Russia and Georgia: International Law and Norm Considerations

October, 02 2008By David Barouski
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Many insightful analyses have been written on the recent Russia-Georgia war. Some writers looked at what the war means in the context of the "great game." Others examined what might have motivated Georgia to instigate such a seemingly impossible fight with Russia. Another approach was to analyze the United States' influence on the conflict. This particular composition will utilize a few basic applications of international law to briefly analyze the war.

On July 31st, Russian railroad troops finished work repairing a strategic railroad in Georgia's semi-autonomous region of Abkhazia. Its completion would allow Russia to deploy military equipment and reinforcements directly in the region to a position located just outside Georgian artillery's reach. Georgian President Mikheil Saakashvili and his advisors knew that if he was going to ratchet up the pressure on the country's separatist regions to bring them more under Georgian control, he would have to do so soon before Russian reinforcements and equipment had the opportunity to arrive. On the night of August 1st, Georgian soldiers attacked the north end of Tskhinvali, the capital of another semi-autonomous region of Georgia called South Ossetia.1 They exchanged gunfire with Ossetian militia forces and following a two hour firefight, the Georgian Army shelled the area and withdrew. Over the next few days, Georgian forces deployed to the South Ossetian border for a more definitive strike. Georgian and North Atlantic Treaty Organization (NATO) officials both denied any military buildup was occurring.2 On August 6th, another battle occurred in South Ossetia and the Russian barracks were targeted. After a night of gunfire that claimed several lives, the Georgian Army resumed artillery fire at daybreak on August 7th. On the evening of August 7th, after an all-day battle between the Georgian Army and Ossetian fighters, President Saakashvili declared a unilateral ceasefire.3 He publicly announced on television that the Georgian Army had been ordered to cease all hostilities. In addition, President Saakashvili offered South Ossetia unlimited autonomy within Georgia and stated that Russia would be allowed to enforce the agreement.4

However, while talking peace, President Saakashvili prepared for war. Tanks and heavy weapons were moved to the South Ossetia border.5 On the night of August 8th, President Saakashvili violated his own ceasefire as the Georgian Army unilaterally attacked fellow Georgian citizens in Tskhinvali. The attack was coordinated to coincide with the opening ceremony of the 2008 Summer Olympics in Beijing because the eyes of the international press would be focused there, and by the time they were completely aware of the full-scale war in Georgia, Russian tanks were already rolling in and their air strikes were underway. President Saakashvili reinforced this myopic version of events to the public by focusing on the Russian forces that crossed into Georgia during his press conferences and interviews. In addition, China's preoccupation with the Olympic Games prevented them from responding to the crisis by backing Russia either politically and/or militarily. Russia's Prime Minister, Vladimir Putin, and several other high-ranking Russian statesmen were also in Beijing for the opening festivities to meet with other world leaders, including United States President George W. Bush. Their preoccupation allowed Georgia to publicly respond to the crisis first and disseminate their version of events.

Also apparently lost on the western press was the fact that the Georgian Army committed war crimes and crimes against humanity by targeting civilian structures in Tskhinvali. Initially, they targeted schools, hospitals, housing complexes, and the city's university with BM-21, 122mm, and 152mm mortar shells. When the attack was initiated, artillery shells began raining down while the town's residents were sleeping in their homes. Rockets were launched on the town shortly after. Then, Georgian tanks rolled in along with ground forces and encircled the town while the Georgian Air Force took flight. The area quickly fell under siege. Ossetian militias and Russian peacekeepers engaged the Georgians. The Georgian Army also advanced on Abkhazia, which has a mutual defense pact with South Ossetia. Abkhazian militias pushed Georgia out of the Kodori Gorge. By the end of August 8th, Russia responded by commencing airstrikes on Gori and other military targets while sending in thousands of soldiers along with tanks, transport vehicles, and heavy weaponry. Based on the speed and size of the response, it is clear that Russia had pre-planned for this scenario and was militarily ready and able to deploy before August 8th. Georgian officials admitted to dropping Israeli-made M-85 cluster bombs at the Roki Tunnel, where the Russian infantry, tanks, and vehicles crossed into Georgia.6 Russian warships were sent to the Black Sea, where at least one Georgian ship was sunk. The Georgian armed forces, though trained by the United States and Israel, did not really stand a chance against the large-scale Russian deployment and their air superiority. After the Russian Army pushed the Georgian Army out of South Ossetia and moved into Georgia Proper, Ossetian militias looted and burned Georgian homes in Tamarasheni, Kekhvi, Kvemo Achabeti (Nizhnie Achaveti), Zemo Achabeti (Verkhnie Achaveti), and Kurta.7

Georgia defended its attack on South Ossetia by invoking the sacrosanct principle of sovereignty. Indeed, South Ossetia is still a legal part of the sovereign state of Georgia because it has not received diplomatic recognition from other sovereign states or international organizations like the United Nations (UN). Georgian officials stated that it is their right to use force against separatist militias that threaten the sovereignty of the Georgian state, which is defined here as a monopoly of force and legal authority over an internationally-recognized geographic territory.8 Initial armed intervention to legitimately protect the peace of a sovereign nation is an internationally accepted legal norm articulated in Article 51 of the UN Charter. Their other argument is essentially that the Russian Army, by crossing into Georgian territory and attacking Georgian state forces, committed an Act of Aggression as defined by United Nations (UN) General Assembly Resolution 3314 (1974) and also violated Article 2.4 in Chapter 1 of the UN Charter.9 President Saakashvili tried to reinforce these arguments to the international community by repeatedly claiming that Russia's ultimate goal was to overthrow his government, not protect the Ossetians.10 Russia's advance into Georgia Proper, as opposed to simply securing South Ossetia, was used as evidence for his claim. President Saakashvili also accused Russia (without providing evidence) of committing acts of ethnic cleansing, a war crime and crime against humanity.11 Finally, one can argue that Russia's political influence within South Ossetia undermines Georgia's legal authority (a part of sovereignty) over the region.12

Russia had its own justifications and precedent to attempt to explain their intervention. One argument is that they were coming to the aid of Russian citizens who were being unilaterally attacked by the Georgians.13 Most South Ossetians have Russian passports and are afforded all the benefits of a native-born Russian passport holder. As such, South Ossetians are considered de facto Russian citizens by Moscow. In addition, Georgia attacked the Russian soldiers that were legally deployed in South Ossetia as a part of the peacekeeping force set up in the 1992 ceasefire agreement between South Ossetia and Georgia. These soldiers are native Russian citizens and by August 8th, several Russian peacekeepers were killed in the attacks by Georgian forces.14 Russia invoked the inherent right of self-defense to defend these Russian citizens, and Article 51 of the UN Charter allows the use of force for self-defense from an armed attack until the Security Council undertakes measures against the aggression. However, Matthew Bryza, the United States Assistant Secretary of State for European and Eurasian Affairs and a National Security Council (NSC) member, attempted to counter this argument by stating that although Georgia attacked on August 7th, in his view the conflict began much earlier and was originally provoked by South Ossetian militias.15

Russia also infers reference to the "Just War" principle, which sets out ethical guidelines for using force other than for self-defense purposes. This concept, the cornerstone of the "Responsibility to Protect" doctrine, is defined by: Right intention, last resort, proportional means, reasonable prospects for success, right authority, just cause, reasonable withdrawal of forces. As their argument goes, just cause was provided when the Georgian offensive targeted Ossetian civilians, causing large-scale loss of life. Russian officials sought to reinforce this justification by accusing Georgian forces of committing genocide; however no evidence for this accusation has yet to be presented. Their authority (or perception thereof) would be derived from Russia's role as a state authority protecting their citizens from harm. The right intention was the Russians' stated intention of protecting their citizens who were under siege. Russia's superior air power allowed for an almost certain chance of "success" (i.e. defeating the Georgian forces). Russian officials likely believed they had fulfilled the "last resort" measure because several diplomatic initiatives went unheeded. NATO Secretary General Jaap de Hoop Scheffer called for a ceasefire on August 8th that was ignored by both sides.16 An emergency UN Security Council meeting on the night of August 7-8th to create a Russian-sponsored ceasefire resolution ended in failure when the Security Council members could not come to an agreement.17 Additionally, preplanned talks between South Ossetian and Georgian ceasefire negotiators were scheduled to be held on August 8th.18 The Georgian attack on that day ended this initiative. The United States seeks to nullify the "just war" argument by stating that Russia used "disproportionate force."19 China, Kazakhstan, Kyrgyzstan, Tajikistan, and Uzbekistan, all members of the Shanghai Cooperation Organization (SCO), voiced their consent for Russia's "active role" in Georgia as an attempt to counter the United States' statement.20

Perhaps Russia's strongest defense for their actions is the precedent set by NATO in Kosovo. In 1999, NATO violated Serbia's sovereignty in an aerial bombing campaign. Prior to the bombing campaign, the UN Security Council did not pass a resolution mandating a collective intervention under Chapter 7. NATO itself could not attack under Article 5 of the North Atlantic Treaty because Serbia had not attacked a member of NATO, which would have allowed them to invoke the collective security agreement. As a result, in order to justify their actions, NATO claimed the bombing campaign was to prevent Serbians from committing ethnic cleansing against Albanians living in Kosovo, then a province of Serbia. Thus, officials claimed that the bombing campaign was really a "humanitarian intervention" conducted in order to save the Albanians. In the end, NATO officials and pilots were never sanctioned for their actions. This precedent is important because the same basic reasoning was used by Russia to justify its intervention and violation of Georgia's sovereignty. Sir Michael Jackson, Deputy Commander to General Wesley Clark in NATO's Kosovo Force (KFOR) from June to October 1999, admitted that Russia had a valid point by stating they were intervening to protect their de facto and de jure citizens.21

I suspect the debate on who was "right" or "wrong" in this war will go on for quite some time. I also doubt that international law will hold anyone accountable for what happened. Regardless of what subjective or collective conclusions are drawn from further studies of the war, I only hope that it does not start up again and/or lead to a new "Cold War" with an accompanying arms race.

1 On 9 April, 1991, shortly before the official collapse of the Soviet Union (USSR), Georgia opted to withdraw and declare its independence as a republic. Abkhazia declared de facto independence as a nation-state from Georgia in 1992, but failed to receive any international recognition. The Abkhazians defeated Georgia in a civil war that lasted from 1992-1993 and led to the ethnic cleansing of Georgians from the territory and the installation of a UN-monitored mission (UNOMIG).

South Ossetia became an autonomous oblast (equivalent to a province) in the Georgia Soviet Republic beginning in 1922. The Soviet Constitution of 1936 confirmed South Ossetia's autonomy within the newly formed Soviet Socialist Republic. In November 1989, the South Ossetian regional council asked the Georgia Supreme Soviet for independence. Their request was denied and Georgia banned all regional parties. South Ossetia turned to Moscow for help but they were turned away because Moscow was mired in its own serious problems. The Ossetians responded by declaring themselves a Soviet Democratic Republic within the Soviet Union and even held elections. In December of 1990, the Georgian Government revoked South Ossetia's autonomous status. War broke out with Georgia Proper in 1991. When Georgia became independent, South Ossetia failed to receive any diplomatic or international recognition. As a result, South Ossetia retained its de facto independent status. A European-monitored referendum in 2006 resoundingly reaffirmed the Ossetians' desire for full independence, but the international community, including Russia, again refused to recognize the referendum. They stated the reason was because the collective population of Georgia did not participate in the voting and the central Georgian Government of President Saakashvili did not recognize the results.

2 "NATO 'Not Aware' of Any Georgia Buildup, Urges Calm," Reuters. 5 August 2008.

3 "Saakashvili Appeals for Peace in Televised Address," Civil Georgia. 7 August 2008. http://www.civil.ge/eng/article.php?id=18931. Accessed 28 August 2008.

4 "South Ossetia: An Avoidable Catastrophe," Thomas De Waal. Institute for War and Peace Reporting. 11 August 2008.

5 "Georgian Tanks Head for South Ossetia," Russia Today. 7 August 2008. http://www.russiatoday.com/news/news/28601. Accessed 3 September 2008.

6 "Group: Georgia Admits to Dropping Cluster Bombs," Associated Press. 1 September 2008.

Note: M-85s, manufactured by Israeli Military Industries, were also found in Shindisi, a town located north of Gori. Russia is not known to possess M-85s. ("MoD Says it Used Cluster Bombs, But Not in Populated Areas," Civil Georgia. 1 September 2008.)

7 "South Ossetia: Tskhinvali's Apocalypse," Tanya Lokshina. Opendemocracy.net. 1 September 2008. http://www.opendemocracy.net/Russia/article/South-Ossetia-Tskhinvali-Apocalypse. Accessed 4 September 2008.

8 Note: Another definition often used is the traditional "Westphalian Sovereignty," which includes nation-state sovereignty through self-determination, legal equality between states, and the principle of non-intervention in other states' affairs, which is also a foundational tenet of the UN Charter. This original definition's modern relevance is under continuing debate in wake of post-Cold War issues arising from supranational institutions/bodies, international terrorism, the proliferation of non-state actors, unilateral military interventions, assertive multilateralism, and globalization to name but a few. All of these encroach, and/or have the potential to encroach on one or more aspects of sovereignty. They are also part of, or directly influence, the modern international system.

9 Note: There is debate in regards to the interpretation of Article 2.4. In this example, a very literal and strict interpretation is used. However, the UN Charter itself does not define or distinguish the terms "aggression" or "war," though it makes use of the terms. For this reason, some argue Article 2.4 is not precise enough to constitute a legal norm. Both Russia and Georgia formally declared war after their initial respective attacks began.

10 "Saakashvili Offers 'Patriot Act'," Civil Georgia. 29 August 2008.

11 "Saakashvili Calls on World not to Accept Ethnic Cleansing," Civil Georgia. 4 September 2008.

12 Note: A former part of Russia, South Ossetia still retains close ties to Moscow. Not only do South Ossetians carry Russian passports, they also use the Russian Ruble as currency.

13 "Medvedev: Russia Will Protect its Citizens in S. Ossetia," Civil Georgia. 8 August 2008.

14 "Russian Peacekeepers Confirmed Killed in Georgia," Russia Today. 8 August 2008.

15 "U.S. Official: Tbilisi Attacked Tskhinvali on August 7, But War Started Earlier," Civil Georgia. 4 September 2008.

Note: It is noteworthy that Undersecretary Bryza is an energy policy coordinator for Eurasia and was a special advisor to the President and Secretary of State on Caspian Basin energy diplomacy from July 1998 to March 2001. Pipeline transportation corridors that circumvent Russia are the West's primary strategic interest in Georgia. These corridors currently include the Baku-Tbilisi-Ceyhan (BTC) pipeline and the Baku-Supsa pipeline. However, a complete analysis of this topic is far beyond the scope of this composition.

16 "NATO Calls for Ceasefire, Direct Talks," Civil Georgia. 8 August 2008.

17 "UN Council Split on South Ossetia, Russia Angry," Civil Georgia. 8 August 2008.

18 "Talks Planned for August 8 - Russian Negotiator," Civil Georgia. 7 August 2008.

19 "U.S. Says Russia Used 'Disproportionate' Force," Sue Plemming. Reuters. 14 August 2008.

20 "Russia Wins Backing from China, Central Asia Over Georgia," Agence France Presse. 28 August 2008.

21 "Georgia: Let's Not Start World War III," Mike Jackson. The Independent. 17 August 2008.

From:	Z Space - The Spirit Of Resistance Lives
URL:	http://www.zcommunications.org/zspace/commentaries/3636