from the one
side and the Kurds from the another, in 2010 – the Kyrgyzs and the Turks, and
armed conflict in Osh city which will be analyzed [2].
The revolution with antigovernment set began on 7th of
April 2010. Among official causes are: low living standards, fight for the
power between South and North clans, increased signs of authoritarian regime.
As regards the economy of Kyrgyzstan, it was always vulnerable and many
thousands of people were poor. The unequal distribution of wealth among the
people prompted some radicals to wage a rebellion against the government [3].
NIAC,
characteristics
The event could be
easily called as a non-international armed conflict according to the ICTY and
the Tadic Appeal Decision (para. 70), the armed violence occurred between
governmental authorities and organized armed groups, in particular The United
People Movement (UPM) and thousands of their adherents against the President’s
law-enforcement bodies before the overthrow; after the putsch – between non-state
actors – self-proclaimed Kyrgyz interim government with adherents of ethnic
Uzbek people against ethnic Kyrgyz. UPM – is a political association, the
alliance of Kyrgyzstan opponents, which leading body is the National council
and the Political bureau. Its purpose – “prescheduled resignation of clannish
and anti-constitutional power headed by Kurmanbek Bakiyev”. Additional
characteristics of non-international armed conflict: à) presence of hostile organized actions between
fighting powers of the single state - Kyrgyzstan; b) actual participation in
armed conflict of contending sides’ armed forces, including police bodies; c)
weapon employment (the total number of used arm fires – 282 units, the total
number of captured munitions – 43 0456); d) collective nature of “performance”;
e) organized insurgents and the presence of body, which is responsible for
their actions – UPM, Kyrgyz interim government; f) not long duration and
intensity of armed actions [4].
Applicability of IHL
The article attempts to study the applicability of
International Humanitarian Law instruments in Kyrgyzstan. Jus ad bellum –
referring to sovereignty principle, a state has a right to solve all internal
conflict at its own judgement, including resort to armed force, or that is to
say responsibility to protect. Thus, the head of State Security Service –
Zhanybek Bakiyev, brother of the President, ordered to open a fire for effect
on armed people on 7th of April [6].
When the government forces were fighting against
rebels, during the ethnic conflicts occurred aftermath, then, there were a lot
of cases where human rights of common citizens were completely ignored. Both
the government forces and rebels were accused of violating national human
rights law and were found to be unconscious of International Humanitarian Laws
[7].
The state is a party to the UN key treaties, Geneva
Conventions and Additional Protocols . So, the government armed forces must be
made aware of their legal obligations during the war. There were frequent
incidents of International humanitarian law breach, applicable in situations of
armed conflicts [8].
Article 3 of Geneva Convention guarantees persons, who
do not directly participate in armed actions minimum humanitarian rights. It is
forbidden to kill, perform violence attitude, torture, and humiliation (by
reasons of race, religion, and ethnicity) towards that group of people. But the
government and power turnover was followed by violation in relation to civil
society and even to medicine staff [9].
The situation stressed ethnic intolerance in mass
media, where authors of the articles provoked the tension, insisting on
oppressed situation of Kyrgyz people, saying that Kyrgyzs should live better
than others, also maintaining that the Uzbeks fight for autonomy and for
official statute of Uzbek language [10].
The situation was followed by interethnic scuffles
among youth of Kyrgyz and Uzbek nations. State law-enforcement bodies tried to
stop the mass riots using arms, but it was the case of failed state, which lost
the control over the territory. Questions of justification and proportionality
in the case of weapon employment are still open in Kyrgyzstan. Lack of official
information from the state side had generated rumors, according to which the
shots were made depending on ethnic signs. Chain reaction was highly stressed
by interethnic character, accompanied by arsons, assaults, injures and murders.
According to customary tradition the Uzbeks do inter their relatives on the day
of death, in this connection during 10-13 June, there was mass buries in the
South region of Kyrgyzstan. Notwithstanding the fact that IV Geneva Convention
protects internment, it is absolutely necessary measure and is subject to legal
review, Public officers (medicine and police) did not participate in buries
because of fearing of their self-security. That is why the witness point
absence took place aftermath, complicating compensation issues and paper on
death filling process. The interim government declared riot emergency and
adopted the decree on weapon employment on effect on 12 June 2010 [11].
According to
International Commission on Intervention and State Sovereignty, threshold for
military intervention on human protection claims large scale loss of life,
which is really took place. During the period of armed conflict in Kyrgyzstan,
the number of killed was about 490 people. The government did not perform
enough control over armed forces. Civil people claimed several times that it
was difficult to distinguish the personality and belonging persons to curtain
group, also armed forces exceeded the use of power. General humanitarian
principles and rules did not have been kept nor by government armed forces
neither by anti-governmental [12].
Customary law
The Constitution of Kyrgyz Republic adopted by
referendum on 21 October 2007 was in force during the June events. According to
which the State should serve to all country, not only to part of it, all Kyrgyz
people are equal and could not be discriminated by its race, religion or
nationality, every person has inevitable right to live, no one can lose this
right. Unfortunately, during the June conflict such important constitutional
clauses had not demonstrated its effectiveness in terms of human rights
protection during interethnic conflict [13].
Following customary laws, namely “Law of Municipal and
Administrative Government” – the question of human rights, keeping order;
“Crime Code” – murder, raising national enmity, “Law on Prosecutor” - control
over constitutional execution, “Law about Media” – checking the material
authenticity, are also in the list of ineffective and violated documents.
According to the materials of Society Fund “Kylym Shamy”, journalists made a
lot in terms of interethnic destabilization factors in the region, namely: disinformation,
seducing and offensive messages took place [14].
The data stressed in the State bodies role during the
period of armed conflict in Kyrgyzstan report, such as overkill, extermination,
violence towards civil society, sexual abuse, in several cases no medical aid
provided, humiliation by ethnic sign, especially towards ethnic Uzbeks
illustrate the fact that applicable general principles during the NIAC, such as
principle of distinction, proportionality and pain relief were totally
disregarded [15].
Conclusions
Summing up we should emphasize the fact that
there was no timely reaction from the Government directed to stop inter ethnic
hatred. The government could not provide life security for its citizens, and
transparent actions of its law-enforcement bodies during the arm forces. The
IHL principles and customary laws were violated by anti-government groups as
well. And when there is a situation where both government forces and armed
rebels have violated various legal provisions, then, an independent and
impartial tribunal to try the crimes committed during the conflicts is
essential. The situation in Kyrgyzstan is still unstable, there is an invisible
conflict which can occur in any minute [16].
Used
literature:
1 Journal of Conflict & Security Law C _ Oxford
University Press 2009; doi:10.1093/jcsl/krp007, March 27, 2009, Defining Armed
Conflict,Mary Ellen O’Connell.
2 Atyrkul Alisheva, Director of Regional studies
institute, Bishkek, Kyrgyzstan; “Kyrgyzstan: destruction and creation”.
3. http://www.rosbalt.ru/main/2010/04/07/726477.html
Expert: Riots in Kyrgyzstan - is the response on authoritarian regime.
4. http://www.icty.org/x/cases/tadic/acdec/en/51002.htm
70.
5. State bodies role during the period of armed
conflict in Kyrgyzstan, Report was written with the participation of Human
rights protection centre “Kylym Shamy”; HDIM.NGO/0101/12/RUS 26 September 2012.
Page 13
6.
http: //
lenta.ru/news/ 2010/04/11/civil/
7.
State bodies role
during the period of armed conflict in Kyrgyzstan, Report was written with the
participation of Human rights protection centre “Kylym Shamy”;
HDIM.NGO/0101/12/RUS 26 September 2012.
8.
http://www.icrc.org/rus/resources/documents/news-release/2012/kyrgyzstan-news-2012-09-18.htm
9.
Armed people with
captured weapon on 7 April 2012, at collision with state security service and
special “Alfa” subdivision agents next to the Forum agency building, directed
to Central square. State bodies role during the period of armed conflict in
Kyrgyzstan, Report; HDIM.NGO/0101/12/RUS 26 September 2012
10. Article “Êûðãûç÷à òàêòûê áåø ìîíóò åðòå” 4 March 2010, p.13
11. Decree #68
dated 12.06.10 “About permission to weapon employment”
12. State bodies
role during the period of armed conflict in Kyrgyzstan, Report;
HDIM.NGO/0101/12/RUS 26 September 2012
13. 16.06.2010 Armed rota of 12 soldiers, equipped with
auto rifles, launchers, and sharpshooters periodically fired on civil housing
estates from Suleiman mountain.
14. Article 2,
Constitution of Kyrgyz Republic, 2007 16 Article 13, Constitution of Kyrgyz
Republic, 2007
15. State bodies
role during the period of armed conflict in Kyrgyzstan, Report;
HDIM.NGO/0101/12/RUS 26 September 2012
16. Human rights protection center “Kylym Shamy”,
Kyrgyzstan.