Part II, 10 South Ossetia (2008)
Edited By: Elizabeth Wilmshurst
- Armed conflict — Conduct of hostilities — Humanitarian intervention — Aggression — Detention
This chapter analyses the 2008 South Ossetian armed conflict, involving the States of Georgia and Russia, and the armed forces of the de facto authorities of South Ossetia. It was a conflict which made media headlines for a few short days in August 2008, but it was rooted in the break-up of the Soviet Union and followed years of simmering tensions and sporadic hostilities in the region. It had a profound effect on the lives of those living in the region—effects which continue to this day (notably for the thousands of Internally Displaced Persons), and which will persist for many years.
In addition to the armed forces of the two States—Georgia and Russia—the conflict was characterized by the involvement of militia under the authority of, or aligned with, the political leadership of South Ossetia, a ‘break-away’ region in the north of Georgia, bordering Russia, whose status was, and remains, unrecognized by the international community. Classifying the conflict is not unproblematic. Was it an international armed conflict or a non-international armed conflict, or both? Is it rather to be characterized as an ‘internationalized’ non-international armed conflict or a ‘mixed conflict’?1 Accordingly, as regards the law of armed conflict, this chapter raises wider questions about the relationship between conflicts. It is no longer the case, as it once may have been, that scholars can legitimately focus on single conflicts. Increasingly, it is necessary to consider the implications of a more complex series of contemporaneous armed conflicts, and, for example, to ask at what point is a non-international armed conflict subsumed into an international armed conflict, and what is the relevance of the various tests laid down by the International Criminal Tribunal for Former Yugoslavia (ICTY) and the (p. 318) International Court of Justice (ICJ). This chapter also discusses the increasingly complex relationship between Hague law, Geneva law and human rights law, and the growing tensions between these various systems of law.
During the Soviet era, South Ossetia had the status of an autonomous region (oblast) within the Georgian Soviet Socialist Republic (the Georgian SSR).2 When the Georgian SSR declared its independence from the USSR in April 1991, South Ossetia remained part of the territory of Georgia. In September 1990, South Ossetia unilaterally declared its independence from the Georgian SSR.3 However, in December 1990, the President of Georgia, Zviad Gamsakhurdia, summarily abolished the autonomous status of South Ossetia.4
Armed conflict followed in January 19915 and continued throughout the year, causing thousands of casualties and creating tens of thousands of refugees on both sides of the Georgian-Russian border.6 By the end of 1991, the South Ossetians had expelled the majority of Georgian troops from the region and most of the territory of South Ossetia became subject to the de facto control of the secessionist government.7
On 21 December 1991, South Ossetia voted for independence from Georgia; a step which was followed by the 1992 referendum for independence and the adoption of the act of independence of 1992.8 98 per cent of South Ossetia’s (p. 319) residents voted in favour of independence,9 although the Georgian population of South Ossetia (28.97 per cent of the total population10) did not participate in the referendum. The referendum was not recognized by the international community.11
Georgia had ceased to exercise de facto control over the majority of South Ossetia.14 The territories controlled by the autonomous government included the districts of Tskhinvali, Java, Znauri and parts of Akhalgori.15 About 23,000 ethnic Georgians fled from South Ossetia and resettled in other parts of Georgia.16 However, approximately one-third of the territory of South Ossetia remained under Georgian control including a part of Akhalgori, in the south-east of South Ossetia, and several ethnic Georgian villages around Tskhinvali, in central South Ossetia.17
In 1993, South Ossetia drafted its own constitution and in 1996 elected its first president.18 In 2001, Eduard Kokoity became the de facto president of South Ossetia.19 He stated that he would continue to strive for the reunification of South Ossetia with Russia.20 A new referendum and presidential elections were held in November 2006 in South Ossetia and 99 per cent of the population voted in favour of independence, although, again, the ethnic-Georgian population of (p. 320) South Ossetia did not vote and the referendum was not recognized by Tbilisi.21 Eduard Kokoity was re-elected as president.22 However, in spite of these internal declarations, during this period, South Ossetia was unsuccessful in gaining any international recognition as an independent State or in establishing international relations.23
On the evening of 7 August 2008, Georgian troops commenced an artillery attack upon the capital of South Ossetia, Tskhinvali.24 According to Georgia, the target of the attacks were the ‘enemy forces’ on the territory of South Ossetia.25 At this stage, this meant the de facto South Ossetian armed forces. Although now acknowledged as the beginning of the armed conflict which was to follow in Georgia, the assault has been described as ‘only the culminating point’ of a long period of increasing tensions between Russia and Georgia and repeated outbreaks of violence in and around South Ossetia.26 On 8 August 2008, Georgian ground troops entered Tskhinvali and fighting between Georgian and South Ossetian troops commenced.27
Also on 8 August 2008, Russia commenced a counter-attack, deploying ground forces towards Tskhinvali and conducting an aerial bombardment of Georgian troops in Tskhinvali and the vicinity.28 Russian aircraft also began attacks upon several targets in undisputed Georgian territory.29 The Russian operation would progess to include large-scale military actions in central and western Georgia and Abkhazia as well as the occupation of a significant part of the undisputed territory of Georgia.30
President Medvedev declared that the Russian Federation was exercising its right to self-defence under article 51 of the UN Charter and had responded to a Georgian attack on its peacekeepers in Tskhinvali, whose presence in the region was based upon the 1992 Sochi ceasefire agreement.31
References(p. 321) The Georgian authorities stated that they too were acting in self-defence following attacks by South Ossetian militia on Georgian villages and peacekeepers and the movement of Russian tanks through the Roki tunnel into South Ossetia on 7 August.32 On 9 August 2008, President Saakashvili of Georgia declared a state of war in the whole territory of Georgia for fifteen days.33 The fact of this declaration was communicated by the Georgian authorities to the Secretary General of the Council of Europe in a note verbale the following day, which also stated that no derogation of any rights under the European Convention on Human Rights had been made.34
It was reported that Georgian troops began a withdrawal from South Ossetia into undisputed Georgian territory on 10 August 2008.35 Russian troops however continued operations both in South Ossetia and undisputed Georgian territory after 10 August 2008.36
On 12 August 2008, President Sarkozy, the then President of the Council of the European Union, proposed a peace initiative in the form of a six-point reconciliation plan.37 However, despite an official announcement that Russian forces had ended all combat operations that day,38 there is evidence to suggest that Russian troops continued to advance into Georgian territory up until 15 August 2008.39 A separate military operation by Russian troops was also conducted in Abkhazia, resulting in the occupation of several cities in the region.
Nevertheless, the European Union ceasefire plan was signed by both Georgia and Russia on 15 and 16 August 2008 respectively.40 The terms of the ceasefire included the withdrawal of Georgian troops to ‘their usual bases’ and Russian forces to ‘the lines they held before the hostilities broke out’, prior to 6 August.41
References(p. 322) On 26 August 2008, the Russian Federation recognized South Ossetia and Abkhazia as independent sovereign States42 in a move which has not been supported elsewhere in the international community (other than subsequently by Nicaragua43 and latterly Venezuela in September 200944).
From 15 August 2008 onwards, Russian troops began to withdraw from undisputed Georgian territory, leaving Gori city on 22 August 2008 but creating a 20-kilometre wide ‘buffer zone’ north of the city under the control of Russian forces. Many of the reports on the conflict refer to the territory north of the city of Gori ‘between Tskhinvali and the check point in Karaleti’ as the ‘buffer zone’45—meaning the area adjoining South Ossetia and extending as far as the checkpoint in the village of Karaleti (approximately 7 km northwest of the city of Gori),46 within undisputed Georgian territory. The ‘buffer zone’ was established by Russian military forces,47 purportedly with the aim of keeping peace and order.48 Entry and exit of civilians into the zone was regulated by use of military checkpoints. Georgian police were denied access.49
That Russian armed forces occupied and executed de facto control over this region has been acknowledged by a number of international bodies and non-governmental organizations (NGOs), including the United Nations High Commissioner for Refugees (UNHCR),50 the Council of Europe Commissioner for Human Rights,51 the Parliamentary Assembly of the Council of Europe (PACE)52References(p. 323) and international NGOs.53 Furthermore, numerous sources (including international bodies, such as the UNCHR,54 the Council of Europe Commissioner for Human Rights55 and PACE56) reported widespread looting, deliberate burning and torching of houses, physical assaults and other violations of the rights of civilians committed by the South Ossetian irregular militias and gangs in the ‘buffer zone’. In a number of these reports the Russian Federation was criticized for its failure to prevent mass human rights violations and maintain order in the ‘buffer zone’, which, until October 2008,57 was under the de facto control of the Russian Federation.58
The humanitarian situation in the ‘buffer zone’ was addressed by the Council of Europe Commissioner for Human Rights during this period in his ‘Six principles for urgent protection of human rights and humanitarian security’: ‘The problem of the “policing vacuum” in the so-called “buffer zone” between Tskhinvali and Karaleti must be resolved urgently.’59 In early September 2008, the Commissioner for Human Rights reported that following the initial assaults on Tskhinvali and assaults on Georgian villages in South Ossetia, ‘lawlessness spread in the “buffer zone” controlled by Russia between Tskhinvali and Karaleti and forced many to leave even from there’.60 The Commissioner further commented that the return of displaced persons was ‘delayed for the majority of them as safety has not been guaranteed’61 and that ‘large areas must be demined from cluster bombs, mines and unexploded ordinance devices which now threaten ordinary people’.62
He concluded inter alia, that ‘the policing vacuum in the “buffer zone” has to be addressed’ …, ‘systematic demining must be undertaken as a matter of highest priority’. …, ‘the remaining problem about international access in the area must be resolved’ and ‘efforts must also be planned for a systematic, impartial collection of evidence about violations committed in connection with the hostilities’.63
On 8 September 2008, Russia agreed to withdraw all of its armed forces deployed outside the boundaries of South Ossetia and Abkhazia by 1 October 200864 whilst announcing that it intended to keep a total of 7600 troops within Abkhazia and South Ossetia65 and seemingly in violation of the August 2008 References(p. 324) ceasefire agreements.66 On 9 September 2008, Russia formally established diplomatic relations with South Ossetia.67
In January 2009, PACE condemned ‘the Russian non-mandated military presence and building of new military bases within the separatist regions of South Ossetia and Abkhazia, as well as in Akhalgori, Perevi and Upper Abkhazia and in villages controlled by the central government of Georgia before the breakout of the conflict’,68 and deplored ‘the continued refusal of Russia and the de facto authorities to allow access to Organisation for Security and Co-operation in Europe (OSCE) monitors to South Ossetia and to European monitors to both South Ossetia and Abkhazia’.69
In February 2009, an OSCE military monitoring patrol was detained by South Ossetian forces outside the administrative boundaries of South Ossetia and warning shots were fired at OSCE monitors by South Ossetian forces.70 In March 2009, a Georgian police officer was killed and another four injured in an explosion caused by what appeared to be a trip-wired mine. A second exploded upon the arrival of a rescue team and injured a further two Georgian police officers.71 Also in March 2009 it was reported that the Russian Ministry of Finance had approved a financial aid package for South Ossetia of 2.8 billion rubles ($97 million).72
We are seriously concerned about the increased militarization of the break-away regions by Russia. This not only violates the ceasefire agreement and is in contradiction to the demands in Assembly Resolutions 1633(2008) and 1647(2009) but also increases the tensions in this already very volatile region undermining its stability.
Russia continues to maintain military troops in Perevi, which is outside the administrative boundaries of South Ossetia …
… international monitors continue to report tensions and provocations along the administrative borders.73
References(p. 325) PACE further reported that the General Prosecutor’s Office of Georgia had opened an investigation into deliberate violations of international humanitarian law in the course and the aftermath of the war. ‘However, according to Georgian authorities, this investigation is hindered by the lack of access of the competent Georgian authorities to the former conflict zone inside the break-away region of South Ossetia.’74
PACE also noted that the Investigative Committee of the General Prosecutor’s Office of Russia had finalized an investigation into genocide committed by Georgian troops against Russian citizens, as well as into crimes against the Russian military. The Deputy Head of the Investigative Committee confirmed that ‘the committee did not plan to open an investigation into alleged violations of human rights and international humanitarian law during the war by Russian citizens or Russian military forces’.75 PACE noted finally in this regard, that neither investigation ‘have to date resulted in any persons being charged’.76 PACE also reported that the Russian authorities and the de facto authorities continued to refuse access to OSCE monitors to South Ossetia as well as EU monitors to both South Ossetia and Abkhazia, ‘in violation of the Sarkozy-Medvedev agreement and Assembly demands’.77
On 30 April 2009, an agreement regarding cooperation on the protection of State borders was signed by the President of Russia who stated that ‘the powers for the protection of the borders of these republics, which these agreements have delegated to Russia, will be implemented in strict accordance with the national legislation of Abkhazia and South Ossetia. This is a crucial point and validation of the national sovereignty of the two republics’.78
Also in April 2009, Human Rights Watch published a report which concluded that many unexploded cluster munitions remained within Georgian and South Ossetian territory and recommended that both the Russian and Georgian authorities ‘urgently … provide assistance for clearance in Georgia, including, if necessary in South Ossetia’ as well as conducting ‘independent, impartial and rigorous investigations into their use of cluster munitions and make public the findings’.79
In May 2009, UNHCR estimated that approximately 30,000 people (mainly ethnic Georgians) remained displaced as a result of the conflict80 and in August 2009, Amnesty International reported that ‘several hundreds of displaced people are, however, still unable to return to many areas adjacent to South Ossetia owing to their fears about security in the area’.81
(p. 326) In August 2009, Amnesty International noted that the European Union Monitoring Mission (EUMM) was the only internationally-mandated monitoring mission on the ground but was still unable to enter those areas controlled by Russian and/or de facto South Ossetian and Abkhazian authorities.82 Furthermore, one year on from the conflict in August 2009, Amnesty International noted that ‘to date, no one had been brought to justice by the Georgian or Russian authorities for the serious violations of international law which took place during the conflict and its immediate aftermath’.83
Russia consistently viewed the conflict as an act of Georgian aggression against South Ossetia, which was disproportionate and in breach of the UN Charter and the agreements resolving the previous Georgian-Ossetian conflict. Russia maintained that its forces were legitimately present in South Ossetia as peacekeepers.84
Russia presented its intervention in South Ossetia as an act of self-defence under the UN Charter, to protect its peacekeepers, who were attacked by Georgian forces. It also argued that it intervened to protect other Russian citizens (that is, the majority of the South Ossetian population, which had been granted Russian passports en masse).85
Russia was a party in the military conflict with Georgia between 7 August (when Georgia attacked the Russian peacekeepers) and 12 August. We presume that the armed conflict between Russia and Georgia was over as of 12 August. We also believe References(p. 327) that we should refer to two armed conflicts—a domestic one (an armed conflict that was not international in nature) in the territory of Georgia in which Russia was not a party, and an international armed conflict that occurred on the aforementioned dates in which Russia was a party.86
When asked by the IIFFMCG whether Russia’s actions were governed by international humanitarian law, Russia replied: ‘Yes, because an armed conflict existed between the Russian Federation and Georgia. By extension, both parties were bound by humanitarian law provisions governing such situations and conflicts. Furthermore, Georgia was bound by obligations arising from the law governing domestic (non-international) conflicts.’87
Georgia presented its initial strike on Tskhinvali in the context of escalating attacks by South Ossetian troops on Georgian forces and civilians in the region.88 It consistently argued that the South Ossetian forces were acting under the control and direction of Russia.89
Georgia dismissed Russia’s claim to be undertaking a peace-keeping mission and presented Russia’s intervention as an act of aggression, referring to Russian occupation of South Ossetia and undisputed parts of Georgia (the ‘buffer zone’). Georgia therefore claimed that it was acting in self-defence against the Russian invasion, invoking article 51 of the UN Charter and customary international law.90 Georgia argued that Russia violated international humanitarian law (and the Fourth Geneva Convention in particular).91
The conflict in the present case is properly characterised as international in nature. This is because the conflict involved two State parties: (1) the Russian Federation and References(p. 328) (2) the Republic of Georgia (as the separatist forces are properly regarded as de facto organs92 of the Russian Federation).
Objective evidence establishes that prior to the actual invasion by Russian forces on 7 August 2008: (a) there was resort to armed force by the Ossetian and Abkhaz separatists against the Republic of Georgia; and (b) the separatists were de facto organs of the Russian Federation. As a result, there was an international armed conflict in existence on or before 7 August 2008.
Likewise, in relation to the period from 7 to 12 August 2008, objective evidence shows that there was resort to armed force by the separatists, the Russian Federation and the Republic of Georgia. Therefore, it is beyond doubt that there was an international armed conflict in existence from 7 to 12 August 2008.
Furthermore, after the ceasefire on 12 August 2008, the situation is properly understood as one of occupation, which is also governed within IHL by the provisions pertaining to international armed conflicts. This is because objective evidence illustrates comprehensively that significant portions of Georgia remain occupied by forces of the Russian Federation and/or separatist forces acting as de facto organs of the Russian Federation.93
South Ossetia consistently referred to Georgian aggression, which it alleged was disproportionate to any threat from its armed forces or those of Russia. It did not specify how it classified the conflict. However, as it referred to acts of military aggression by Georgia against ‘the Republic of South Ossetia’, and since it claims to be an independent State, it might be presumed that it regarded the conflict between Georgia and South Ossetia as an international armed conflict.94
United Nations statements did not specify how it classified the conflict and did not initially directly refer to the Russian forces, but made reference to the ‘Georgian-Ossetian conflict’.95 The Council of Europe also did not specifically classify the conflict, but did refer to the war and/or armed conflict ‘between Georgia and Russia’,96 implying an international armed conflict. It did not specify how it classified the fighting between Georgian and South Ossetian forces.
References(p. 329) Like the Council of Europe, the EU also placed particular emphasis on the Russian invasion of Georgia, but did not specifically classify the conflict.97 The OSCE originally referred to ‘the Georgian-Ossetian conflict’ (implying a non-international armed conflict), but after the conflict had ended, tended to refer to ‘the Georgian-Russian conflict’ (implying an international armed conflict).98
I think the facts make it clear that this is a conflict between Georgia and Russia. Russian spokesmen try to present the problem as a conflict between Georgia, South Ossetia and Abkhazia, with Russia’s role one of peacekeeper. That claim was always doubtful. The last two weeks have demonstrated beyond any doubt that Russia is a party to the conflict. Indeed, Russia’s letter last week, saying that they were acting under Article 51 of the United Nations Charter, confirmed that they are a party to the conflict, and Russian actions since 7 August have gone way beyond those of a peacekeeper or mediator. So let us not pretend that this is anything other than a conflict between Russia and Georgia, a conflict which Russia has clearly won militarily. Russian forces in Georgia are now, in effect, an army of occupation, and they will remain so until they withdraw to the positions held prior to 7 August and force levels return to those that prevailed then.100
Human Rights Watch referred to two armed conflicts—an international conflict between Georgia and Russia, and a non-international conflict between Georgia and South Ossetia. However, it did not consider in detail Georgia’s argument that Russia’s effective control of the Ossetian forces made the entire conflict international.101
References(p. 330) 3.5. The International Independent Fact-Finding Mission on the Conflict in Georgia (IIFFMCG)(the Tagliavini Report)102
The Tagliavini Report found that neither the Georgian attack on South Ossetia nor the Russian invasion of Georgia were justified under international law, and both lacked proportionality and necessity. It gave extensive consideration to the question of whether the conflict was one single, international conflict—because of Russia’s effective control of South Ossetia (as argued by Georgia)—or concurrent international and non-international conflicts (as argued by Russia).103 It suggested that there was fairly strong evidence of Russian control over Ossetian forces, but it did not come to a firm conclusion. The Tagliavini Report also suggested that customary international humanitarian law was largely the same in all types of armed conflict, making the distinction less important.
Russia and Georgia are parties to the Geneva Conventions 1949 and the two Additional Protocols of 1977. Russia is also a party to the Hague Convention and Regulations IV of 1907. Many of these rules have also become part of customary international law and would apply to all armed conflicts, irrespective of classification.104
There is no question that the hostilities between Russia and Georgia amounted to an international armed conflict, as defined by Common Article 2(1) of the Geneva Conventions: ‘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.’ Indeed, this categorization has been acknowledged by both Russia and Georgia and has widely been recognized by other States and international organizations (see above). Accordingly, an international armed conflict had begun when the two countries’ armed forces clashed on 7/8 August 2008. This is regardless of the fact that the Georgian President did not make a declaration of war until 9 August 2008.
From 8 August 2008, Russian armed forces were in belligerent occupation of parts of South Ossetia, extending also to parts of undisputed Georgian territory. In accordance with article 42 of the Hague Regulations (and reflecting the position in References(p. 331) customary international law), territory is considered occupied when it is actually placed under the authority of the hostile army. The occupation extends only to the territory where such authority has been established and can be exercised.105
How long the international armed conflict continued, and at what point the law of armed conflict ceased to apply, are more contentious issues. The Fourth Geneva Convention provides that as regards occupied territory, it will cease to apply one year after the ‘general close of military operations’. However, the occupying power is bound, for the duration of the occupation, to the extent that it exercises the functions of government in such territory, in relation to specified provisions of the Convention.106 Additional Protocol I provides that it ceases to apply, in the territory of the parties to the conflict, ‘on the general close of military operations’ and, in respect of occupied territories, on the termination of the occupation. There is, however, an exception to the effect that Additional Protocol I will continue to apply to detainees until their final release.107 In the Tadić case, the ICTY Appeals Chamber stipulated that ‘[i]nternational humanitarian law applies from the initiation of such armed conflicts and extends beyond the cessation of hostilities until a general conclusion of peace is reached; or, in the case of internal conflicts, a peaceful settlement is achieved’.108
Applying any of these definitions to the situation in South Ossetia would certainly mean that international humanitarian law continued to apply after the conclusion of the ceasefire on 12 August 2008. Furthermore, specific provisions of treaty law expressly continue to apply after the termination of hostilities. For example, as regards international armed conflict, to the extent that Russia was an occupying power in South Ossetia (see further the discussion below) and exercised ‘the functions of government’ in that territory, it would have been bound by the Fourth Geneva Convention to ensure that detainees enjoyed certain rights (including adequate food, hygiene, medical attention, visits by the ICRC and particular provisions relating to women and minors) for the duration of the occupation.109 As regards non-international armed conflict, article 2(2) of Additional Protocol II provides that at the end of the armed conflict, those deprived of their liberty will continue to enjoy certain specified rights until the period of their detention ends.
A state of international armed conflict continues during a period of belligerent occupation, and during which period international humanitarian law applies, inter alia, to the conduct of hostilities and the detention of POWs. As noted above, despite an official announcement that Russian forces had ended all combat operations by 13 August 2008110 it would appear that Russian troops continued to References(p. 332) advance into Georgian territory up until 15 August 2008.111 The Sarkozy-led EU ceasefire plan was signed by Georgia on 15 August and by Russia on 16 August,112 providing for the withdrawal of Georgian troops to ‘their usual bases’ and Russian forces to ‘the lines they held before the hostilities broke out’ pre-6 August.113 From 15 August onwards, Russian troops began to withdraw from undisputed Georgian territory, leaving Gori on 22 August 2008 but creating a 20-kilometre wide ‘buffer zone’ north of the city under the control of Russian forces. On 8 September 2008, Russia agreed to withdraw its armed forces deployed outside the boundaries of South Ossetia (and Abkhazia) by 1 October 2008114 whilst announcing that it intended to keep a total of 7600 troops within Abkhazia and South Ossetia115 (apparently in violation of the August 2008 ceasefire agreements).116 As discussed further below, Russian troops, together with South Ossetian forces, continued to exercise control over South Ossetia (and to deny entry to various entities) well into 2009, and continued to do so thereafter.
Aside from the existence of the international armed conflict, a rather more contentious question is whether the hostilities between Georgia and South Ossetian forces constituted a parallel, simultaneous non-international armed conflict, or whether Russia exercised control over the Ossetian forces, to the extent that they can be considered agents of Russia, in which case such hostilities would be considered to be an aspect of the international armed conflict.
While Common Article 3 of the Geneva Conventions applies to all cases of armed conflict not of an international character which occur in the territory of one of the parties to the Convention, Additional Protocol II to the Geneva Conventions has a more detailed conditionality—and a higher threshold. For Additional Protocol II to come into play, a requisite condition of a non-international armed conflict is that the South Ossetian forces must have constituted an organized armed group. Article 1 of Additional Protocol II states that it applies to ‘armed conflicts … which take place in the territory of a High Contracting Party between its armed forces and dissident armed forces or other organized armed groups which, under responsible command, exercise such control over a part of its territory as to enable them to carry out sustained and concerted military operations and to implement this Protocol’.117References(p. 333) Therefore, for Additional Protocol II to be applicable, the South Ossetian forces must have been organized, have had a responsible command and exercised control over part of the territory of Georgia.
There is some uncertainty about the nature and identity of the South Ossetian forces.118 For example, Human Rights Watch reported that they comprised the South Ossetian Ministry of Defence and Emergencies, the South Ossetian Ministry of Internal Affairs, the South Ossetian Committee for State Security, volunteers, and Ossetian peace-keeping forces. The Tagliavini Report concluded that ‘the regular armed forces of the de facto South Ossetian authorities unquestionably constitute “an organised and hierarchically structured group”’.119 However, it acknowledged that the situation would be different for other ad hoc fighting groups and individuals. If the South Ossetian authorities did not exercise overall control over such groups and individuals, then this would mean that the fighting between them and the Georgian armed forces could be characterized as a non-international armed conflict to which Common Article 3 of the Geneva Conventions would apply, but not Additional Protocol II. In view of the disparate nature of these forces it might also be arguable that there was therefore a series of separate non-international armed conflicts between Georgia and these various militia and other groups.
International law also distinguishes between non-international armed conflict and ‘internal disturbances’ on the basis, inter alia, that the former involves protracted armed conflict.120 Other relevant factors include the geographical extent of the conflict, its intensity, the size of the forces involved and the weapons employed.121 These points raise various questions. What amounts to a ‘protracted’ conflict? For example, in chapter 11 Michael Schmitt questions the characterization by the Inter-American Commission of Human Rights, in the case of Abella, of a 30-hour conflict between Argentinian and dissident forces, as amounting to a non-international armed conflict.122 Dapo Akande’s view in chapter 3 is that while the References(p. 334) word ‘protracted’ suggests that the criterion relates exclusively to the time over which armed conflict takes place, it is accepted that the key requirement here is the intensity of the force.123
In South Ossetia, the armed conflict lasted for a minimum of five days, and there is evidence that hostilities continued sporadically after that period. It is suggested that given the long history of tension over the disputed territory of South Ossetia (discussed above), and the length, extent and nature of the hostilities in August 2008, a compelling case can be made that it constituted a non-international armed conflict.
When considering the length of the conflict, it could also be legitimate to treat the situation as an ongoing non-international armed conflict which had continued since the early 1990s, characterized by periodic hostilities in relation to territory that was controlled by the South Ossetian authorities (see the discussion above on the historical context of the South Ossetian conflict). For example, Paulus has argued that ‘protractedness’ is a broad term that also encompasses recurrent events of violence.124
There is substantial evidence of various forms of criminality having been perpetrated by the Ossetian groups, including hostage-taking, arbitrary arrest, ill-treatment, gender-related crime (including rape and assault), the destruction of property, pillaging and looting (see section 4.4 below). Given the disparate groups involved (as noted above), a further question arises as to whether criminal organizations were involved in the conflict, and, if so, whether their actions could be qualified as armed conflict to which the rules of international humanitarian law apply. This will depend upon the level of organization of the groups involved and the intensity of the violence.125
It is then necessary to establish the extent to which Russia exercised control over the South Ossetian forces, in order to assess whether the South Ossetian forces can be considered to have been acting as de facto agents of Russia, thereby rendering the whole conflict international. If there were no such control, it is suggested that such a conflict (between Georgia and the South Ossetian forces) could be characterized as an ‘internationalized non-international armed conflict’, but that it would not be an international armed conflict.126 As we will see, the test of control is not necessarily (p. 335) simple to state, let alone apply, and it is of course not unusual for the relationship between a State and militia forces to fluctuate over time.127
As Dapo Akande discusses in chapter 3, defining State control over a non-state group is not uncontroversial: there is no single test for the attribution of State responsibility. Akande suggests there are at least two.128 There is, firstly, a test to determine whether a non-state group is a de facto State organ (under article 4 of the ILC’s Articles on State Responsibility). If that test is satisfied then all the acts of the non-state group would be attributable to the State. Secondly, specific acts of a non-state group can be attributable to a State (under article 8 of the ILC’s Articles on State Responsibility) where specific acts are carried out under a State’s instructions or under its direction or effective control.129
… control by a State over subordinate armed forces or militias or paramilitary units may be of an overall character (and must comprise more than the mere provision of financial assistance or military equipment or training). This requirement, however, does not go so far as to include the issuing of specific orders by the State, or its direction of each individual operation. Under international law it is by no means necessary that the controlling authorities should plan all the operations of the units dependent on them, choose their targets, or give specific instructions concerning the conduct of military operations and any alleged violations of international humanitarian law. The control required by international law may be deemed to exist when a State (or, in the context of an armed conflict, the Party to the conflict) has a role in organising, coordinating or planning the military actions of the military group, in addition to financing, training and equipping or providing operational support to that group. Acts performed by the group or members thereof may be regarded as acts of de facto State organs regardless of any specific instruction by the controlling State concerning the commission of each of those acts.
Of course, if, as in Nicaragua, the controlling State is not the territorial State where the armed clashes occur or where at any rate the armed units perform their acts, more extensive and compelling evidence is required to show that the State is genuinely in control of the units or groups not merely by financing and equipping them, but also by generally directing or helping plan their actions.130
References(p. 336) Furthermore, the ICTY Appeals Chamber also found in Tadić that ‘where the controlling State in question is an adjacent State with territorial ambitions on the State where the conflict is taking place, and the controlling State is attempting to achieve its territorial enlargement through the armed forces which it controls, it may be easier to establish the threshold’.131
Russia and the South Ossetian authorities maintained that the latter, not the former, were in control,132 whereas Georgia argued that Russia was in control of the South Ossetian militia.133 However, the ICTY Appeals Chamber in Tadić rightly warned against an ‘undue emphasis upon the ostensible structures and overt declarations of the belligerents’, requiring instead a ‘nuanced analysis of the reality of their relationship’ (para 154).
A historical perspective is important here. Russia had been actively involved in the political mediation of the 1991 South Ossetian conflict and the 1992 ceasefire agreement.134 In 1996, Georgia and South Ossetia, with the participation of Russia, the Republic of North Ossetia-Alania and the OSCE, signed the Memorandum on Measures to Provide Security and Strengthen Mutual Trust between the Parties to the Georgian-Ossetian Conflict.135 The Tagliavini Report noted that parallel with this process of Georgian-Ossetian normalization, ‘another process was going on: that of the gradual tightening of links between these two territories [South Ossetia and Abkhazia] and the Russian Federation. This second process, more visible after 1999 and accelerated in the spring of 2008, appeared stronger than the first’.136
From the late 1990s onwards, Russian citizenship and passports were granted to the vast majority of ethnic Ossetians, thereby also granting them entitlement to Russian pensions and other social benefits.137 Possession of a Russian passport was References(p. 337) particularly significant for residents of South Ossetia following the imposition of a visa regime between Russia and Georgia in 2000 and effectively resulted in a visa-free regime for South Ossetia.138
In 2002, in a report on the ‘Situation in Georgia and the consequences for the stability of the Caucasus region’, the Parliamentary Assembly of the Council of Europe called upon the Russian Federation inter alia
i. to refrain from any action or declarations which might interfere in the internal affairs of Georgia or violate the sovereignty and the territorial integrity of Georgia, in particular from launching any military action on Georgian territory as expressed by the President of the Russian Federation on 11 September 2002
ii. to refrain from any unilateral measures affecting Georgia and its citizens, in particular as regards Abkhazia and South Ossetia. …. including in the fields of economic assistance and the freedom of movement of persons and goods, in particular, with respect to visas, customs and passport issues …
iv. to remove their military bases in Georgia as soon as possible, in accordance with the agreement reached with Georgia.139
In addition, PACE further noted in 2002 that ‘some statements made in Moscow hinting at a possible unification of South and North Ossetia with the support of Russia, may aggravate the tensions and keep alive unrealistic hopes’.140
In 2004, PACE urged the government of Russia, in respect of the secessionist regions ‘… to use its influence with the regimes in Tsinkhvali and Sukhumi to calm down the situation and help the Georgian authorities more actively in the search for a peaceful political way to restore the territorial integrity of Georgia’.141
A PACE Report of January 2006 noted that ‘Georgia accuses Russia of channelling financial and military aid to the South-Ossetian leadership. Ninety per cent of the population has Russian passports and the key officials are Russian citizens’.142
I wish to emphasise that South Ossetia is already de facto an entity of the Russian Federation, because 95% of the citizens of South Ossetia are Russian nationals … Russian laws apply in the Republic of South Ossetia; the currency is the Russian rouble; the RF Criminal Code is in force. South Ossetia is de facto an entity of the Russian Federation. We simply have to consolidate this legally.143
inhabitants of South Ossetia … were forced to create their own independent legislative and executive bodies, law enforcement structure, judiciary and armed forces, providing thus for protection of human rights on this territory and their own security … Deputies of the State Duma support efforts of the President of the Russian Federation, V. V. Putin and of the Government of the Russian Federation for improvement of the economic situation of South Ossetia and for removal of restrictions of its external economic activities, for providing access of inhabitants of South Ossetia to Russia and world culture, education, for protection of rights of the Russian Federation’s citizens, residing on the territory of Ossetia.144
Reports of economic assistance provided to South Ossetia include references to an economic, trade, scientific and technical and cultural cooperation agreement between South Ossetia and Karachaevo-Cherkessia145 and ‘donor aid’ given by the Russian Federation to South Ossetia.146
In April 2008, PACE expressed ‘deep concern over the decision of the Russian Federation to establish bilateral legal links with the Georgian regions of Abkhazia and South Ossetia’.147
The Tagliavini Report concluded that before the outbreak of the armed conflict in August 2008, Russian officials already had de facto control over South Ossetia’s institutions, and especially over the security institutions and security forces.148
There is then substantial evidence of the extent of the control and influence of the Russian Federation over the South Ossetian authorities generally, but whether it can be said that the evidence is available to establish the Russian Federation’s overall control over the South Ossetian armed forces during the August 2008 hostilities is more questionable.149 There simply is not yet in the public domain150(p. 339) evidence comparable to that in Tadić, in which the ICTY Appeals Chamber found, for example, clear evidence of a chain of military command from the Yugoslav army to the Bosnian Serb forces and which were found to have acted in pursuance of military goals formulated in Belgrade (para 152).
As noted above, a second test applicable as regards State attribution is that specific acts of a non-state group can be attributable to a State (under article 8 of the ILC’s Articles on State Responsibility) where those specific acts are carried out under a State’s instructions or under its direction or effective control. That test may be easier to satisfy, for example, where the Ossetian forces accompanied the Russian armed forces, or because of the presence of Russian troops at, or in the vicinity of, a particular location where the acts in question were carried out by the Ossetians.
In any event, the question of the extent of Russian responsibility for the actions of the Ossetian armed forces is likely to be clarified in the course of the inter-state proceedings at the ICJ and the European Court of Human Rights, brought by Georgia against the Russian Federation.151 Accordingly, in the meantime, it is suggested that it is correct to classify the hostilities as amounting to two concurrent conflicts, international and non-international.
A further critical question which arises is how to classify Russia’s presence on South Ossetian territory after the termination of the period of armed conflict in August 2008.
At the present time, the whole territory of South Ossetia, in addition to the western part of the former ‘buffer zone’ (the village of Perevi in the Sachkere District) remains under Russian occupation.
… after the ceasefire on 12 August 2008, the situation is properly understood as one of occupation, which is also governed within IHL by the provisions pertaining to international armed conflicts. This is because objective evidence illustrates comprehensively that significant portions of Georgia remain occupied by forces of the Russian References(p. 340) Federation and/or separatist forces acting as de facto organs of the Russian Federation.154
… [T]he Russian Federation submitted that, in any event, the requested provisional measures would not be justified since the Respondent had not in the past, ‘does not at present, nor will it in the future, exercise effective control over South Ossetia or Abkhazia’ … it explained that the Russian Federation was not an occupying Power in South Ossetia and Abkhazia, that it had never assumed the role of the existing Abkhazian and South Ossetian authorities, ‘recognized as such by Georgia itself’, which ‘have always retained their independence and continue to do so’; and … the Russian Federation added that ‘the Russian presence, apart from its participation in limited peace-keeping operations, has been restricted in time and stretches only for a few weeks.’155
Russia acknowledged the presence of its armed forces on the territory of Georgia, but denied it was an occupying power, arguing that the determining factor ‘is whether the invading State has established effective control over the territory of the country in question and its population’. Relying on the ICTY judgment in Prosecutor v Naletilic and Martinovic156 and the ICJ judgment in Congo v Uganda, Russia argued that the two key criteria were that the occupying power must establish a temporary administration to govern the territory and must issue instructions deemed mandatory for the local population. It argued that the Russian armed forces did not replace the lawful governments of Georgia or South Ossetia, and that no regulatory acts aimed at the local population were adopted. Finally, it suggested that the number of troops stationed in South Ossetia (3700) did not allow it to maintain effective control of the region: ‘During the active phase of the military conflict the maximum size of the Russian contingent in South Ossetia and Abkhazia reached 12 thousand personnel. However, all of these forces were engaged in a military operation and not in establishing effective control.’157
The Tagliavini Report concluded that ‘if … Russia’s military intervention cannot be justified under international law, and if neither Abkhazia nor South Ossetia is a recognised independent State, IHL—and in particular the rules concerning the protection of the civilian population (mainly Geneva Convention IV) and occupation—was and may still be applicable’.158
So far as individuals are concerned, the application of the Fourth Geneva Convention does not depend upon the existence of a state of occupation within the meaning of Article 42 referred to above. The relations between the civilian population of a territory and troops advancing into a territory, whether fighting or not, are governed by the present Convention. There is no intermediate period between what might be termed the invasion phase and the inauguration of a stable regime of occupation.
the application of the law of occupation as it affects ‘individuals’ as civilians protected under Geneva Convention IV does not require that the occupying power have actual authority. For the purposes of those individuals’ rights, a state of occupation exists upon their falling into ‘the hands of the occupying power.’ Otherwise civilians would be left, during an intermediate period, with less protection than that attached to them once occupation is established.
Therefore, differing legal tests are applicable in determining whether the law of occupation applied, depending on whether the situation concerned individuals or other issues, such as property. As in the ICTY finding in Naletilic and Martinovic,160 any instances of the forcible transfer by the Russian armed forces and the unlawful labour of civilians were prohibited from the moment that they fell into the hands of the opposing power, regardless of the stage of the hostilities; in order to consider such situations, it is not necessary to establish that a state of occupation, as defined by article 42 of the Hague Regulations, was in existence at the particular time.
Subject to the above point about the treatment of civilians, after the conclusion of hostilities in August 2008, it is a moot point whether the presence of Russian armed forces in South Ossetia (and the ‘buffer zone’) amounted to a state of occupation, as defined by article 42 of the Hague Regulations. The question is whether the available evidence establishes that the Russian Federation exercised its authority as an occupying power in South Ossetia—in a manner that is comparable, for example, to the actions of the Ugandan armed forces in appointing a provincial governor in the Ituri region of the DRC.161 As at January 2009, Human Rights Watch considered that Russia remained an occupying power in South Ossetia.162
The consequence of there being a state of ‘occupation’ would be that, according to article 43 of the Hague Regulations, the Russian Federation would be under an obligation to take all the measures in its power to restore, and ensure, as far as possible, public order and safety in the occupied area, while respecting, unless absolutely prevented, the laws in force in the territory. Such an obligation would References(p. 342) comprise the duty to secure respect for the applicable rules of international human rights law and international humanitarian law, to protect the inhabitants of the occupied territory against acts of violence and not to tolerate such violence by any third party. This is discussed further in section 5.4 below.
The Tagliavini Report found that both during the conflict, and even some weeks after the ceasefire, there was a ‘campaign of deliberate violence against civilians’, including the torching of houses and looting and pillaging. Such acts were primarily carried out in South Ossetia and in the undisputed territory of Georgia, in the areas surrounding the administrative border with South Ossetia. Human Rights Watch suggested that in many cases the perpetrators were the South Ossetian forces ‘operating in close cooperation with Russian forces’.163
The Tagliavini Report concluded that ‘while it appears difficult to conclude that Russian forces systematically participated in or tolerated the conduct of South Ossetian forces, there do seem to be credible and converging reports establishing that in many cases Russian forces did not act to prevent or stop South Ossetian forces’.164
Furthermore, Human Rights Watch documented a number of deliberate killings of civilians by Ossetian militia, both during the conflict and its immediate aftermath, in territory and settlements controlled by Russian forces,165 and two cases of rape in undisputed areas of Georgia under Russian control.166
If, however, article 42 is not applicable, then such a wide-ranging obligation as set out in article 43 does not arise. Nevertheless, Russia still remained, and remains, responsible for any actions and omissions of its own military forces in the territory of South Ossetia in breach of its obligations under the applicable rules of international human rights law and international humanitarian law.167
5.1. Domestic law on the use of force, on capture and detention, and other international humanitarian law problems
The domestic laws of both Russia and Georgia include detailed provisions applicable to both international and non-international armed conflict. The Russian domestic law which is discussed below is also being applied on a de facto basis in South Ossetia.168
References(p. 343) Several provisions of the Russian Criminal Code169 have application to a situation of armed conflict. The use ‘in a military conflict’ of ‘means and methods of warfare’ banned by an international treaty applicable to the Russian Federation is prohibited by article 356 of the Criminal Code. The same provision prohibits the use of weapons of mass destruction, as well as the cruel treatment of prisoners of war or civilians, the deportation of the civilian population and the plunder of national property in occupied territories. Article 359 prohibits mercenarism.
The domestic law also lays down specific provisions establishing the duty of military service personnel to comply with international humanitarian law norms. The ‘Law on the Status of Military Servicemen’170 stipulates that the duties and responsibility of military servicemen include the ‘fulfilment of aims in compliance with the international obligations of the Russian Federation’ and the observance of ‘the generally recognized principles and norms of international law and international treaties of the Russian Federation’. Furthermore, the Internal Service Regulations of the Armed Forces171 provide that ‘military servicemen are obliged to know and observe the norms of international humanitarian law, the rules for the treatment of the wounded, sick, shipwrecked, medical personnel, clergymen, the civilian population in the zone of military operations, as well as prisoners of war …’.
Those regulations also require that commanders must know and apply international humanitarian law norms, and train servicemen under their command in such standards. Commanders are required to instigate disciplinary or criminal proceedings in respect of service personnel who breach these standards.172
The international humanitarian law regulations for the Russian Armed Forces provide a concise overview of the applicable law, requiring, inter alia, compliance with the principles of legality, distinction, proportionality, humanity and military necessity.173 However, the accuracy of the Regulations can be questioned in certain (p. 344) respects. For example, they characterize the principle of proportionality as consisting ‘of the fact that combatants must not cause damage to civilian objects and bring about losses amongst the civilian population, disproportionate to the advantage over the enemy which is expected to be obtained as a result of the military operations’. This formulation does not accurately reflect the principle of proportionality in that it makes its judgment on the basis of the actual result of the military operation. In fact, the test is one of anticipation. Thus, article 51(5)(b) of Additional Protocol I refers to an attack ‘which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated’. It follows therefore that it is necessary to look at what was foreseen rather than what actually occurred.174
The Georgian Criminal Code prohibits calling for, preparing for and waging a war of aggression.175 Article 411 of the Criminal Code sets out detailed provisions prohibiting violations of international humanitarian law norms in the course of both international and internal armed conflict, including attacks on civilians, indiscriminate attacks on civil objects, attacks on unprotected areas and demilitarized zones, the deportation or illegal expulsion of civilians, unfounded hindrance to the repatriation of POWs or civilians and torture or other inhumane treatment. Other breaches of international humanitarian law norms are prohibited by article 413 of the Criminal Code, including the use of weapons, and the employment of methods of warfare, ‘which are of a nature to cause superfluous injury or unnecessary suffering’, looting and any other war crime.
Difficulties arising from the provisions of the Georgian law on occupied territories, introduced in October 2008, are discussed in section 5.5 below.
The Tagliavini Report found that violations of international humanitarian law and human rights law were committed by Georgia, Russia and the South Ossetian authorities. Particular issues which were considered by the Tagliavini Report, and by other international agencies and NGOs, included allegations of ethnic cleansing (by South Ossetian forces or irregular armed groups), forced displacement, hostage-taking and arbitrary arrest, ill-treatment and gender-related crime (including rape and assault), the destruction of property, pillaging and looting and indiscriminate attacks (both as a result of the nature of weaponry used—which included cluster References(p. 345) munitions176 and GRAD rockets—and their targeting). Much of such conduct is prohibited by international humanitarian law both in time of international and non-international armed conflict, in particular when taking account of customary rules.
However one important point worth flagging here is a consequence which arises if the conflict between Georgia and the Ossetians is to be classified as a non-international armed conflict. In those circumstances, there is legal asymmetry, in that one party, Georgia, was bound by various human rights treaties, but the Ossetian militia groups were not, a problem that Jelena Pejic discusses in chapter 4.177
A further issue of legal distinction arising from the South Ossetia conflict is the question of Russia’s responsibility for violations arising from aerial attacks in respect of territory in undisputed parts of Georgia over which it did not have effective control on the ground at the time (such as its aerial attacks on Gori city on and after 9 August 2008).178 There is inconsistency, and therefore continuing uncertainty, as to the extent and nature of the extraterritorial application of human rights law. In its Grand Chamber judgment in Al-Skeini v United Kingdom, the European Court of Human Rights reiterated that jurisdictional competence under the European Convention on Human Rights is primarily a territorial matter.179 However, acts performed, or producing effects, outside a state’s territory could, exceptionally, give rise to the exercise of jurisdiction. The Grand Chamber recalled that the Court had previously recognized such exceptional circumstances in two types of situation (‘state agent authority and control’ and ‘effective control over an area’), but it did not find that jurisdiction could only arise extraterritorially in one or other of those situations. The test is a broader one: ‘in each case, the question whether exceptional circumstances exist which require and justify a finding by the Court that the State was exercising jurisdiction extra-territorially must be determined with reference to the particular facts’. Furthermore, the definition of ‘effective control’ on the ground, as applied by the Grand Chamber of the European Court of Human Rights in the earlier Bankovic case,180 and the definition of ‘state agent authority and control’, have been considerably refined and expanded (and occasionally conflated) by various recent developments in international law.181 It is arguable References(p. 346) that the human rights law jurisprudence has moved on from a territorial preoccupation as exemplified by Bankovic (with its focus on ‘effective control’ and espace juridique) towards more of a ‘cause and effect’ concept of jurisdiction.182 These questions will be decided in due course by the European Court of Human Rights which has a number of cases pending before it in which applicants complain of the consequences (including fatalities) of the Russian aerial bombardment of Gori. The European Court’s practice has, to date, not been to refer directly to international humanitarian law, although it has engaged with humanitarian law concepts such as the need to carry out military operations in a way that minimizes incidental civilian losses and the prohibition of the use of indiscriminate weaponry.183 It is suggested that it will be increasingly necessary for the European Court, in conflict-related cases, to assess the legal classification of the conflict in question, before then applying, for example, the right to life (article 2 of the European Convention on Human Rights) in the light of applicable provisions of the relevant aspects of international humanitarian law.
There is however no doubt about the applicability of international humanitarian law as regards Russia’s aerial bombardment of Gori city, in the course of the international armed conflict with Georgia. Indeed, the emphasis here is on particular issues arising from the characterization of the conflict.184
The applicability of international humanitarian law rules relating to detention depends upon the classification of an armed conflict as being international or References(p. 347) non-international. In an international armed conflict detained combatants will have the status of prisoners of war (in certain circumstances).185 It has been confirmed that the Georgian armed forces captured Ossetians, and vice versa.186 If the conflict between Georgia and the Ossetian forces is classified as being part of an international armed conflict (because of Russia’s overall control of the Ossetian forces) then such detainees would have the status of prisoners of war, but that would not be the case if this aspect of the conflict is to be considered as being non-international—leading to what Pejic has described as ‘the uneven protection of humanitarian law’.187 In that situation, Ossetians detained by the Georgian armed forces would be subject to the domestic laws of Georgia.188 Thus, what might be regarded as reasonable force in the context of an international armed conflict could be prosecuted as kidnapping, murder or other offences under the domestic law if the conflict is to be classified as being non-international. A further point of (unresolved) contention that arises here is the question whether citizens of the State against which they are fighting can be granted combatant or POW status.189 The situation is further complicated by the evidence that some detainees held by the Ossetians were then transferred into the custody of the Russian armed forces, and also that Russian forces were present at some of the locations where detainees were held by the Ossetians.190
In fact, Georgia distinguished between (the five) ‘Russian military personnel held as POWs’ and (the 32) ‘members of separatist illegal armed formations’.191 Those entitled to POW status in an international armed conflict include all members of the organized armed forces of a party to a conflict, even if that party is represented by an authority which is not recognized by the adversary, provided that the forces are under a command responsible to a party to the conflict for the conduct of its subordinates, and that they are subject to an internal disciplinary system which enforces compliance with the law of armed conflict.192 In addition, members of ‘any other militias, volunteer corps, or organized resistance movements’ would also have POW status provided that they are commanded by a person responsible for subordinates, that they have a ‘fixed, distinctive sign recognizable at a distance’, that they carry their arms openly and that they comply with the law of armed conflict.193
References(p. 348) Georgia may well be able to make an argument that one or more of these conditions did not apply in respect of their 32 detainees from ‘illegal armed formations’.194 Indeed, Human Rights Watch concluded that the South Ossetian militia did not meet all four of these conditions, and accordingly that the detention of their members should have been carried out in accordance with the Fourth Geneva Convention.195 However, if that were not the case, to distinguish between the Ossetian detainees and the Russian POWs would appear to be in contradiction to Georgia’s classification of the entire conflict as being an international armed conflict. There are differing conditions regulating the release of POWs under the Third Geneva Convention and detainees under the Fourth Geneva Convention. Prisoners of war are required to be released and repatriated without delay after the cessation of active hostilities,196 whereas the Fourth Geneva Convention provides that detainees are to be released as soon as the reasons which necessitated internment no longer exist (which therefore could be during the conflict).197
If the fighting between Georgia and the Ossetian militia is to be classified as a non-international armed conflict, this may also have repercussions as to the legality of the detention of the thirty‐two Ossetians. As Jelena Pejic discusses in chapter 4,198 their ‘internment’, as such, would have necessitated Georgia’s derogation from article 5 of the ECHR. However, Georgia did not make any such measure of derogation. The detention of members of the Georgian armed forces, by the Ossetian militia, would have violated the Georgian domestic law.
The large-scale looting and destruction of property as well as patterns of ethnic cleansing in South Ossetia are a direct violation of international humanitarian and human rights law. It should be stressed that, even if Russian troops have not been directly involved, Russia, under international law, bears full responsibility for any crimes and human rights violations committed on the territories that are under its effective control.205
Russia appears not to have succeeded in its duty, under the 1907 Hague Convention (IV) on the Laws and Customs of War on Land, to prevent looting, maintain law and order and protect property in the areas under the de facto control of its forces. In this respect, the Assembly notes that Russia bears full responsibility for violations of human rights and humanitarian law in the areas under its de facto control. In the light of the case law of the European Court of Human Rights, this also concerns acts committed at the behest of the de facto authorities in Tshkinvali.
The Assembly is especially concerned about credible reports of acts of ethnic cleansing committed in ethnic Georgian villages in South Ossetia and the ‘buffer zone’ by irregular militia and gangs which the Russian troops failed to stop. It stresses in this respect that such acts were mostly committed after the signing of the ceasefire agreement on 12 August 2008, and continue today.206
Russia has denied that it was, or is, an occupying power, but it has stated that it sought to carry out a policing function in the region. Russia acknowledged that in some parts of South Ossetia, and undisputed Georgian territory, there was a ‘vacuum of police presence’. The Russian authorities ‘tried to maintain law and order and prevent any offences in the areas of their deployment, including Georgia proper, where owing to the flight of Georgian government authorities an apparent vacuum of police presence ensued. The Russian military force could not substitute for the government of South Ossetia’.207
From day one of the operation, the Russian military command undertook exhaustive measures to prevent pillaging, looting and acts of lawlessness with respect to the local Georgian population. All personnel serving in units that took part in the operation was References(p. 350) familiarised with the Directive issued by the General Staff of the Russian Armed Forces and the order given by the Army Commander-in-Chief ‘to maintain public safety and ensure the security and protection of citizens residing in the territory of the South Ossetian Republic’.
Russian troops, jointly with South Ossetian law-enforcement and military units, provided round-the-clock protection of the homes and land allotments that remained undamaged in Georgian villages, at the same time ensuring the safety and security of South Ossetian residents regardless of their ethnic background.
The Tagliavini Report found Russia’s reliance upon the South Ossetian authorities to have been flawed, on the basis that they in fact failed to maintain public order or prevent human rights violations, and that as regards the ‘buffer zone’, the South Ossetian authorities were not exercising control. The evidence suggests that Russian forces were aware that violations were being perpetrated, but failed to act. The Tagliavini Report concluded that to a certain extent the Russian authorities were in a position to ensure public order where they were stationed, and that they failed to ‘take the necessary measures to prevent or stop the widespread campaign of looting, burning and other serious violations committed after the ceasefire’.208
In October 2008 the Georgian Parliament enacted the ‘Law of Georgia on Occupied Territories’ which provided that various territories, including South Ossetia (and the airspace over it), were under occupation by Russia and set out various legal provisions applicable in such areas.209 A number of its provisions are problematic, as has been highlighted by the Venice Commission.210 Article 4 places restrictions on free movement into South Ossetia, making it a criminal offence for foreign citizens and persons without citizenship to enter the territory other than from Gori Municipality. Article 6 prohibits various economic activities in the region. With reference to the Fourth Geneva Convention and the preamble to the Hague Convention, the Venice Commission suggested that such laws could impact, inter alia, upon the provision by international organizations of humanitarian aid, and concluded that the laws must not ‘contradict the rule of customary international law that the well-being of the population in occupied areas has to be a basic concern of those involved in a conflict’.211
Article 5 declares void any real estate transaction concluded in violation of Georgian law. The Venice Commission raised the possibility that such a clause may breach the right to peaceful enjoyment of possessions in article 1 of Protocol References(p. 351) No. 1 to the European Convention, not least because of the retroactive application of the provision as from 1990.212
Article 7 of the Law on occupied territories provides that in South Ossetia ‘the Russian Federation shall be responsible for violation of internationally recognised human rights stipulated in the Constitution of Georgia’, that Russia shall ‘reimburse moral and material damages’ and shall be responsible for protecting cultural heritage in South Ossetia. However, as the Venice Commission notes, ‘questions of international responsibility cannot be regulated on the basis of national law, but are solved on the basis of international law’.213 The reference to the obligation to protect cultural heritage would apparently explicitly engage Russia’s responsibility for acts committed, for example, by Ossetian militia and civilians.
Finally, the Venice Commission expressed its concern about article 8 of the law, the effect of which is to declare invalid any act of the de facto South Ossetian authorities. The Commission noted that if Georgia refused to accept basic documents such as birth or death certificates, this would violate article 8 of the European Convention on Human Rights.214
As we have seen, it is far from a straightforward task to define the boundaries of the South Ossetian conflict, in either the temporal or geographical senses. There are also apparently unresolvable questions about the identity of some of the parties involved, and certainly about how, and by whom, they were organized and controlled. As a consequence, it is not simple to classify the conflict or conflicts.
Inevitably the parties themselves did not see eye to eye on classification. Russia sought initially to emphasize its peace-keeping role in a conflict between Georgian and Ossetian forces. It came to acknowledge its role as a part of an international armed conflict, but always maintained that there was also a separate non-international armed conflict as between Georgia and the South Ossetian armed forces. Georgia, however, argued that the totality of the armed conflict was international, and that the Ossetians were properly to be regarded as agents of Russia. The international community (international agencies and individual States) did not give a clear or unambiguous view about classification—indeed it sought to avoid the issue.
References(p. 352) When did the armed conflict begin and end? There is no doubt that the Georgian artillery bombardment of South Ossetia and the Russian counter-attack took place on 7 and 8 August 2008, but given the long-lasting tensions in the region, did this represent simply a more intensive stage of armed hostilities in the course of an enduring conflict? This chapter concludes that the conflict opened with the Georgian artillery attack on South Ossetian armed forces, with Russia then intervening in support of the South Ossetians—a non-international armed conflict very quickly became, at least partially, internationalized. As Jelena Pejic has put it, this therefore meant an ‘upward’ reclassification of the conflict from non-international armed conflict to international armed conflict,215 with a broader range of international humanitarian law coming into play as a consequence. Can it be said with confidence when the conflict ended, with the Russian armed forces continuing to occupy South Ossetia and its self-styled ‘buffer zone’ within undisputed Georgia, long after the termination of the principal period of armed hostilities in the few days after 7 August? This chapter concludes that the 2008 conflict should be considered as an armed conflict distinct from previous hostilities in the region, which commenced on 7 August 2008 and continued at least until 15 August 2008, and which was followed by continuing occupation of Georgian territory by the Russian Federation.
Who was involved in the conflict? The participation of the two States parties, Georgia and Russia, is clear, but the answer to this question is more problematic as regards the armed forces of the de facto authorities of South Ossetia. Comprising both ‘regular’ forces and paramilitary groups, it does not seem possible to define their composition with any real precision. Moreover, to what extent were the Ossetian forces aligned with, or even controlled by, the Russian armed forces?
As we cannot yet give definitive answers to these critical factual questions, this considerably complicates the legal picture. There can be no doubt about the existence of an international armed conflict between Georgia and Russia; the conflict between Georgia and the South Ossetians, however, raises issues which make its classification rather more difficult. Can that part of the conflict be said to be subsumed into the international armed conflict between the two States?
To answer that question, one needs, firstly, to ascertain to what extent Russia exercised overall control over the South Ossetian forces such that it could be said that they were acting as de facto agents of Russia. Although there is a great deal of compelling evidence of Russia’s influence over the South Ossetian authorities generally, it cannot yet be definitively concluded that the ‘overall control’ test was met. Secondly, specific acts of a non-state group can be attributable to a State (under article 8 of the ILC’s Articles on State Responsibility) where those acts are carried out under a State’s instructions or under its direction or effective control. That test may be easier to satisfy, for example, where the Ossetian forces accompanied the Russian armed forces, or because of the presence of Russian troops at, or in the vicinity of, a particular location where the acts in question were carried out by the Ossetian militia. Nevertheless, this chapter concludes that the better view is that References(p. 353) there were two parallel conflicts: a non-international armed conflict playing out in tandem with the international armed conflict.
After the termination of hostilities in August 2008, the evidence suggests that the continuing presence of Russian armed forces in South Ossetia, and in the ‘buffer zone’ around South Ossetia (i.e. in undisputed Georgian territory), constituted a state of occupation, as defined by article 42 of the Hague Regulations.
Given the uncertainty as to how long the international armed conflict continued beyond the 12 August ceasefire, the point at which the law of armed conflict ceased to apply is open to question. In certain respects, this will depend upon establishing both the fact of Russia’s occupation of Georgian territory, and the nature of it: for example, as an occupying power Russia would be bound by particular provisions of the Fourth Geneva Convention for the duration of the occupation, to the extent that it exercised the ‘functions of government’.
If the hostilities between Georgia and the South Ossetian militia are considered to amount to a non-international armed conflict, as suggested in this chapter, then for Additional Protocol II to the Geneva Conventions to be applicable the South Ossetian forces must have constituted an organized armed group, been subject to responsible command and exercised control over part of the territory of Georgia. That was arguably the case as regards the ‘regular’ Ossetian forces, but this test presents difficult questions in relation to the other ad hoc fighting groups which also seem to have been involved (to which in any event Common Article 3 of the Geneva Conventions applies).
On the basis that the Russian authorities were in occupation, they were obliged to take all the measures in their power to restore and maintain public order and safety in the occupied area. This they clearly did not do: there is overwhelming evidence of the incidents of assaults, robbery, kidnapping, looting and torching of houses.
This chapter has also considered the implications of the classification of the conflict for the status of detainees. If, as suggested, the fighting between Georgia and the South Ossetian forces amounted to a non-international armed conflict, Ossetians held captive by the Georgian forces would not have had the status of prisoners of war and thus would have been subject to the ordinary Georgian law, and would have been liable to be prosecuted for kidnapping, murder and other criminal offences. Two further issues arise in relation to the position of detainees in the conflict. Firstly, it is still unclear legally whether citizens of the State against which they are fighting can be granted prisoner of war status. Secondly, is the non-international armed conflict classification affected by the fact that some detainees held by the Ossetians were transferred into the custody of the Russian armed forces, or that Russian soldiers were also present in at least some of the places where detainees were held by the Ossetians? That might be the case if this could be construed as further evidence of Russia’s overall control of the Ossetian militia.
If, as Georgia contended, its conflict with the South Ossetian forces should be characterized as being a part of an international armed conflict then the South References(p. 354) Ossetian militia would have been entitled to prisoner of war status provided that they met four conditions: responsible command; a recognisable, distinctive sign; carrying arms openly; and compliance with the law of armed conflict. The evidence suggests, however, that they would have failed on at least one of these counts.
The main difficulty as to the application of international human rights law which has been identified in this chapter is the question of Russia’s responsibility for its aerial attacks on Gori city. In recent years, there has been inconsistent treatment by international courts as to the nature and extent of the extraterritorial application of human rights law, but it is argued here that the question of extraterritorial jurisdictional competence is not limited solely to ‘effective control over an area’ or ‘state agent authority and control’, that both of those concepts have been considerably refined in recent years, and indeed that the appropriate test has moved closer towards a ‘cause and effect’ concept of jurisdiction. This issue will be decided in due course by the European Court of Human Rights, where there are cases pending against the Russian Federation which raise precisely this question. Nevertheless, this is not an issue that is affected by the legal classification of the South Ossetian conflict.
… although the classification of an armed conflict as international or non-international is important in terms of the responsibilities of the various parties involved, when it comes to the effective protection by IHL of the persons and objects affected by the conflict it does not make much difference. Indeed, it is generally recognised that the same IHL customary law rules generally apply to all types of armed conflicts.216
Since the South Ossetian conflict was characterized by conduct that was clearly unlawful in the course of either an international or non-international conflict (including, for example, indiscriminate attacks, the deliberate killing of civilians, hostage-taking, the torching of houses, looting and pillaging, and rape) it is difficult to disagree with that conclusion.
20 September 1990
South Ossetia unilaterally declared independence from Georgian Soviet Socialist Republic (SSR).
11 December 1990
President of Georgia abolished autonomous status of South Ossetia.
5 January 1991
Armed Conflict in South Ossetia.
9 April 1991
Georgian SSR declared independence from USSR.
21 December 1991
South Ossetia voted for independence from Georgia.
19 January 1992
Unrecognized referendum for independence in South Ossetia.
24 June 1992
Russian-brokered ceasefire agreement and Joint Peacekeeping Force established.
2 November 1993
Constitution promulgated in South Ossetia.
27 November 1996
First president of South Ossetia elected.
18 December 2001
Eduard Kokoity became de facto president of South Ossetia.
12 November 2006
Referendum and presidential elections in South Ossetia.
7 August 2008
Georgian troops attacked Tskhinvali, South Ossetia.
8 August 2008
Russian armed forces counter-attacked.
9 August 2008
President Saakashvili of Georgia declared state of war.
15 August 2008
EU ceasefire plan signed by Georgia.Russian troops began to withdraw from undisputed Georgian territory.
16 August 2008
EU ceasefire plan signed by Russian Federation.
22 August 2008
Russian troops withdrew from Gori city.
24 August 2008
Russian Federation recognized South Ossetia as independent sovereign State.
8 September 2008
Russian Federation agreed to withdraw its troops deployed outside the boundaries of South Ossetia by 1 October.
9 September 2008
Russian Federation established diplomatic relations with South Ossetia.
* I am greatly indebted to Alexander Halban, Vaho Vakhtangidze (former European Human Rights Advocacy Centre interns), and Joanna Evans (Senior Lawyer, European Human Rights Advocacy Centre) for their invaluable research assistance, and in particular for their drafting of the description of the conflict. Thanks to Giorgi Chkheidze (Georgian Young Lawyers Association) for his advice on Georgian domestic law, and to the other contributors to this volume for their comments on earlier drafts, with special thanks to Charles Garraway and Françoise Hampson.
2 First created by the Central Executive Committee of Georgia and the Council of People’s Commissars of Georgia, Decree No. 2 ‘On the Arrangement of the South Ossetian Autonomous Oblast’ (20 April 1922), available at: <www.rrc.ge/law/decre_1922_04_20_e.htm?lawid=129&lng_3=en>. This was confirmed in each successive Georgian constitution: Constitution of the Soviet Socialist Republic of Georgia (1923) art.1, available at: <www.rrc.ge/law/konstG_1922_03_02_e.htm?lawid=127&lng_3=en>, Constitution of the Soviet Socialist Republic of Georgia (1927), art. 9, para 3, available at: <www.rrc.ge/law/Gkon_1926_07_05_e.htm?lawid=1109&lng_3=en>, Constitution (Basic Law) of the Soviet Socialist Republic of Georgia (1937), art. 19, available at: <www.rrc.ge/law/Gkon_1937_02_13_e.htm?lawid=1385&lng_3=en>, and Constitution (Basic Law) of the Soviet Socialist Republic of Georgia (1978), art. 71, available at: <www.rrc.ge/law/Gkon_1978_04_15_e.htm?lawid= 1387&lng_3=en>.
See further, A. Nußberger, ‘The War between Russia and Georgia—Consequences and Unresolved Questions’ (2009) 1(2) Göttingen Journal of International Law 341–64.
3 Declaration of State Sovereignty of the Soviet Democratic Republic of South Ossetia (20 September 1990), available at: <www.rrc.ge/law/dekl_1990_09_20_e.htm?lawid=1194&lng_3=en>.
4 International Crisis Group (ICG), ‘Georgia: Avoiding War in South Ossetia’, No. 159 (2004) 3, available at: <www.crisisgroup.org/~/media/Files/europe/159_georgia_avoiding_war_in_south_ossetia.pdf> (ICG, Avoiding War). See also, Global Security, ‘South Ossetia—Background’, available at: <www.globalsecurity.org/military/world/war/south-ossetia-3.htm>.
7 See ICG, ‘Georgia’s South Ossetia Conflict: Make Haste Slowly’, No. 183 (2007) 28, Appendix C, available at: <www.crisisgroup.org/media/Files/europe/183_georgia_s_south_ossetia_conflict_make_haste_slowly.pdf> (ICG, Georgia’s South Ossetia Conflict).
8 Declaration of Independence of the Republic of South Ossetia (29 May 1992), available at: <www.rrc.ge/law/dekl_1992_05_29_e.htm?lawid=363&lng_3=en>.
9 Human Rights Without Frontiers International (HRWF), ‘Georgia—South Ossetia—Russia: the historical context of the August 2008 war’ (2009) 5, available at: <www.hrwf.org/images/reports/2009/2009%20georgia%20south%20ossetia%20russia.pdf> (HRWF, The Historical Context).
10 Independent International Fact-Finding Mission on the Conflict in Georgia (IIFFMCG), ‘Report’ Vol. II (2009) 65, available at: <www.ceiig.ch/pdf/IIFFMCG_Volume_II.pdf> (IIFFMCG, Report II).
12 Agreement on Principles of Settlement of the Georgian-Ossetian Conflict (24 June 1992), available at: <www.rrc.ge/law/xels_1992_06_24_e.htm?lawid=368&lng_3=en>; HRWF, The Historical Context, 6. See also, L. Olson, ‘The South Ossetia Case’, Conciliation Resources, Accord (1999), available at: <www.c-r.org/our-work/accord/georgia-abkhazia/south-ossetia.php>. The terms of the ceasefire covered the termination of hostilities, the withdrawal of armed forces and the creation of a Joint Control Commission (JCC) comprising representatives of the parties to the conflict, whose role was to exercise control over the implementation of the ceasefire, the withdrawal of armed forces, the disbanding of self-defence forces and the maintenance of security in the region. The JCC was also to deal with economic rehabilitation, refugees and displaced people.
13 Parliamentary Assembly of the Council of Europe (PACE), ‘Situation in Georgia and the consequences for the stability of the Caucasus region’ Report, Doc. 9564 (24 September 2002) paras 24–33, available at: <http://assembly.coe.int/Mainf.asp?link=/Documents/WorkingDocs/Doc02/EDOC9564.htm>.
16 Human Rights Watch (HRW), ‘The Ingush-Ossetian Conflict in the Prigorodnyi Region’ (1996), available at: <www.hrw.org/legacy/reports/1996/Russia.htm>.
20 PACE, Doc. 9564, paras 26, 27. See also ‘Eduard Kokoity: the aim of South Ossetia is unification with North Ossetia’ Yuzhnaya Osetiya (10 June 2006) available at: <http://ugo-osetia.ru/6.50.html> [Russian].
24 PACE, resolution 1633 (2008), ‘The consequences of the war between Georgia and Russia’ (2 October 2008) para 5, available at: <http://assembly.coe.int/Mainf.asp?link=/Documents/AdoptedText/ta08/ERES1633.htm>.
26 IIFFMCG, Report I, 11, para 3; HRW, ‘Up In Flames: Humanitarian Law Violations and Civilian Victims in the Conflict over South Ossetia’ (2009) 23, available at: <www.hrw.org/sites/default/files/reports/georgia0109web.pdf> (HRW, Up In Flames).
31 T. Hammarberg, Council of Europe Commissioner for Human Rights, ‘Human Rights in Areas Affected by the South Ossetia Conflict. Special Mission to Georgia and Russian Federation’ CommDH(2008)22 (2008) para 13, available at: <〈https://wcd.coe.int/ViewDoc.jsp?id=1338365&Site=CommDH&BackColorInternet=FEC65B&BackColorIntranet=FEC65B&BackColorLogged=FFC679> (CommDH(2008)22)〉.
34 Ibid. Pursuant to art. 15(1) of the Convention, a State may take measures derogating from particular provisions of the Convention ‘in time of war or other public emergency threatening the life of the nation’. The European Convention on Human Rights came into force in relation to Georgia on 20 May 1999 (and Protocol No. 4 to the Convention from 13 April 2000 and Protocol No. 1 to the Convention from 7 June 2002). The Convention came into effect in respect of Russia on 5 May 1998 (as did Protocols No. 1 and 4). See also, Georgia v Russia (Decision) App No. 38263/08 (13 December 2011) paras 1 and 73 (Georgia v Russia Admissibility Decision).
37 President of Russian Federation, ‘Press Statement following Negotiations with French President Nicolas Sarkozy’ (12 August 2008), available at: <http://archive.kremlin.ru/eng/text/speeches/2008/08/12/2100_type82912type82914type82915_205208.shtml>.
38 HRW, Up In Flames, 25; Ministry of Defence of the Russian Federation, ‘The Russian Army will not conduct active military activities from 15.00 Tuesday’ (13 August 2008), available at: <www.mil.ru/info/1069/details/index.shtml?id=49435> [Russian].
41 Embassy of France in Washington, ‘Georgia: the 6 Points Plan’ (14 August 2008), available at: <http://ambafrance-us.org/spip.php?article1101 [English]; www.ambafrance-us.org/IMG/pdf/accord6points.pdf> [French]. The agreement included the following terms: the non-use of force; the definitive cessation of hostilities; free access for humanitarian aid; the withdrawal of the Georgian military forces to their usual bases; the withdrawal of Russian military forces to the lines they held before hostilities broke out; the implementation of additional security measures by the Russian peacekeeping forces; and the opening of international discussions on the modalities of security and stability in Abkhazia and South Ossetia.
42 HRW, Up In Flames, 26; President of the Russian Federation, Decree of 26 August 2008 No. 1261 ‘On the Recognition of South Ossetia’, available at: <http://graph.document.kremlin.ru/doc.asp?ID=047560>. See also Georgia v Russia Admissibility Decision, para 20.
43 President of the Republic of Nicaragua, Decree No. 46-2008, available at: <www.cancilleria.gob.ni/publicaciones/r_osetia_s.pdf> [Spanish]. ‘Nicaragua recognises independence of South Ossetia and Abkhazia’ The New York Times (4 September 2008).
44 ‘Putin praises Venezuela for recognition of Abkhazia, South Ossetia’ RiaNovosti (10 September 2009), available at: <http://en.rian.ru/russia/20090910/156089350.html>.
46 OCHA, Gori area, map (11 December 2008), available at: <http://reliefweb.int/node/11863>.
48 President of the Russian Federation, ‘Press Conference following Talks with President of France Nicolas Sarkozy’ (8 September 2008) available at: <http://eng.kremlin.ru/text/speeches/2008/09/08/2208_type82912type82914type82915_206283.shtml>.
50 UNHCR, ‘UNHCR teams enter Georgia “buffer zone”’ (16 September 2008), available at <www.unhcr.org/news/NEWS/48cfa9b01d.html>.
54 See e.g. UNCHR, ‘Reports of lawlessness creating new forcible displacement in Georgia’ (26 August 2008), available at: www.unhcr.org/news/NEWS/48b424f94.html.
67 President of the Russian Federation, Order of 15 September 2008 No. 538-RP ‘On the Signing of the Treaty on Friendship, Cooperation and Mutual Assistance between the Russian Federation and the Republic of South Ossetia’, available at: <http://graph.document.kremlin.ru/doc.asp?ID=047792> [Russian]; President of the Russian Federation, ‘Statements following the signing of the Treaties on Friendship, Cooperation and Mutual Assistance with the Republics of Abkhazia and South Ossetia’ (17 September 2008), available at: <http://archive.kremlin.ru/eng/speeches/2008/09/17/1948_type82912type82914type82915_206565.shtml>; President of the Russian Federation, ‘Beginning of Meeting with President of South Ossetia Eduard Kokoity’ (13 July 2009) available at: <http://archive.kremlin.ru/eng/speeches/2009/07/13/1125_type82914_219559.shtml>.
72 Ministry of Finance of the Russian Federation, ‘On the signing of an accord between the Ministry of Finance of the Russian Federation and the Ministries of Finance of Abkhazia and the Republic of South Ossetia of 17 March 2009’ (16 March 2009), available at: <www1.minfin.ru/ru/press/press_releases/printable.php?id4=7175> [Russian].
78 See President of the Russian Federation, ‘Speech at Ceremony for Signing Bilateral Documents between the Russian Federation, the Republic of Abkhazia and the Republic of South Ossetia’ (30 April 2008), available at: <http://archive.kremlin.ru/eng/speeches/2009/04/30/2000_type82912type82914_215748.shtm>.
79 HRW, ‘A Dying Practice: Use of Cluster Munitions by Russia and Georgia in August 2008’ (2009) 6, available at: <www.hrw.org/sites/default/files/reports/georgia0409web_0.pdf>.
85 Letter dated 11 August 2008 from the Permanent Representative of the Russian Federation to the United Nations addressed to the President of the Security Council, S/2008/545 (11 August 2008); IFFMCG, Report, Vol. III, Russia: On Georgia’s aggression against South Ossetia in August 2008; Russian President, ‘Statement on the Situation in South Ossetia’ (8 August 2008); Russian Ministry of Foreign Affairs, Spokesman (13 August 2008); Russian President, ‘Statement’ (26 August 2008). See also Georgia v Russia Admissibility Decision, paras 44–6.
90 Letters dated 9 August 2008 from the Permanent Representative of Georgia to the United Nations addressed to the Secretary-General and the President of the Security Council, S/2008/544 (9 August 2008); S/PV.5952, UN Security Council meeting (8 August 2008); S/PV.5953, UN Security Council meeting (10 August 2008); S/PV.5961, UN Security Council meeting (19 August 2008); S/PV.5969, UN Security Council meeting (28 August 2008); OSCE, Special Permanent Council Meeting, ‘Statement of the Georgian Delegation’ (14 August 2008); IIFFMCG, Report III, Georgia: Use of Force Issues Arising out of the Russian Federation Invasion of Georgia, August, 2008.
92 As to the questions relevant to the ‘de facto organs’ test in relation to state responsibility see also, art. 8 of the Draft articles on Responsibility of States for Internationally Wrongful Acts, with commentaries, 2001. See also the discussion in ch. 3, section 7.1 above.
95 See e.g. S/PV.5953, UN Security Council meeting (10 August 2008). The generality of Security Council resolutions as to the nature of, and parties to, conflicts is commented on by Jelena Pejic in J. Pejic, ‘Status of Armed Conflicts’ in E. Wilmshurst and S. Breau (eds), Perspectives on the ICRC Study on Customary International Humanitarian Law (2007) 78 (Pejic, Status of Armed Conflicts).
96 PACE, ‘The consequences of the war between Georgia and Russia’, Doc. 11724 (1 October 2008), Monitoring Committee, co-rapporters: Mr Luc Van den Brande and Mr Mátyás Eörsi; PACE, ‘The consequences of the war between Georgia and Russia’, Doc. 11732 rev (1 October 2008), Legal Affairs and Human Rights Committee, rapporter: Mr Christos Pourgourides. See also, ‘The occupation by Russia of a part of Georgia is unacceptable, according to PACE co-rapporteurs’ Press Release (22 August 2008); ‘Russia and Georgia must abide by Council of Europe principles, said PACE monitoring co-rapporteur’ Press Release (23 August 2008).
98 See e.g. ‘OSCE Chairman calls for a halt to all military action, re-establishment of contact in the Georgian-Ossetian conflict’ Press Release (8 August 2008); ‘OSCE Chairman welcomes Russian President’s decision to end military operation in Georgia’ Press Release (12 August 2008); ‘OSCE Permanent Council holds special meeting, Georgian Foreign Minister addresses delegations’ Press Release (28 August 2008).
102 By its decision of 2 December 2008 the Council of the European Union established an Independent International Fact-Finding Mission on the Conflict in Georgia (IIFFMCG)—the first time in its history that the EU has decided to intervene actively in a serious armed conflict. It was led by Swiss Ambassador Heidi Tagliavini; see Council Decision 2008/901/CFSP of 2 December 2008 concerning an independent international fact-finding mission on the conflict in Georgia.
103 IIFFMCG, Report II, ch. 7, 298–312.
110 HRW, Up In Flames, 25; Ministry of Defence of the Russian Federation, ‘The Russian Army will not conduct active military activities from 15.00 Tuesday’ (13 August 2008), available at: <www.mil.ru/info/1069/details/index.shtml?id=49435> [Russian].
113 Embassy of France in Washington, ‘Georgia: the 6 Points Plan’ (14 August 2008), available at: <http://ambafrance-us.org/spip.php?article1101> [English]; <www.ambafrance-us.org/IMG/pdf/accord6points.pdf> [French].
117 As opposed to ‘situations of internal disturbances ad tensions, such as riots, isolated and sporadic acts of violence and other acts of a similar nature’, which are expressly excluded from the scope of the Protocol by art. 1(2).
118 Amnesty International stated as follows: According to eye-witness testimony collected by Amnesty International, the advancing Russian army was accompanied by both regular South Ossetian forces and an array of paramilitary groups. The latter groups have been widely referred to as ‘militias’ (opolchentsy in Russian, dajgupebebi in Georgian), and their exact composition is unclear. Just prior to the conflict there were reports of the arrival of 300 Ossetian volunteers who had been serving in the police in North Ossetia. De facto South Ossetian President Eduard Kokoity reportedly ordered the integration of these volunteers into the de facto South Ossetian Ministry of the Interior forces. There were also reports of representatives of other ethnic groups from the North Caucasus moving into South Ossetia following the onset of hostilities, in order to fight on the South Ossetian side. Amnesty International was also informed in North Ossetia that significant numbers of men who initially fled to North Ossetia from South Ossetia in the first days of the conflict returned to South Ossetia in order to fight. Several South Ossetians interviewed by Amnesty International representatives in both South and North Ossetia stated that they had taken up arms and participated in the hostilities. See Amnesty International (AI), ‘Civilians in the Line of Fire—the Georgia-Russia conflict’ (2008) 34 (AI, Civilians in the Line of Fire).
122 See discussion in ch. 11, section 2.3 below. See also Pejic, Status of Armed Conflicts, 86; A. Paulus and M. Vashakmadze, ‘Asymmetrical war and the notion of armed conflict—a tentative conceptualization’ (2009) 91(873) International Review of the Red Cross 102.
124 A. Paulus, ‘Non International Armed Conflict under Common Article 3’ in Armed Conflicts and Parties to Armed Conflicts under IHL: Confronting Legal Categories to Contemporary Realities (2010) 40 Collegium 31.
125 See e.g. the discussion of this issue in S. Vité, ‘La Lutte Contre La Criminalité organisée: peut-on parler de conflit armé au sens où l’entend le droit international humanitaire?’ in Armed Conflicts and Parties to Armed Conflicts under IHL: Confronting Legal Categories to Contemporary Realities, (2010) 40 Collegium, 69–77.
126 M.E. O’Connell, ‘Saving Lives through a Definition of International Armed Conflict’ in Armed Conflicts and Parties to Armed Conflicts under IHL: Confronting Legal Categories to Contemporary Realities (2010) 40 Collegium 24.
127 See e.g. J. Stewart, ‘Fragmented Armed Conflicts: ‘Internationalised’ internal armed conflicts and ‘internalised’ international armed conflicts’ in Armed Conflicts and Parties to Armed Conflicts under IHL: Confronting Legal Categories to Contemporary Realities (2010) 40 Collegium 54.
132 IIFFMCG, Report III, South Ossetia: Responses to Questions from IIFFMCG (Military Aspects); IIFFMCG, Report III, Russia: Responses to Questions from IIFFMCG (Legal Aspects); IIFFMCG, Report III, Russia: Responses to Additional Questions from IIFFMCG (Legal Aspects); Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Georgia v Russian Federation), Request for the Indication of Provisional Measures, Order of 15 October 2008 (Georgia v Russia, Order of 15 October 2008). See also Georgia v Russia Admissibility Decision, para 44.
133 IIFFMCG, Report III, Georgia: Responses to Questions from IIFFMCG (Legal Aspects); Georgia v Russian Federation, ECtHR, App No. 38263/08, Application by Georgia; Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Georgia v Russian Federation), Application Initiating Proceedings (12 August 2008); Georgia v Russia Admissibility Decision, para 25.
135 Memorandum on Measures to Provide Security and Strengthen Mutual Trust between the Parties to the Georgian-Ossetian Conflict, available at: <www.mtholyoke.edu/acad/intrel/georosse.htm>. See also, United Nations Security Council, Update Report No. 2, Georgia, 12 August 2008, available at: <www.securitycouncilreport.org/site/c.glKWLeMTIsG/b.4423477>.
137 Ibid, 8, para 12; PACE, Doc. 9564, para 27. See also M. Danilova, ‘Russia launches passport offensive’ Associated Press (22 February 2009) available at: <http://www.archives.dawn.com/archives/3482>; ‘Russian tanks enter South Ossetia’ BBC News (8 August 2008); C. Levy, ‘Russia Backs Independence of Georgian Enclaves’ The New York Times (26 March 2008); ‘Russia Marches into South Ossetia’ Der Spiegel (8 August 2008).
144 See, inter alia, State Duma of the Russian Federation, ‘On the Referendum in South Ossetia on the question of granting it independence and about the results of elections of the president of South Ossetia’ (12 November 2006), available at: <www.duma.gov.ru/index.jsp?t=ums_zayavlen/n95.html> [Russian] and <www.rrc.ge/law/gancx_2006_04_12_E.htm?lawid=1600&lng_3=en> [English]. See also, PACE, Doc. 10779, para 32.
146 ‘Karachaevo-Cherkessia and South Ossetia Signed an Agreement on Trade, Economic, Scientific, Technical and Cultural Cooperation’ Yuzhnaya Osetiya (18 April 2007), available at: http://ugo-osetia.ru/7.32/7.32-1.html [Russian]; A. Dzhioti, ‘Agreement on Announced Projects’ Yuzhnaya Osetiya (19 May 2007), available at: <http://ugo-osetia.ru/7.42/7.42-4.html> [Russian].
147 PACE, ‘Declaration on unilateral decision by the Russian Federation to legalise ties with the Georgian regions of Abkhazia and South Ossetia’, Written Declaration No. 408, Doc. 11584 (17 April 2008) para 1.
148 IIFFMCG, Report II, 132. The Report stated that ‘The de facto Government and the “Ministries of Defence”, “Internal Affairs” and “Civil Defence and Emergency Situations”, the “State Security Committee”, the “State Border Protection Services”, the “Presidential Administration”—among others—have been largely staffed by Russian representatives or South Ossetians with Russian citizenship that have worked previously in equivalent positions in Central Russia or in North Ossetia’.
149 Amnesty International concluded that: ‘It would appear that the majority of these groups answered, if only loosely, to a South Ossetian chain of command and that the South Ossetian forces in turn operated in co-operation with Russian military forces.’ See AI, Civilians in the Line of Fire, 39.
150 As to the difficulties of obtaining the requisite evidence in such situations, see e.g. J. Stewart, ‘Fragmented Armed Conflicts: “Internationalised” internal armed conflicts and “internalised” international armed conflicts’ in Armed Conflicts and Parties to Armed Conflicts under IHL: Confronting Legal Categories to Contemporary Realities (2010) 40 Collegium 54.
152 Law on Occupied Territories, 23 October 2008, clause 1. This law is discussed further in section 5.5 below.
163 HRW, Up In Flames, 218.
168 According to Georgian domestic law, however, South Ossetia is an integral part of Georgia and accordingly, all the laws of Georgia are applicable in that territory. The laws adopted by the de facto administration of South Ossetia have been regarded by the Georgian government as unlawful and, therefore, as having no legal force. See e.g. art. 1(1) and art. 2 of the Constitution of Georgia (adopted 24 August 1995).
170 Federal Law of 27 May 1998, No. 76-FZ, art. 26. There is a similar provision in the Internal Service Regulations of the Armed Forces of the Russian Federation (approved by Decree of the President of the Russian Federation of 10 November 2007, No. 1495), art. 16.
171 Internal Service Regulations of the Armed Forces of the Russian Federation (approved by Decree of the President of the Russian Federation of 10 November 2007, No. 1495), art. 22 and art. 161 (duties of privates).
173 Manual on International Humanitarian Law for the Armed Forces of the Russian Federation (approved by the Minister of Defence of the Russian Federation, 8 August 2001). Article 17 provides: ‘While getting military units ready for combat operations and controlling them during hostilities commanders shall be guided by the principles of international humanitarian law: the principles of legality, distinction, proportionality, humanity and military necessity. The principle of legality means strict and precise respect of international humanitarian law by all military command bodies, military and civilian personnel. The principle of distinction means making distinction, under any circumstances, between the civilian population and servicemen, as well as between civilian objects and military objectives, which helps ensure protection of civilian persons and objects during combat operations and concentrate the force’s effort against the enemy military objectives. The principle of proportionality means that the belligerents shall not cause damage to civilian objects and losses of civilian life which would be excessive in relation to the military advantage anticipated. The principle of humanity means respect and protection of persons not directly taking part in hostilities, including members of the enemy armed groups who have laid down their arms or otherwise ceased to take part in hostilities. The principle of military necessity means a possibility to choose any methods to accomplish the mission, other than those prohibited by the international humanitarian law. When applying the principle of military necessity the commander shall try to minimise incidental losses and destruction.’ [unofficial English translation, ICRC].
177 See discussion in ch. 4, section 4.3. See also, e.g. A. Paulus and M. Vashakmadze, ‘Asymmetrical war and the notion of armed conflict—a tentative conceptualization’ (2009) 91(873) International Review of the Red Cross, 109.
178 In relation to Russian aerial attacks on Gori, Amnesty International, for example, reported that: ‘The town of Gori was hit in four or five localised areas in the course of a number of separate attacks between 8 and 12 August.’ (AI, Civilians in the Line of Fire, 29).
181 Ilaşcu and others v Moldova and Russia (Judgment) App No. 48787/99 (8 July 2004) para 317 (‘a State’s responsibility may … be engaged on account of acts which have sufficiently proximate repercussions on rights guaranteed by the Convention, even if those repercussions occur outside its jurisdiction’); Issa v Turkey (Judgment) App No. 31821/96 (16 November 2004) para 74 (reference to the principle that a State can, through military action, be in ‘temporary, effective control’); Pad and others v Turkey (Decision) App No. 60167/00 (28 June 2007) para 54 (respondent State’s responsibility engaged as a result of firing from helicopters); Andreou v Turkey (Decision) App No. 45653/99 (3 June 2008); Armando Alejandre Jr and others v Cuba, Inter-American Commission on Human Rights, Case No. 11.589, Report No. 86/99 (29 September 1999) para 25; HRC, ‘General Comment 31’, CCPR/C/21/Rev.1/Add.13, para 10; Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (Advisory Opinion) ICJ Rep 2004, 136, paras 109–11; Congo v Uganda, paras 178–80 and 216–17. In the Grand Chamber judgment in Al-Skeini v United Kingdom (Judgment) App No. 55721/07 (7 July 2011), the European Court concluded that the UK, ‘through its soldiers engaged in security operations in Basrah during the period in question, exercised authority and control over individuals killed in the course of such security operations, so as to establish a jurisdictional link between the deceased and the United Kingdom for the purposes of Article 1 of the Convention’ (para 149).
182 See also, e.g. M. Scheinin, ‘Extraterritorial effect of the International Covenant on Civil and Political Rights’ in F. Coomans and M.T. Kamminga (eds), Extraterritorial Application of Human Rights Treaties (2004) 73–81, who argued post-Bankovic that the question of jurisdiction should be determined by the relationship between the state and the individual. In Al-Skeini v United Kingdom (Judgment) App No. 55721/07 (7 July 2011) para 142, the Grand Chamber of the European Court explicitly confirmed that jurisdiction can exist outside the territory covered by Council of Europe member states. See also, Al-Jedda v United Kingdom (Judgment) App No. 27021/08 (7 July 2011).
183 Isayeva, Yusupova and Bazayeva v Russia (Judgment) App No. 57947/00, 57948/00, 57949/00 (24 February 2005) paras 177, 195, 197, 199; Isayeva v Russia (Judgment) App No. 57950/00 (24 February 2005) paras 176, 187, 189–91. See also C. Droege, ‘Elective affinities? Human rights and humanitarian law’ (2008) 90(871) International Review of the Red Cross 501.
184 The commentary and analysis on the South Ossetian conflict to date has tended to focus more on ius ad bellum issues. See e.g. A. Nußberger, ‘The War between Russia and Georgia–Consequences and Unresolved Questions’ (2009) 1(2) Göttingen Journal of International Law 341–64; N. Petro, ‘The Legal Case for Russian Intervention in Georgia’ (2008) 32 Fordham International Law Journal 1524; C. Henderson and J. Green, ‘The jus ad bellum and entities short of statehood in the report on the conflict in Georgia’ (2010) 59 International and Comparative Law Quarterly 129–39.
188 Members of the Georgian armed forces captured by the Ossetians would also be subject to the domestic law. As to the applicable domestic law, see section 5.1 above.
189 See Public Prosecutor v Koi and others  AC 829 and e.g. A. Rogers, ‘Combatant Status’ in E. Wilmshurst and S. Breau (eds), Perspectives on the ICRC Study on Customary International Humanitarian Law (2007) 107–8.
193 Article 4(A)(2) Geneva Convention III. Ossetian forces were frequently identified as wearing ‘camouflage’ or ‘paramilitary’ uniforms with white armbands. See e.g. IIFFMCG, Report II, 352, 363, 387.
200 UNHCR, ‘UNHCR teams enter Georgia “buffer zone”’ (16 September 2008), available at: <www.unhcr.org/news/NEWS/48cfa9b01d.html>.
205 PACE, ‘The consequences of the war between Georgia and Russia’, Doc. 11724 (1 October 2008) Monitoring Committee, co-rapporters: Mr Luc Van den Brande and Mr Mátyás Eörsi, 15, para 54. State responsibility under human rights law may be engaged where a State exercises effective control of an area outside its national territory, or as a result of human rights violations committed against persons considered to be under the State’s authority and control through its agents.
208 IIFFMCG, Report II, 375. The Commissioner for Human Rights also argued that the Russian forces had a duty under international humanitarian law to maintain law and order in the zone they controlled, see CommDH(2008)22, para 89. See also similar conclusions in AI, Civilians in the Line of Fire, 32.
214 Although the Commission stated that it had received assurances from the Georgian authorities that birth and death certificates were ‘acknowledged through a simplified procedure’, para 43. As to the ‘Namibia principle’, see Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970) (Advisory Opinion) ICJ Rep 1971, 16, and for a recent example of its application by the European Court of Human Rights, see Demopoulos and others v Turkey (Decision) App No. 46113/99 et seq (1 March 2010) paras 92–98.