C Explanatory memorandum, by Mr Pourgourides
The opinion of the Committee on Legal Affairs and
Human Rights must be based on the assessment of the issues of international
law and of human rights law that are raised by the armed conflict
between Georgia and Russia.Note
2 Issues of international law to be covered include the assessment
of the lawfulness of military action both by Georgian and Russian
forces, and of the diplomatic recognition of the breakaway regions
by the Russian Federation. Issues of human rights law include the
responsibility for different types of human rights violations allegedly
committed in the region by all sides to the conflict.
1.1 Issues of international law
1.1.1 Lawfulness of the assault by Georgian forces on
Any use of military force is prima facie a violation
of the prohibition of the use of force (Charter of the United Nations,
1945, Article 2, paragraph 4). As this prohibition shall safeguard
peace in all circumstances, it also applies to “stable de facto
regimes” (that is, entities that are not recognised internationally
as states but which might fulfil some, though not all attributes
of statehood). The assault on Tskhinvali may also constitute a violation
of the (treaty-based) duty to abstain from use of force under the
Russian-Georgian Agreement of 1992 reaffirmed in 1996.Note
4 Such an assault could be justified as an intervention to “restore
the constitutional order” in the breakaway region. If there was
indeed an unlawful secession, proportionate use of force can be
justified in exceptional circumstances – but only as a last resort.
5 Since 2001, under the protection of the Russian Federation,
separate administrations with state-like institutions (parliament,
government, etc.) were built up both in South Ossetia and in Abkhazia,
with the increasingly clear and explicit intention to break away
from the Republic of Georgia.
6 But Georgian federal intervention in South Ossetia could only
be justified if the attempted secession was indeed unlawful – which
is the case if the territorial integrity of the Republic of Georgia
prevails over the right to self-determination of the inhabitants
of South Ossetia.
7 The territorial integrity of Georgia (including South Ossetia
and Abkhazia) has been recognised by the UN and the international
community after the break-up of the Soviet Union. The recognition
of the two entities as states by the Russian Federation as such
could clearly not justify the secession retroactively, to the time
of the Georgian intervention.
8 The question is whether the South Ossetians had the right
to self-determination, including that to establish their own statehood.
Ossetians are ethnically and culturally distinct from Georgians,
and have historically developed a strong wish for independence rather
than autonomy within the Republic of Georgia. They have put into
place a de facto administration of their own, but it is heavily
dependent on Russian support for security, the economy (income),
infrastructure, and energy.
9 As a general rule, territorial integrity (within internationally
recognised borders) prevails over self-determination (understood
as a right to secession). Self-determination must as a rule be exercised
in the form of autonomy (regional, cultural, etc.) within the territorial
state. Georgian President Saakashvili has proposed such an autonomous
status several times, for the last time the day before the assault
10 The general rule following which territorial integrity prevails
over any right to secession is also the point of view held by the
Russian Federation, with respect, for example, to Chechnya.
11 The states which have recognised the independence of Kosovo
do not consider this as a precedent, but as a special (sui generis) case because of decades
of oppression and the “attempted genocide” by the Milosevic regime
that prompted the intervention by NATO (bombing of Serbian targets)
to save the Kosovans in extremis.
12 The Russian Federation now seems to argue that the recognition
of Kosovo was a violation of international law, but at the same
time a “precedent” for the recognition of South Ossetia and Abkhazia.
But the Russian Federation would appear to be stopped from putting
forward this argument: international law does not allow a state
to rely on an evolving state practice that the same state objected
to at the time – and still does: the Russian Federation is a “persistent
13 An alternative, or supplementary, argument put forward by
the Russian Federation is that the South Ossetians also suffered
attempted genocide, perpetrated by the Georgians.
14 But the facts do not seem to support the genocide allegations
against Georgia: the number of Ossetian (civilian) victims of the
Georgian assault (“thousands” according to early numbers cited by
the Russian authorities relying on “provisional data”) seem to be
much exaggerated; now it appears that most Ossetian victims (whose
number is also much lower now) were combatants. Individual atrocities
such as those described in certain Russian media and submissions
to the Committee of Ministers would be serious crimes in their own right,
but not attempted genocide. In any case, human rights violations
committed by the Georgian forces during the assault in question
cannot “retroactively” give the Ossetians a right to secession before
15 The conclusion must be that there was indeed an unlawful secession
attempt by the de facto authorities in Tskhinvali.
16 But the use of force by Georgia as such might still be illegal
if there was another possibility to stop the unlawful secession
attempt, or if the force used was disproportionate.
17 Over many years, the Georgian authorities have attempted to
reach a negotiated settlement, including a final public offer of
autonomy from President Saakashvili the day before the assault.
These proposals have not been accepted. Whilst the details still
need to be established more clearly, the South Ossetian and Russian authorities
seem to have acted more and more provocatively, including through
the use of (sporadic, but increasing) violence against Georgian
As to proportionality, the issues that need to be further
explored (in particular, in terms of the actual facts) include whether
everything possible was done to protect civilians, especially what
type of weapons were used. The use of cluster bombs (sub-munitions)
would be problematic, especially in inhabited areas.Note
19 A separate issue is whether the Commonwealth of Independent
States (CIS) “peacekeeping troops” stationed in Tskhinvali could
legally be targeted by the Georgian forces, as their presence was
based on the Sochi Agreement of 24 June 1992 and the memoranda of
1994 and 1996. The Georgian assault could nevertheless be justified
if this contingent can be seen as part and parcel of an “invasion
force” from the Russian Federation, against which Georgia would
have acted in legitimate self-defence (see below).
20 The Georgian assault could be justified as “self-defence”
against a Russian attack if Russian forces (that is, ones that were
not covered by the 1992 Agreement) invaded Georgia beforehand.
The factual question of when Russian troops and armour passed
through the Roki Tunnel (before or after the beginning of the Georgian
assault) does not seem to be answered with sufficient certainty.
The “evidence” presented by Georgia (intercepted telephone conversations
between border guards posted at both ends of the tunnel)Note
not appear to be conclusive; it will also be necessary to examine
in more detail the 1992 Agreement to determine to what extent these
alleged troop movements would have been justified under the said
agreement (for example, as routine rotation of troops and equipment).
It is indeed surprising that neither side has been able, so far,
to present satellite imagery in support of their allegations of
massive troop movements of the other side in the period preceding
the outbreak of full-scale hostilities.
22 To sum up, the assessment of the legality of the Georgian
assault against Tskhinvali depends on the clarification of a number
of factual issues.
1.1.2 Legality of the counter-attack by the Russian
23 The legality of the Russian counter-attack depends,
in turn, on the assessment of the Georgian assault on Tskhinvali
(see above). In assessing the validity of the “self-defence” argument,
the following may need to be distinguished: the defence against
the immediate threat to the Russian (CIS) peacekeepers, to South Ossetian
civilians having Russian nationality (passports); and, possibly,
the defence of the de facto regime of Tskhinvali against an attack
24 Defence of peacekeepers threatened by the Georgian assault
on Tskhinvali: to the extent that the peacekeepers’ presence was
justified under the Sochi Agreement – an issue that needs to be
further examined, also taking into account the actual role played
by the peacekeepers during the last months of escalating conflict
– their defence against the assault could justify defensive military
action against the assailants (that is, the Georgian units around
25 But the question of proportionality of the defensive action
arises: was it necessary, from a military point of view, to also
attack Georgian forces outside the area, in order to stop the attack
on the peacekeepers, as “anticipatory self-defence”? The Russian
side argues that the attack against Georgian forces around Gori
was necessary from a military standpoint, and therefore proportionate,
in order to stop artillery attacks emanating from forces stationed
around this town. But subsequent air attacks on targets throughout
Georgia, the occupation of Senaki and Poti, the attack on Georgian
ships in the Black Sea, and the entry of Russian troops in Abkhazia
were almost certainly not necessary to defend the peacekeepers in
Tskhinvali and would therefore seem to constitute a disproportionate
Defence of South Ossetian civilians holding Russian passports:
international law allows granting citizenship to foreigners, but
only if they have a “real and effective” personal, specific link
to the country granting them citizenship.Note
the massive grant of citizenship to nationals of another country
living in that country is likely to constitute an intervention in
the internal affairs of that country, from which a right to intervene militarily
in that country cannot be derived.Note
27 In addition, the issue of proportionality arises here, too:
would it have been necessary for Russian forces to advance well
into “Georgia proper” and to attack Georgian positions and infrastructures
outside the region inhabited by Russian citizens in order to protect
28 Defence of the de facto regime in South Ossetia (“self-defence
by proxy”): whilst the de facto regime is in principle protected
by the general prohibition of the use of force and thus has an “inherent
right to self-defence” (see above), the unlawfulness of the secession
attempt means that the “call for assistance” by South Ossetia’s
Parliament early on 8 August 2008 cannot justify the counter-attack
by the Russian Federation.
1.2 Issues of human rights law
1.2.1 Possible human rights violations by the Russian
29 The Russian Federation is obviously responsible for
any human rights violations committed by its own forces. Intentional
or avoidable killing and wounding of civilians, destruction of property,
expulsions on the basis of ethnicity, and so on, would of course
be violations of the European Convention on Human Rights (ECHR – Articles
2, 3 and 14, in particular), even if committed outside the Russian
Federation, that is, on Georgian/South Ossetian territory, which
is also covered by the Convention.
30 The Russian Federation could also be responsible for human
rights violations committed by South Ossetian militias in the area
controlled de facto by Russian forces (after the expulsion of Georgian
police/security forces by the advancing Russian forces).
Possible legal precedents for the responsibility of the Russian
Federation based on de facto control of the area in question, which
belongs to the territory of the Republic of Georgia under international
law, would be the judgments of the European Court of Human Rights
in the LoizidouNote
(responsibility of Turkey for
human rights violations committed against Cypriots by the authorities
of the “TRNC”, recognised only by Turkey), and IlascuNote
– also – of the Russian Federation for a violation committed by
the separatist authorities of Transnistria) cases.
32 The Strasbourg Court’s language based on an “effective control”
test (a prominent argument being the presence of a high number of
troops) would seem to fit the situation in South Ossetia quite well.
The fact that the Ossetian militias or “volunteers” from the North
Caucasus might have operated behind the advancing Russian troops,
which were merely passing through the area, does not absolve the
Russian forces from their responsibility, as they could be deemed
to be at least grossly negligent, or reckless, in not ensuring the
safety of the civilian population behind their advance.
The responsibility of the Russian Federation for violations
committed behind Russian lines by Ossetian and other militias would
also follow from the 1907 Hague Convention.Note
47 of the annex requires an “occupying power” to actively prevent
looting, to guarantee public order and safety (Article 43) and to
protect the lives of persons and private property (Article 46).
As regards facts, our committee heard, during its meeting
on 30 September 2008, presentations by two representatives of Human
Rights Watch (HRW)Note
have themselves conducted field work in the region during August
and September. They have personally observed looting and burning
of houses of ethnic Georgians, including by Ossetian militias, whilst
Russian forces were standing by in close proximity. They have also
asked several looters and arsonists, who were acting in complete
openness, for the reasons of their actions. The answer they received
was that they wanted to make sure that the Georgian inhabitants
had no houses they could return to! They also confirmed that when,
on 13 August, Russian forces set up checkpoints in the area and
intervened against looters, the looting and arson dropped dramatically.
For unknown reasons, these countermeasures were lifted again some
days after they had been brought in, and the looting and arson resumed.
The HRW researchers indicated that they had personally visited nine
ethnic Georgian enclave villages in South Ossetia,Note
all of which were almost fully burnt
down by the second week of September. They also interviewed displaced
persons from six other Georgian villages,Note
all spoke of a similarly severe level of destruction.
35 The researchers also described cases of unlawful detentions
of Georgian civilians by Ossetian militias. They have reported inhuman
and degrading conditions of detention of Georgian civilians. Some
of the detainees were subjected to ill-treatment and beatings by
Ossetian forces. The HRW researchers also reported that Ossetian
forces tortured several Georgian soldiers and executed at least
36 The HRW representatives also drew attention to the dramatic
security vacuum in the so-called “buffer zone”, where militias and
criminal thugs commit crimes with impunity, as the Russian forces
that still control the zone fail to intervene in order to protect
the civilian population, Georgian police are prevented from accessing
the area by Russian forces, and regrettably, European observers
that have begun to be deployed in the zone have no protection mandate.
Finally, the Russian Federation could also be held responsible
for possible violations committed by Russian peace-keepers, who
worked under the CIS mandate. This could raise an interesting legal
issue under the Strasbourg Court’s Banković judgment,Note
as the Court
might be reluctant to “pierce the international veil” provided by
the CIS mandate.Note
1.2.2 Possible human rights violations by Georgia
38 It is clear that Georgia is responsible, under the
Convention, for any avoidable killings of civilians, destruction
of property, and so on, by Georgian forces. The competent Georgian
authorities are obliged to fully investigate any serious alleged
human rights violations and prosecute the perpetrators regardless
of their rank.
39 The above-mentioned HRW researchers have also made findings
of human rights violations committed by Georgian forces, in particular
during the initial phase of their assault on Tskhinvali. They found
evidence of the use, by Georgian forces, of “Grad” multiple rocket
launchers in residential areas, as well as of tanks firing into
buildings, including their basements, where civilians were seeking
shelter. Whilst some of the buildings in question were also used
by Ossetian fighters shooting at the Georgian forces, the use of
such heavy weapons against buildings where civilians were still
holding out appears disproportionate. HRW also documented civilian casualties
as a result of Russia’s use of “clusters” in the towns of Gori and
Ruisi. Georgia acknowledged using “clusters” against Russian military
targets near the Roki Tunnel, but HRW has not documented to date
any civilian casualties as a result of this. Both researchers found
that the allegations of “genocide” raised by some Russian politicians
and media were unsubstantiated. Indeed, in the view of the rapporteur,
the violations described above are serious crimes in their own right,
and need to be treated as such. They do not come anywhere near the
threshold of an organised attempt to destroy the South Ossetian
40 As regards the treatment of Russian and South Ossetian prisoners
by Georgian forces, the researchers were able to establish some
cases of ill-treatment of such prisoners during their transport,
but not in their places of detention.
41 Some conclusions can be drawn regardless of the determination
of questions of fact that are still disputed between the parties.
42 These include the statement in the report of the Monitoring
Committee that both Georgia and the Russian Federation have violated
international law in so far as their military action was disproportionate
as regards the extent of the action in geographical terms and its
intensity, notably in terms of “collateral damage” caused.
43 It is also clear that the Russian Federation has violated,
and continues to violate, the territorial integrity of the Republic
of Georgia by its recognition of the de facto regimes in South Ossetia
and Abkhazia. This continuing violation must be ended by the immediate
withdrawal, by Russia, of the recognitions of independence and terminating
“bilateral” agreements with the said regimes, including those on
the stationing of Russian troops in these regions. It goes without
saying that all other member states of the Council of Europe have
the duty to refrain from any measures putting into question the
territorial integrity of Georgia.
44 The Russian Federation also bears responsibility for human
rights violations, including acts of ethnic cleansing, committed
by the de facto regime in Tskhinvali against ethnic Georgian inhabitants.
Having de facto control over the region in question, the Russian
Federation has the responsibility to re-establish public safety throughout
South Ossetia for the benefit of all inhabitants and for creating
conditions for the safe return of those inhabitants who were forced
to flee from their homes.
45 The dramatic situation of the remaining ethnic Georgians in
South Ossetia urgently requires the presence of international monitors,
as also proposed by the Monitoring Committee, which must be allowed
to move freely and securely throughout the two regions.
46 Both the Russian Federation and Georgia have the duty, under
the Convention, to fully investigate and prosecute violations of
human rights committed by their forces or those for whose actions
they are responsible, due to their control over the region in question.
They must hold to account perpetrators and compensate victims of
such violations without regard to their rank or ethnic origin.
47 In order to allow for the objective settlement of all outstanding
questions of fact, both sides of the conflict should fully co-operate
with the international committee of enquiry that shall be established
for this purpose without delay, as proposed by the Monitoring Committee.
In order to allow for the objective, binding settlement of
all outstanding questions of international law, Georgia and the
Russian Federation should accept the jurisdiction of the International
Court of Justice (ICJ), at least in as far as their dispute with
respect to South Ossetia and Abkhazia is concerned; Russia has not
done so yet. Meanwhile, both parties must co-operate with the ICJ
in the proceedings brought by Georgia under the 1965 UN Convention
on the Elimination of All Forms of Racial Discrimination.Note
As Georgia is a State Party to the 1998 Statute of Rome, all
allegations of war crimes and other crimes against humanity committed
on its territory fall within the jurisdiction of the International
Criminal Court (ICC),Note
those allegedly committed by members of the Russian armed forces.
Both sides of the conflict should fully co-operate with the ICC
in order to ensure that there may be no impunity for such crimes.
Both sides should also fully co-operate with the European
Court of Human Rights, which has addressed interim measures based
on Rule 39 of its Rules of Procedure to both sides of the conflict
following a request recently made by Georgia.Note
The co-operation, by both sides, should also continue to extend
to the Council of Europe Commissioner for Human Rights, who has
played an active and positive role, in particular in offering his
good offices for humanitarian purposes.Note
The Secretary General of the Council of Europe should be encouraged
to avail himself of his powers under Article 52 of the European
Convention on Human Rights, in particular, for the purpose of asking
the Russian authorities to provide information on how the rights
guaranteed by the Convention in zones under their de facto jurisdiction
are effectively secured and the Georgian authorities to provide
explanations as to how it was deemed necessary to declare a state
of war without it being necessary to make a derogation under Article 15
of the Convention.NoteNoteNoteNoteNoteNote
53 In view of the extreme seriousness of the situation involving
two member states of the Council of Europe in an armed conflict,
which has been the cause of numerous and very serious human rights
violations, the credibility of the Organisation as a whole requires
a strong reaction from the Parliamentary Assembly, which cannot
go on with “business as usual”.
54 As a minimum, the Assembly should resolve to reinforce its
own monitoring procedures vis-à-vis the two countries and to encourage
the Committee of Ministers to take similar measures, as is proposed
by the Monitoring Committee.
In addition, the Assembly should take a decision now to suspend
the voting rights of both the Russian and the Georgian delegations
at the next part-session in January 2009, unless each country fulfils
the following conditions beforehand:
- in the case of Georgia, the full implementation of the
ceasefire agreement, including the withdrawal of all troops to their
positions ex ante and full
access of EU and OSCE monitors throughout the region, full co-operation
with the future international committee of enquiry, with the European
Court of Human Rights, the International Court of Justice, and the
International Criminal Court;
- in the case of the Russian Federation, in addition to
all of the above, the withdrawal of the recognition of the de facto
regimes in South Ossetia and Abkhazia.
Reporting committee: Committee
on the Honouring of Obligations and Commitments by Member States
of the Council of Europe (Monitoring Committee).
Committee for opinion: Committee
on Legal Affairs and Human Rights.
Reference to committee: Reference No. 3489 of 29 September
2008 (urgent debate).
Opinion approved by the committee on 1 October 2008.
1633 and Recommendation
1846 (35th Sitting, 2 October 2008).