The Independent Fact-Finding Mission on the Conflict in Georgia, established by a decision of the Council of the European Union on December 2, 2008, has issued its final report concluding that the 2008 conflict between Russia and Georgia was in violation of international humanitarian and human rights law. The report, which is meant to “[i]nvestigate the origins and the course of the conflict in Georgia,” gives a brief but telling overview of the internal and international elements that led to the shelling of the South Ossetian capital Tskhinvali by Georgian armed forces during the night of August 7 –8, 2008, and concludes that all parties involved had failed to fulfill their international obligations in the aftermath of the attack.
The report analyzes military actions by Russia and Georgia separately. It begins by considering whether Georgia's initial shelling of Tskhinvali was in accordance with international law. The report concludes that the attack was not justifiable under international law, even if Georgia's claim of Russia's imminent attack was correct, because an “armed response would have to be both necessary and proportional.” The report then explains that since the initial attack against South Ossetian forces was illegal under international law, the subsequent counterattack against Georgian forces “did conform to international law in terms of legitimate self-defence.” But, applying the same principle of necessity and proportionality, the report adds that “any operations of South Ossetian forces outside of the purpose of repelling the Georgian armed attack, in particular acts perpetrated against ethnic Georgians inside and outside South Ossetia, must be considered as having violated International Humanitarian Law and in many cases also Human Rights Law.” The report indicates that the lack of “an ongoing armed attack by Russia before the start of the Georgian operation” meant that Georgia's initial attack —using force against Russian peacekeeping forces on Georgian territory—was not justified.
In considering Russia's military actions, the report uses a different analysis. It notes that Russia's “immediate reaction in order to defend Russian peacekeepers” was legal so long as it was proportionate. However, with respect to Russia's subsequent “military campaign deeper into Georgia,” the report concludes “that much of the Russian military action went far beyond the reasonable limits of defence.”
It follows . . . that insofar as such extended Russian military action reaching out into Georgia was conducted in violation of international law, Georgian military forces were acting in legitimate self-defence under Article 51 of the UN Charter. In a matter of a very few days, the pattern of legitimate and illegitimate military action had thus turned around between the two main actors Georgia and Russia.
The remainder of the report deals with the questions of whether the use of force by Russia was justified as a “humanitarian intervention” and whether Russia was obligated to use military action to protect its citizens living in South Ossetia. (The report concludes that neither justification could be recognized.)
The report also briefly discusses allegations of genocide and ethnic cleansing. With respect to claims of genocide, the report states that “allegations of genocide committed by the Georgian side in the context of the August 2008 conflict and its aftermath are neither founded in law nor substantiated by factual evidence.” As to the allegations of ethnic cleansing by South Ossetian forces or irregular armed groups, the report concludes that “several elements suggest the conclusion that ethnic cleansing was indeed practised against ethnic Georgians in South Ossetia both during and after the August 2008 conflict.”
For more on the Mission's report, please refer to the above document.
Source: American Association of International Law
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