The legal regulation of the employment of the Armed Forces of the Russian Federation in anti-terrorist warfare.

At the present day, terrorism increasingly threatens the security of the individual, the society and the state. The terrorist acts perpetrated in recent years in Moscow, Beslan, Budyonnovsk, Volgodonsk, Buinaksk, Grozny, Volgograd, Vladikavkaz, Voronezh, Gudermes, Makhachkala, Kaspiisk, Kizliar, Mozdok, Stavropol, Yessentuki, Pyatogorsk, Nevinnomysk, Mineralnye Vody, and Nalchik demonstrated the intention of terrorists to create in society the atmosphere of fear and instability. That is why, they had blown up apartment houses, commuter trains, aircraft, committed terrorist acts in the subway and in other congested areas, took hostages in the school, in the theatrical center and in hospitals.

In the recent past, antiterrorist warfare used to be the exclusive prerogative of the special operations forces (SOF). But, now the situation has drastically changed. Today, it is quite obvious that we touch pitch with international terrorism. The National Security Concept of the Russian Federation unambiguously states that "cross-border terrorism has unleashed the overt campaign aimed at destabilizing the situation in Russia", (1) As terrorist manifestations assumed cross-border dimensions, entailing enormous political, economic, human and moral losses, it is now impossible to struggle against this menace using the agencies of special operations forces alone. And that is why in Russia, as well as in other countries, the Armed Forces must be professionally employed to participate in anti-terrorist warfare.

In our State, the Constitution of Russia provides the basic legal framework for countervailing terrorism, by prohibiting the setting-up and the activity of public associations, whose goals and actions are directed at forceful changing the Russian Federation's constitutional regimen, the infringement of her integrity, the undermining of state security, the creation of armed formations, the exacerbation of social, racial, national and religious discord (Art. 13), and also by preventing agitprop manifestations to stir social, national and religious hatred and enmity (Art. 29). (2)

But until recently, the employment of the Russian Army for counter-terrorist operations was not envisaged in the Federal Law on Defense. (3) In 2005, the functions of the Armed Forces were legislatively expanded. For instance, the State Duma adopted the Federal Law dated 4 April 2005

No. 31 On the Amendment of Article 10 of the Federal Law on Defense. (4) This Law supplemented Item 2 of Article 10 of the Federal Law dated 31 May 1996 No. 61 On Defense with the reference rule, which states that the Armed Forces of the Russian Federation are also designed for the implementation of the tasks, which conform the Federal Constitutional Laws and the Federal Laws of the Russian Federation.

Note that the initial adoption, after the first hearing, of the Draft Law on the Amendment of Article 10 of the Federal Law on Defense contemplated its augmentation by the more rigorous direct application rule, which read: "The Armed Forces of the Russian Federation can be committed to countervail terrorist activities by using fighting capabilities, which conform the legislation of the Russian Federation." When the final draft of Article 10 of the Federal Law on Defense was adopted, the lawgivers did not resolve stating directly that the Ministry of Defense may use its organic means for solving the tasks of counter-terrorist warfare. Nevertheless, the above reference rule, in the aggregate with the counter-terrorist legislation norms, provides the Armed Forces of the Russian Federation with the legal framework for countervailing terrorist activities by using the fighting capabilities of the Armed Forces.

In conformity with Item 3 of Article 6 of the Federal Law dated 25 July 1998 No. 130 On the Struggle against Terrorism, the Ministry of Defense of the Russian Federation is the entity, which directly wages the struggle, within its competence, against terrorism. As is stated in Item 6 of Article 7 of this Law, the competence of the War Department encompasses: protection of organic mass destruction weapons, missilery, small arms, munitions and explosives; protection of RF MOD installations and facilities; participation in counter-terrorist operations. (5) Thus, the Ministry of Defense has been directly encharged by the Federal Law On the Struggle against Terrorism with the task of participating in the implementation of counter-terrorist operations.

The Military Doctrine of the Russian Federation, in Item 14, Part II, also points out to possible implementation of counter terrorist operations by the Armed Forces of the Russian Federation, stating that Army participation in counter terrorist operations must be effected in conformity with the Federal legislation. (6)

What tasks are military administration authorities encharged with in the event of the implementation of the counter terrorist operation?

In conformity with the President Decree dated 16 August 2004 No. 1082, the Ministry of Defense is the Federal executive arm, implementing the functions for elaboration and pursuance of State policy and for legal regulation in the Defense domain. (7) The given Decree spells out the questions pertaining to the competence of the War Department, but no specific tasks were indicated among them, in directly stated terms, for participation in counter terrorist operations.

At the same time, according to recently formed practice, the Ministry of Defense is specifically encharged with the following tasks for countervailing terrorism:

* analysis of the operational information about the current status and trends in terrorism incidence;

* participation in the organization of measures for liquidation of existing terrorist organizations and illegal armed formations, interception and blocking of channels of the illicit turnover of weapons, munitions, fissionable and highly toxic materials;

* coordination of joint activity for the deliberate denial of terrorist acts at nuclear facilities, and also of acts of sabotage with use of mass destruction weapons.

The General Staff of the Armed Forces of the Russian Federation is also entrusted with definite anti-terrorist tasks, among them: planning and organization of anti-terrorist measures in the Armed Forces; organization of interaction with the Federal authorities, which are involved in anti-terrorist warfare; War Department deputation in the Federal Anti-Terrorist Commission.

In conformity with Item 1 of the Regulations concerning the Military Okrug (District) of the Armed Forces of the Russian Federation, the Okrug is the basic military and administrative territorial unit of the Russian Federation, the operational and strategic all-arms formation of the Armed Forces, which is designed for implementation of preparatory armed protection measures and for the armed protection of the Russian Federation, of the integrity and inviolability of its territory within the established jurisdictional boundaries. (8) But, these Regulations do not refer to any tasks for the Military Okrug to participate in counter terrorist operations.

In our view, the Command of the troops of the Military Okrug (Fleet) must be responsible for the planning, organization and maintaining of the constant anti-terrorist alert posture of the troops (of the forces of the Fleet), as well as for maintaining on-going interaction with the Federal authorities, which are involved in anti-terrorist warfare, and for organization of work in the regional anti-terrorist commissions.

Likewise, the commander-in-chief of the fighting service of the Armed Forces, and the commander of the arm of the service must be responsible for planning and organization of anti-terrorist warfare in the fighting service and in the arm of the service, which are placed under their command, as well as for troops anti-terrorist warfare training.

The operational combined-arms Field Manuals and Regulations of the Armed Forces of the Russian Federation do not contain any provisions, which define the powers of military functionaries in anti-terrorist warfare. Nevertheless, in our view, commanders (chiefs) of military units and establishments, as well as military garrisons commanders must be responsible for planning, organization and conducting of anti-terrorist countermeasures in the bodies of troops (military units, establishments) and garrisons; for their constant anti-terrorist warfare readiness; for maintaining patrol and garrison duty, and of barracks guard duty at high level; for maintaining constant interaction with Federal authorities and local executive bodies.

At the present time, as part of anti-terrorist warfare, special squads fitted with special technical means have been formed in the Ministry of Defense of the Russian Federation. For instance, to ensure timely response to the threat of terrorist acts, there are mobile reserves available in Military Districts and Fleets, which also comprise, besides all-arms units, SOF subdivisions. Moreover, for joint operations with the Ministry of Internal Affairs and the Federal Security Service for prevention of terrorist acts, each constituent entity of the Russian Federation has been provided with company-size tactical groups detailed by the Armed Forces. The forces engaged in anti-terrorist warfare are supported by standard-issue special technical means, which are both land- and air-based.

Thus, in spite of the fact that military administration bodies have been actually engaged in implementing tasks as part of anti-terrorist warfare and even formed special units and subdivisions for this purpose, these tasks have been neither specified, nor legally formalized yet. In this connection, in our view, it is advisable to introduce the corresponding amendments in RF MOD Regulations, in RF Armed Forces Okrug Regulations, and also in Russian Army Field Manuals. Moreover, it is necessary to formalize, in legislative context, the questions of legal framework for Armed Forces employment in counter-terrorist warfare. In this connection, the adoption of the Federal Law on Countervailing Terrorism should be speeded up, with its Draft Law (No. 115259-4) adopted after the first reading in the RF State Duma as far back as on 17 December 2004.

This Draft Law contemplates to formalize the statutory norm, whereby the Armed Forces of the Russian Federation engage in counter-terrorist measures by way of: providing for the State's airspace safety, protection, by air defense troops and forces, of State security of individual facilities and of the country's other critical installations, the list of which is approved by the President of the Russian Federation; stopping terrorist acts in internal sea waters, in the territorial sea and on the continental shelf of the Russian Federation; promoting national sea navigation security, protecting the Armed Forces' own facilities and the weapons and materiel, munitions and explosives, which are in operational use (or in stores and supplies); conducting reconnaissance and special operations, and also rendering assistance to other Federal executive authorities in stopping terrorist acts. Besides, the authors of the Draft Law propose to formalize the provision, whereby, in exception cases in accordance with the legislation of the Russian Federation, the definite forces and means of the Armed Forces of the Russian Federation can be engaged for participation in counter-terrorist operations outside the boundaries of our country.

The Draft Federal Law On Countervailing Terrorism contains the special chapter, which governs the procedure for the Armed Forces of the Russian Federation to participate in the stopping of terrorist acts and in the countervailing of terrorism. For instance, the employment of Russia's Armed Forces for the immediate stopping of terrorist acts is envisaged in the following cases:

* First: in stopping the flights of air vessels, within the confines of airspace of the Russian Federation, which violated limitations and inhibitory actions for flying rules, if there are grounds to assume that violation of such inhibitory actions constitutes attack hazards for installations and facilities of the Russian Federation, and also in stopping flights of the air vessels, which were seized by terrorists, or which are used by them for realization of terrorist acts;

* Second, in protecting Navy installations and facilities, stopping terrorist acts in the internal waters and in the territorial sea of Russia, and also in stopping terrorist acts aimed against maritime production facilities, located on Russia's continental shelf, in promoting security of national sea navigation and in stopping terrorist acts in underwater environment;

* Third, participation in the conduct of the counter-terrorist operation.

The Draft Law envisages that in the event of employing Russian Army servicemen for participation in counter-terrorist operation, they must come under the Federal legislation provisions for Interior Troops in the part concerning the conditions, procedure and limitations for use of physical force, special means, weapons, combat materiel and special equipment, the guarantees for the personal safety of the servicemen and of their families.

Why, then, this important Federal Law for power ministries has not been adopted yet? The matter is that its adoption must be accompanied by significant amendments and additions to other legislative acts of the Russian Federation (Criminal Code, Code of Criminal Procedure, etc.). In this connection, there is need for development of the Draft Special Federal law on the introduction of the amendments and additions to certain legislative acts of the Russian Federation, which will be discussed and enacted simultaneously with the Daft Law in question. Besides, the enactment of the Federal Law On Countervailing of Terrorism would require appreciable extra outlays of the Federal budget and of the budgets of constituent entities of the Russian Federation, whereas such outlays had not been provided for in the 2005 Federal budget. Due to these circumstances, it had taken more than twelve months to finalize the Draft Federal Law on Countervailing Terrorism and also to produce its financial and economic substantiation.

A.S. Kulikov, deputy head of the State Duma committee for security, who is one of the initiators of elaboration of this Law, speaking on 29 November 2005 at the international seminar of the CIS states-participants concerning cooperation in antiterrorist warfare, explained that the final adoption of the long-awaited basic Law in counter-terrorist domain and its adoption are pending in the nearest two-three months. (9) The anti-terrorist seminar organized by the CIS antiterrorist center and by the U.N. department on narcotic drugs and crime was attended by representatives of law-enforcement agencies, special services and also of justice ministries of all CIS countries. The seminar participants stated with satisfaction that special laws concerning antiterrorist warfare had already been adopted in ten CIS countries by then, except Georgia and Turkmenistan, which do not have laws of this kind. D. Solongo, representing the Terrorism Prevention Branch of the U.N. Office on Drugs and Crime, qualified as satisfactory the work for harmonization of anti-terrorist legislation carried out in CIS countries. In her view, the joining of the CIS countries to twelve universal anti-terrorist conventions had become the substantial step toward effective application of U.N. anti-terrorist instruments.

To promote international cooperation in the sphere of security and anti-terrorist warfare coordination, the meeting of CIS heads of state, on 20 June 2000 in Moscow, took the decision on setting-up the Anti-Terrorist Center of member states of the Commonwealth of Independent States (ATC), which coordinates the activity of eleven special service agencies of the CIS countries. 1 December 2000 is the ATC start-up date, when the council of CIS heads of state approved in Minsk the regulations for the CIS anti-terrorist center.

The head of the CIS anti-terrorist center (currently, Col. Gen. B. Mylnikov) is appointed by decision of the council of CIS heads of state for three years, subject to further prolongation. By the table of ranks, the ATC head is placed on the same shelf with the first deputy head of the security agency of the state, which hosts the ATC headquarters. The ATC head has three deputies for adequate and operational interaction with other power ministries: from the council of ministers for internal affairs, the council of defense ministries and from the council of commanders of CIS Border Troops, respectively. At the same time, the ATC head, his first deputy and the other two of his deputies must not be citizens of the same state. In the execution of their functions, they must heed the interests of all CIS states.

It is worth noting that today, the ATC includes, practically speaking, all power ministries, which are called upon to combat terrorism: state security agencies, defense ministries, ministries of internal affairs, and also the Border Troops of CIS states.

Under ATC auspices, the CIS anti-terrorist units and troops conduct annual joint operational and tactical war games and exercises at the level of commanders and headquarters. For instance, Kyrgyzstan organized, in its territory, the command and staff exercises "Yug-Antiterror-2001," the operational and tactical exercises "Yug-Antiterror-2002" was conducted in the territories of Kazakhstan, Kyrgyzstan and Tajikistan, the war games "Azov-Antiterror-2003," "Zapad-Antiterror-2004" and "Kaspii-Antiterror-2005" were organized in the territories of Ukraine, Moldova and Kazakhstan, respectively. All exercises and war games engaged the security agencies of the majority of CIS states. Exercises and war games help elaborate methods and techniques for joint operations in anti-terrorist warfare, with substantial practical value for both the commanders and military personnel of the anti-terrorist and special units of CIS states. (10)

Regretfully, not all CIS states tend to cooperate in counter-terrorist activity. S.B. Ivanov, Minister of Defense of the Russian Federation, speaking at the corps diplomatique meeting at the General Staff Academy on 10 December 2004, suggested that the informational and analytical anti-terrorist center be set up on the basis of the command of the group of the Russian troops in Transcaucasia located in Tbilisi. At the same time, the Russian side offered, on the basis of the 12th Russian military base in Batumi, to set up the center for training specialists for counter-terrorist warfare for installations of maritime infrastructure and, on the basis of the 62nd Russian military base in Akhalkalaki, to set up the center for training specialists for Frontier Troops and for the ministry of emergencies. But, the Georgian side did not support these propositions.

The stepped-up activity of cross-border terrorist organizations in the territory of the Russian Federation involving enormous human losses, the death of innocent people, among them women and children, in the attack of the terrorists, on 21-22 June 2004, against the Republic of Ingushetia, the explosions during the flights of Tu-134 and Tu-154 on 24 August 2004, the explosion near Rizhskaya metro station in Moscow on 31 August 2004, the taking of hostages, on 1-3 September 2004, in Beslan (the Republic of North Ossetia-Alania) and the terrorist acts in the Chechen Republic, call for the extraordinary and urgent measures to be taken to stop terrorism.

The RF President Decree dated 13 September 2004 No. 1167 On Urgent Measures for Enhancing of Effectiveness of Anti-Terrorist Warfare (Paragraph "a", Item 2) assigns Russia's Ministry of Defense and other power ministries with the task of elaborating adequate measures for preventing and stopping terrorism in any form. (11)

In this connection, RF MOD leadership, in due course, made statements concerning the delivery of preventive strikes against terrorists. For instance, S.B. Ivanov, RF Defense Minister, said: "We shall deliver preventive strikes, indeed. If outside Russia's territory, the certain group of bandits projects itself in our direction with the aim of committing the terrorist act, we shall not wait for them to come and carry out their black deed. We have precision weapons and SOF units. And, we shall not restrict ourselves to anything, whatsoever. Except for one thing: we do not intend to use nuclear ordnance." (12)

Yu.N. Baluyevsky, Chief of General Staff, also made the statement concerning Russia leaving room for preventive strikes to be delivered in any point, wherefrom terrorist threat can emanate against us. Such strikes shall be delivered against the bases, encampments and pockets of terrorists, wherever they are located, by using any type of weapons (except for nuclear ordnance). Various means can be used for the delivery of such strikes. Precisely what means will be used for the delivery of such strikes and where, Russia's Defense Ministry does not intend to warn anyone about it, because otherwise the effectiveness of such strikes will be minimized. (13)

Even prior to the formal announcement of the stance of Russia's Defense Ministry concerning the delivery of preventive strikes against terrorists, the well-known specialist in strategic missilery Maj.-Gen. V.Z. Dvorkin, who thinks that strategic missiles can be used for the destruction of distant targets in anti-terrorist warfare, had spoken out in favor of carrying out the actions of that caliber, as may be required. In technical context, this is achieved by fitting strategic missiles with non-nuclear maneuverable re-entry vehicles (MARV), directed by the precision guidance system. (14)

In light of the possible delivery of preventive strikes, there is the question about the legal framework of such actions. It should be emphasized that the right to deliver preventive strikes, which are aimed against cross-border terrorism, has been consolidated in the U.N. decisions. For instance, in the Resolutions No. 1368 and No. 1373, which were adopted after the terrorist attack against the U.S.A., the U.N. Security Council urged the world community to double its efforts for the prevention and stopping of acts of terrorism, and also confirmed the need for struggle, with all the means permissible by the U.N. Charter, against the threats to world peace and security, which are caused by terrorist organizations. (15) The Decree of the President of the Russian Federation dated 10 January 2002 No. 6 On the Measures to Implement the U.N. Security Council Resolution dated 28 September 2002 No. 1373 also confirms the need for struggling, with all means in conformity with the Charter of the United Nations Organizations, against the threats to world peace and security caused by terrorist acts. (16) Note that the Counter-Terrorist Commission of the U.N. Security Council authorized the CIS Anti-Terrorist Center to carry out coordinating functions in the organization and implementation of measures for the pursuance of the 2001 U.N. Security Council Resolution No. 1373 across the entire area of the CIS states.

In answer to the terrorist act committed in September 2004 in Beslan, the U.N. Security Council in its Resolution of 8 October 2004 No. 1566 urged all states to prevent criminal acts of the terrorist nature, and where it was impossible to do it, then to take action so that such acts are vindicated conformingly to the magnitude of the consequences. (17)

Thus, the right to apply adequate measures for the prevention and stopping of terrorism, including the possible delivery of preventive strikes against terrorists by the special operation units of the Armed Forces, is consolidated today internationally and legally by the Resolutions of the U.N. Security Council and spelled out in the corresponding Decrees of the President of Russia.

At the same time, employment of the Armed Forces of the Russian Federation in anti-terrorist warfare must be effected subject to the strict and unambiguous fulfillment of the following provisions:

* conformity to the Charter of the United Nations Organization, the Constitution of Russia and Federal legislation;

* implementation by using the resources and methods, which are admissible by the U.N.;

* being adequate to the threats to world peace and security, caused by terrorist acts;

* contemplated preventive strikes must be delivered by using the non-nuclear means only.

NOTES:

1. Kontseptsiya natsionalnoi bezopasnosti Rossiiskoi Federatsii utverzhdennaya Ukazom Prezidenta Rossiiskoi Federatsii ot 17 dekabria 1997 g. No. 1300 (v redaktsii Ukaza Prezidenta Rossiiskoi Federatsii ot 10 ianvaria 2000 g. No. 24), Sobraniye zakonodatelstva Rossiiskoi Federatsii, 1997, No. 52, Art. 5909; 2000, No. 2, Art. 170.

2. Konstitutsiya Rossiiskoi Federatsii, Rossiiskaya Gazeta, 25 Dec. 1993

3. Federalnyi zakon ot 31 maya 1996 goda, No. 61-FZ, "Ob oborone," Sobraniye zakonodatelstva Rossiiskoi Federatsii, 1996, No. 23, Art. 2750; 2000, No. 1 (part 1), Art. 6; 2004, No. 27, Art. 2711.

4. Federalnyi zakon "O vnesenii izmenenii v statiu 10 Federalnogo zakona "Ob oborone", Sobraniye zakonodatelstva Rossiiskoi Federatsii, ot 11 aprelia 1996 g., No. 15, Art. 1276.

5. Federalnyi zakon ot 25 Julia 1998, No. 130-FZ, "O borbe s terrorizmom," Sobraniye zakonodatelstva Rossiiskoi Federatsii, 1998 g., No. 31, Art. 3808; 2000 g., No. 33, Art. 3348; 2002 g., No. 47, Art. 4634; 2004 g., No. 35, Art. 3607.

6. Voennaya doktrina Rossiiskoi Federatsii, Sobraniye zakonodatelstva Rossiiskoi Federatsii, ot 24 aprelia 2000 g., No. 17, Art. 1852.

7. Ukaz Prezidenta Rossiiskoi Federatsii ot 16 avgusta 2004 g., No. 1082, "Voprosy Ministerstva oborony Rossiiskoi Federatsii," Sobraniye zakonodatelstva Rossiiskoi Federatsii, ot 23 avgusta 2004 g., No. 34, Art. 3538.

8. Ukaz Prezidenta Rossiiskoi Federatsii ot 27 iulia 1998 g., No. 901, "Ob utverzhdenii Polozheniya o voyennom okruge Vooruzhennykh sil Rossiiskoi Federatsii," Sobraniye zakonodatelstva Rossiiskoi Federatsii, ot 3 avgusta 1998 g., No. 31, Art. 3840.

9. A. Tikhonov, "V boi--bez ogliadki," Krasnaya zvezda, 30 November 2005.

10. For more detail, see: V. Udmantsev, "Shchyt na puti ekstremizma," Voyenno-Promyshlennyi Kurier, 18-24 February, 2004; N. Patrushev, "Spetssluzhby dolzhny rabotat na operezheniye," Nezavisimaia gazeta, 23 August 2005.

11. Ukaz Prezidenta Rossiiskoi Federatsii ot 13 sentiabria 2004 g., No. 1167, "O neotlozhnykh merakh po povysheniu effektivnosti borby s terrorizmom," Sobraniye zakonodatelstva Rossiiskoi Federatsii, ot 20 sentiabria 2004 g., No. 38, Art. 3779.

12. S.B. Ivanov, "Yesli nado--nanesyom preventivnyie udary," Komsomolskaya pravda, 26 October 2004.

13. Yu,N. Baluyevsky, "Gotovnost k preventivnomu udary," Voenno-Promyshlennyi kurier, 12-18 January 2005.

14. V.Z. Dvorkin, "Manevriruyushchiye boyegolovki mozhno primenyat i protiv terroristov," Izvestia, 30 November 2004.

15. Rezoliutsii Soveta Bezopasnosti OON ot 12 September 2001, No. 1368 (2001), ot 28 September 2001, No. 1373 (2001), Moskovskii zhurnal mezhdunarodnogo prava, No. 1, 2002.

16. Ukaz Prezidenta Rossiiskoi Federatsii ot 10 ianvaria 2002 g., No. 6, "O merakh po vypolneniyu resoliutsii Sovieta Bezopasnosti OON" ot 28 sentiabria 2001 g., No. 1373, Sobraniye zakonodatelstva Rossiiskoi Federatsii ot 14 ianvaria 2002 g., No. 2. Art. 137.

17. Resoliutsiya Soveta Bezopasnosti OON ot 8 oktiabria 2004 No. 1566 (2004), Moscow, Ofitsialnyi sait OON. Available at: http://www.un.org/russian/documen/scresol/res2004/res1566.htm.

Col. of Just. M.F. GATSKO

Candidate of Philosophical Sciences

Mikhail Fyodorovich GATSKO was born on 21 June 1961. He graduated from Rizhskoye Higher Politico-Military School (1982), Politico-Military Academy (1991), Peter the Great Military Academy Post-Graduate Course (1997), Law Institute (2001).

He served in various positions in the Legal Department and in the educative apparatus of the Ministry of Defense of the U.S.S.R. and of the Russian Federation. From June 1997, he is Legal Assistant Chief, 4th Central Research Institute, RF Defense Ministry. Full Member, the Academy of Security, Defense, Law and Order Issues; Professor, the Academy of Military Sciences. He is the author of 30 scientific publications.