BBC NEWS | Europe | Georgia 'started unjustified war'
The war in Georgia last year was started by a Georgian attack that was not justified by international law, an EU-sponsored report has concluded.
However, the attack followed months of provocation, and both sides violated international law, the report said.
Some points and observations that caught my eye (all emphasis mine):
Findings:
[my comment: versus this:]
The war in Georgia last year was started by a Georgian attack that was not justified by international law, an EU-sponsored report has concluded.
However, the attack followed months of provocation, and both sides violated international law, the report said.
Some points and observations that caught my eye (all emphasis mine):
Findings:
3.) The shelling of Tskhinvali by the Georgian armed forces during the night of 7 to 8 August 2008 marked the beginning of the large-scale armed conflict in Georgia, yet it was only the culminating point of a long period of increasing tensions, provocations and incidents.
6.) In the internal Georgian turmoil after the country's unsuccessful military engagement in the armed conflicts in Abkhazia and South Ossetia, Zviad Gamsakhurdia's successor, President Eduard Shevardnadze, had to ask Moscow for assistance in October 1993 to suppress another insurrection, this time initiated by Gamsakhurdia supporters in the western province of Samegrelo. Russian troops helped as requested.
Eventually this led to a pro-Russian re-orientation of Georgia's foreign policy. In October 1993 Eduard Shevardnadze signed Georgia's accession to the Russian-led Commonwealth of Independent States (CIS) and in the following year Tbilisi joined the Russian-led Collective Security Treaty (CST), too. Four Russian military bases extended their presence on Georgian soil and Russian border troops remained deployed along Georgia's border with Turkey and patrolled the sea shores.
[my comment: versus this:]
8.) There were reportedly more than a hundred US military advisers in the Georgian armed forces when the conflict erupted in August 2008, and an even larger number of US specialists and advisors are thought to have been active in different branches of the Georgian power structures and administration. Considerable military support in terms of equipment and to some extent also training was equally provided by a number of other countries led by Ukraine, the Czech Republic and Israel, the latter contributing in terms of technology and quality rather than quantity, all of the adding to the new military strength of Georgia, which was proudly displayed on suitable occasions such as National Day parades.
12.) Another legal issue related to the conflict and to relations between Georgia and Russia is the Russian so-called passportisation policy, meaning the mass conferral of Russian citizenship and consequently passports to persons living in South Ossetia and Abkhazia, where a vast majority of the population are now carrying such Russian passports.
19.) There is the question of whether the use of force by Georgia in South Ossetia, beginning with the shelling of Tskhinvali during the night of 7/8 August 2008, was justifiable under international law.
It was not.
Georgia had acknowledged that the prohibition of the use of force was applicable to its conflict in South Ossetia in specific legally binding international documents, such as the Sochi Agreement of 1992 or the 1996 Memorandum on Measures to Provide Security and Strengthen Mutual Trust between the Sides in the Georgian-South Ossetian Conflict.
Even if it were assumed that Georgia was repelling an attack, e.g. in response to South Ossetian attacks against Georgian populated villages in the region, according to international law, its armed response would have to be both necessary and proportional.
It is not possible to accept that the shelling of Tskhinvali during much of the night with GRAD multiple rocket launchers (MRLS) and heavy artillery would satisfy the equirements of having been necessary and proportionate in order to defend those villages.
It follows from the illegal character of the Georgian military assault that South Ossetian defensive action in response did conform to international law in terms of legitimate self-defence.
However, any operations of South Ossetian forces outside of the purpose of repelling the Georgian armed attack, in particular acts perpetrated against ethnic Georgians inside and outside South Ossetia, must be considered as having violated International Humanitarian Law and in many cases also Human Rights Law.
Furthermore, all South Ossetian military actions directed against Georgian armed forces after the ceasefire agreement of 12 August 2008 had come into effect were illegal as well.
20.) At least as far as the initial phase of the conflict is concerned, an additional legal question is whether the Georgian use of force against Russian peacekeeping forces on Georgian territory, i.e. in South Ossetia, might have been justified.
Again the answer is in the negative.
There was no ongoing armed attack by Russia before the start of the Georgian operation. Georgian claims of a large-scale presence of Russian armed forces in South Ossetia prior to the Georgian offensive on 7/8 August could not be substantiated by the Mission. It could also not be verified that Russia was on the verge of such a major attack, in spite of certain elements and equipment having been made readily available.
There is also no evidence to support any claims that Russian peacekeeping units in South Ossetia were in flagrant breach of their obligations under relevant international agreements such as the Sochi Agreement and thus may have forfeited their international legal status.
Consequently, the use of force by Georgia against Russian peacekeeping forces in Tskhinvali in the night of 7/8 August 2008 was contrary to international law.
21.) When considering the legality of Russian military force against Georgia, the answer needs to be differentiated.
The Russian reaction to the Georgian attack can be divided into two phases: first, the immediate reaction in order to defend Russian peacekeepers, and second, the invasion of Georgia by Russian armed forces reaching far beyond the administrative boundary of South Ossetia.
In the first instance, there seems to be little doubt that if the Russian peacekeepers were attacked, Russia had the right to defend them using military means proportionate to the attack. Hence the Russian use of force for defensive purposes during the first phase of the conflict would be legal.
On the second item, it must be ascertained whether the subsequent Russian military campaign deeper into Georgia was necessary and proportionate in terms of defensive action against the initial Georgian attack. Although it should be admitted that it is not easy to decide where the line must be drawn, it seems, however, that much of the Russian military action went far beyond the reasonable limits of defence. This holds true for all kinds of massive and extended military action ranging from the bombing of the upper Kodori Valley to the deployment of armoured units to reach extensive parts of Georgia, to the setting up of military positions in and nearby major Georgian towns as well as to control major highways, and to the deployment of navy units on the Black Sea.
All this cannot be regarded as even remotely commensurate with the threat to Russian peacekeepers in South Ossetia. Furthermore, continued destruction which came after the ceasefire agreement was not justifiable by any means.
It follows from this that insofar as such extended Russian military action reaching out into Georgia was conducted in violation of international law, Georgian military forces were acting in legitimate self-defence under Article 51 of the UN Charter. In a matter of a very few days, the pattern of legitimate and illegitimate military action had thus turned around between the two main actors Georgia and Russia.
22.) Could the use of force by Russia then possibly be justified as a humanitarian intervention, in order to protect South Ossetian civilians?
To begin with, it is a highly controversial issue among legal experts whether there is any justification or not for humanitarian intervention. It might be assumed, however, that humanitarian intervention to prevent human rights violations abroad is allowed only under very limited circumstances,if at all.
Among major powers, Russia in particular has consistently and persistently objected to any justification of the NATO Kosovo intervention as a humanitarian intervention. It can therefore not rely on this putative title to justify its own intervention on Georgian territory. And as a directly neighbouring state, Russia has important political and other interests of its own in South Ossetia and the region. In such a constellation, a humanitarian intervention is not recognised at all.
23.) Finally, the Russian Federation invoked the need to protect its own citizens living in South Ossetia. Under Article 61 (2) of the Russian constitution the Russian Federation guarantees its citizens defence and patronage beyond its boundaries.
It is also true that since 1945, numerous states have led military actions by pointing to the need to protect their own nationals abroad. In many cases the legality of these actions was disputed. There is no customary law allowing such actions. If at all, such actions should be limited in scope and duration and exclusively focused on rescuing and evacuating nationals.
In the case at hand, the action was not solely and exclusively focused on rescuing and evacuating Russian citizens, but largely surpassed this threshold by embarking upon extended military operations over large parts of Georgia.
Consequently, it must be concluded that the Russian military action outside South Ossetia was essentially conducted in violation of international law.
Consequently, it must be concluded that the Russian military action outside South Ossetia was essentially conducted in violation of international law.
34.) On the Georgian side, the establishment by Georgia of alternative South Ossetian and Abkhaz administrations in the breakaway regions in 2006 was regarded by many as the most controversial move by Tbilisi in the conflict resolution process.
35.) The international context in which events were unfolding was further complicated by decisions on Kosovo's independence, and also following the Bucharest NATO summit of April 2008, with its promise of Georgia´s future NATO membership, but without any immediate steps for admission.
36.) This Report shows that any explanation of the origins of the conflict cannot focus solely on the artillery attack on Tskhinvali in the night of 7/8 August and on what then developed into the questionable Georgian offensive in South Ossetia and the Russian military action.
The evaluation also has to cover the run-up to the war during the years before and the mounting tensions in the months and weeks immediately preceding the outbreak of hostilities.
It must also take into account years of provocations, mutual accusations, military and political threats and acts of violence both inside and outside the conflict zone. It has to consider, too, the impact of a great powers coercive politics and diplomacy against a small and insubordinate neighbour, together with the small neighbours penchant for overplaying its hand and acting in the heat of the moment without careful consideration of the final outcome, not to mention its fear that it might permanently lose important parts of its territory through creeping annexation.
37.) Finally, it must be noted that there are no winners in this conflict. Everyone has lost, if not in terms of life and property alone, at least in the field of hopes and prospects for the future. Apart from the immediate losses on the ground, the political situation is more difficult than before.
To be CONTINUED...
