International Center on Conflict and Negotiation (ICCN)

(The States Obligations and the August 2008 Russia-Georgia Confrontation)

By Dr. George Khutsishvili

Director, International Centre on Conflict and Negotiation

Russian leaders qualified their military operation in Georgia in August 2008 as “a reaction to the Georgian aggression against South Ossetia”. What they have never mention is that the same Russia – along with the entire international community - adhered to recognition of territorial integrity of Georgia - including Abkhazia and South Ossetia - in all post-Soviet years; basing on which logic, the Georgian attempt to regain Tskhinvali by force qualifies as a disproportionate use of violence by the state towards its own insurgent province, while “aggression” usually pertains to actions towards a different state. This is said in order to stay just, not to justify violence.

Russia’s reaction to what was happening in South Ossetia on August 7-8, 2008 was qualified internationally as disproportionate. This has mainly acquired the meaning of disproportionate in terms of scale and diversity of damage (occupied territories, human losses and suffering, waves of IDPs, burned villages, destroying of the military and civilian infrastructure, etc.) Within such an interpretation, Russia would be considered to have acted ‘proportionately’ if it stayed within the conflict zone of South Ossetia, and did not move out of it. Yet Russia’s (re)action has also been inadequate in terms of the target of reaction. This is in fact the same ‘purposeful inadequacy’ that is characteristic of terrorist actions. Although theoreticians have thoroughly ruled most state powers out of the definition of terrorism, and made it a prerequisite of ‘subnational groups not sponsored by the state’, we still have clear cases of state-run and/or state-sponsored terrorism in this world. Regarding Russia’s military operation in Georgia, we have a spectacular action with a distinct PR component, aimed at large-scale effect of intimidation rather than acquisition. The target of intimidation was threefold: the Georgian president was punished for being arrogant, the whole Georgian nation was punished for having him a president, and the whole of West was warned about the consequences of integrating Georgia in Euro-Atlantic space, and more generally, the NATO expansion into ‘Russia’s backyard’. Because that exactly was demonstrated through Russia’s actions against the Georgian nation.

And it is also a universal truth that the whole nation cannot be held responsible or subject to punishment for the deeds of the regime. Georgian society was neither informed about, nor did it subscribe to the military strategy that was unfolding on the 7^th and 8^th of August in South Ossetia. Since then civil society and political groups in Georgia have been asking questions, which the Georgian leadership has not answered in a satisfactory manner.

At the same time, judging about responsibilities for the August crisis and its consequences, it is worth remarking that there were clear indications the Russian military machine was preparing for the “spectacular punishment” operation at least since spring of 2008, and only in August they decided they got a substantiation for unfolding it. Georgia was in previous months receiving increasing messages about possible dramatic consequences of its NATO aspirations. The ‘deadline’ was outlined as somewhere before December 2008 (the month of the NATO ministerial that was to consider Georgia’s and Ukraine’s applications for the MAP). The showdown has actually happened much earlier…

On the international scale, the geopolitical consequences of the August crisis revealed increased security [primarily, energy security] concerns of the stakeholders resulting in probing the ideas of alternative oil- and gas-pipeline routes, restructuring the systems of partnerships and (inter-)dependencies, and new quest for leadership roles in the Black and Caspian Sea regions. Regional powers are trying to secure their immediate future vis-à-vis the increasingly assertive Russian factor.

Russia is challenging the classic Quod licet Jovi, non licet bovi (“What is allowed for Jupiter, is not allowed for the bull”.) Russia’s logic has been: If USA interfered in Iraq, changed the regime and took supervision of the country for a considerable time, or if NATO was allowed to bomb Yugoslavia and take charge of Kosovo, so why would anybody be surprised if Russia – a compatible actor on a world scale – acted in a similar way in Georgia? The argumentation is simple: whoever on the world scale decides to sort out things in what he considers as his own backyard, and is strong enough to get away with it, cannot be questioned about that.

At the same time, Russian leaders are always trying to find legal justification to what they are doing, partly from adapted or sometimes manipulated international law principles, and partly from the practices and rules of game of the big-power realpolitik. In a given case, Russian actions against Georgia have allegedly been caused by the responsibility to protect their so-called ‘citizens’ in South Ossetia (the territory internationally acknowledged as part of Georgia), and actually - an artificial Russian ‘diaspora’ created through distributing Russian passports in order to have a basis for interference. Yet there are serious objections in regard to Russia’s reference to international law to justify its actions. First of all, this applies to the Russian interpretation of the new internationally adopted norm of Responsibility to Protect (R2P).

The UN World Summit Outcome Document¹ adopted at the General Assembly High-Level Plenary Meeting in September 2005 defines “Responsibility to protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity”. The states are responsible to take measures to protect their citizens inside their borders, but it does not in any way contain or imply justifications for interference in another state’s affairs or territory.

As has been argued in the 19 August 2008 statement of the Global Centre for the Responsibility to Protect (GCR2P)² , “R2P, as codified in 2005 by the General Assembly, is not a legitimate basis for Russia’s military actions in Georgia”. Three reasons are brought forward to back this conclusion.

1. The primary ground stated for intervention – the protection of Russian citizens abroad – is beyond the scope of the R2P norm. The 2005 Outcome Document does not confer authority on an individual country to take direct military action to protect its nationals located outside its own borders.
2. The scale and intensity of the military operation went beyond the direct protection of the South Ossetian populations allegedly under threat. “Russia’s intervention was tactically and geographically well beyond the scope of what would be needed to protect the physical security of the South-Ossetian populations from mass atrocity crimes”, argues the GCR2P statement.
3. In the absence of UN Security Council approval, there is no legal authority for an R2P-based military intervention. “The Russia-Georgia case highlights the dangers and risks of states, whether individually or in a coalition, interpreting global norms unilaterally and launching military action without Security Council authorization”.

As clarified by Gareth Evans, President of the International Crisis Group and a co-author of the R2P formulation, “It needs to be made clear beyond a doubt that whatever other explanation Russia had for its military action in Georgia, the R2P principle was not among the valid ones.”³

Unlike the question of protection of citizens inside or outside the state borders, which has just been clarified, the question that still needs clarification in international norms is the validity of the reference to anyone in another country who additionally owns your passport, as your citizen, especially if this pertains to persons living in a conflict zone, and especially if your passport was convened to a citizen without consent of the country of which the conflict zone is a part. With such a practice, any country that has a double citizenship law, could enlarge their population and territory by distributing passports abroad and then exercising in interfering in other countries’ territory and annexing it under pretext of protecting their own citizens. The international community needs to develop a clear approach and formulate and adopt relevant norms in regard to these issues.

[Presented at the16^th International Conference on Central Asia and the Caucasus Confrontation in the Caucasus: Roots, Dimensions and Implications organized by the Institute for Political and International Studies in Tehran, Iran, October 28-29, 2008]

¹ See in www.un.org links.

² See in www.globalr2p.org

³ Gareth Evans. “Russia and the ‘Responsibility to Protect’. The Los Angeles Times, 31 August 2008.