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The Moskalenko Memorandum
Written by Елена Милашина   
Четверг, 21 Октябрь 2010

Nord-Ost in court at Strasbourg: Russia needed eight years to abandon the principle of “we do not negotiate with terrorists.”

ImageOn October 23, 2002, the first Russian musical, Nord-Ost, was performed at Dubrovka. More than 900 persons were in the auditorium, and almost all were taken hostage by about 40 Chechen terrorists who carried out unhindered in the center of Moscow one of the largest terrorist attacks in Russian history.

On the night of October 25–26, it was decided to conduct assault on the theater. It is known that the operational headquarters included General Viktor Pronichev, deputy head of the FSB, and Aleksandr Voloshin, chief of presidential administration. The command went out to storm the theater using special operational units of the FSB, under the command of another FSB deputy chief, General Aleksandr Tikhonov.

The military operation began with the release of gas into the theater’s ventilation system. Still unknown is at the exact time that the gas started to enter the room containing the hostages. Until now the formula of the gas itself was a secret. It is known that the gas consisted of large-chain opiates based on fentanyl, which is used for anesthesia. It is also known that rapid and uncontrolled doses of this substance are fatal and especially dangerous when people are exposed while in a sitting position.

It is not known at precisely what time the military operation to destroy the terrorists began. Some FSB special operations officers entered the auditorium through a gay club operating in the Theater Center. Video cameras showed the appearance of riot police in the foyer of the theater center at 6:22 am. During the assault it is known that commandos were also poisoned, but none died under the influence of the gas.

It is also known that, for at least twenty minutes after the introduction of the gas, the terrorists realized it to be an attempt at an assault, but did not set off the bomb or suicide belts, and made no attempt to carry out mass shooting of the hostages. Hostages witnessed some of the terrorists, the female suicide bombers, losing consciousness from the effects of the gas.

During the special operation all the terrorists, even the unconscious ones, were shot, including controlled shots to the head.

Headquarters did not think out the small details of the terrorist destruction operation to destroy the terrorists, and had no plan for rescuing hostages: 129 of them died.

Authorities called the storming of Dubrovka “a brilliant special operation.” The criminal investigation into Nord-Ost determined that the deaths of the hostages resulted from a confluence of factors: primarily chronic diseases in the hostages themselves that were aggravated by stress, dehydration and lack of food. The rescue was found effective, despite the fact that the case files of 73 of the 129 slain hostages showed that medical care was not rendered. Documents, such as the entire FSB archive for Nord-Ost (destroyed shortly after the raid) and data on the composition of the gas and its effects on humans, were not used by the investigation in reaching its final conclusion: the gas did not cause the death of the 129 hostages.

By secret order of President Putin, the security forces were rewarded after Nord-Ost. Receiving the Hero of Russia medal were FSB generals Pronichev and Tikhonov, as well as the unidentified inventor of unidentified gas, also an FSB officer.

Former hostages and relatives of the victims created the Nord-Ost organization and found lawyers. Karinna Moskalenko and Olga Mikhailova represent the interests of one group of ‘Nord-Osters’, while Igor Trunov and Lyudmila Aivar represent another.

In early 2003, having received from the Russian courts the decision refusing to initiate criminal cases against members of the operational staff, rescue workers and doctors, the plaintiffs of Moskalenko and Mikhailova decided to appeal to the European Court.

In August of 2003, the 57 plaintiffs of Igor Trunov and Lyudmila Aivar also made this decision. Up to this point Trunov and Aivar had not much success in trying to receive acceptable compensation from the Russian and Moscow authorities for the former hostages and relatives of the victims.

Investigator Kolchuk investigated the Nord-Ost criminal case in proud isolation. It never reached a Russian court and not a single perpetrator of the murders of hostages, other than the slain terrorists, was identified in the investigation.

The European Court remained silent until 2007, when they examined Igor Trunov’s complaint. The court suggested that his plaintiffs should claim a violation of Articles 2 and 3 of the European Convention, which are considered to ‘weighty’ by the Strasbourg court. The Strasbourg Court, we remind you, reviews alleged violations of the rights of citizens by a GOVERNMENT. In the Nord-Ost case, at the very beginning the court already found signs that the state had violated the most basic of rights — the right to life.

The European Court’s reaction was the first warning to the Russian government, which, on one hand, used large-scale terrorist attacks to justify anti-democratic reforms (introduction of censorship, abolition of elections, legislative tightening), while on the other hand failed to investigate any terrorist act such as Nord-Ost.

A second warning was communication on a complaint prepared by the Karinna Moskalenko Center. As third parties, Karinna Moskalenko attracted international experts in the field of anti-terrorism enforcement. Moskalenko had a simple premise: terror attacks were not just Russia's woe; other countries also face hostage taking. In this area the global trend is as follows: use of force in such situations should be strictly justified by the concept of ‘extreme necessity’ and is regulated by international law. If no law exists, then they should turn to international norms and practices. But the main thing: in such situations one cannot refuse to negotiate with terrorists and use this principle as a manner of unwritten law.

It is well known that we do not negotiate with terrorists, this is the principle voiced by Putin. This highly controversial method makes it state priority to kill terrorists, not to save people, and as such a hostage is no longer protected by the Constitution.

How legal is ‘Putin's Principle’?

This is the main question put before the European Court in the Nord-Ost case.

The formula of gas and who gave the assault order are specific issues in a specific terrorist act. Is absolutely clear that the Russian government has categorically refused to even consider declassifying this information.

In Beslan, the gas and with its attendant consequences was not used, but the same principle remained, only duplicated in a more severe form.

Now the question on the legitimacy of this principle has become self-evident.

The Russian government cannot prevent the European Court from answering this question.

In early November of this year, the last stage of examining the Nord-Ost complaint will be complete and the Court will proceed to write its decision.

Since the Nord-Ost complaint was accepted in April, the European Court has been a mediator in dialogues between the Russian government and the Nord-Ost victims. This discourse is in written form; the Strasbourg court posed 58 very hard questions of the litigants. The applicants, that is, the victims, responded most meticulously, but the Russian government has avoided direct answers to most of the questions.

Unfortunately, the Strasbourg claimants and their lawyers cannot reveal these questions, because the ECHR, at the request of the Russian government, imposed an unprecedented measure of confidentiality.

But the fact that the Russian government abandoned its rigid principle of “we do not negotiate with terrorists” is not covered by confidentiality.

The Russian government has gone into denial. This happened after the International Commission of Jurists and Interight, both influential organizations of experts accredited by the UN and Council of Europe, at Karinna Moskalenko's request adopted and published a joint memorandum.

The memorandum analyzes in detail, with examples from international practices, when and under what conditions and how a government may use force in cases of hostage taking.

On page 7 of the memorandum it clearly states: “The use of force for releasing hostages must be the last of all methods used to resolve the situation. All non-forcible alternatives possible should be used, and if this is not done, it is to be treated as a violation of the right to life.

“The founding principles of the United Nations require that representatives of official law enforcement agencies in carrying out an assault order use non-violent means before opening fire. Principle 20 requires a state to try every non-violent alternative, including peaceful resolution, persuasion, negotiation, mediation, and other means in order to limit the use of force. In a hostage situation, authorities have an obligation to negotiate before making other tactical decisions in order to achieve the maximum safety of the hostages and their safe release.

“If a state fails to take adequate steps to find a peaceful solution, the state thereby violates the right to life.”

I asked Karinna Moskalenko how the authorities reacted to this.

Karinna said: “It is obvious that our government is familiar with this memorandum and understands its significance in the Nord-Ost case in Strasbourg, because the principle of “we do not negotiate with terrorists” has disappeared from the government’s responses. Instead, the authorities have begun to state that there really were negotiations with the terrorists*. But we do not recognize this, since negotiations are only by specially trained persons fully authorized by the government to conduct such negotiations. There was no such negotiator at Nord-Ost.”

* Recall that contacts with the terrorists were made by Doctor Roshal, the politicians Yavlinsky, Hakamada and Aslakhanov, Kobzon the singer, journalist Anna Politkovskaya, and others. Not a single one of them was acting under the necessary authority of the government.


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  Comments (3)
1. Решение ЕСПЧ о приемлемости жалобы по «
Written by Дмитрий website, on 08-09-2011 08:24
Возможно, не все посетители обратили внимание, что на сайте в разделе „правосудие“ опубликовано Решение ЕСПЧ о приемлемости жалобы по „НОРД-ОСТУ“.
http://www.nord-ost.org/pravosudie/9_ru.html
Текст на английском языке доступен на официальном сайте ЕСПЧ.
Перевод решения на русский язык выполнен Ириной Чибисовой.
2. Решение ЕСПЧ о приемлемости по „Норд-Ос
Written by Дмитрий website, on 20-09-2011 21:08
В разделе „Правосудие“ размещено Решение ЕСПЧ о приемлемости жалобы 18299/03 & 27311/03 (по трагедии в „Норд-Осте“).
Pазделы Решения:
\“Факты\» (п.1-108) http://www.nord-ost.org/pravosudie/fakty-2_ru.html
\"Факты\" (п.109-129) http://www.nord-ost.org/pravosudie/fakty_ru.html
\"Факты\" (п.130-159) http://www.nord-ost.org/pravosudie/fakty-prodolzhenie_ru.html
\"Жалобы\" (п.160-170) http://www.nord-ost.org/pravosudie/zhaloby_ru.html
\"Право\" (п.171-250) http://www.nord-ost.org/pravosudie/pravo_ru.html
Перевод выполнен Ириной Чибисовой
Текст на английском языке доступен на сайте ЕвроСуда по ссылке:
http://cmiskp.echr.coe.int/tkp197/view.asp?item=1&portal=hbkm&action=html&highlight=27311&sessionid=78747601&skin=hudoc-en
3. Переговорщик Сергей Говорухин
Written by ПАМЯТЬ, on 29-10-2011 00:54
Давайте вспомним добрым словом еще одного Гражданина России, возложившего на себя в те дни обязанности переговорщика — покойного ныне Сергея Станиславовича Говорухина…

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