I cannot forecast to you the action of Russia. It is a riddle wrapped in a mystery inside an enigma. Winston Churchill

Aug 12, 2008



Note: This paper represents a response to the interview of the Deputy Prime-Minister of the Russian Federation Mr. Ivanov. Cynical tenor of the interview demonstrated a clear misinterpretation and disregard of internationally recognized norms and practices in international law. The current legal stand taken by the Russian Federation sets an extremely dangerous precedent and imperils progressive development and proper application of international law at the same time running counter to the sole and spirit of international legal order. The paper was prepared by group of students and does not in any way reflect the official position of the Government of Georgia.

Tbilisi, August 12, 2008

I. Introduction

On 11 August 2008, Deputy Prime-Minister of the Russian Federation gave a televised interview on CNN during which he accused Georgia of genocide and claimed that the Russian Federation was carrying out a peace-enforcement operation and was protecting its nationals. It is clear that the submissions of Mr. Ivanov are based on misinterpretation of facts as well as erroneous legal arguments. The speech was intended to be a propaganda aimed at misleading the international community and disguise an apparent fact of aggression against Georgia which stands as clear retaliation for Georgia’s aspiration for sovereignty, democracy and western values. This paper tries to respond to unjustified arguments put forward by Mr. Ivanov and unmask the act of aggression on the part of the Russian Federation that is still ongoing at the time of writing.

II. Georgia Was Acting Pursuant to its Right of Self-defense as Proclaimed by the UN Charter and Customary International Law

Mr. Ivanov, with a bright smile on his face, accused Georgia of conducting attack against South Ossetia and the Russian Federation. The facts on ground document an opposite. It should be mentioned at the outset that South Ossetia has historically been an integral part of the Georgian territory as recognized by the international community. The territory has however been under de facto control of separatists backed by the Russian Federation. From early July onwards Georgian villages, official forces and peacekeepers were under constant and intensive attack from the separatist forces. The separatists used fire-arms, grenades, tanks, artillery as well as different types of mines against the officials of the Government of Georgia as well as peaceful population. Kidnapping of the officers of the Ministry of Internal Affairs of Georgia has been a widespread occurrence as well. Dozens of casualties were reported among the peaceful population.

The Russian Federation was actively supporting separatists by armed supplies, trainings, logistic, etc. The Russian Officials held highest governmental posts in self-proclaimed government of South Ossetia. As a result, the support provided by the Russian peacekeepers to carry out attacks on Georgian police and civilian population in the conflict zone clearly qualifies as “substantial involvement” within the meaning of the famous holding of Nicaragua. Hence, Russian Federation is directly implicated in the above-mentioned attacks on the Georgian villages. Consequently, the only available measure for Georgia was to invoke its right of individual self-defense under Article 51 of the UN Charter. Thus the military attack on Georgian civilian population, police forces and Georgian peacekeepers in Tskhinvali region unequivocally falls within concept of armed attack as proclaimed by the ICJ in the Iranian Oil Platforms as well as in Congo case. The factual circumstances further suggest continuous nature of the attack against Georgia’s territorial integrity and political independence. The use of force by Georgia met the standard of “necessity” and “last resort” since it was carried out only after the public call for peace and cooperation by the President of Georgia. In particular, on the eve of 8 August 2008, President of Georgia Mikhael Saakashvili in his televised speech addressed the nation, the people of Tskhinvali Region, separatist de facto authorities, the Russian Federation and international community at large to help putting an end to the ongoing violence. Moreover, the President reiterated desire of Georgian state of peaceful resolution of the conflict with full protection of the interest of ethnic Ossetians and expressed readiness to have the meeting in any format to start the dialogue. Earlier, the Minister of Reintegration of Georgia Mr. Temur Iakobashvili went to Tskhinvali to meet personally the Chief Negotiator Chochiev (South Ossetian de facto authority) and the commander of the Russian peacekeeping forces General Kulakhmetov.

In the morning of 8 August 2008, President Saakashvili called upon Russian Federation to withdraw its officials serving in the Tskhinvali separatist government (i.e. V. Lunev – Minister of Defense; M. Mindzaev – Interior Minister; A. Barnkevich – Secretary of Security Council; I Morozov – Prime Minister) and let the situation stabilize. Despite the call on peace and cooperation made at the highest political level of the Georgian government, the armed attacks against Georgian villages continued. The de facto President, Eduard Kokoiti officially declared war against Georgia in the afternoon of 8 August 2008. Kokoiti’s declaration of war as well as the attacks in question resulted from the activity of the Russian peacekeepers in the region being under exclusive and direct command of the Russian Federation. Stemming from the above-mentioned, Georgia had no other means but to resort to armed force with a view to repelling the armed attacks against it. Hence, resort to military force in the face of real and immediate threat to the survival of the nation was clearly legitimate, as well as implemented in full compliance with international law.

III. Claim that Georgia Committed Genocide and Ethnic Cleansing Is without Factual and Legal Arguments and Is Put Forward as a Means to Downplay the Act of Aggression Committed by the Russian Federation

The accusation by Mr. Ivanov that Georgian forces committed genocide and ethnic cleansing is a total lie aimed at misleading the international community. It must be noted as a preliminary matter that it was the Georgian population that was subjected to ethnic cleansing in South Ossetia in early nineties. This act was carried out by the separatist forces with the support of the Russian Federation and gave rise to thousands of displacements from South Ossetian region. The response from Georgian armed forces was fully in line with the requirements of laws of war, namely the fundamental principle of distinction and proportionality. Thus, the fire was used exclusively against military objects, while resulting civilian casualties was limited to military necessity and proportionate to the military advantage sought to be achieved.

It must be also mentioned that the actions of the Georgian government in South Ossetia were not motivated by special intention to “destroy in whole or in part” a specific ethnic group which is necessary to qualify an act of genocide, but rather the necessity to protect the Georgian population of the conflict zone from the attacks of the separatists. It can be confirmed by the efforts of the Georgian government to resolve the conflict with separatists by peaceful means during the recent period. Georgian forces launched the operation in the region only in response to the prior attacks by the separatists against Georgian villages within the conflict zone. The clearest indication of the preference of the Georgian government to solve the conflict through peaceful negotiations has been the statement of the President Saakashvili on 7 August 2008 before the above mentioned operation was launched, ordering Georgian forces to cease fire and urging separatists to engage in peace talks for the resolution of the conflict, promising amnesty for crimes possibly committed. On August 8, after launching the offensive, Georgia declared a three-hour cease-fire to allow civilians to leave Tskhinvali by creating a humanitarian corridor. Besides, the Georgian government expressed its willingness to accept internally displaced persons on its territory and provide necessary humanitarian assistance. These factors serve as a clear indication that the actions of the Georgian government were never aimed at the destruction of ethnic Ossetian as such.

It should be also mentioned that the complex actions taken by the Government of Georgia over the years in the conflict region is an apparent proof to the fact that Georgia has never had any genocidal intents toward ethnic Ossetians. Over the years large part of ethnic Ossetians have been under the jurisdiction of Georgia. The President of Georgia ordered the creation of Temporary Administration for Southern Ossetia which was exclusively staffed by ethnic Ossetians, all the necessary measures have been created for ethnic Ossetians to maintain their cultural and ethnic identity, schools, kinder gardens, etc.

Thus the accusations of Mr. Ivanov is far from truth and is part of dirty propaganda to and used as a pretext to justify aggressive actions on the part of the Russian Federation.

As for today it the troops of the Russian Federation that are carrying out the policy of ethnic cleansing in the villages of conflict region. Arbitrary killings of ethnic Georgians are carried out on mass scale. Modern type concentration camps are set up and the civilians are subjected to killings and inhuman treatment.

IV. The Claims of the Russian Federation Carrying Out Peace-enforcement Operation and Protection of Citizens of the Russian Federation is without any Legal Grounds and Constitutes an Apparent Act of Aggression

According to Mr Ivanov, the aim of Russian forces is enforcement of peace and protection of the rights of Russian citizens and for this purpose they target only military objectives.

(i) Peace-enforcement: From the perspective of the legality of the use of force, it is necessary to underline the arguable validity of justification advanced by the Russian Federation for the use of force against Georgia, i.e. peace-enforcement lacks an independent basis under the international legal framework. There are only two justifications for the use of force under the UN Charter framework: self-defense under Article 51 and Chapter VII enforcement measures. Even if this pretext is viewed within the ambit of the right of self-defense, it would not satisfy the requirements for the exercise of this right, i.e. presence of the “armed attack” as well as necessity and proportionality of response to such an attack. It is questionable whether the actions of the Georgian forces within South Ossetia which is the part of the territory of Georgia and not the Russian Federation would qualify as an armed attack against the Russian Federation.

Further, it is to be underlined that Russian fighter jets have targeted not only military objectives but also civilian objects, in violation of one of the cardinal principles of the international humanitarian law, the principle of distinction, aimed at distinguishing between these two categories of objectives and protecting civilian population. Even if one accepts that the purpose of the Russian forces is to enforce peace, this goal can hardly be achieved by targeting civilian population.

Ivanov denied that Russian troops were going far beyond the conflict zones, noting that they did not cross the administrative border between South Ossetia and Georgia. In fact, that Russian forces are not satisfied by the withdrawal of Georgian troops from the conflict zone of South Ossetia. On 9 August 2008 the President of Georgia declared cease-fire and Georgian forces left the territory of South Ossettia. Despite this Russian forces have occupied large parts of the Georgian territory and are carrying out massive bombings of Georgian cities throughout the country far from the conflict region. Cities of Poti, Kareli, Kaspi were subjected to intensive bombings despite the formal declaration of cease-fire from the President of the Russian Federation.

As for the parallels to the NATO bombing of Belgrade, first of all, this case significantly differs from the situation in Georgia, by the actions of the respective central government and the breakaway region as well as the scale of the humanitarian catastrophe that served as a ground for intervention and the presence of the Security Council prior reactions to that situation, calling on Yugoslavia to stop its actions.

(ii) Protection of national abroad: Russia cannot justify its use of force against Georgian state in pretext of the protection of its nationals abroad. Russia has been threatening Georgia to use force “for the protection of its nationals” in the Georgian two breakaway regions of Abkhazia and Tskhinvali. First and foremost, it is a separate violation of the international law (interference of domestic affairs prescribed by Article 2(7) of the UN Charter) by Russia to grant Russian passport of the people in the separatist regions for the sole purpose of artificial change of the composition of population. Russia cannot legally claim right to diplomatic protection over those persons, since despite the Russian internal legal regulations on citizenship the people residing in the Tskinvali Region have no genuine link with the Russian Federation that has been established to be necessary in order to exercise diplomatic protection over individuals as defined by the ICJ in the Nottebohm case (Lichtenstein v. Guatemala).

Moreover, international law does not recognize the legality of use of force for the protection of the “nationals abroad.” The ILC 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 Russia’s possible invocation of the right to self-defense is discussed above.

Thus, any use of force by the Russian Federation against Georgia can only be categorized as an illegal armed reprisal, which is clearly prohibited under international law, inter alia, by the GA Resolution 2625 on Friendly Relations and Cooperation among Nations, by the ICJ in Nicaragua case in the Advisory Opinion on the Legality of Threat or Use of Nuclear Weapons and Article 50(1)(a) of the ILC Articles of State Responsibility. Moreover, Russia’s actions goes beyond the illegal armed reprisal and meets the standards of the international wrongful act of aggression as understood under the international law. Therefore, Russia should bear international legal responsibility for the measures taken against Georgia.

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