The international legal aspects of the Georgia-Russia conflict

http://opiniojuris.org/2008/08/09/international-law-power-politics-and-russian-intervention-in-georgia/

The international legal aspects of the Georgia-Russia conflict

August 9th, 2008 - 1:32 AM EDT , by Chris Borgen

Russia’s intervention in Georgia is the latest, and most obvious, example of the peculiar role that Russia plays in the various so-called frozen conflicts in former republics of the USSR.  As international security expert Dov Lynch has put it, Russia can be thought of as a “mediator-cum-supporter-cum-combatant.”  Why has Russia undertaken such a foreign policy in Georgia and what, if anything, does international law have to say about the situation?

(DO- Russia’s role as mediator, supporter, and combatant)

I’ll start with the legal issues. South Ossetia and Abkhazia are secessionist enclaves. They are unrecognized by any other state and, as such, are considered to still be part of Georgia.  More generally, international law treats secessionist conflicts as matters of domestic law and politics. 

(status of South Ossetia + nature of the conflict – domestic affair (art,2.(7) of the Charter), coz, though secession, failed to constitute statehood)

However, international law is implicated by certain aspects of secessionist conflicts, including the protection of human rights, threats to international peace and security, and the activities of “third-party states.”  In cases of secession, a third-party state is any other state (besides the state in which the secessionist conflict is occuring) that somehow becomes involved in the conflict. Such involvement can range from being a mediator to try to end the conflict, to economic support, to military support, or to actual military intervention.  Russia has at various points (and sometimes simultaneously) played all of these roles in the Georgian conflicts.  More on that in a moment.

(Though domestic affair, still subject to international scrutiny ; (i) human rights, (ii) Ch.7 , (iii) art.2(4) and art.2(7), territorial integrity and non-intervention  ;  either (ii) or (iii) – if Ch.7, it is not in violation of non-intervention) ; (I would add IHL) ; (here, turned to the third topic)    

As for the law, the rights and duties of third-party states regarding domestic conflicts is an issue that is rooted in the concept of sovereignty:  states have a basic duty not to intervene or otherwise interfere with the resolution of the conflict by the recognized government of the state.  A more complete restatement of the principle is found in the Declaration on Principles of International Law Concerning Friendly Relations and Co-operation Among States in Accordance with the Charter of the United Nations (GA Res 2625, The “Friendly Relations Declaration”, avaliable here), a General Assembly Resolution passed by member states of the UN in 1970.  Although, as a General Assembly Resolution, the Friendly Relations Declaration is not legally binding upon the member states, it is nonetheless of significant persuasive weight as to the state of customary international law.

(non-intervention doctrine , sovereignty , GA resolution 2625 , customary international law)

The relevant substance of the Friendly Relations Declaration, and of the non-intervention norm, can summarized in a couple of clauses:

Recalling the duty of States to refrain in their international relations from military, political, economic, or any other form of coercion aimed against the political independence or territorial integrity of any State…No State or group of States has the right to intervene, directly or indirectly, for any reason whatever, in the internal or external affairs of any other State.

In regards to military intervention, the Declaration further states that “armed intervention and all other forms of interference or attempted threats against the personality of the State or against its political, economic, and cultural elements, are in violation of international law.”

So, how can one assess Russia’s actions?  (in terms of non-intervention principle)

To start, we should keep in mind Russia’s arguments mentioned in my previous post:  (1) we are not intervening first but rather responding to bad acts by the Georgain government; and,  (2) we have a right to defend our co-nationals.

This first argument is probably trying to call to mind NATO actions regarding Kosovo.  Russia is technically a “peacekeeper” in South Ossetia.  But there are a few problems with this analogy.

First, the Russians maintained that NATO’s intervention in Kosovo was illegal; it is difficult for them to use it to now claim legality of their actions here.

Second, the facts on the ground are quite different– while it seems that Georgian forces did move first in South Ossetia, there is no evidence that they were undertaking any kind of ethnic cleansing.  As for whether Russia, as a peacekeeper, is authorized to undertake bombing throughout Georgia, that is also an open question.  I would, in part, need to see the terms in the peacekeeping agreement but I doubt it gives Russia such leeway for activity.

Third, to the other extreme, calling to mind that secessionist conflicts are internal conflicts and that third-party states need to respect the sovereignty of the state attempting to resolve its internal conflict, there is a rather strong argument that Russia acted precipitously and well beyond what could be expected under the circumstances.    (here, secessionist conflict is in essence domestic affair, whereas Kosovo is threat to international peace, e.g. refugee, thus no longer domestic affair )   

Fourth, even though Russia is technically both a mediator in these conflicts and also a peacekeeper, it has nonetheless consistently supported the separatists in South Ossetia and Abkhazia since about 1994. Russia has supplied separatists in South Ossetia and Abkhazia with military equipment and at times supported them with actual military action, such as the recent Russian shoot-down of a Georgian surveillance drone.  This assistance and diplomatic support has increased dramatically since Kosovo’s declaration of independence.  As a formal matter, though, Russia still has not recognized either South Ossetia or Abkhazia.   (while Russia’s tacit denial of sovereignty of South Ossetia, Russia had intervened militarily and diplomatically)  

Russia’s second justification for its military intervention is that it is in defense of co-nationals. However, this argument is based in large part on the wide-spread “passportization” of the populations on South Ossetia and Abkhazia.  While Russia has had economic interests in these regions (more so in Abkhazia) and there are many ethnic Russians in these regions, it is the handing out of passports to people living in these enclaves that has given Russia the fig-leaf of claiming that it is acting in support of Russian “nationals.”  Not very persuasive.

In sum, Russia’s intervention is fraught with problems as a matter of international law.  So why did they do it? And why now?  The Georgian action in South Ossetia was probably the tripwire, but Vladimir Socor of the Jamestown Foundation also observes that:

Russia usually stages military incidents in Georgia in August, while European officials take their vacations. This year, however, the operations are systematic, lengthier, and considerably higher on the ladder of escalation than in previous years. After concentrating supplementary forces in Abkhazia during the spring and expanding its military infrastructure there in early summer, Moscow switched on the escalation process in South Ossetia.

As for why Russia would intervene in South Ossetia, Socor downplays Moscow’s contention that it was to protect Russian passport holders (he claims this is a trumped-up “war scare”) and that instead Russia has more strategic interests. He argues:

The goals behind Moscow’s operation are threefold, each with its own time frame. The immediate goal is to re-establish the authority of Russian-controlled negotiating and “peacekeeping” formats. By firing on Georgian positions unremittingly and escalating the intensity of the fire with every passing day, Moscow hopes to force Georgia to turn to those same Russian-controlled formats to relieve the pressure… Moscow’s next goal, on a timeframe overlapping with the first, is to capture Georgian-controlled villages in South Ossetia… The strategic political goal is to dissuade NATO from approving a membership action plan (MAP) for Georgia at the alliance’s December 2008 or April 2009 meetings. More immediately, Moscow seeks to derail the North Atlantic Council’s assessment visit to Georgia, scheduled for September, or at least to influence the visit’s assessment about Georgia’s eligibility for a MAP. Since NATO’s “Russia-Firsters” insist that unresolved conflicts disqualify Georgia from a MAP, Russia seeks to demonstrate that those conflicts are indeed unresolved. NATO’s hesitations on the Georgian MAP at the April 2008 summit emboldened Russia to escalate military operations against Georgia.

As of his writing, Russian airstrikes have spread outside South Ossetia to other parts of Georgia. Georgia is seeking assistance from the U.S. to move the Georgian troops from Iraq and back into Georgia to join the fight. The Security Council is seized of the matter. Stay tuned…

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One thing to keep in mind from a legal perspective: South Ossetia is, legally speaking, part of Georgia.  Georgia has (within the limits of the laws of armed conflict, human rights law, any specific agreements it has signed concerning the conflict, etc.) the right to address the separatist conflict within its own borders. 

Perhaps the strongest argument from the Russian side is what the terms of the peace agreement say. Of particular interest would be if Georgia foreswore the use of force and the particular rules that Russian peackeepers have in terms of engaging in military action.

Whether “Georgians started bombing Russian peacekeepers” is heavily disputed. And, while I agree that the Georgian forces moved into South Ossetia first, it is important to remember that this was preceded by fire-fights for the last few days with the South Ossetian separatists and one roadside bomb that killed six Georgian police officers. Regardless, I also agree that Georgia’s decision to use military action was unwise. 

In any case, though, this is a Russian intervention.  At issue is whether or not Russia’s actions are legally justifiable

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Jernej Letnar Černič

It appears to me that you confound pears with apples. It is very difficult to compare Kosovo question with South-Ossetia conflict. What is clear is that fundamental human rights of Kosovars have been systematically violated by Serbian authorities in former Yugoslavia and after its dissolution. These violations have been exacerbated by killings and a number of other crimes against humanity in 1998. These are historical facts.

Similar human rights violations are not reported to have been committed by the Georgian authorities in South Ossetia in past decade and a half.

In contrast, the conflict in South-Ossetia conflict is a school book illustration of aggression into a sovereign state for the purposes of annexation of part of its territory and to possibly a new friendly regime

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Marko Milanovic

With all due respect, you should try minding your tone a bit. It’s rather distasteful, at the very least, to accuse other people of bias, when that same charge could be levied against you (or me) in regard of Kosovo. Or are you going to tell me that you are completely objective and dispassionate on the matter? It’s hard enough to have a reasonable discussion about these things, and there is no reason to be uncivil — civility being one of the many good things about this blog.

I don’t think it’s really news to say that states (and great powers in particular) can be hypocrites who care more about their own immediate interests than issues of principle. That’s the way the world has always been.  In that regard, Jernej, I don’t think you can dismiss easily the comparison between Kosovo and South Ossetia.  There is indeed that one major difference that you point out, that the Serbian government conducted a systematic campaign of persecution against the Kosovo Albanians, while no such campaign existed in the case of South Ossetia (or, at least, its existence has not been confirmed by a reasonably objective and impartial neutral party).  

As we’ve discussed in regard of Kosovo, if you believe that a right of remedial secession or external self-determination exists in cases of mass human rights violations, the case of Kosovo could be distinguished from South Ossetia, Abkhazia or Transnistria. But, again as we’ve discussed before, the Kosovo government and its international backers are NOT making this principled, remedial secession argument, but are persisting in their talking about Kosovo as a ’special case.’

Dragutin, when it comes to the (rather unwise) Georgian military action against South Ossetia that preceded the Russian intervention, as a matter of international law a state is entitled to put down an insurrection by force, though of course it has to abide by the rules of the jus in bello.   

Georgian claim of sovereignty over South Ossetia is generally undisputed by other states and the UN — even Russia does not claim that South Ossetia is an independent state.

As Chris quite reasonably pointed out in his post, it is only if Georgia signed a treaty with Russia in which it renounced its right to put down the rebellion by force, that the Georgian military action would have been presumptively unlawful.  I honestly have no idea whether such a treaty exists or not, but even if it does I sincerely doubt that it gives Russia the authority to launch a full scale ‘peace enforcement’ military action against Georgia.