By Katherine Iliopoulos
In the aftermath of the five-day war between Russia and Georgia in August 2008, which left at least 850 people dead, both sides were keen to point the finger of the blame at one another. Now, a report sponsored by the European Union released on September 30 appears to have answered the question as to which side started the war.
A Fact-Finding Mission led by Swiss diplomat Heidi Tagliavini concluded that Georgia started the conflict when it launched the first shells at Tskhinvali, the capital of the breakaway region of South Ossetia, on the night of August 7, 2008 in an attempt to regain control of the region. But it also said that the attack was the culmination of a long period of tensions and provocations, including increased Russian military presence – and support for separatist movements – in both South Ossetia and Abkhazia. “The conflict has deep roots in the history of the region,” says the report, “in peoples’ national traditions and aspirations as well as in age-old perceptions or rather misperceptions of each other, which were never mended and sometimes exploited.”
The report accuses both sides of violating international law.
In international law, the legality of military force can be assessed under two overlapping but distinct sets of laws that were relevant to the conflict between Russia and Georgia: the laws governing the resort to force and aggression (jus ad bellum, which applies to conflicts between sovereign states), that is, whether the use of force as such was justified in a specific case, and the laws governing the conduct of hostilities (international humanitarian law, or jus in bello, which applies to any party to a conflict). In addition, international treaty law was relevant insofar as there existed a conflict between the State of Georgia and South Ossetia, which was and is not recognised as a state.
Jus Ad Bellum, the Use of Force, and Self-Defence
Article 2(4) of the UN Charter provides that “All members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.
The UN Charter, and jus ad bellum generally, only deals with conflicts between states and does not apply to internal disputes, such as those involving secessionist enclaves like South Ossetia and Abkhazia.
But despite the different status of the parties to the conflict (Georgia as a state, South Ossetia as a non-state entity and part of Georgia), the report found that the prohibition of the use of force and the right to self-defence as endorsed in the UN Charter applies to their relations.
The use of force by Georgia in South Ossetia, which began with the shelling of Tskhinvali on August 7, 2008, was not justifiable under international law according to the report, because, using the wording of Article 2(4), the use of force was “inconsistent with the with the Purposes of the United Nations.” And Article 2(4) is applicable because Georgia had in specific legally binding international documents previously acknowledged the applicability of the UN Charter, and in particular the prohibition on the use of force, to its conflict in South Ossetia.
And even though Georgia had a right to defend itself against South Ossetian attacks against Georgian villages, the report considered that the use of GRAD multiple rocket launchers and heavy artillery during the night violated the international law requirements of proportionality and necessity and that therefore the use of force by Georgia in this respect could not be justified as self-defence.
The actions taken by forces in South Ossetia did conform to international law in terms of legitimate self-defence, the report found, but only insofar as they were taken for the purpose of repelling the Georgian attack. Self-defence under Article 51 of the UN Charter was deemed to be available to South Ossetia despite it not being a state, because “if the use of force is prohibited in the relations between a state and an entity short of statehood, then self-defence must be available to both sides as well.”
Aggression in international law is defined as the use of force by one State against another, not justified by self-defence or other legally recognised exceptions. While the definition of aggression is normally not applicable to a non-state entity such as South Ossetia, the Mission considered the city of Tskhinvali and the villages west of Tskhinvali to be under South Ossetian de facto jurisdiction. Thus, the use of force by Georgian forces against the city of Tskhinvali was considered by the Mission to be an act of ‘aggression’ under Article 3 (a) and (b) of UN General Assembly Resolution 3314, which contains a definition of ‘aggression’ in the sense of Article 39 of the UN Charter.
Was the use of force by Georgia against Russian peacekeepers on Georgian territory justified? The report says it was a violation of Article 2(4), because there was no ongoing armed attack by Russia before the start of the Georgian operation and it could not be verified that Russia was on the verge of such an attack. The use of force by Russia in self-defence during the initial phase of the conflict was therefore justified.
The tables of legitimacy had turned when the conflict between Georgia and Russia began to take place deeper into Georgian territory, the report says. The Russian campaign was disproportionate to the threat posed to its peacekeepers and went beyond reasonable defensive measures – particularly the destruction caused after the signing of the ceasefire agreement – and was therefore a violation of international law. The report concluded therefore that Georgian military operations, at this stage of the conflict, were taken in self-defence in conformity with Article 51 of the UN Charter.
Both sides were also in violation of Article 2(3) and Article 2(4) of the UN Charter in that they made threats to use force and refrained from settling their dispute peacefully.
Russia had in the previous few years adopted a ‘passportisation’ policy, which was essentially the mass conferral of Russian citizenship and consequently passports to persons living in South Ossetia and Abkhazia, a practice that the report condemned as illegal. A vast majority of the population are now carrying Russian passports, even though Georgian law does not recognise dual citizenship. One of the justifications implied by Russia for its actions in Georgia was that they were necessary in order to protect its citizens living in Georgian territory from mass atrocities, thereby invoking the doctrine of ‘humanitarian intervention.’
Humanitarian intervention means a coercive, military action across state borders by a state or a group of states aimed at preventing or ending widespread and grave violations of human rights of individuals other than its own citizens, without the permission of the state in whose territory force is applied. Under international law, humanitarian intervention has not achieved the status of customary law and is regarded by most as illegal. The report also mentioned that in relation to the NATO intervention in Kosovo, Russia consistently and persistently refused to accept it as a humanitarian intervention. Therefore it could not rely on it to justify its own intervention in the territory of the state of Georgia.
Violations of International Humanitarian Law and Human Rights Law
The Mission established that all sides to the conflict – Georgian, Russian and South Ossetian forces – committed violations of International Humanitarian Law and Human Rights Law. The violations in question mainly concern the ill-treatment of persons, the destruction of property and forced displacement.
One of the most serious allegations was the Russian and South Ossetian charge of genocide levelled at Georgia. Acts of genocide, such as killing members of a group, must be carried out with specific intent to destroy the group in whole or in part. The report found that there was no basis to that allegation, due to the lack of proof of specific intent. This conclusion was based in part of the fact that the destruction of buildings predominantly used by South Ossetia could have been the result of combat, and the indiscriminate use of artillery systems, if proved, would show the absence of such intent, precisely because they are used in an indiscriminate manner, making it difficult or impossible to target a particular group.
Ethnic cleansing, which is distinct from genocide, is not a term defined in international treaty law but it is generally understood to be the use of force or intimidation with the aim of displacing a population in order to permanently change the ethnic composition of a territory, and to render that territory ethnically homogeneous or ‘pure.’ The report seems to conclude that ethnic cleansing was indeed practised against ethnic Georgians in South Ossetia both during and after the August 2008 conflict, through forced displacement and the destruction of property. The report goes further, suggesting that the acts of ethnic cleansing may be classified as crimes against humanity due to their widespread – but not systematic – nature. In the final analysis, however, the report makes no determination in response to the Georgian allegation that the acts were perpetrated by either Russian forces directly, or by South Ossetian forces with Russian consent.
Two types of controversial weapon were used illegally during the conflict: GRAD rockets by Georgian forces and cluster bombs by Russian forces. Neither of these weapons is banned per se, but the report found that it was their characteristics combined with their use in populated areas that constituted a violation of the international humanitarian law prohibition on indiscriminate attacks and the obligation to take all feasible precautions in the choice of means and methods of warfare with a view to avoiding or minimising loss of civilian life, injury to civilians and damage to civilian objects.
The EU officially welcomed the report, hoping that it could “contribute toward a better understanding of the origins and the course of last year’s conflict.” Russia welcomed most of the report’s findings, particularly the conclusion that Georgia was responsible for starting the conflict with its aggression on South Ossetia on August 7, 2008. Similarly, Georgia stated that “almost all of the facts in the report confirm the Georgian version of events” and that it confirms that Russia invaded Georgia in violation of international law.
Katherine Iliopoulos is an international lawyer based in The Hague, Netherlands.
Georgia War: Finding the Facts, Losing the Message
By Charli Carpenter
Radio Free Europe, October 12, 2009