news-georgia

August 26, 2008

The Georgia Conflict and International Law

By Anthony Dworkin

The conflict between Russia and Georgia shows how international law has become one of the arenas in which contemporary wars are fought. Both sides claimed the mantle of legitimacy in an effort to shape international perceptions of the conflict, and the parties traded allegations of war crimes and even genocide alongside their conventional (if one-sided) military exchanges. This is not to say that these claims were made in good faith--some Russian claims in particular seemed wildly exaggerated and cynical--but the fact that they were made at all shows some recognition that compliance with international rules helps determine countries' global standing.

There are two intersecting but distinct sets of laws that were relevant to the conflict: the laws governing the resort to force and aggression (sometimes known by the Latin tag jus ad bellum) and laws governing the conduct of hostilities (international humanitarian law, or jus in bello).

The Resort to Force: Aggression Against a Sovereign State?

The main source of law regarding the resort to force is the UN Charter, which forbids acts of aggression against sovereign states except where justified in self-defence or where authorized by the UN Security Council. In addition, some people believe there is a customary law right of humanitarian intervention, where the use of force is absolutely necessary to protect people from genocide or other mass atrocities.

The UN Charter, and jus ad bellum generally, only deals with conflicts between states. It treats internal disputes, even those involving secessionist enclaves like South Ossetia and Abkhazia, as a domestic matter. Therefore Georgia's initial move against South Ossetia that triggered the subsequent Russian attack could not be regarded as aggression, and the question of whether it was a justifiable response to hostile activity from inside South Ossetia is not one for international law (though, as discussed below, the way the Georgian attack was conducted does have legal implications).

In the early morning of 8 August, Russian forces moved across the border into South Ossetia en masse, and during the course of the following days they also occupied Abkhazia and took control of much of the rest of Georgia. Following a ceasefire agreement negotiated by the French president Nicolas Sarkozy, Russian forces pulled back, but at the time of writing they remain in some positions outside the enclaves (the ceasefire gave them the right to patrol in buffer zones but not set up permanent positions) and have more troops in South Ossetia and Abkhazia than they did before the latest conflict began.

Because Russian peacekeepers were in South Ossetia when the Georgians attempted to take over the enclave during the night of 7-8 August, Russia arguably had some right to take action in their defence. In addition, Russia may have had some right to defend the citizens of South Ossetia, to the extent that the Georgian offensive threatened them, in line with its peacekeeping responsibilities--though this right would most likely have been limited to the troops involved in the Joint Peace-Keeping Forces (JPKF) who had a mandate to restore peace in South Ossetia if the terms of the previous ceasefire were broken; it is doubtful that it would have extended to allow Russian troops who were not part of the peacekeeping forces to move into South Ossetia with the declared objective of restoring peace.

In fact, Russian officials have offered justifications for their action that mixed these claims with other justifications. For instance, Russian foreign minister Sergei Lavrov told the BBC on August 9 that the action was primarily for peacekeeping purposes: "The mandate [of the Joint Peace-Keeping Forces] is to make sure that there is no violation of quiet in the zone of conflict and the peacekeepers are required by this document to prevent any violations and to put out any violations. Since Georgian forces for the second time are engaged in aggressive actions in full violation of the obligations under those international agreements and international humanitarian law... the responsibility of Russia as a peacekeeper could be only sustained by responding to this aggression." At other times, though, Russia has suggested its actions were necessary to defend Russian citizens in South Ossetia, or to prevent mass atrocities against civilians.

The use of force to defend a country's nationals overseas is an area of controversy in international law. Some countries have claimed a right to use force in such cases, but it is not generally accepted. In addition, in this case, the claim seems particularly weak since many ethnic Russians in the disputed enclaves were only issued with Russian passports in the recent past, in a move that many people have regarded as a Russian attempt to set the stage for possible intervention.

The final justification offered, to protect civilians from atrocities, echoes the claims of humanitarian intervention that were offered by NATO during the Kosovo war. Apart from the irony involved in Russia putting forward such claims when it opposed the Kosovo action, it hardly seems that atrocities were taking place on a scale that would justify Russian action. Although Russian officials referred to "genocide" of ethnic South Ossetians, they later revised the death toll on their side to 197 dead -- 133 Ossetians and 64 Russian soldiers. Though there may be some evidence of war crimes committed by Georgian forces, these figures hardly support the idea that a humanitarian intervention was necessary to halt an ongoing genocide.

In any case. all these possible justifications for Russia's military action (including the most plausible one, the defence of Russian troops in South Ossetia) would only justify military action that was necessary and proportionate to protect the individuals who were being defended. They would not justify sweeping Russian incursions into Georgian territory or widespread destruction of Georgian military bases and equipment, after the moment when the Georgian attack on South Ossetia had been pulled back.

The Conduct of Hostilities: Who Committed War Crimes?

Both Russia and Georgia charged the other side with war crimes. Evidence collected by investigators and reporters suggests there were attacks on both sides that may have violated international humanitarian law. According to Human Rights Watch, Georgian forces used indiscriminate and disproportionate force during their attack on South Ossetia, particularly in the use of Grad multiple-rocket launchers against the town of Tskhinvali. On the Russian side, Human Rights Watch says the Russian Army also used indiscriminate force and may have deliberately targeted civilians in a convoy of cars.

Human Rights Watch also documented the use of cluster munitions by Russian forces against Georgian troops based in civilian-occupied areas of Georgia. Although the use of cluster bombs is not always a violation of the law, most countries recognize that their use in civilain areas is likely to cause disproportionate harm.

According to press reports, the greatest destruction of life and property of ethnic Georgians was carried out not by Russian troops but by irregular South Ossetian and Russian militia forces that moved in in the aftermath of the Russian attack. These killings and destruction of property, in both South Ossetia and the nearby parts of "Georgia proper" might be classed as war crimes if they were linked to the conflict. Russian troops would not be criminally liable for such crimes, unless it could be shown that the irregular fighters who committed them were under Russian control. However, as occupying forces in parts of Georgia, the Russians had the responsibility of restoring and ensuring public order and safety (as far as possible) and it seems evident that Russian forces failed to observe this obligation, though it is not a violation for which individual officers could be prosecuted.

Since Georgia is a party to the Rome Statute of the International Criminal Court, the prosecutor of the ICC could in theory open an investigation into any crimes committed on Georgian territory. On August 20, the Chief Prosecutor of the ICC confirmed that the situation in Georgia was "under analysis" by his office. He also said that an official from the Georgian government had met with a Court official to discuss cooperation, and that Russia had provided information to the Court. However, it remains unclear whether any war crimes committed in Georgia would reach the degree of gravity that the prosecutor would think warranted a request to open a formal investigation.

Meanwhile, in another legal move related to the conflict, Georgia has asked the International Court of Justice (which has jurisdiction over some disputes between states) to decide whether Russia breached the International Convention on the Elimination of All Forms of Racial Discrimination through support for ethnic cleansing against ethnic Georgians. Georgia decided to use this obscure treaty as a basis for legal action because Russia is a party to the treaty, and one of its provisions stipulates that the ICJ may be called on to resolve disputes between parties. The Court has announced it will hold a preliminary hearing in early September.

Related Chapters from Crimes of War: What the Public Should Know 2.0:

Aggression

Jus ad Bellum/Jus in Bello

Amnesty International Special Report

November 2008

Frozen Conflict Becomes Hot War

By Chris Borgen

Opinio Juris blog, August 8, 2008

An Uncertain Death Toll in Georgia-Russia War

By Tara Bahrampour

The Washington Post, August 25, 2008

Russia's Reversal: Where Next for Humanitarian Intervention?