Russia-Georgia war and post-war legal rate of Georgia.

Russia-Georgia war

Russia-Georgia war, the legal rate introduction

In August 2008 Russia-Georgia war activities started quickly in South Ossetia turned into a global crisis. Elimination of the crisis is the most difficult task, because of its three-dimensional conflict nature. On the one hand, the basis of the crisis was the Georgian-Ossetian and Georgian-Abkhazian confrontation with decades of history and its roots related firstly with Caucasus and Russia, then with the Soviet Union’s imperial policies. The severity of the confrontation was significantly determined by the 90-ies bloody conflicts in Abkhazia and South Ossetia, which is why this confrontation is ethnopolitical in nature.

On the other hand, the crisis is due to the Russian-Georgian tense relationship, which is a source of late “perestroika” period. The majority of the current Russian elite think that the additional reason of Soviet Union’s destroy (decay of Russia strength) was Georgia’s national liberation movement started last century at the end of the 1980s. In addition, Georgia’s democratic development and Euro-Atlantic orientation of the course is seen as a hostile and dangerous policy in the same elite in Russia. It is understood that Georgia’s Western-style democratic state, who is also a member of NATO would be an existential threat to the Russia’s influence in the post-Soviet space and to the revival strategy based on neo-imperial ambitions of the preservation. This 2 perception made Georgia as one of the most hostile states for Russia. Since the failure of economic sanctions and strengthen of “fifth column” in the political spectrum made for interfering Georgia pursuing movement, manipulation with conflicts in Abkhazia and South Ossetia were considered as the most effective way to make Georgia involve in armed conflict.

Thirdly, Russia, which is obsessed with the inferiority complex is dissatisfied with the results of the Cold War. By oppressing Georgia, Russia tries to revenge upon the West and to change the world by violent abolishing of recognized norms and standards. This position of Russia is a serious challenge to the West, and depending on how quickly the Russian civil behavior back to the framework, may suggest further strain relations between Russia and the West have been avoided.

Russia-Georgia war, the only attempt is the conclusion of the EU-funded legal assessment “to the conflict in Georgia related to the Independent International Fact Finding Mission”, however, as expected, the report with its findings and conclusions have several interpretations.

By fact is that the so-called “Taliavini Report” is a diplomatic document, because its aim is not to accuse any of the sides involved in the conflict. Therefore, the conclusion of all of the parties finds its truth. Consider the August 2008 legal rate introduction on the basis of “Taliavini report”.

Threats of force

The fourth paragraph of Article II of the United Nations Charter prohibits not only the use of force but also the use of force threat. In particular, reads: “All members shall refrain from the threat or use of force against the territorial integrity or political independence or any use of force by any form inappropriate to United Nations purposes.” 3 The fact-finding mission’s report says that Georgia and Russia had violated the Charter 2 (4), as both sides to the threat of use of force, which was not in line with the Charter of the right to defense, the 51-article. “Russia and Georgia have violated Article II of the Charter, which prohibits the use threats of force. Bilateral threat created a distrusting environment, which over the years as a result of current escalation has become a serious crisis “, – the report says.

Georgia – (1) In spring 2008, the Abkhazian airspace control is started. (2) Participated in bilateral shootings in South Ossetia. (3) Georgia’s active military weaponry was busy. Modern weapons are supplied by a third party. Also, the statements of government officials contributed to the escalation of the conflict.

Russia – (1) In April 2008, Russia threatened Georgia that its membership in NATO would be a reason of Abkhazia and South Ossetia ultimate loss and Russian military bases. (2) In April, Georgia’s foreign minister warned that Moscow would use military force if Georgia would attack Abkhazia and South Ossetia. (3) Russian aviation flights in the area of South Ossetia and Abkhazia was the threat. (4) In May, without the consent of Georgia, Russia has increased the number of troops in Abkhazia and South Ossetia, while Russia has conducted military exercises in June – “Caucasus 2008”. Russia’s actions contributed to the further increase in tension.

Given that the threat of force was not in line with Article 51 of the Charter set out in defense of the right since there were no preconditions for enforcement of the right to self-defense, the mission accuses both sides about violation of second article, fourth paragraph.

Use of force

The second article of the Charter prohibits the use of force, however, there are some exceptions in Article 51 (an Article 42 also has exceptions, but in this case, the discussion is not relevant) and 4 in the case of attack, the law retains the right of individual or collective self-defense. “The United Nations Charter does not refer to individual and collective self-defense inherent right if the armed attack happens on the member, rather than the Security Council will take the necessary measures to protect international peace and security” – the 51st article.

 Charter 2 (4) prohibits the use of force against another “the territorial integrity or political independence of any State”. From the fact that the territory of South Ossetia within Georgia’s internationally recognized borders and every state has The right to use force in their territory, charter 2 (4) is not in the coincidence to the 2008 tear conflict. However, the mission concludes – “In spite of the fact that the parties to the conflict have a different status, UN Charter on the use of force is in line with conflict.

 The mission proves the fact by three arguments. First, the 1992 Sochi agreement between Russia and Georgia in South Ossetia, Georgia has committed itself not to use force. Second, Georgia confirmed not to use force in South Ossetia, by 1994 agreement – about “the Georgian-Ossetian conflict regulation in a peaceful way and the Joint Control Commission.” Third, on May 16, in 1996 memorandum about – “the restoration of confidence and security between conflict parties,” the parties made it clear that the solution to the conflict by force is ruled out.

 While South Ossetia was not participated in the agreements as a state and as a side, the mission concluded that during the conflict by the UN Charter use of force was prohibited. In addition, the report notes that the conflict is not only applicable to 2 (4), but also to the 51st article. “If the use of force is prohibited in the relationship of restricted states and state entities, then both sides should be able to set the right of self-defense.”

Georgia’s use of force against South Ossetia

After Ossetian militiamen attacked Georgian villages and peacekeepers, Georgia launched the UN Charter the right of self-defense, therefore, the actions were legal. However, with regard to the customary law, about necessity and proportionality of force, the Mission noted that the actions in this part were not legal. For example, the report says that on-the-spot attacks from Georgian army were necessary and proportionate, ‘’strike, which began on August 7, regardless of whether it was necessary, it was not proportionate to one permissible goal – the defense to deterrent South Ossetian attack”.

Georgia’s use of force against Russia

First of all, it should be noted that Georgia did not use force against the Russian army at the territory of Russia, the Georgian army was acting on the own territory. Nevertheless, a direct hit on the own territory against another state is infringement in the fourth paragraph of Article II of the Charter.

The Georgian side the use of force against Russia explained by the self-defense right. Therefore, the report examines three possible scenarios, when Georgia could legally right to enactment.

First, the Russian army was carrying out an attack or there was an imminent threat. Georgia argued that the August 7 before the attack there was a Russian army on South Ossetian territory, however, the mission has not proved this information. “Russia’s invasion was not challengeable for Georgian army. Therefore, the invasion was not a military attack, an enactment of self-defense rights by Article 51 based on Georgian side’s expectations that Russia was planning to invade, could not justify the enactment of the self-defense right.”- said in conclusion.

Second, Russia’s violation of Sochi agreement could be assessed as a military attack if Russian peacekeepers compromised the authority of its own mandate, but the mission has failed to prove a 6 violation of the peace-keeping mandate. “Based on the mission’s findings Russia’s invasion of Georgia by military forces in South Ossetia has not been confirmed as a violation of the agreement.”

Third, Russia’s attack on Georgia would be then, if established, the August 8, Russia has helped the South Ossetian militias and illegal immigrants from the North Caucasus were involved in the conflict. The report noted that Russia’s military offensive in the North Caucasian militants by sending a pre-condition did not exist. In addition, South Ossetian militia attack to Georgia has confirmed the fact that South Ossetian militias were “effectively controlled” by Russia.

From these facts, the mission concluded that Georgia’s recent military operation in Tskhinvali on August 7 and 8 may not be the defense, because there was not a military attack by Russia when Georgian operation began. At the same time, Russia did not use military force against Georgia, this happened after and self-defense from the alleged Russian attack is not allowed. Russia and Georgia signed an agreement on the deployment of peacekeepers, according to which a minor violation, which would justify Georgia self-defense, was not represented. In addition, the South Ossetian military operation could not be considered as Russian invasion in Georgia.

Russia used force against Georgia

Officially, Russia explained enactment of the right to self-defense under Article 51based on Georgian attack on the Russian peacekeepers.

Russia has been involved in 2008 conflict in several ways. First, according to the Sochi agreement peacekeepers stationed in South Ossetia were involved in the fighting. Second, the Russian army was fighting in South Ossetia, Abkhazia and deeply inside Georgian territory. Third, the illegal 7 immigrants from the North Caucasus were involved in the fighting. In addition, the Abkhaz and South Ossetian forces were helped financially and materially by Russia.

Georgian attack against Russian peacekeepers on the Georgian territory – if it was not the defense of Russia’s assault on (the mission has not confirmed) – is an attack on the Russian territory, and Russia has the right to defend itself, but the mission has not confirmed Georgian attack.

What about the necessity and proportionality, the report notes that Russia has violated both of the norms because if Russia has defended the Russian military bases from attack, its only purpose is to eliminate this threat. Georgian troops drove out from South Ossetia and to occupy the territory was not Russian legitimate goal, because Russia could not rely on the collective defense of South Ossetia. Russia’s legitimate goal was limited.

The Russian response to the Georgian assault went beyond the bases, which was not necessary. Russia mainly targets military facilities, but only a few of them were related to Georgia’s attack on South Ossetia. Russian military support for the Abkhaz also is not justified – the attack on Kodori Gori was not related to the conflict in South Ossetia.

The same can be said about the Russian ships entering the Black Sea. “Means that the Russians used to accomplish the purpose are not consistent with the goal… According to international law, Russia’s military actions as a whole was not necessary and proportionate to protect Russian peacekeepers in South Ossetia.”

It should be noted that Russia’s actions were explained by the necessity of continuing Sochi peaceful mission, before the foundation of European Monitoring Mission based on “MedvedevSarkozy” agreement, however, conclusion noted that Russia could not justify the use of force in peacekeeping operations.

To justify military intervention Russia argued that the invasion started after requested by South Ossetia, but noted that to justify intervention by a similar invitation is controversial.

In this respect, there are three approaches: According to the traditional approach, Russian intervention only could be requested by the legitimate government of Georgia. Negative equality doctrine considers that any invitation to civil war, the third force involvement is illegal to use force. The doctrine of positive equality allows intervention in the civil war because the situation is discussed as a war-State and recognizes that any party has the right to invite a third party in order to stabilize the situation.

The report states that the South Ossetian authorities’ request for Russian invaders could not be legal because the separation/secession law is not by military means. “If separatists have banned the use of force, he was not allowed to have a third party invitation. So, Russia’s actions are not justified by South Ossetia’s invitation” – said in a report.

 Russia was justifying the attack against Georgia by the motives to defense South Ossetia, as Russia used the right to collective self-defense under Article 51, but Russia’s actions are not corresponding to the international law norms, according to the 1996 Memorandum Russia had to fulfill the role of mediator. In addition, if we consider that Russia used the right of collective self-defense, even in this case, the necessity and proportionality norms were violated.

Russian President Dmitry Medvedev in a speech estimated a military operation in Georgia as a “humanitarian intervention”, however, as the report states, “humanitarian intervention,” according to international law is illegal, so Russia cannot justify the operation in Georgia with this motive.

One of the major motivations for involving in 2008 conflict Russia named obligation of citizens’ protect. According to 61 (2) Charter of Russian Constitution “The Russian Federation takes the 9 security of its own citizens abroad.” The fact that Russia has started operation to protect its own citizens in Georgia confirmed President Dmitry Medvedev and Foreign Minister Sergei Lavrov.

After 1945, to protect its citizens in the territory of another state several countries have produced military actions, however, the fact is that all such intervention is performed by changing the regime. Therefore, neither court nor tribunal justifies the use of force to defend its citizens.

The report notes that according to customary law, for the defense of its citizen the operation like “Blitz origin” may be justified and not a full-scale military operation.

In addition, the report notes that some limit must be placed on Russian citizens, who have this status for a long time, and among those who benefited from the simplifying of citizenship and has recently been awarded the status.

Finally, from these three reasons, Russia’s intervention in Georgia to protect its citizens cannot be explained.

The appeal of the Security Council

UN Charter Article 51 states that “the measures of self-defense right taken by the members shall be immediately reported to the Security Council.” According to the report, 11 August Russia has warned the Security Council that there is no other way but to execute the right of self-defense. The letter stated that only purpose was to protect Russian peacekeepers and Russian citizens.

What about Georgia, as the report says, Tbilisi officials haven’t appealed to the Security Council, but there is uncertainty about this issue, because of the fact that on August 8, the at Security Council meeting, Georgian Ambassador discussed all the goals and the situation in details. 10 Overall, the report about “independent international mission of the Conflict facts finding in Georgia” raises many questions than answers. However, it should be noted that the document made a certain legal frame to the conflict.

 As mentioned above, the Charter 2 (4) was violated by all parties to the conflict, because each of them was carrying out the threat of using force.

In the case of Georgia, a military attack against South Ossetia is fully consistent with the right of defense, provided in the Article 51, and the norm of necessity and proportionality was partly violated.

The mission did not label Georgia’s use of force against Russian army as a use of self-defense right, as it has not been established that at the time of attack Russian army was in South Ossetia or there was an imminent threat of arrival, It was not confirmed that the Russian peacekeepers violated the mandate and on 8 August South Ossetian militias were “effective controlled” by Russia. Also, the fact that the North Caucasian immigrants were involved in the conflict was not confirmed.

What about Russia, Moscow explained its intervention in Georgia by the motivation of Russian peacekeepers’ defense, however, the mission has not confirmed that Georgia has carried out attacks on peacekeepers.

Russia explained its actions by the necessity of “humanitarian intervention”, collective selfdefense, the request of South Ossetia, protection its citizens and peacekeeping mission execution, but in the report, all the Russian arguments are rejected. In addition, the report notes that Russia has violated all necessary and proportionate margins.

Chance of crimes against humanity at the International Criminal Court

International Criminal Court prosecutor requires being investigated the military and crimes against humanity cases happened in Georgia 2008 during the armed conflict. The prosecutor Fatu Bensuda has already applied by the proposal to judges.

The Hague court’s statement says that during the military conflict there were military and crimes against humanity, like the expulsion of ethnic Georgians from South Ossetia.

 According to the prosecutor, after the armed conflict, the ethnic Georgian population of the conflict zone has decreased by 75%. 18500 of ethnic Georgians were forced to flee their homes, more than five thousand Georgians own houses were destroyed.

 In the case of the International Court delegates agree to the proposal of the prosecutor, the investigation process will begin in Georgia, after which it is possible offenders to be summoned to court or to be stood on trial.

Post-war legal rate of Georgia in search of a new developing model

Since Georgia regained its independence in 1991, has faced serious threats to its territorial integrity: firstly in South Ossetia, later in Abkhazia strengthened separatist movement, which escalated into armed confrontation and, ultimately, Tbilisi lost control over them. However, Georgia’s territorial integrity has not been questioned, and the whole world, including Russia, recognized Abkhazia and South Ossetia as part of Georgia. After the war with Georgia in August 2008, Russia unilaterally recognized the independence of Abkhazia and South Ossetia and started to build military bases there. A new reality was made, which sets Georgia in a quite different situation. If “status quo” is not recovered, Georgia will lose not only the chance of territorial 12 integrity, but also the prospect of integration into Euro-Atlantic institutions. The agenda under such circumstances includes finding such development model of the international experience allowing regional security and stability to strengthen by protecting national interests.

The current situation

The 90s from the beginning of 90s the two breakaway provinces of Abkhazia and South Ossetia managed to go out of Tbilisi control by Russia’s indirect military support. In CIS format Russia acquired a peacekeeper’s status in the region and deployed peace forces. In fact, the so-called peace forces were used to maintain the security of Moscow’s puppet regimes. Although Moscow formally recognized the territorial integrity of Georgia, but when in 2001 Russia introduced a visa regime with Georgia and didn’t expend it in regions of Abkhazia and South Ossetia, the Kremlin for the first time politically separated these two regions from the rest of Georgia. Subsequently, Russia distributed Russian passports in these regions and converted the population into Russian citizens.

 In August 2008 after the five-day war between Russia and Georgia Moscow unilaterally recognized the independence of Abkhazia and South Ossetia. It should be noted that the Kremlin’s intentions after the West Many states recognized Kosovo’s independence, does not attempt to hide. Moreover, Moscow was warning the world before recognition of Kosovo independence, that Kosovo would set a precedent letting it recognition the independence of the separatist provinces.

The world’s leading nations strongly criticized Russia’s aggression against Georgia and Abkhazia and South Ossetia’s independence. Nevertheless, virtually it is impossible in the foreseeable future that Moscow could reverse its decision. Moreover, Russia will try to maintain military bases there indefinitely. By this fact Georgia with Russia, as an occupying country, turned into permanent 13 territorial dispute conditions. Tbilisi, of course, will not get used to the territorial integrity and the loss of these two regions. The situation becomes similar to the recent European history. However, territorial disputes are resolved by a variety of conditions or still are under discussion. In this situation, it is important to find a new model of development, which based on international experience, will better respond to the national interests of the country. In this regard, the most prominent experienced European countries are – Finland, Serbia and Cyprus. There is no doubt that each of them has its advantages and disadvantages. However, their study will benefit us.

Abilities

Finland’s experience is fundamentally unacceptable, because, as we know, for the maintenance of nominal sovereignty under Soviet Union’s military and diplomatic pressure Finland had to make a lot of concessions. In particular, the early 40-ies during World War II Finland ceded country’s 10% to the Soviet Union as a result of wars. However, the price for peace, Finland has managed to catch the right course of economic development and today it is one of Europe’s leading countries. For the foreseeable future, the Georgian society, in mind of mental characteristics and historical memory, cannot get used to lose Abkhazia and South Ossetia. Therefore, Georgia will not be able to choose the path of development at the price of losing territories. Moreover, the whole world supports the territorial integrity of Georgia.

 Serbia’s example is slightly different. Since February 2008, the United States and leading European countries without the consent of Belgrade recognized Kosovo independence, Serbia began the accelerated way into Europe. Serbia as a key country in the Balkans was promised to have European and Euro-Atlantic integration in full. The EU has already signed the Stabilization and Association Agreement, and, in addition, they have been talking about free visa regime between 14 Serbia and the Schengen area. At the same time, all are aware that without Serbia’s recognition of Kosovo’s independence is impossible not only Serbia’s integration into European structures but also the creation of the long-term peace and security environment in Balkans. However, even the most pro-Western forces in Serbia still are not ready for Kosovo. Therefore Serbia becomes a kind of “involved” in the process of Europeanization and over time Serbia would face the dilemma, where it will decide to give up Kosovo. Despite the fact that Serbia’s Euro-Atlantic integration is the best offer, in the case of Georgia, this scenario cannot be implemented for the above-mentioned reasons.

It should be noted here that Russia openly wants to convince the world to identify the situations in Kosovo and Abkhazia and South Ossetia. From this point of view, it is absolutely unacceptable for Georgia to be formulated such approach which is used in Serbia. It will also contribute that except Russia the whole civilized world is interested in the Kosovo precedent not be disseminated not only in Abkhazia and South Ossetia but in many countries national-territorial ethnic conflicts too.

Cyprus experience can become more relevant for post-war Georgia. More than 30 years ago, the northern part of Cyprus broke away from Nicosia by Turkish military assistance that was followed by the recognition of northern Cyprus independence by Ankara. Since none of the countries has supported this decision. Cyprus’s democratic processes and market reforms have allowed it to substantially raise the level of well-being, to become a member of the EU and, as a result, become attractive to Northern Cyprus separatist population. It is noteworthy that as Turkey is not an EU member, nor Russia is an EU member, moreover, will not be in the future. In the 21st century walking by Cyprus way could be more effective, because Brussels offers not only financial 15 assistance to Tbilisi, but also to simplify visa procedures and a free trade regime soon, by the socalled “Eastern Partnership” initiative.

Conclusion about Russia-Georgia war

It is necessary that both Tbilisi and Brussels to realize that after the Russian aggression and Moscow’s recognition of independence of Abkhazia and South Ossetia Georgia has no other choice, but to share the Cypriot experience. Moreover, it is desirable the European Union strengthen the capacity of requirements during “Eastern Partnership”, that will maximally approach Georgia to the European Union. Georgia has more than 25000 thousand refugees from Sound Ossetia and Abkhazia. Even United Nation made a few years ago “refugee return” act but The Russian federation never accepted that.

Information Sources:

  1. United Nations Charter
    2. Georgian Newspaper “Alia”
    3. Georgian Newspaper “Akhali Taoba”
    4. Georgian National Parliament Library (nplg.gov.ge)
    5. Tagliavini Report (civil.ge)

Author : LASHA SEPHERTELADZE , Harvard University (USA), 2018

ID number 91263289

LASHA SEPHERTELADZE, Lawer Founder & CEO

LASHA SEPHERTELADZE
CEO & Founder “Cohen Lawyers & Co” Law Firm
Lawyer in Batumi

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