Note: This is a brief document that summarizes the facts that took place during the last days on the
In the last couple of days the situation in
Factual Situation on Grounds
From early hours of August 8, the armed attack was launched against
Moreover since the 7th of August 2008, 3 columns consisting of hundreds of armed personnel as well as tens of heavy armed vehicles were entering region of
From the second part of the day (8th of August 2008), following cities have been bombed by the fighter jets entering
- City of Gori and nearby areas;
- Villages such as Senaki, Khoni and Oni;
There are casualties among civilian population in all the aforementioned places, as the bombing has been directed towards the cities and villages per se indiscriminately. Currently, according to official information 57 civilians had been killed in course of the hostilities.
The aforementioned facts have been preceded by an escalated situation in the Tskhinvali Region of
PART ON JUS AD BELLUM
The Russian Federation has violated the Principles on the Prohibition of the Use of Force and has carried out Acts of AGRESSION
Violated the Principles of the UN Charter and carried out Act of Aggression Russia
The Russian has argued in the course of last two days that it has been acting in accordance with the principles of international law, namely it has been acting in self-defense and entered to
First it is retained that acts of the
Article 2 paragraph 4 of the UN Charter stipulates 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.” As it is clarified by authoritative scholar Simma in A Commentary to the UN Charter, the prohibition includes any use of armed force, even small and temporary operations that do not result in any deprivation of territory. The
It is noteworthy that there are certain exceptions to the prohibition of the use of force strictly defined by the UN Charter. Namely, the legitimate use of Self-defence under Article 51 is one of such exceptions. Another exception is actions mandated by the Security Council under Chapter VII of the Charter. The former is argued by Russian as a lawful ground for use of force and the legal arguments are given below. The latter is not relevant to the given facts and thus not discussed.
In addition, it represents a typical example of intervention that goes against the territorial integrity and political independence of
According to the Article 1 of the 1974 Resolution 3314 on the Definition of Aggression, “Aggression is the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State, or in any other manner inconsistent with the Charter of the United Nations”. The definition almost repeats the wording of article 2.4 of the UN Charter. The difference lies within the term “armed force” inserted and the “threat” of use of force omitted. It is thus evident that according to the definition proposed by the resolution, unlike article 2.4 of the UN charter, aggression takes place only in case an “armed force” is used and the “threat of use of force” does not constitute aggression under international law.
The Resolution contains seven provisions defined as aggression:
o Invasion or attack by armed forces of one State upon another State, occupation or annexation resulting from this;
o Bombardment or the use of any weapons by one State against another State;
o Blockade of ports or coasts of one State by armed forces of another State.
o Attack on armed forces of one State by armed forces of another State;
o Using a State’s armed forces within another State, when this presence is with the agreement of the receiving State, but when the usage is contrary to the terms agreed upon or the presence is for a longer time period than agreed upon;
o One State allowing another State to use its territory for perpetrating acts of aggression against a third State;
o Sending armed bands, groups, irregulars or mercenaries into another State to carry out acts of force amounting to acts of aggression as they are defined above or substantial involvement therein.
The acts listed in article 3 are not exhaustive and according to the article 4 the SC has discretion to consider other acts as acts of aggression under the provisions of the UN Charter.
It is evident from the current situation in the
- Russian can not lawfully invoke right of self-defense as legal grounds for intervention in Georgia
Under treaty law, Article 51 of the UN Charter recognizes the inherent right of self-defence. The right to self-defence enshrined in Article 51 applies to cases where an “armed attack” occurs against a Member of the United Nations. The exercise of this right is subject to the State concerned having been the victim of an armed attack. Existence of prior armed attack carried out by state against a state is essential. In order to be legitimate, a military action carried out in self-defence must meet the requirements of necessity (no other alternative action is possible) and proportionality (the response is proportionate to redress the initial attack).
Not all violations of article 2.4 of the UN Charter constitute an “armed attack”. The latter only exists when force is used on a relatively large scale and with substantial effect.  ICJ stated in the
It is argued that the
Self-defense in customary international law is based on the "Caroline Doctrine," which established the state's right to use force in order to defend itself against real and imminent threats that require immediate response in circumstances where all peaceful means of resolving the dispute have been exhausted and the response is essential and proportional to the threat.
It is argued that the
o Even if there existed any kind of threat to the Russian Federation, it has not exhausted all peaceful means for the settlement of the dispute, as far as even today, when Georgia is ready for the peaceful negotiations, the Russian Federation continues bombing Georgian territory.
3. Russian can not justify its act under the pretext of “Protection of Its National Abroad”
It is argued, that international law does not recognize the legality of use of force for the protection of the “nationals abroad” as such and existing practice shows that, States have argued the right to protection nationals abroad within the context of the right of self-defence.
Furthermore, the International Law Commission in its First Report on Diplomatic Protection of 2000, approved by the General Assembly by its resolution, emphasized that the state practice in combination with the prohibition of use of force under Article 2(4) of the UN Charter outlaws use of force under the pretexts of diplomatic protection. The only exception to this provision, permitting the unilateral use of force by States, is Article 51, which deals with the right of self-defense. The illegality of
Thus, any use of force by the
PART ON JUS IN
International Humanitarian Law (IHL) is Applicable to the State of War in Georgia and Parties to the Conflict Should Comply with Respective Rules of IHL
1. IHL is Applicable to the Current State of War whatever the Argument of the Russian Federation can be under the Rules of Jus Ad Bellum
It is contends that the on-going activities fall under the legal frameworks of the law of armed conflicts, i.e. international humanitarian law (IHL) and the treatment of the persons as well as conduct of hostilities are regulated by the well defined rules and principles of IHL.
In addition it shall be noted that the purpose of IHL is to limit the suffering caused by war by protecting and assisting its victims as far as possible. IHL also known under the term Jus in Bello therefore addresses the reality of a conflict without considering the reasons for or legality of resorting to force. It regulates only those aspects of the conflict which are of humanitarian concern. IHL applies irrespective of the reasons for the conflict – whether the force used was legitimate in accordance with the principles of UN Charter (under law of Jus ad Bellum).
IHL is intended to protect war victims and their fundamental rights, no matter to which party they belong. That is why IHL (Jus In
2. Applicable Regime under IHL governing situation between Georgia and the Russian Federation is the Laws of an International Armed Conflict
It is argued that the existing situation, since August 7 2008 amounts to an international armed conflict as defined and governed by Common Article 2 of the Four Geneva Conventions of 1949. Paragraph 1 of the Common Article 2 declares “…the present Convention shall apply to all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties, even if the state of war is not recognized by one of them”. Formally, Common Article 2 determines two requirements for the application of the Four Geneva Conventions of 1947. First, that there shall be an armed conflict between two or more High Contracting Parties – that is between States that are parties (ratified/acceded) to the Geneva Conventions. And second, there is no need for formal declaration of war. Therefore, any declaration on behalf of the Russian authorities that there is no
As to what amount actually to an armed conflict the respectful Commentary of the International Committee of the Red Cross as well as Opinion Paper issued by the International Commission of the Red Cross in March 2008 noted, that international armed conflict occurs when one or more States have recourse to armed force against another States regardless of the reasons and intensity of the confrontation. It depends on the factual conditions – what actually happens on the ground.
In addition, according to the well-established practice of the International Criminal Tribunal for Former Yugoslavia “an armed conflict exists whenever there is a resort to armed force between States or protracted armed violence between governmental authorities and organized armed groups or between such groups within a State”. The Commentators and Legal experts also concerted that “…as soon as the armed forces of one State find themselves with wounded or surrendering members of the armed forces or civilians of another State on their hands, as soon as they detain prisoners or have actual control over a part of the territory of the enemy State, then they must comply with the relevant convention".
There is an international armed conflict within the meaning of Common Article 2 of the Geneva Conventions of 1949 between
3. Persons shall be Protected in accordance with the IHL
According to IHL, the persons in situation of an international armed conflict fall under protection of the Four Geneva Conventions of 1949, namely:
o Geneva Convention I for the Amelioration of the Condition of the Wounded and Sick in the Armed Forces in the Field;
o Geneva Convention II for the Amelioration of the Condition of the Wounded, Sick and Shipwrecked Members of the Armed Forces at Sea;
o Geneva Convention III Relative for the Treatment of Prisoner of War;
o Geneva Convention IV Relative to the Protection of Civilian Persons in Times of War;
o As well as Additional Protocol I of 1977;
Under international humanitarian law, no one has an intermediate status – everyone in enemy hands must have some definite status, either a "prisoner-of-war…covered by the Third Geneva Convention," or a "civilian covered by the Fourth Geneva Convention."
4. Parties to the Conflict shall Abide to the Principles and Rules Governing Conduct of Hostilities in accordance with IHL –
The law governing the conduct of hostilities regulates military operations by prohibiting or limiting certain attacks as well as the use of certain arms. The law of conduct of hostilities is based on a certain number of general rules codified in Additional Protocol I as well as regarded part of customary law.
First, the right of the parties to an armed conflict to choose means and methods of warfare is not unlimited. Second, the means and methods of combat of a nature to cause superfluous injury or unnecessary suffering are prohibited. And third, the respect for principle of distinction shall be upheld. Namely:
- Distinction between civilians and combatants;
- Distinction between civilian objects and military objectives;
- Prohibition of indiscriminate attacks;
- Proportionality in attack;
- Precautions in attack;
- Precautions against the effects of attacks.
In addition all participants to an armed conflict to retain following:
The facts on the ground already show that the Russian Air Forces have violated the fundamental principles governing the conduct of hostilities as the bombing has been carried out with respect to the civilian objects. Hence, during last two days the main target of attack have been cities and villages populated by civilians and not representing military objects. As a result of these attacks houses and other property have been destroyed and tens of casualties among civilians are registered. These activities represent a flagrant violation of the principles mentioned above.
5. All Parties to an International Armed Conflict should comply with the rules and principles of International Humanitarian Law and with the Requirements of Humanity
We call upon all parties to an international armed conflict as well as members of the international community “to respect and ensure respect of application” of IHL norms in the conflict region in accordance with the requirements of the Common Article 1 of the Four Geneva Conventions of 1949, the State Parties to the said Conventions are under a legal obligation to implement in a good faith.
In particular, we urge all parties apart from the specific rights and obligations envisaged in the relevant articles of the Four Geneva Conventions of 1949 and Additional Protocols I and II, it would comply with the fundamental guarantees enshrined in Common Article 3 of the Geneva Conventions. Common article 3 is like a “convention in miniature”, frequently sited list includes basic rules of humanitarian law applicable in armed conflict, known as “elementary consideration of humanity” deriving from the “principles of humanity and the dictates of public conscience” embedded in Common Article 3, which has been recently categorized as minimum core of mandatory rules… reflecting the most universally recognized humanitarian principles.
Paragraph I of the Common Article 3 provides in imperative manner humane treatment without discrimination to all persons taking no active part in hostilities, including the members of armed forces who have laid down their arms and those places hors de combat by sickness, wound, detention or any other cause. This paragraph includes list of acts that shall remain prohibited at any time and in any place with respect to abovementioned persons - as such, it allows no deviation from the following minimum prohibition:
- the violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;
- taking of hostages;
- outrages upon personal dignity, in particular humiliating and degrading treatment;
- the passing of sentence and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples.
Paragraph II in general terms notes the obligation to collect and care for wounded and sick.
 See 1965 Declaration on the Inadmissibility of Intervention in the Domestic Affairs, General Assembly Resolution 2131 (XX0;
 G.A. Res. 3314 (XXIX), UN GAOR, 29th Session, UN Document A/9631 (1974). Available at: http://daccessdds.un.org/doc/RESOLUTION/GEN/NR0/739/16/IMG/NR073916.pdf?OpenElement
 A. Randelzhofer, “Article 51”, in B. Simma (ed.), The Charter of the United Nations, A Commentary (2nd Ed., Vol. I,
 M. Shaw, International Law, 5th ed.,
 International Law Commission, 52nd Session, First Report on Diplomatic Protection, by Mr. John Dugard, Special Rapporteur on Draft Articles, A/CN.4/506, 7 March 2000;
 SCOR, 19th Year, 111th meeting, 8 April 1964; Legality of the Threat or Use of Nuclear Weapons , ICJ Reports, 1996, pp. 226 & 246; R.B. Lillich, Forcible Self-Help and International Law, 62 US Naval War College International Law Studies, 1980, p. 129;
 The Commentary of the Geneva Conventions of 1949 confirms that
“any difference arising between two States and leading to the intervention of armed forces is an armed conflict within the meaning of Article 2, even if one of the Parties denies the existence of a state of war. It makes no difference how long the conflict lasts, or how much slaughter takes place"
J. Pictet, Commentary on the Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, ICRC, Geneva, 1952, p. 32; See also How is the Term "Armed Conflict" Defined in International Humanitarian Law? International Committee of the Red Cross (ICRC)Opinion Paper, March 2008 found at http://www.icrc.org/web/eng/siteeng0.nsf/htmlall/armed-conflict-article-170308/$file/Opinion-paper-armed-conflict.pdf
 PROSECUTOR v. DUSKO TADIC a/k/a "DULE" DECISION ON THE DEFENCE MOTION FOR
INTERLOCUTORY APPEAL ON JURISDICTION, Decision of October 2, 1995, para. 70; D. Schindler, The different Types of Armed Conflicts According to the Geneva Conventions and Protocols, RCADI, Vol. 163, 1979-II, p. 131;
 H.P. Gasser, International Humanitarian Law: an Introduction, in: Humanity for All: the International
Red Cross and Red Crescent Movement, H. Haug (ed.), Paul Haupt Publishers,
 Commentary to the Geneva Convention IV, p. 51; The Prosecutor v. Delalic and Others, Trial Chamber, IT-96-21-T, para. 271;
 Article 35(1) of the Additional Protocol I;
 Article 35(2), of the Additional Protocol I;
 See Articles 51, 57 and 58 of the Additional Protocol I;
 Article 40 of the Additional Protocol I makes it a violation to command that there will be no survivors, to so threaten to the enemy (for example, in order to hasten his surrender) or to conduct hostilities in such a fashion. The requirement of an unconditional surrender by one Party to the conflict to its adversary may not under any pretext mean a refusal of quarter. It follows that, quoting from the commentaries to Protocol I, that “an order of “liquidation” is prohibited, whether it concerns commandos, political or any other kind of commissars, irregular troops or so-called irregular troops, saboteurs, parachutists, mercenaries or persons considered to be mercenaries, or other cases. It is not only the order to put them to death that is prohibited, but also the threat and the execution, with or without orders”.
 Article 41 of Protocol I defines a person as 'hors de combat' if :(a) he is in the power of an adverse Party; (b) he clearly expresses an intention to surrender; or (c) he has been rendered unconscious or is otherwise incapacitated by wounds or sickness, and therefore is incapable of defending himself; provided that in any of these cases he abstains from any hostile act and does not attempt to escape. The Commentaries to article 41 clearly indicate that this rule protects both regular and irregular combatants, those whose status is in doubt or even simple civilians. The Commentaries further specify that there are no exceptions and that respect for the rule extends equally to the civilian population, who must also – along with the combatants – respect the persons 'hors de combat'.
 Acts inviting the confidence of an adversary to lead him to believe that he is entitled to provide, or is obliged to accord, protection under the rules of international law applicable in armed conflict, when such acts are done with the intent to betray that confidence. The prohibition of perfidy is not absolute, but limited to cases where it is used to kill, injure or capture an enemy.
 L. Boisson Chazournes and L. Condorelli, Common article 1 of the Geneva Conventions revisited: Protecting collective interests, 31-03-2000 International Review of the Red Cross No. 837, p. 67-87; See also U. Palanwankar, Measures available to states for fullfiling their obligation to ensure respect for humanitarian law, 28-02-1994 International Review of the Red Cross no 298, p.9-25;
 M. Sassoli, State Responsibility for Violations of Humanitarian Law, 84 International Red Cross Review, 2002, p. 413-414;
 Nicaragua Case, para 218; Corfu Channel Case, 1949, ICJ Reports, p. 22; Legality of the threat or use of nuclear weapons: advisory opinion, ICJ Reports 1996, para. 79; Kupreskic, IT-95-16-T, 14 January 2000, paras. 518-9;
 The Prosecutor v. Zejnil Delalic et al., Judgment, Case No. IT-96-21-A, 20 February 2001, para 143;