JURIST Guest Columnist Christopher Waters of the University of Windsor Faculty of Law in Windsor, Ontario, Canada, says that even assuming that Russia has a legitimate self-defence claim on the basis of protection of its nationals abroad its actions against Georgia have exceeded the well-known customary international law requirements of necessity and proportionality….

For anyone travelling into South Ossetia over roughly a decade in the 1990s and early 2000s, the idea that this ‘frozen conflict’ could have erupted so furiously would have come as a surprise. The Georgian-South Ossetian ‘border’ was porous, black market trading between Georgia and Russia via South Ossetia took place in the open, and it was not unusual to hear Georgian spoken in the streets of Tskhinvali. Confidence building measures such as joint patrols between Georgians, Ossetians and Russians were in place and there were some tentative, small scale efforts at return for displaced persons forced to flee after the 1991/1992 conflict. However, the issues stemming from the conflict of the early 1990s were only frozen and never resolved during this period. Georgia has strenuously insisted on its territorial integrity (South Ossetia had been part of the Georgian Socialist Republic) since the breakup of the Soviet Union and this has been backed by the international community, including through the vehicle of United Nations Security Council resolutions. President Saakashvili’s calls for Georgia’s reunification — by force if necessary — have grown louder since his 2004 election.

Yet, over a decade and a half of de facto independence, South Ossetians have built up the institutions of a microstate — with a parliament, courts and even at least one fairish presidential election. President Saakashvili has portrayed South Ossetia as simply a stooge for Moscow. This is, as so much of the rhetoric of the last few weeks, a half truth. While it is true that South Ossetians look to Russia for protection, this is the reality of living in an unrecognised and threatened mini-republic. Russian protection — and ultimately absorption into the Russian Federation — is seen as simply the best available option by the vast majority of ethnic Ossetians in the Tskhinvali region. Thus there are questions of self-determination which potentially clash with Georgia’s claim to territorial integrity.

It should quickly be noted, however, that South Ossetians were not a people facing a colonial-like oppression under Georgian suzerainty before 1991/1992; indeed, Georgians and Ossetians lived quite peacefully together before the conflict, albeit with occasional ethno-political tension. Further, the roughly 10,000 ethnic Georgian internally displaced persons from South Ossetia (whose ranks have now been joined by people displaced by this latest fighting), many still residing in collective centres in Georgia proper, are adamant that they be given an effective right to return and that the region remain Georgian. Clearly there are live legal and policy questions on the territorial integrity/self-determination axis, including parallels to Kosovo’s experience.

Rather than South Ossetia’s independence bid, however, what I want to focus on here is the use of force. And, specifically, Russia’s use of force in Georgia outside of South Ossetia, since in my view it represents a situation which is not only legally troubling but troubling for its humanitarian and geopolitical dimensions. This is not to deny that Georgia’s international legal and political commitments may have been breached through its armed attack on Tskhinvali. Even though it was seeking to restore its own territorial integrity and was therefore not in obvious breach of the basic Charter prohibition on the use of force, Saakashvili’s reckless attack on Russian-protected Tskhinvali represents a failure to resolve through peaceful means what has been since 1991/1992 an internationalised dispute. But, quite simply, the Georgian and Russian actions are on altogether different scales. Russia aggressively took this conflict well out of the original conflict zone.

Russia’s primary legal justification for its actions appears to rest on the defence of its nationals, with the vast majority of South Ossetians holding Russian passports. While a state’s citizenship policy is generally not a matter of public international law, the wholesale and in many cases purely extra-territorial granting of passports to the citizens of a disputed breakaway region where Russia seeks influence is self-serving and, in large measure, a sham (though one cannot blame individual South Ossetians for seeking the passports in order to pursue study, work and travel opportunities). Furthermore, the extent to which protection of nationals abroad comes within the ambit of legitimate self-defence is controversial at best. Most uses of force in protection of nationals abroad have been considered unlawful and, as in the case of the US invasion of Grenada, mere pretexts for intervention.

Even assuming that Russia has a legitimate self-defence claim on the basis of protection of nationals abroad (and Russia might have had a stronger claim if it simply cited defence of its peacekeepers and fidelity to their 1992 mandate, albeit a mandate in which in its present form Georgian consent had effectively been withdrawn), its actions have exceeded the well-known customary international law requirements of necessity and proportionality. In attacking far beyond the conflict zone, in both Western Georgia and as far south as the capital Tbilisi, at least by air, Russia can have no plausible claim to self-defence. Indeed the Russian President’s claim that ‘the aggressors have now been punished’ is strong evidence that Russia has engaged in punitive reprisals rather than self-defence. This is especially clear in that Russian incursions continued well after Georgia had agreed to ceasefire conditions and started withdrawing troops from the original conflict area. Quite reasonably, it seems to me, Russia’s actions have sent a chill through other areas of the former Soviet Union which Russia has long considered its ‘near abroad.’

Finally, it is worth noting that there have been reports of direct attacks on civilians as well as looting and pillaging of civilian property. Both sides have also accused each other of ethnic cleansing, a claim that will be judicially tested before the European Court of Human Rights as well as through Georgia’s claim before the International Court of Justice on the basis of the International Convention for the Elimination of All Forms of Racial Discrimination. And, as Georgia is a party to the International Criminal Court, there is a territorial link to the court’s jurisdiction which may ultimately result in indictments against individuals. Like Iraq in 2003, this conflict represents a blow to the rule of law in international affairs. However, with international insistence on state responsibility and individual criminal accountability the issue does not have to end when the violence in Georgia (ongoing apparently despite pledges to the contrary) does.

Christopher Waters is a professor at the University of Windsor Faculty of Law. He has extensive field experience in the Caucasus region, and is the editor of The State of Law in the South Caucasus (2005).
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