Renée Gendron is an Associate of the Canadian International Institute of Applied Negotiation (CIIAN), Ottawa, Ontario, Canada. She is a PhD candidate under the supervision of Dr. Charlotte Hille, University of Amsterdam. Her thesis focuses on conflict analysis and conflict resolution in the North Caucasus.
Abstract
This article argues that clan conflicts can be addressed through the extension of existing alternative dispute resolution mechanisms. Clan disputes and conflicts are interdependent of other violent conflicts. Through the expansion of existing informal justice mechanisms, the republics of the North Caucasus as well as the Russian Federation can improve the rule of law and reduce the incidents of violence. Recognizing and utilizing local indigenous conflict resolution mechanisms will also empower those populations, facilitating greater active participation in society.
Keywords: clan feuds, alternative dispute resolution, rule of law, stability
Introduction
This article** will argue that grassroots violence can be and is addressed in some circumstances by informal conflict resolution mechanisms, namely the use of customary mediation and conflict resolution mechanisms present in clan societies. While this violence is not directly pertinent to the separatist wars or the position of terrorist groups in the North Caucasus, should those conflicts be resolved, this low-level violence will remain. Addressing that specific low-level violence in both war and post-war settings is crucial to ensuring a lasting peace.
This type of violence is systemic in clan-based societies. Two rival clans which engage in a feud may escalate the violence to a point where the peace agreement is jeopardized. Recognizing, monitoring and utilizing informal conflict resolution mechanisms will be required for effective, and durable state-building. The Russian Federation already has alternative dispute resolution (ADR) mechanisms for the settling economic and family disputes. In some cases, individuals accused of a crime are able to access these alternative dispute resolution processes. This article argues that these mechanisms can and should be expanded to include clan-based conflicts.
There are several conflicts in the North Caucasus. Chechnya, Dagestan and Ingushetia[1] are being destabilized by insurgency, criminal and terrorist organizations and an ever-present Chechen separatist movement.[2] There remain several unresolved border disputes between the republics that strain already tense inter-ethnic relations. There is also another level of violence in the North Caucasus that stems from clan feuds. Clan feuds are interdependent of larger issues. Clan feuds can develop from the perception of being dishonored, a disagreement between clans which escalates to violence and an assortment of other political and non-political reasons.[3]
There are currently several simultaneous, and sometimes interdependent, layers of conflict in the North Caucasus. Although the war in Chechnya has officially been declared over, there remains some troubling evidence to suggest that there is a growing insurgency. Separatist groups, such as the one led by Dokku Umarov, remain intact and continue to have the capability to wage war.[4] There are also other groups which fight for the independence of the whole of the North Caucasus and they are willing to use terrorist methods in order to achieve it. Police officers, government officials and security personnel are increasingly being targeted and attacked, and high level of corruption, unemployment and general economic stagnation remain some of the biggest problems in the region. For some groups, the government’s inability to prevent crime and prosecute criminals, which has generated so much frustration, has in some instances called the legitimacy of the government into question.[5]
The current paper does not address the causes of the violent conflicts, the motivations for the Chechen separatist movement, for insurgency throughout the North Caucasus, or for terrorist groups. The article argues that there are other conflicts throughout the North Caucasus which pose a systematic threat to the stability of the region. These conflicts are often left unaddressed by official state institutions, yet they have the potential to destabilize many local governments and can cause a lapse or a relapse into war. These conflicts are the clan disputes which can easily escalate into violent clan conflicts.
ADR Mechanisms
Alternative dispute resolution can be formal or informal, meaning it can be an official part of any official legal proceeding, or it can be made available to parties to a conflict without the supervision of a court. Alternative dispute resolution is a way for the parties to negotiate their own settlement. The settlement can be legally binding. Alternative dispute resolution also tends to focus more on the interests of the parties as opposed to a legal hearing in which the only things considered are the rights of the parties and the law.
There are some cultural differences in terms of justice (punish the individual versus restoring social equilibrium). These cultural differences in justice have prompted different countries to develop their alternative dispute resolution systems. For example, Canada has instituted a similar mechanism for addressing some criminal offences committed in aboriginal (First Nations) communities.[6] Broadly speaking, the Canadian judicial system is primarily concerned with upholding the rights of individuals than with restoring social relationships. This is not the case in First Nation cultures, in which, restoring the wider social relations after a crime is, generally, more important than reasserting the rights of individuals.
When an individual has committed a crime in First Nation cultures, the broader community is involved in determining responsibility, and in restoring the relationship between the victim and the perpetrator, as well as the perpetrator and the broader community. The differences in cultural approaches to justice have led to some conflicts between the two communities (First Nations and broader Canadian society). In an effort to reduce this conflict and to maintain respect for First Nations cultures and traditions, an alternative dispute resolution system was created. Healing circles, among other reconciliation processes, allow “for a stay of criminal prosecutions while the accused follows through with an approved alternative process.”[7] The incorporation of reconciliatory justice within the broader framework of rights-based and constitutionally-based justice has given First Nation communities greater say in how they are governed. It has placed greater emphasis on local actors actively participating in their communities for the purposes of empowerment and local ownership of concerns, issues and problems. Given the nature of social relations in the North Caucasus, it would be beneficial to expand alternative dispute resolution mechanisms specifically for clan disputes.
The Russian Federation has in place alternative dispute mechanisms for certain types of economic disputes. These alternative dispute resolution arbitration courts are called “arbitrazhnye sudy” (arbitration courts).[8] Moreover, the Russian Federation’s judicial system does allow for mediation and alternative dispute resolution in family cases, civil and commercial cases and in some instances, for criminal matters. In specific relation to judicial-related matters in the Russian Federation, the court may decide to appoint a mediator. Also, the parties to the conflict may decide to hire a private-sector mediator.[9]
ADR Mechanisms in the North Caucasus
The range of situations in which alternative dispute resolution are used has broadened. Realizing that a formal court hearing is costly as well as lengthy, alternative dispute resolution permits the parties to a dispute or conflict to negotiate a mutually agreeable settlement. The use of alternative dispute resolution can be encouraged in the North Caucasus, as a way of relieving some of the underlying tensions in the region.
There are several outstanding land claim issues in the North Caucasus. These grievances pertain to the way in which the republics were divided, effectively splitting an ethnic group into two or more jurisdictions. One cause of the land claims was the deportation of the Circassians in the 1880s. Another source of land claim concerns is the Deportation of 1944, in which the Chechens and the Ingush peoples were sent to Central Asia by Stalin. These two deportations created lasting tensions. Successfully resolving land claims in ways that are acceptable for all parties will reduce tensions between ethnic groups and may help to assuage some fears within the smaller ethnic groups of assimilation and subsequent loss of culture.
In April 1991, the Russian Soviet Federal Social Republic’s Supreme Soviet passed the law “On the Rehabilitation of the Oppressed Peoples”. This law was intended to restore territories to their boundaries before the 1944 Deportation.[10] However, there remain many disputed territories within the North Caucasus as the afore-mentioned law prompted the migration towards historical homelands. Many of those historical homelands were inhabited by other groups shortly after the Deportation. Many of those other groups continue to inhabit those lands and this places additional strains on existing clan relations that are sometimes already tense. For example, the Sunzhensky district and the Prigorodnyi region remain contested territories between Chechnya and Ingushetia. Former President of Ingushetia Murat Zyazikov rejected negotiations with local clans over territorial and economic issues. In turn, this failure to negotiate with the clans has increased popular discontent with the government.[11] Furthermore, the Laks – who are ethnic Chechens living in Dagestan – have an unresolved territorial dispute in the Kazbegovsky District. This dispute is between the Laks and Avars in Dagestan. While the struggle is inter-ethnic, and stems from population movements as a result of the 1944 Deportation, much of the struggle is fought on a clan basis.[12] The afore-mentioned law of the Russian Federation, in attempting to redress historical injustices arising from the 1944 Deportation, created new conflicts over disputed territories. In turn, this drew in additional clans who contested for control over these territories.
A dispute between two individuals can escalate to the level of the clan. Escalation to the clan level may start a clan feud. Once the conflict has escalated to the clan level, there exists a real possibility of violence. This violence may be focused on rival clan members. Some clan members or clans may be involved in organised crime. Some organised crime groups, in turn, do business with some terrorist or separatist groups. This is not to suggest a “domino theory” in which violence against one person automatically escalates into wider violence. This is to illustrate that there are several layers of complex relationships within the North Caucasus. Those networks, familial, personal, economical and political, may have broader impacts, especially in terms of violence. Successfully mediating a resolution to a violent dispute between two clans will not resolve the deeper conflict of separatism, land claims, and terrorist organisations. However, in many instances, the successful resolution of a clan dispute will reduce the overall levels of violence in the North Caucasus.
Clans and Challenges to Clans as Social Structures
The Russian Federation’s constitution is meant to be the supreme law throughout its entire territory. As it is a federated state, each constituent member is able to enact its own laws within its jurisdiction, so long as they are in keeping with the Russian Federation’s constitution. In addition to these formal laws (federal and republic-level), many ethnic groups have their own historical customary laws. For the Chechens, this is the adat.[13] It is the social code which dictates which behaviors are acceptable and which are not. Variations of the adat are practiced by Chechens, the Karachay, the Adygay, and the Kabardins.
The practice of adat has been weakening in recent years, due to several factors. Since the collapse of the Soviet Union, religion in general, Islam in particular, has increased in importance. While many of the peoples of the North Caucasus have historically been Muslim, they tended to practice a form of Islam which conformed to the adat. Over the past twenty years, the local adats have been changed to better conform to more mainstream Islamic teachings.[14] The North Caucasus has had greater contact with other sources of religious teachings in recent years as well. This led to an increase in the practice of Arab-influenced Wahhabism in the North Caucasus throughout the 1990s and into the 2000s. The introduction of a stricter form of Islam into the region placed additional strains on the historical form of Islam practiced in the North Caucasus. Traditionally, it was the clan elders who mediated disputes but their significance was diminished as different religious practices were introduced. Wahhabism placed prohibitions on alcohol, for instance. The hierarchal nature of Wahhabi Islam goes against the strongly egalitarian nature of the indigenous cultures in the North Caucasus.
Also, with the introduction of Wahhabism in the region came linkages with the Middle East and the opportunity for many young Chechen men to study abroad. While studying abroad, these young men learned the importance of religious teachings, and the relatively low importance of clan affiliations. This further weakened the opportunities for clan elders to mediate or negotiate settlements to disputes and conflicts.[15] In addition, there has been an influx of foreign Imams into the North Caucasus, who taught that it was of more importance to follow Islam and its religious laws, than to follow the laws of the adat. Again, this too has weakened traditional conflict resolution mechanisms between the clans. Moreover, with the rise of Wahhabi Islam in Chechnya, it began to centralize power in religious institutions. This was in opposition to the traditional Chechen governance system of Mehk-Khel or council of elders.[16]
While the significant displacement of Chechens because of the two wars in the 1990s has created social rifts, and perhaps weakened some informal institutions such as clans, clans as social actors remain important in Chechnya and for Chechens. This can be demonstrated in the power struggle between Chechen President Ramzan Kadyrov’s clan and Ruslan Yamadayev’s clan. Ruslan Yamadayev was killed in suspicious circumstances in September 2008, and his brother Sulim was shot in Dubai, in March 2009.[17]
In Ingushetia, Chechnya and Dagestan, clan allegiance and affiliation play an important role when it comes to voting patterns, as well as general impressions of government.[18] Blood feuds are still common throughout the North Caucasus in specific population sections.[19] While blood feuds are not common in the ethnic Russian population, they remain a factor in Chechen, Ingush and Dagestani life. Opposition to government, because of the perceived and real levels of corruption, is often organized according to clan allegiance and alliances.[20]
Clan-based disputes pose several challenges to state building. The strong adherence to a set of laws, in this case adat in Chechnya, and other customary laws in the North Caucasus, sometimes challenges the Russian Federation’s constitution. The Russian Federation’s constitution guarantees the right to every person to a fair and transparent trial before any punishment is issued. This is not the case in clan disputes. The “verdict” of guilty is issued by a non-state actor, the other clan. Also, there is no fair and transparent trial in such cases. Consequently, there is no fair and transparent appeal process. The punishment for a real or perceived offense is also carried out by a non-state actor, the other clan. Historically, clan elders were the judges or mediators in disputes, introducing additional non-state actors in justice and reconciliation processes.
Moreover, it is often the case that the state is unaware of the conflict, as no official police report was filed, leaving many state officials unaware of the situation. As no state official is aware of the carrying out of “private justice”, individuals and clans, in this instance, are posing a direct challenge to the state’s ability to project authority and force throughout the totality of its territory. Another challenge to both the Russian Federation’s constitution as well as the republic’s legal order is that the punishment for alleged clan disputes may not be in keeping with existing laws. When there is an ongoing dispute, the practice of blood feuds is common. A blood feud often leads to violence resulting in bodily harm, and sometimes death.
Clan feuds remain an active part of Chechen life. The Kadyrov clan recruits individuals into their militias. In turn, rival factions recruit into their militias. As they violently contest for control, there are deaths. These deaths then become “blood obligations” that the militiamen must avenge. The cycle of violence is then continued, drawing in more militiamen into the “blood debt”.[21]
Also, willful destruction of another person’s property in retaliation occurs, as clans engage in tit-for-tat actions. None of these behaviors is in conformity with Russian law. Detecting and intervening in a clan dispute before it escalates into violence, which sometimes results in death, is imperative for constructive relations in the North Caucasus. Using and enhancing the conflict resolution expertise of clan elders and incorporating them into state operated informal alternative dispute resolution mechanisms can reduce the incidents of violence.
Moreover, the ethnic boundaries, and subsequently the clan boundaries in the North Caucasus, are fluid. Ethnic groups are often divided between two or more administrative units. As such, the clan feuds impact several jurisdictions simultaneously. The reason for the dispute may not have anything to do with the grievances which motivate some groups for war. A clan dispute can start for the perceived slight against one’s honor or a miscommunication between two members from two different clans.
However, clan disputes can and do have linkages to the overall violent conflicts in the North Caucasus. One clan may support the Chechen separatist movement while another opposing clan, does not. A dispute between two such clans can further destabilize the republic(s) as the grievance “escalates to another level of conflict”. While the conflict may originate in an interpersonal conflict between two clan members, it can escalate to involve other clans concerned with larger issues, such as separatism. Clan feuds can also escalate to other levels of violence, including support for or against terrorist groups, or groups which support the creation of a Pan-Caucasus caliphate.
The two types of justice systems, formal justice as dispensed by the state and informal as dispensed by clans, need not be in conflict with one another. Currently, the two systems are often in conflict, as they do not always share the same view on a matter. State justice, that is formal justice which is in keeping with the Russian Federation’s constitution, is there to protect an individual and prosecute an individual. Informal justice mechanisms, as used by the clans, are primarily concerned with achieving justice for the group, sometimes at the expense of the individual’s personal rights and freedoms.[22] Moreover, informal justice mechanisms used by clans place a strong emphasis on maintaining a balance between the relative powers of clans. No such stipulation exists within the formal justice system in the Russian Federation.
Disputes and conflicts between clans will not go away once all of the grievances that could motivate people to go to war have been resolved. The possibility of dishonor or perception of offence will continue to be part of the social fabric of Chechnya, Dagestan, Ingushetia as well as in general throughout the North Caucasus. Attempts to forcibly break the social power of clans have failed and will continue to fail. Instead of creating a confrontational relationship, or one which intentionally ignores the presence of clans despite their consequences, their informal conflict resolution system can be incorporated into larger state structures in efforts to reduce the level of violence and social strife.
While the Russian Federation does incorporate mediation and alternative dispute resolution into its judicial practices, including the mediation of family, contract and economic disputes, as well as the mediation of certain types of crimes, there are specific factors to the North Caucasus which need to be taken into consideration when addressing mediation practices in the North Caucasus. Many of the clan-based indigenous peoples of the North Caucasus have a rich history of informal conflict resolution. The type of mediation, the skills of the mediator, and the overall style of negotiation, needs to be taken into consideration. Negotiations involving clans tend to be cyclical, not linear, meaning that the parties involved in the conflict, including the mediator, must expect that issues will be revisited several times before they are considered “addressed in a satisfactory manner”.[23]
There are indigenous conflict resolution capacities throughout the North Caucasus. Incorporating clan based conflict resolution mechanisms into informal justice mechanisms, such as the use of alternative dispute resolution under the supervision of the Russian Federation’s courts, will do two very important things: i) it will reduce the incidents of clan-based violence as parties to a dispute have greater access to justice mechanisms, and ii) it will improve local ownership of disputes and their successful, peaceful resolution, as the method used for reconciliation is in keeping with local traditions and practices. Incorporating clan-based dispute mechanisms into the overall structure of alternative dispute resolution in the Russian Federation may also increase resources with which to reconcile and address these disputes. It will also assist state authorities in monitoring clan disputes, which in turn can provide state officials with sufficient warning about a tense situation. As argued, clan disputes can and do escalate to violence, sometimes resulting in death (blood feuds). Early detection and intervention by the state, in the form of clan-based conflict resolution, will assist state and civil society actors in monitoring and reducing the levels of violence in the North Caucasus.
Incorporating clan-based conflict resolution mechanisms into state practices provides several types of justice (formal and informal) to the population, while maintaining a sensitivity for cultural preferences (individual rights versus restoring social relations). It also recognizes that clans are part of the social fabric of the North Caucasus and can play a vital role in stabilizing the region. This is not to say that all clan disputes can be resolved in a manner that is in keeping with the Russian Federation’s constitution. However, incorporating clan-based resolution options into the framework of judicial oversight can reduce these infringements of constitutional rights. Right now, these informal clan-based conflict resolution mechanisms are outside the purview of the state. Allowing for their use, under the supervision of the Russian Federation’s courts, will make the state aware of such disputes and will provide greater opportunities for mutual collaboration between formal and informal justice mechanisms. It will also strengthen state institutions as access to broad justice is widened to include some aspects of clan-based conflict resolution. The clan-based mediators and dispute practitioners can be trained in the Russian Federation’s constitution, and on the type of settlements that are in conformity with Russian law. At the same time, aspects of clan-based conflict resolution which are constitutional can be strengthened, developed and promoted. This further strengthens the rule of law throughout the North Caucasus.
The Russian Federation does allow for alternative dispute resolution mechanisms to be used in other types of disputes. If the Russian Federation can expand the list of eligible disputes and conflicts to be resolved through alternative dispute resolution mechanisms, it would then facilitate local ownership for the identification, negotiation and implementation of a mutually agreed upon solutions. Moreover, it would encourage more active citizen participation in the region as these mechanisms for justice and reconciliation conform more to the indigenous cultures.
There are some instances in which clan-based justice is not possible. In such cases, the formal justice system of the Russian Federation must be used. One such example occurred when former Chechen President Maskhadov was not able to arrest Salman Raduev as it would have led to an internal clan dispute. Salman Raduev was sentenced to life in prison for having committed acts of terrorism and murder. He was found guilty of participating in the 1996 raid on the town of Kizlyar, in which seventy-eight people were killed.[24]
Conclusion
Recognizing and incorporating indigenous conflict resolution mechanisms into more formal state processes will help strengthen state structures as the state takes a more active role in conflict resolution through means other than the use of force. Clan feuds can also be inter-generational, meaning that the dispute remains unresolved and often bloody for generations. One of the longest recorded clan feuds lasted for two hundred and sixty years.[25] Stability in Chechnya, and the North Caucasus overall, will not be achieved until clan conflicts are acknowledged as a part of the social make-up. Reconciling and addressing those clan-based conflicts must be incorporated into more formal processes. Acknowledging and employing local customs for the resolution of conflict, also sends an important message to the peoples in the North Caucasus: that their cultures are valued and have a place within the Russian Federation. In so doing, this may reduce some inter-ethnic tensions in other areas as well as work towards empowering the peoples of the North Caucasus.
** The author would like to thank Dr. Charlotte Hille, and Dr. Evan Hoffman, CIIAN, for their comments and feedback on this article.
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[19] Marina Kamenev, “Has Russia Lost Control of the North Caucasus”, Time, June 12, 2009, http://www.time.com/time/world/article/0,8599,1904234,00.html (accessed September 23, 2009)
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[22] Walter Cummings-Richmond,“Legal Pluralism in the North West Caucasus: The Role of Sharia Courts”, Religion, State and Society, no. 32:1 (2004): 61-63.
[23] Tamara Duffey, “Cultural Issues in Contemporary Peacekeeping”, International Peacekeeping, no. 7:1(2000):158.
[24] Francesca Mereu, “Russia: War Destroyed Chechnya’s Clan Structure Part 1”, Johnson’s Russia List, January 5, 2002, http://www.cdi.org/russia/johnson/6006-13.cfm (accessed September 24, 2009)
[25] Emil Souleimanov, “Chechen Society and Mentality”, Prague Watchdog, May 25, 2003, http://www.watchdog.cz/?show=000000-000015-000006-000006&lang=1 (accessed September 24, 2009)