Conflict in the Caucasus

At the turn of this century, the editors of a special issue of the journal International Organization suggested that a greater ‘move to law’ was occurring and that a trend towards the ‘legalization of world politics’ was taking place.¹ While this view was contemporaneously criticised as presenting a simplistic conception of law, one which failed to adequately account for the dynamic interaction between norms and policies and between legal and political actors,² the basic insight that international law and politics intersected seemed undeniable. The 2003 Iraq invasion shook this view. Realists (and ‘neo-cons’ who thought of themselves as realists) were quick to point out that hard power was back – if indeed it had ever gone – and that any ‘liberal moment’ that had emerged in the 1990s (evidenced by robust collective action through the Security Council and the creation of the International Criminal Court, among other things) had ended.³ Many legal scholars perceived a ‘crisis in confidence’ for international law. Some responded to this ‘crisis’ by suggesting that international law reorient itself to new threats and new realities, chipping away for example at the 1945 United Nations (UN) Charter framework that restricted the use of force to narrow exceptions.⁴

The peoples of South Ossetia and Abkhazia have several times spoken out at referendums in favour of independence for their republics. It is our understanding that after what has happened [with the bombardment by Georgia of] Tskhinval [in South Ossetia] and what has been planned for Abkhazia, they have the right to decide their destiny by themselves. … Considering the freely expressed will of the Ossetian and Abkhaz peoples and being guided by the provisions of the United Nations Charter, the 1970 Declaration on Principles of International Law Governing Friendly Relations between States, the CSCE Helsinki Final Act of 1975 and other fundamental international instruments, I signed Decrees on the recognition by the Russian Federation of South Ossetia’s and Abkhazia’s independence.¹

The aim of this chapter is to apply the international law on the use of force – the jus ad bellum – to the events in the Caucasus in the summer of 2008. Specifically, it focuses on the claim of the Russian Federation that its intervention into South Ossetia and beyond into Abkhazia and ‘Georgia proper’ was justified in international law as an action of self-defence. It is notable that comparatively few western legal scholars have examined the lawfulness of the Russian intervention into Georgia.¹ It is therefore important that the Russian self-defence claim is properly assessed.

On 12 August 2008, Georgia filed an Application instituting proceedings against the Russian Federation for violation of the International Convention on the Elimination of All Forms of Racial Discrimination 1966 (CERD). On 14 August, referring to Article 41 of the Statute of the International Court of Justice (ICJ) and to Articles 73, 74 and 75 of the Rules of Court, Georgia submitted a Request for the Indication of Provisional Measures in order to preserve its rights under CERD ‘to protect its citizens against violent discriminatory acts by Russian armed forces, acting in concert with separatist militia and foreign mercenaries’, including ‘unlawful attacks against civilians and civilian objects, murder, forced displacement, denial of humanitarian assistance, and extensive pillage and destruction of towns and villages, in South Ossetia and neighbouring regions of Georgia, and in Abkhazia and neighbouring regions , under Russian occupation’. On 25 August, as a result of ‘the rapidly changing circumstances in Abkhazia and South Ossetia’, Georgia submitted an Amended Request for the Indication of Provisional Measures of Protection pending the Court’s determination of the case on the merits. The Amended Request sought to prevent irreparable harm to the rights of ethnic Georgians under Articles 2 and 5 of CERD to be secure in their persons and to be protected against violence or bodily harm in the areas of Georgian territory under the effective control of the Russian Federation;

The Report of the Independent International Fact-Finding Mission on the Conflict in Georgia (IIFFMCG) appeared in September 2009, in three volumes.¹ With a certain degree of hubris, the Report asserts that the ‘successful political action’ of the French President, acting on behalf of the European Union (EU) ‘stood in contrast to the failure of the international community, including the [United Nations] Security Council …’²

The approach of both domestic Georgian authorities and international organisations to solving the displacement crisis created by the 2008 Russia–Georgia conflict charted a new path.¹ It was radically different than approaches taken in the early 1990s when Georgia was faced with mass displacements following the secessionist conflicts in South Ossetia and Abkhazia. In particular, the expectation that a prompt return to homes of origin would be the preferred durable solution to the displacement was quickly abandoned for a sizeable number of internally displaced persons (IDPs) forced to leave their homes during the 2008 conflict. In its place, the two other theoretically accepted – but much less widely used – durable solutions to displacement (local integration and resettlement) have been embraced with unprecedented speed and vigour, with both funding and logistical support in place to implement such plans.

During the violence and in the aftermath of the August 2008 conflict, the leaders of Georgia and the Russian Federation couched their public statements in the language of international law.¹ Georgian President Mikheil Saakashvili, citing the United Nations (UN) Charter, claimed that Russian actions were unlawful and violated Georgian state sovereignty. Using the rhetoric of humanitarian intervention, Russian President Dmitri Medvedev stated in a speech that Georgia’s actions constituted ‘the crudest violation of international law’.² Even as the ink dried on Nicholas Sarkozy’s ceasefire text, both sides’ attorneys prepared for a legal battle ahead. By January 2009, Russian and South Ossetian individuals – with official Russian assistance – had filed over 3,300 lawsuits in the European Court of Human Rights, most concerning alleged abuses conducted by Georgian troops against South Ossetian civilians and Russian peacekeepers. Georgia and individual Georgian citizens filed their own suits as well, charging abuses by South Ossetian militias and Russian soldiers against ethnic Georgian civilians living along the disputed border areas, as well as in undisputed Georgian territory. Georgia has also filed suit against Russia in the International Court of Justice, contending that Russia sought to change the ethnic demography of Abkhazia and South Ossetia through ‘directing’ the expulsion of ethnic Georgians from those territories.³