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The war between Georgia and Russia: one year after

Report | Doc. 12010 | 14 September 2009

Committee
Committee on the Honouring of Obligations and Commitments by Member States of the Council of Europe (Monitoring Committee)
Co-rapporteur :
Mr Luc Van den BRANDE, Belgium
Co-rapporteur :
Mr Mátyás EÖRSI, Hungary
Origin
Reference to committee: Resolution 1115 (1997), Resolution 1647 (2009) and Reference No. 3575 of 29 May 2009. 2009 - Fourth part-session
Thesaurus

Summary

The Monitoring Committee deplores the fact that, one year after the tragic outbreak of the war between Georgia and Russia, little tangible progress has been achieved in addressing the consequences of this war, and that, in several areas, the situation has actually regressed. While Georgia has complied with most, albeit not all, demands of the Assembly, Russia has not complied with most of the key demands placed upon it. Having taken note of Russia’s argument that its non-compliance with the demands of the Assembly is the result of its diverging position with regard to the status of the two break-away regions (South Ossetia and Abkhazia), the Committee argues, for its part, that most demands have no relation to the status issue and therefore can not understand that Russia failed to comply even with them. It therefore considers that Russia’s non-compliance with the Assembly demands underscores its lack of political will to address the consequences of the war in a manner incumbent on a member state of the Council of Europe.

The report concludes by strongly urging the Russian authorities, before the end of the year, to give unrestricted access to European Union monitors to both South Ossetia and Abkhazia, grant freedom of movement to Georgian civilians over the administrative boundaries of the two breakaway regions, recognise the right of return of Internally displaced persons (IDPs) from this conflict and to initiate credible investigations into alleged acts of ethnic cleansing.

A Draft resolution

1. One year after the outbreak of the tragic war between two of its member states, Georgia and Russia, the Parliamentary Assembly reaffirms its Resolutions 1633 (2008) and 1647 (2009), adopted on 2 October 2008 and 28 January 2009 respectively. It considers that the demands on both countries, as well as the de facto authorities in Abkhazia and South Ossetia, continue to constitute a transparent, impartial and realistic roadmap to address the consequences of this war, not only for the parties concerned but also for the Assembly itself. The Assembly reaffirms its attachment to the territorial integrity and sovereignty of Georgia, as well as the inviolability of its borders.
2. With regard to the independent international inquiry into the origins and course of the conflict that was established by the European Union, the Assembly notes that the mandate of the fact-finding mission has been extended by the European Council until 30 September 2009. The Assembly welcomes the reported constructive co-operation of both Georgia and Russia with this mission and resolves to return to the issue of the causes and precise circumstances surrounding the outbreak of the war once the international fact-finding mission has presented its report.
3. The Assembly is seriously concerned by the continuing tension and provocations along the administrative boundaries of South Ossetia and Abkhazia which can only but destabilise the region as a whole. It considers that the sole guarantee that such tensions will not escalate into renewed fighting and hostilities is the immediate unrestricted access of international monitors to both sides of the administrative boundaries of South Ossetia and Abkhazia, as well as the deployment of a new impartial international peacekeeping force in the region. In this respect the Assembly:
3.1 deplores the continued refusal of Russia and the de facto authorities to allow European Union monitors access to Abkhazia and South Ossetia and calls upon them to give the monitors immediate and unconditional access to the territories under their de facto control;
3.2 deplores the closure of the United Nations Observation Mission in Georgia (UNOMIG) as a result of the veto by Russia in the United Nations Security Council;
3.3 deeply regrets that the proposal presented by the Greek chairmanship of the Organisation for Security and Co-operation in Europe (OSCE) for a continued OSCE presence, including a military monitoring component, did not achieve consensus and calls upon Russia to reconsider its objections to this proposal.
4. The Assembly notes the modest progress made in the first working group, within the framework of the Geneva discussions, dealing with the modalities of security and stability in Abkhazia and South Ossetia. It especially welcomes the regular meetings held between the sides concerned within the incident prevention mechanisms, but regrets that similar progress has not been achieved in the second working group, dealing with humanitarian issues and freedom of movement.
5. The Assembly is seriously concerned that further closure of the administrative boundaries of Abkhazia and South Ossetia, as a result of the transfer of the control of the administrative boundary to Russian FSB border guards, will lead to a further exodus of ethnic Georgians from the Gali district in Abkhazia and the Akhalgori district in South Ossetia. The Assembly is especially concerned about the increased pressure placed on them to accept Abkhazian or South Ossetian passports and the current total absence of an international presence in these regions. The Assembly therefore calls upon Russia and the de facto authorities of South Ossetia and Abkhazia to remove any impediments to the freedom of movement of Georgian citizens across the administrative boundary lines.
6. The Assembly continues to be deeply concerned about the humanitarian consequences of this war and therefore:
6.1 reaffirms its positions taken in Resolutions 1648 (2009) and 1664 (2009) on this issue;
6.2 calls upon all parties to implement fully and effectively the Council of Europe Commissioner for Human Rights’ six principles for urgent protection of human rights and humanitarian security, and especially Russia and the de facto authorities of South Ossetia and Abkhazia to fully and unconditionally ensure the right of return of Internally displaced persons (IDPs) as result of the August 2008 hostilities.
7. The Assembly deeply regrets that excessive restrictions continue to be placed on the access of international and humanitarian organisations, including for humanitarian aid, to the break-away regions of South Ossetia and Abkhazia. In this respect, it:
7.1 welcomes the readiness expressed by the Georgian authorities to address the concerns set out in the recent European Commission for Democracy through Law (Venice Commission) opinion on the “Law on the occupied territories of Georgia” and takes note of the amendments that were initiated in the Georgian parliament and sent to Venice Commission for opinion;
7.2 takes note of Russia’s efforts to provide humanitarian aid to Abkhazia and South Ossetia and calls on Russia and the de facto authorities of Abkhazia and South Ossetia to immediately remove all restrictions on the access, including with regard to the point of entry, of international and humanitarian organisations and humanitarian aid to the two regions.
8. The Assembly cannot accept the apparent reluctance of both Georgia and Russia to investigate in a credible manner serious allegations of violations of human rights and humanitarian law committed in the course of the war, as well as in its aftermath, by their own forces, or militia and civilians under their de facto control and jurisdiction. It notes that the European Union inquiry will also cover allegations of violations of human rights and humanitarian law, as well as possible war crimes, committed by either side in the course of the war. It therefore:
8.1 resolves to return to this issue, including the possible consequences for the two member states concerned, in the light of the conclusions of the European Union inquiry mission;
8.2 encourages the Prosecutor of the International Criminal Court to request the Pre-Trial Chamber of the Court formally to open an investigation into possible war crimes and crimes against humanity committed by either side in the course and aftermath of the August 2008 hostilities.
9. The Assembly condemns Russia and the de facto authorities of South Ossetia for not having brought resolutely to a halt and seriously investigated the ethnic cleansing of ethnic Georgians that by all accounts took place in South Ossetia during and after the war and for not having brought the perpetrators to justice. It recalls that, under international law, Russia bears responsibility for violations of human rights and humanitarian law in those areas that fall under its de facto control.
10. The Assembly deplores the fact that, one year after the August 2008 hostilities, little tangible progress has been achieved in addressing the consequences of this war, and that, in several areas, the situation has actually regressed. While Georgia has complied with most, albeit not all, demands of the Assembly expressed in Assembly Resolutions 1633 (2008) and 1647 (2009), Russia has not complied with most of the key demands placed upon it in these resolutions.
11. The Assembly is fully aware of Russia’s argument that its non-compliance with the Assembly demands is the result of its diverging position with regard to the status of the two regions. The Assembly underscores that most of its demands have no relation to the status of the two regions and therefore can not understand that Russia failed to comply even with these demands. It therefore considers that Russia’s non-compliance with its demands underscores its lack of political will to address the consequences of the war in a manner incumbent on a member state of the Council of Europe. In addition, the Assembly deeply regrets that the leadership of both the State Duma and the Council of the Federation, as well as the members of the Russian delegation to the Assembly have publicly opposed the demands of the Assembly and dismissed the possibility for Russian compliance with them.
12. The Assembly therefore strongly urges the Russian authorities, before the end of this year, to:
12.1 give unrestricted access to European Union monitors to both South Ossetia and Abkhazia;
12.2 grant freedom of movement for Georgian civilians across the administrative boundary lines and lift restrictions, including with regard to the point of entry, of international and humanitarian organisations and humanitarian aid to the two regions;
12.3 recognise formally and effectively the right of return of all IDPs from the 2008 hostilities to their original place of residence in South Ossetia and Abkhazia;
12.4 initiate a credible investigation into acts of alleged ethnic cleansing committed by the South Ossetian forces allied to it, or by civilians under its de facto jurisdiction and control.
13. The Assembly invites its Monitoring Committee to monitor the follow up given by Georgia and Russia to Assembly demands and to propose any further action to be taken by the Assembly as required by the situation, in particular with regard to compliance with paragraph 12 of this resolution.

B Explanatory memorandum by Mr Van den Brande and Mr Eörsi, co-rapporteurs

1 Introduction

1. This summer marked the first anniversary of the outbreak of the tragic war between Georgia and Russia, two member states of the Council of Europe. The consequences of this war, in legal, political and humanitarian terms, have been a main point of focus for the work of the Parliamentary Assembly over the last year.Note
2. The basis for the Assembly’s position with regard to the consequences of the war between Georgia and Russia is Resolution 1633 (2008), adopted in October 2008. In this Resolution, the Assembly strongly condemned the outbreak of the war between Georgia and Russia and considered that, during the war and its immediate aftermath, both countries had violated human rights and principles of humanitarian law, as well as the Statute of the Council of Europe and specific accession commitments. The Assembly therefore formulated a series of concrete demands to both Georgia and Russia, as well as the de facto authorities in South Ossetia and Abkhazia, which together provide a transparent, impartial and concrete roadmap to address the consequences of the war. In addition to demanding that Russia withdraw its recognition of independence of the two break-away regions of Abkhazia and South Ossetia and to fully respect the sovereignty and territorial integrity of Georgia, as well as the inviolability of its internationally recognised borders, the Assembly demanded that both Georgian and Russian authorities:
  • implement fully and unconditionally the ceasefire agreement of 12 August 2008, in particular the obligation for Russia to withdraw its troops to their positions ex ante the war;
  • co-operate fully in the establishment of an independent international investigation into the precise circumstances surrounding the outbreak of the war;
  • co-operate fully with all international monitoring missions - especially those from the Organisation for Security and Co-operation in Europe (OSCE) and the European Union - and allow these monitors unrestricted access to South Ossetia and Abkhazia;
  • bring an immediate halt to, and investigate all reports of, human rights abuses and acts of ethnic cleansing in the two break-away territories and the so-called “buffer zone”;
  • investigate any alleged violations of humanitarian law and the laws on the conduct of war that occurred during the war and bring the perpetrators to justice;
  • ensure the right of return of all Internally displaced persons (IDPs) as a result of this conflict and implement the six principles outlined by the Human Rights Commissioner of the Council of Europe;
  • work towards the creation of a new peacekeeping format and internationalise the peace keeping force.
3. These principles and demands were fully reconfirmed in Resolution 1647 (2009), adopted in January 2009. In addition, concerned about the implications of the closure of the OSCE Mission in Georgia as a result of Russian objections over its mandate, the Assembly called in this resolution on all parties, and particularly on the Russian authorities, to accept a formula for a mandate of the OSCE mission in Georgia, including its military monitoring mission, that would not prejudice the status of the two break-away regions, and to refrain from any actions that would endanger the renewal of the mandate of the United Nations Observer Mission in Georgia (UNOMIG).
4. Moreover, in Resolution 1647 (2009), the Assembly considered it to be unacceptable that persons residing in the two break-away regions would not be protected by the human rights protection mechanisms granted to them as citizens of a Council of Europe member state, and that thus a human rights protection black hole would exist within the Council of Europe area. The Assembly therefore invited the Secretary General of the Council of Europe to develop a comprehensive action plan to ensure that the rights guaranteed under the European Convention on Human Rights are effectively secured for persons residing in South Ossetia and Abkhazia. This could include the establishment of a field presence in the two break-away regions, as demanded by the Assembly in Resolution 1633 (2008), including an ombudsperson who could examine individual applications in cases of human rights violations.
5. At the same time, the Assembly, in Resolution 1647 (2009), reconfirmed its conviction that the establishment of a genuine dialogue would be the only way forward for the resolution of the conflict and to secure long term stability in the region, provided that minimum conditions for a meaningful dialogue, as outlined in the Assembly resolutions, would be met. The Assembly therefore asked the Bureau of the Assembly to set up a special ad hoc Committee to establish a dialogue between the Georgian and Russian delegations to the Assembly, in which possibly representatives of the Abkhaz and South Ossetian communities, both those that favour independence and those that favour integration with Georgia, would be able to participate, subject to a consensus about the format and modalities for their participation.
6. In this report, we will take stock of the developments over the last year with regard to the consequences of the war, as well as the compliance of both Georgia and Russia with the demands of the Assembly as we have outlined above.

2 Implementation of the ceasefire agreement and security situation

7. The 12 August 2008 ceasefire agreement contains 6 points:
  • non-use of force;
  • definitive cessation of hostilities;
  • access for humanitarian aid;
  • withdrawal of Georgian military forces to their usual bases;
  • withdrawal of Russian military forces to the lines they held before the hostilities broke out. While waiting for an international body, the Russian peacekeeping forces will implement additional security measures;
  • opening of international discussions on the modalities of security and stability in Abkhazia and South Ossetia.
8. A key requirement of the 12 August 2008 ceasefire agreement is the withdrawal of Georgian military forces to “their usual bases” and of Russian military forces to “the lines they held before the hostilities broke out”.
9. The Georgian compliance with this requirement is being monitored by international monitors who have concluded that the presence of Georgian forces along the administrative boundary line is in compliance with the 12 August ceasefire agreement.
10. However, Russia continues not to comply with the ceasefire agreement in this respect as a result of its assertion that, with its recognition of the independence of South Ossetia and Abkhazia, the deployment of its troops in these two regions is no longer governed by the ceasefire agreement, but by bilateral agreements with the de facto authorities of these regions. However, we take note that Russia also maintains military troops in Perevi, which is outside the administrative boundaries of South Ossetia.
11. In our previous report,Note we described the ongoing militarisation of the two break-away regions by Russia. Concerned about the deteriorating effect of this militarisation on the overall security situation along the administrative boundary lines (ABL) as well as in the region in general, and taking into account the fact that this militarisation takes place in clear violation of the ceasefire agreement, we firmly asked for its immediate reversal by Russia.
12. On 5 August 2009, Russia’s Deputy Foreign Minister, Grigori Karasin, announced that by the end of the year Russia would deploy 1700 military troops in each of the break-away regions (Abkhazia and South Ossetia). This is considerably less than the 3.700 troops originally foreseen to be deployed in each of the break-away regions. However, this number does not take into account the considerable number of FSB troops deployed in each of the two regions to guard its administrative boundaries.
13. Despite the concerns of the international community in this respect, Prime Minister Putin, during his visit to Abkhazia on 13 August 2009, announced that Russia would spend US$ 500 000 000 in 2010 to reinforce its military bases in Abkhazia. In addition, Russia is examining the possibility of establishing a major navy base at Ochamchire in Abkhazia as a possible alternative home base for its Black Sea Fleet, once the lease on its current Sebastopol base in Ukraine runs out in 2017.
14. NATO organised military exercises in Georgia, from 6 May to 1 June 2009, which were strongly condemned by Moscow. Similarly, Russia organised large scale military exercises, called Kavkaz 2009, in July 2009 along the bolder with Georgia in which troops from Abkhazia and South Ossetia participated. These exercises were strongly condemned by the West, which felt they were reminiscent of the military exercises that preceded the August 2008 war.
15. The situation along the ABL remains calm but tense, with provocations and incidents regularly being reported. The situation was especially tense in the period running up to the first anniversary of the war. Both the Georgian authorities and the de facto authorities in South Ossetia accused each other of opening fire with small arms and rocket propelled grenade launchers over the administrative border. The European Union Monitoring Mission (EUMM) announced that its monitoring patrols did not see any evidence that would substantiate that any shots were fired from the southern side of the ABL, and stressed the importance of it having access to both sides of the ABL to investigate all reported incidents.
16. In response to the increased tension along the ABL in the run up to the first anniversary of the war, on 4 August 2009, Russia placed its troops in South Ossetia on high alert, and both the Russian and Georgian authorities accused each other of attempting to provoke a new war in the region.
17. The continuing tensions along the ABL, as well as the fact that both Russia and Georgia accuse each other of preparing themselves for renewed warfare in the region in our opinion underscores the continuing need for international monitors with full and unrestricted access to both sides of the ABL, as well as the establishment of a new impartial international peacekeeping force, as demanded by the Assembly in Resolutions 1633 (2008) and 1647 (2009).
18. The opening of international discussions on the modalities of security and stability in Abkhazia and South Ossetia is the sixth point of the 12 August ceasefire agreement. During the Sarkozy-Medvedev meeting on 8 September 2008, it was agreed that these talks would start on 15 October 2008 in Geneva. Since then six rounds of talks have taken place, the last one – at the time of writing – took place on 1 July 2009. It was agreed that the talks would take place in two working groups, one on the security situation and the other on humanitarian issues and freedom of movement. While the first working group has reached modest results, most notably with regard to the establishment of incident prevention mechanisms with respect of South Ossetia and Abkhazia, the second working group on humanitarian issues has yet to achieve any tangible results. The talks in the first working group are currently focusing on a possible agreement on the non-use of force while the second working group agreed to “move towards a comprehensive plan to address the multi-faceted displacement issues”. The next round of talks is foreseen for 18 September 2009.
19. More specifically, a number of meetings took place in the framework of the incident prevention mechanisms that were agreed upon in the February 2009 Geneva talks, despite ongoing difficulties and disagreements regarding their modalities.
20. The first meeting between the Georgian and South Ossetian/Russian sides, in the presence of representatives of the European Union and OSCE monitoring missions, took place on 23 April 2009. During this meeting, a 24-hour hotline between the two sides was established in line with the agreements reached in Geneva. The second meeting in this framework took place on 29 May 2009 in Dvani, after it had been postponed as a result of a disagreement over its venue. The third meeting took place on 14 August 2009 in Dvani where a number of shooting incidents, as well as alleged detentions and hostage takings by the different sides, were discussed. The meeting was described as constructive and having taken place in a very positive atmosphere by the Head of the EUMM that facilitated the meeting. It was agreed that the next meeting would take place on 3 September in the village of Ergneti on the ABL.
21. The first meeting between the Georgian and Abkhaz/Russian representatives in the framework of the incident prevention mechanisms was organised on 14 July 2009, in Gali, in the presence of representatives of the EUMM and United Nations, in line with an agreement reached at the 6th Geneva talks earlier that month. Follow-up meetings in this framework took place in a reportedly equally constructive atmosphere on 28 July and 11 August 2009. A fourth meeting is scheduled for 8 September 2009, again in Gali.
22. We welcome these meetings in the framework of the incident prevention mechanisms as they are crucial in reducing tensions and avoiding incidents or outbreaks of violence. In addition, we note with satisfaction that the hotline established between the Georgian and South Ossetian/Russian sides is reportedly working well and has been used to secure the release of several persons detained by one side or the other. We hope and expect that all parties will take all measures to ensure that the hotline will continue to operate as intended.

3 International monitoring missions

23. In Resolutions 1633 (2008) and 1647 (2009), the Assembly demanded that Russia, Georgia and the de facto authorities in South Ossetia co-operate with all international monitoring missions, specifically those of the UN, OSCE and the European Union, and explicitly insisted that those observer missions should be given full and unconditional access to the areas under the control of Russia and the de facto authorities. In addition, in the Medvedev-Sarkozy agreement of 8 September 2008, Russia agreed to allow UN observers to remain in Abkhazia and to allow OSCE monitors access to all of their previous areas of deployment, including in South Ossetia.
24. While Georgia has given full co-operation to the international monitoring missions and has allowed them unrestricted access to all areas under its control, Russia and the South Ossetian de facto authorities have refused, and continue to refuse, access of the European Union and OSCE monitors to South Ossetia. Similarly, while Russia and the de facto authorities of Abkhazia originally continued to allow access of UN monitors, access of European Union monitors to the areas under their control was, and is still, refused.
25. On 22 December 2008, Russia blocked the extension of the mandate of the OSCE Mission in Georgia, as a result of which the mission started to close down. However, on 12 February 2009, the OSCE Permanent Council extended the mandate of the OSCE Military Observers until 30 June 2009, although this did not affect the mandate of the OSCE Mission itself. Convinced about the importance of a continued OSCE Presence in the region, including a military monitoring component, the Greek Chairmanship of the OSCE continued to search for a status-neutral formula for an OSCE presence that would be acceptable to all sides. On 8 May 2009, the Greek Chairmanship presented a proposal to the Permanent Council that foresaw the establishment of an “OSCE Office in Tbilisi” that, in relation to the conflict, would be responsible for implementing humanitarian projects, including those identified in the second working group of the Geneva talks, as well as for facilitating the exchange of information with the OSCE co-chair of the Geneva talks. In addition, the proposal of the Greek chairmanship included the deployment of “OSCE Monitors in the framework of the implementation of the six-point agreement of 12 August 2008”. These monitors would be based in both Karaleti and Tskhinvali, and report directly to the Director of the Conflict Prevention Centre of the OSCE based in Vienna. Regrettably, on 14 May 2009, the Greek Chairman-in-Office announced that it suspended the negotiations for a continued OSCE presence in Georgia until further notice, as a result of the lack of consensus on the proposal. In an official statement, the European Union expressed its regret over the suspension of the negotiations and called on Russia in particular to “show the necessary political will and urgently reconsider their position in a constructive spirit”. In the meanwhile, the proposal of the Greek Chairmanship of the OSCE remains formally on the table.
26. On 15 February 2009, the UN Security Council adopted Resolution 1866 (2009) in which it extended the Mandate of the United Nations Observer Mission in Georgia (UNOMIG), based in Abkhazia, until 15 June 2009. Regrettably, on 15 June 2009, Russia used its veto in the Security Council to block an extension of the mandate of UNOMIG, effectively closing down the observer mission that has been present in Abkhazia since 1993. In a joint statement with Ms Corien Jonker, rapporteur of the Assembly for the humanitarian consequences of the war, we expressed our strong concern about the departure of the UN from Abkhazia as a result of this veto and especially our fears that, as a result, Abkhazia could sink into a human rights black hole, which could lead to an exodus of ethnic Georgians from the Gali region.
27. As a result of Russia’s refusal to renew the mandates of the OSCE and UN missions in Georgia, the European Union Monitoring Mission is currently the only international organisation that is monitoring the implementation of the 12 August ceasefire agreement, albeit without access to the two break-away regions. We strongly condemn the refusal of Russia to allow the extension of the mandates of the two OSCE and UN missions, as well as its refusal to allow access of European Union monitors, which does nothing to reduce the tensions and negatively affects the stability in the region and the security of all its inhabitants.

4 Respect for the territorial integrity of Georgia

28. In Resolution 1633 (2008), the Assembly condemned the recognition by Russia of the independence of South Ossetia and Abkhazia and called upon Russia “to withdraw its recognition of the independence of South Ossetia and Abkhazia and respect fully the sovereignty and territorial integrity of Georgia, as well as the inviolability of its frontiers”. The Assembly confirmed this position in its Resolution 1647 (2009).
29. The Russian authorities, including members of both chambers of the Russian parliament, have made it clear on several occasions that Russia will not withdraw its recognition of the independence of South Ossetia and Abkhazia, and have called upon other states and the international community to recognise the new geopolitical reality in the region and to accept the independent status of these two regions.
30. In line with this position, Russia, on 17 September 2008, signed, far-reaching “friendship and co-operation” treaties with South Ossetia and Abkhazia, which were unanimously ratified by the State Duma and the Council of the Federation on 29 October and 11 November 2008 respectively. Under these treaties, Russia pledged to help the two break-away regions to protect their borders and assumed responsibility for their control. The signatories granted each other the right to set up military bases on their respective territories. The treaties also formalised economic co-operation between Russia and the two break-away regions, and allowed dual citizenship for Russian, Abkhaz and South Ossetian residents.
31. On 30 April 2009, the de facto authorities of South Ossetia and Abkhazia signed border control treaties with Russia that give Russia the full control over the borders of these two break-away regions. As a result of these treaties, FSB border guards have been deployed in recent months to guard the administrative boundaries of these two regions. Their deployment has reportedly made the crossing of the ABL by civilians increasingly more difficult. On 3 August 2009, the Georgian authorities issued a statement in which they allege that the Russian border troops were trying to shift the ABL southwards. This is a cause of concern.
32. In a move clearly related to the first anniversary of the war, President Medvedev visited Tskhinvali on 13 July 2009 and Prime Minister Putin visited Abkhazia on 13 August 2009. On both occasions, the European Union issued an official statement in which it considered these visits “incompatible with the principle of territorial integrity of Georgia nor helpful for the international efforts to stabilise the region”.
33. We are extremely concerned by a recent statement to RIA Novosti of the de facto South Ossetian leader, Eduard Kokoity, that South Ossetia would have territorial claims beyond the ABL and that “today it is necessary to raise the issue of returning these lands to Ossetia”. Such provocative statements only raise tensions further and undermine the stability of this already volatile region. They should be condemned in the strongest terms.

5 Investigation into the precise circumstances surrounding the outbreak of the war, as well as into alleged violations of human rights and international law in the course of the war and its aftermath

34. Clarity about the precise circumstances that led to the outbreak of the war, as well as the exact sequence of events in August 2008 is an essential prerequisite to start any process of reconciliation. This is especially true in the context of the continuing controversy over the start of the war and the diametrically opposed views on, as well as complete negation of any share of responsibility for, these events by both Russia and Georgia. A key tenet of Assembly Resolution 1633 (2008) was therefore that an independent, impartial international investigation into the precise circumstances that led to the August 2008 war between Georgia and Russia should be established.
35. In a fact that was welcomed by the Assembly, on 2 December 2008, the European Union established an independent fact-finding mission on the conflict in Georgia to investigate the origins and course of the conflict, including with regard to international lawNote and human rights and the accusations made in that context.Note This mission, which is headed by the Swiss diplomat, Ms Heidi Tagliavini,Note has a sufficiently broad geographical and temporal mandate to investigate all possible causes of the conflict. Both Georgia and Russia expressed their full support for, and willingness to co-operate with, the European Union fact-finding mission as called upon by the Assembly.
36. The Union’s fact-finding mission was originally due to have presented its report to the parties in the conflict, the Council of the European Union, the OSCE and the United Nations by 31 July 2009. However, on 27 July 2009, the Council of the European Union decided to extend the mandate of the fact-finding mission for two more months, reportedly to allow the mission more time to evaluate new material it obtained at a late stage in its inquiry. In line with paragraph 2.5 of Resolution 1647 (2009), we will only return to the circumstances of the war, as well as the issue of the co-operation of both countries with the independent international investigation, when the European Union fact-finding mission has presented its report.
37. In the meantime, the parliament of Georgia established its own investigation into the circumstances of the war. The ad hoc Committee which was tasked to conduct this inquiry was chaired by a member of the parliamentary opposition. It published its report, following several months of hearings of key Georgian decision makers, on 18 December 2008. The report largely confirms the official version of the Georgian government of the events that led to the outbreak of the war. We are not aware of the establishment of any similar inquiry, with the same scope, composition and mandate, by the Parliament of Russia, despite indications given to us by the Chairman of the Council of the Federation that the Council was considering setting up a committee to investigate the origins of the war, as well as the actions of the Russian authorities in relation to this.
38. As mentioned in our previous report,Note evidence and witness testimonies reproduced in several reports by the OSCE and by organisations such as Amnesty International and Human Rights Watch give credence to the claims that both Russia and Georgia committed violations of human rights and international humanitarian law in the course of the war and that Russia closed its eyes to, and possibly abetted, violations of human rights and international humanitarian law by the de facto authorities during the aftermath of the war. Under international law, it is the responsibility of the states concerned to investigate violations of human rights and international humanitarian law committed by persons under their de facto jurisdiction. A key demand of the Assembly in Resolutions 1633 (2008) and 1647 (2009) has therefore been that both Georgia and Russia fully investigate any alleged violations of human rights, humanitarian law and the laws on the conduct of war that occurred during the war and its aftermath, including by its own citizens or persons under its de facto control and jurisdiction, and to bring any perpetrators to justice.
39. The General Prosecutor’s Office of Georgia has opened an investigation into deliberate violations of international humanitarian law in the course and aftermath of the war, irrespective of the side which has allegedly committed such violations. However, the Georgian authorities claim that this investigation is hindered by the lack of access of the competent authorities to the former conflict zone, as a result of which it is not able to finalise the investigations or bring any charges.
40. The Investigative Committee of the General Prosecutor’s Office of Russia has conducted an investigation into genocide committed by Georgian troops against Russian citizens, as well as into crimes committed against the Russian military. On 7 August 2009, this investigation was extended to February 2010, in order to allow the Prosecutor’s Office to finalise a report to be submitted to the International Criminal Court and the European Court of Human Rights. However, during the visit of the Monitoring Committee’s co-rapporteurs for Russia to Moscow on 9-11 March 2009, 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,Note Russian military forces or the South Ossetian forces allied to it.
41. We find the lack of any serious investigation by both countries into the alleged violations of human rights and humanitarian law committed by “their own side” in the course and aftermath of the war disturbing and totally unacceptable.
42. In the case of Georgia, serious allegations have been made that indiscriminate weapon systems (Grad Rocket Systems) were used against civilian or mixed civilian-military targets and that their use in themselves was in violation of Article 51(4) of Protocol I to the Geneva Conventions. It seems to us that access to the former conflict zone is not necessary to investigate the decision to use such weapon systems, and, as appropriate, charge those with command responsibility.
43. Equally, on numerous occasions, the Assembly has made it clear that, under international law, Russia has the duty to protect the human rights of the inhabitants of the areas under its de facto control and to prosecute any human rights violations committed by persons under its de facto jurisdiction. The arguments related to the status of the two regions, used by the Russian authorities to deny any responsibility in this respect, are in our view clearly not acceptable and are legally invalid. Even if we were to accept Russia’s argument that the two break-away regions are now independent entities, we note that a large number of alleged human rights violations against ethnic Georgians by South Ossetian militia took place before the recognition of independence of the two break-away regions by Russia, during which time Russia recognised it was in control, as clear from its acceptance of the ceasefire agreement. Moreover, the ongoing investigation in South Ossetia by the Investigative Committee of the General Prosecutor’s Office of Russia into genocide committed by Georgian troops against Russian citizens, as well as into crimes committed against the Russian military, clearly shows that Russia has the capacity and possibility to conduct such an investigation in that region. The status argument is in our view used merely to mask the underlying lack of political will to effectively investigate any alleged human rights abuses by the South Ossetian forces allied to it, in areas under its control.
44. As mentioned in our previous report, more than 3 300 applications have been filed with the European Court of Human Rights by ethnic South Ossetians against Georgia. On 16 January 2009, the Court announced that it would urgently examine seven applications of South Ossetians against Georgia, which it considers to be representative of the over 3 300 similar applications that have been filed with it. These cases have now been communicated to the Georgian Government under Rule 54 § 2 (b) of the Rules of Procedure of the Court. In addition, the Georgian Human Rights NGO “The 42nd Article of the Constitution” has assisted Georgian citizens in filing applications with the Court against Russia in relation to the war. On 18 March 2009, we were informed by the Court that over 100 cases had been filed against Russia, involving approximately 600 Georgian applicants. Moreover, as we reported earlier, Georgia has filed an inter-state application against Russia with the European Court of Human Rights and, on 12 August 2008, on the request of the Georgian authorities, the European Court of Human Rights indicated interim measures to both Russia and Georgia under Rule 39 of the Rules of Court.
45. Georgia also filed with the International Court of Justice (ICJ) in the Hague a request for the indication of provisional measures in order to preserve its rights under the International Convention on the Elimination of All Forms of Racial Discrimination “to protect its citizens against violent discriminatory acts by Russian armed forces, acting in concert with separatist militia and foreign mercenaries”. On 15 October 2008, the ICJ held that the case fell under its jurisdiction and ordered provisional measures to be taken by both Georgia and Russia. On 2 December 2008, the President of the court fixed 2 September 2009 as the time-limit for the filing of a Memorial by Georgia and 2 July 2010 as the time-limit for the filing of a Counter-Memorial by the Russian Federation.
46. The International Criminal Court (ICC) has jurisdiction over possible war crimes and crimes against humanity in relation to the conflict between Russia and Georgia and the Prosecutor of the ICC has reportedly started his preliminary analysis of information received. Such a preliminary analysis is the first formal step in deciding whether to seek authorisation from the Pre-Trial Chamber to open a formal investigation, but no further information has been received about the intentions of the Prosecutor.

6 The humanitarian situation

47. The humanitarian consequences of the war between Georgia and Russia have been given great importance by the Assembly and were the issue of two reports prepared by the Committee on Migration, Refugees and Population of the Assembly. The last report on the humanitarian consequences was debated during the April part-session of the Assembly and led to the adoption, on 29 April 2009, of Resolution 1664 (2009). The findings and conclusions contained in this report and resolution remain fully topical and valid. In this report, we will therefore limit ourselves to the political aspects of the current humanitarian situation.
48. Of the originally 130 000 ethnic Georgians displaced as a result of the conflict, 26 000 have not been able to return to their original place of residence, which in the large majority of cases, is in the areas controlled by the de facto authorities of South Ossetia and Abkhazia, and remain in temporary shelter in Georgia. In addition, of the approximately 35 000 persons of ethnic South Ossetian origin that fled to Russia, around 1200 still remain in North Ossetia.
49. In Resolution 1633 (2008) the Assembly demanded that Georgia, Russia and the de facto authorities fully and effectively implement the six principles for urgent protection of human rights and humanitarian security, which were drawn up by the Commissioner for Human Rights of the Council of Europe after his visit to the region in August 2008.
50. A key aspect of these six principles, to which the Assembly has attached great importance in its debates, is the acceptance of the principle of freedom of return for IDPs as well as the freedom of movement of civilians across the ABL.
51. As mentioned in our previous reports, the return of IDPs to ethnic Georgian villages in South Ossetia and Abkhazia is extremely difficult if not impossible. The de facto authorities in Tskhinvali have indicated that the return of IDPs would be guided by international principles, but dependent upon three conditions:Note security, voluntary return and guarantee of adequate living conditions. In addition, IDPs that participated in the hostilities are reportedly not allowed to return, while IDPs that would return are reportedly obliged to accept South Ossetian passports, which would imply a loss of their Georgian citizenship. The de facto Abkhaz authorities have indicated that they would allow a return of IDPs to the Gali district, but that returns beyond this area would not be possible as a result of security concerns.
52. The return of IDPs to the break-away regions is further complicated by fears among IDPs that they would be forced to take South Ossetian or Abkhazian “citizenship” if they return, as well as concerns for their security and safety, especially in the absence of international organisations and monitors in the break-away regions. The situation is compounded by the restrictions on freedom of movement over the ABL, which has become increasingly more difficult since the deployment of FSB Border guards in the framework of the co-operation agreements that were signed between Russia and the de facto authorities of these two regions.
53. In this respect, we are especially concerned about the situation in the Akhalgori district in South Ossetia, which is a predominantly ethnic Georgian area that was not affected by the war and which, prior to the war, had never been under the control of the de facto authorities. We fear that the increasing difficulties in movement of persons and goods across the ABL, as well as the increasing pressure to accept South Ossetian passports, could lead to a new exodus of ethnic Georgians from South Ossetia.
54. As confirmed by the latest report of the Committee on Migration, Refugees and Population, the ethnic Georgian villages in the Tskhinvali region have been razed to the ground, bulldozed over and no longer exist. This systematic destruction of ethnic Georgian villages, combined with the effective impossibility for ethic Georgian IDPs to return, confirm that this region was ethnically cleansed of ethnic Georgians. It is unacceptable that ethnic cleansing has been allowed to take place unimpeded in the Council of Europe area, and we find the failure of Russia and the de facto authorities to bring these practices to a halt and their perpetrators to justice, as demanded by the Assembly, equally unacceptable.
55. We deeply regret that, contrary to Assembly demands, undue restrictions are still being placed on the access of international and humanitarian organisations to the two break-away regions.
56. As mentioned in our previous report, the Venice Commission of the Council of Europe adopted an opinionNote on the “Law on the occupied territories of Georgia”, following concerns that some of the provisions in this law could be at odds with principles of international law, including with the European Convention on Human Rights. The Georgian authorities subsequently promised that they would co-operate closely with the Venice Commission in order to address its concerns as expressed in its opinion. Although we are not aware that any amendments to the “Law on the occupied territories of Georgia” have been introduced in parliament, we have been informed that the co-operation with the Venice Commission on this issue is ongoing in a constructive manner.
57. In mid-August 2009, Georgia seized two vessels in its national waters, one with cargo destined for Abkhazia and one with cargo originating from Abkhazia, under the provisions of the “Law on the occupied territories of Georgia”. Without wishing to pass a judgement on the merits of this action from a legal point of view, we are concerned that such seizures could increase the tensions in the region.
58. In Resolution 1647 (2009), the Assembly expressed its concern that a human rights black hole would exist within the Council of Europe area and that persons residing in Abkhazia and South Ossetia would not be effectively covered by the human rights protection mechanisms granted to them as citizens of a Council of Europe member state. In that respect, we strongly welcome the fact that the European Committee for the Prevention of Torture and Inhuman Degrading Treatment of Punishment (CPT) was able to carry out a visit, from 27 April to 4 May 2009, to Abkhazia which received full co-operation from the de facto Abkhaz authorities and was granted access to all places of detention they wished to visit. This is a positive development which we hope will be followed by the de facto authorities in South Ossetia. We understood that this visit was facilitated by UNOMIG and therefore hope that the latter’s departure will not imperil the possibilities of future visits of this kind.

7 Additional demands of the Assembly

59. In Resolutions 1633 (2008) and 1647 (2009), the Assembly called upon all parties to work towards the creation of a new peacekeeping format and internationalised peacekeeping force. In the view of the Assembly, the establishment of such a new peacekeeping format and internationalised peacekeeping force is essential for the security and stability in the region. While the establishment of new security mechanisms is formally part of the mandate of the Geneva talks, no progress has been achieved, to date, with regard to this important demand of the Assembly.
60. Following a recommendation by the Assembly in Resolutions 1633 (2008) and 1647 (2009), the Bureau of the Assembly decided, on 30 January 2009, to establish an ad hoc committee of the Bureau on promoting dialogue between the Georgian and Russian delegations in the Assembly”. This ad hoc committee met twice, first on 12 March 2009 in Paris and secondly on 30 March 2009 in Valencia (Spain). However, after consultations with the chairmen of both delegations concerned, the President of the Assembly decided not to convene a further meeting of the ad hoc committee for the time being and until such time as the circumstances are more conductive for a dialogue between both delegations.

8 Conclusions

61. With regard to the precise circumstances surrounding the outbreak of the war, and the role of Russia and Georgia in it, we continue to recommend that the Assembly returns to this issue when the independent international inquiry mission established by the European Union has presented its report, which is now foreseen for 30 September 2009. Therefore, we have not touched upon this issue at this stage. In this report and in line with our mandate, we have rather taken stock of the developments with regard to the consequences of the war, one year after its tragic outbreak, in August 2008. In this respect, regrettably, we have to conclude that little, if any, progress has been made since our first debate on this issue with regard to addressing the consequences of the war. In fact, in a number of areas, the situation has actually regressed.
62. Among the crucial demands made by the Assembly in its Resolutions 1633 (2008) and 1647 (2009), which we outlined at the beginning of this report, only one – the inquiry into the circumstances surrounding the outbreak of the war and the co-operation of both Georgian and Russian authorities with this inquiry – has been fully complied with by both sides. The conclusion we reached at the end of our January 2009 report, which was adopted by the Assembly in Resolution 1647 (2009), therefore remains fully valid: while Georgia has complied with most, albeit not all, demands of the Assembly, Russia has not complied with the majority of key demands made by the Assembly in Resolution 1633 (2008).
63. As we described above, the 12 August 2008 ceasefire agreement has clearly not been implemented by Russia, as demanded by the international community, including the Assembly. Russian troops have not only failed to return to their places and strengths ex ante the war, but, on the contrary, Russia has actually drastically increased the number of troops deployed in the two break-away regions and now maintains permanent military bases in them.
64. While we welcome the fact that that the majority of the IDPs as a consequence of this war have returned, the right of return is still denied to ethnic Georgians that fled from South Ossetia and Abkhazia. With the departure of UNOMIG and the increasing restriction of movement of civilians over the ABL, as well as the mounting pressure to obtain South Ossetian or Abkhazian passports, there is a serious risk of a new exodus of ethnic Georgians from the Gali and Akhalgori districts.
65. Despite demands of the Assembly, as well as other international organisations, no monitoring missions have been given access to South Ossetia and the only observer mission that had access to Abkhazia, UNOMIG, was closed down as a result of a Russian veto in the United Nations Security Council. Similarly, the OSCE mission, including its military monitoring mission, has been closed down as a result of Russia’s refusal to accept the status neutral proposal of the Greek chairmanship of the OSCE. As a result, while a year ago three monitoring missions were present in Georgia, and one had access to at least one of the break-away regions, only the European Union Monitoring Mission now remains, but without access to either South Ossetia or Abkhazia. The presence of international monitors, with unrestricted access to both sides of the ABL is crucial for the stability of the region. We therefore call upon Russia to accept the proposal of the Greek OSCE chairmanship, which is still formally on the table, for an OSCE presence, including a military monitoring component, in the region, and to give unrestricted access to European Union monitors to South Ossetia and Abkhazia
66. Excessive restrictions continue to be placed on the access of international and humanitarian organisations, including for the provision of humanitarian aid, to South Ossetia and Abkhazia. The Georgian authorities have indicated that they will address all concerns raised in the opinion of the Venice Commission on the “Law on the occupied Territories of Georgia”, but Russia and the de facto authorities continue categorically to refuse access to international organisations and the provision of humanitarian aid, reportedly with the exception of the International Red Cross, coming from the rest of Georgia.
67. As mentioned above, we find the apparent reluctance of Russia, and to a lesser extent Georgia, to investigate allegations of violations of human rights and humanitarian law by their “own side” during and, where relevant, in the aftermath of the war unacceptable. We note however that the investigation of the European Union inquiry mission will also cover alleged violations of human rights and humanitarian law as well a possible war crimes during the course of the conflict. We will therefore return to this issue and its consequences for the two countries concerned, including possible sanctions, when the Assembly discusses the report of the inquiry commission.
68. The Russian political leadership has made it clear on several occasions that it will not withdraw its recognition of the two break-away regions and has called upon other countries to accept this “new reality”. The question of the status of the two regions, and Russia’s diverging position on it with the rest of the international community, is often used to justify the non-implementation of the other demands made by the Assembly. However, this argument cannot withstand close scrutiny, as most of the Assembly’s demands have no bearing on the status of these two regions. We conclude that the issue of status is used to hide, or mask, the lack of political will to comply with the Assembly’s demands.
69. In this respect, in the light of the overwhelming evidence that numerous villages near Tskhinvali were ethnically cleansed of ethnic Georgians, we strongly condemn, and find unacceptable, the failure by Russia and the de facto authorities of South Ossetia to bring these practises to a halt and their perpetrators to justice. We stress that, under international law, Russia bears responsibility for violations of human rights and humanitarian law in those areas that fall under its de facto control. Moreover, the dispute over the status of the two break-away regions can not be an impediment as a large number of these alleged crimes took place before Russia’s recognition of the independence of South Ossetia and the ongoing investigation by the Russian General Prosecutor in South Ossetia into alleged crimes committed by Georgian troops demonstrates that the Russian authorities have the capacity to conduct an investigation as demanded by the Assembly in South Ossetia.
70. Similarly, free movement of civilians over the ABL, as well as the unrestricted access of international organisations and humanitarian aid to the two break-away regions, irrespective of their entry point, is not related to the status of the two regions. In this respect, we take note that since the signing of the border control treaties between Russia and the two break-away regions on 30 April 2009, the Russian authorities currently have full control over the “borders” of these two regions.
71. We find it unacceptable that, one year later, key demands made by the Assembly, in particular those that are not related to the status of the two regions, continue not to be complied with. There is clearly a lack of political will to address the consequences of the war in a manner incumbent on a member state of the Council of Europe.
72. We therefore consider it inevitable that the Monitoring Committee challenges the credentials of the Russian delegation at the opening of the January 2010 part-session, if the Russian authorities:
  • have not given unrestricted access for European Union monitors to both South Ossetia and Abkhazia;
  • have not granted freedom of movement for Georgian civilians across the ABL and lifted restrictions, including on the point of entry, on the access to the two regions for international and humanitarian organisations as well as humanitarian aid to South Ossetia and Abkhazia;
  • have not formally and effectively recognised the right of return of all IDPs from the 2008 hostilities to their original place of residence in South Ossetia and Abkhazia;
  • have not initiated a credible investigation into the alleged ethnic cleansing, by the South Ossetian forces allied to it, and/or by civilians under its de facto jurisdiction and control.
73. Moreover, taking into consideration the evident reluctance of both Russia and Georgia to investigate possible violations of human rights and international humanitarian law during the war and in its aftermath, we encourage the Prosecutor of the International Criminal Court to request the Pre-Trial Chamber of the Court formally to open an investigation into possible war crimes and crimes against humanity committed by either side in the course and aftermath of the august 2008 hostilities.
74. Lastly, we call upon Georgia to amend the “Law on the occupied territories of Georgia”, in order to address all concerns that were raised in the recent Venice Commission opinion on this law.

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Reporting committee: Committee on the Honouring of Obligations and Commitments by Member States of the Council of Europe (Monitoring Committee)

Reference to committee: Resolution 1115 (1997), Resolution 1647 (2009) and Reference No. 3575 of 29 May 2009

Draft resolution adopted by the committee on 9 September 2009

Members of the committee: Mr Serhiy Holovaty (Chairperson), Mr György Frunda (1st Vice-Chairperson), Mr Konstantin Kosachev (2nd Vice-Chairperson), Mr Leonid Slutsky (3rd Vice-Chairperson), Mr Aydin Abbasov, Mr Pedro Agramunt Font de Mora, Mr Miloš Aligrudić, Mrs Meritxell Batet Lamaña, Mr Ryszard Bender, Mr József Berényi, Mr Luc van den Brande, Mr Mevlüt Çavuşoğlu, Mr Sergej Chelemendik, Ms Lise Christoffersen, Mr Boriss Cilevičs, Mr Georges Colombier, Mr Telmo Correia, Mrs Herta Däubler-Gmelin, Mr Joseph Debono Grech, Mr Juris Dobelis, Mrs Josette Durrieu, Mr Mátyás Eörsi, Ms Mirjana Ferić-Vac, Mr Giuseppe Galati, Mr Jean-Charles Gardetto, Mr József Gedei, Mr Marcel Glesener, Mr Andreas Gross, Mr Michael Hagberg, Mr Holger Haibach, Ms Gultakin Hajibayli, Mr Michael Hancock, Mr Davit Harutyunyan, Mrs Olha Herasym’yuk, Mr Andres Herkel, Mr Kastriot Islami, Mr Mladen Ivanić, Mr Michael Aastrup Jensen, Mr Miloš Jevtić, Mrs Evguenia Jivkova, Mr Hakki Keskin, Mr Haluk Koç, Mrs Katerina Konečná, Mr Jaakko Laakso, Mrs Sabine Leutheusser-Schnarrenberger, Mr Göran Lindblad, Mr René van der Linden, Mr Eduard Lintner, Mr Pietro Marcenaro, Mr Bernard Marquet, Mr Dick Marty, Mr Miloš Melčák, Mrs Nursuna Memecan, Mr Jean-Claude Mignon, Mr João Bosco Mota Amaral, Mrs Yuliya Novikova, Mr Theodoros Pangalos, Mrs Elsa Papadimitriou, Mr Alexander Pochinok, Mr Ivan Popescu, Mrs Maria Postoico, Mrs Marietta de Pourbaix-Lundin, Mr Christos Pourgourides, Mr John Prescott, Mrs Mailis Reps, Mr Andrea Rigoni, Mr Ilir Rusmali, Mr Armen Rustamyan, Mr Indrek Saar, Mr Oliver Sambevski, Mr Kimmo Sasi, Mr Samad Seyidov, Mr Sergey Sobko, Mr Christoph Strässer, Mrs Chiora Taktakishvili, Mr Mihai Tudose, Mrs Özlem Türköne, Mr Egidijus Vareikis, Mr José Vera Jardim, Mr Piotr Wach, Mr Robert Walter, Mr David Wilshire, Mrs Renate Wohlwend, Mrs Karin S. Woldseth, Mrs Gisela Wurm, Mr Andrej Zernovski.

N.B.: The names of the members who took part in the meeting are printed in bold

Secretariat of the committee: Mrs Chatzivassiliou, Mr Klein, Ms Trévisan, Mr Karpenko

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