Riga Graduate School

Of Law

Public International Law and Human

Rights LLM Program
 Master Thesis

Russian-Georgian Conflict 2008

And Rome Statute Regime (ICC)
 The purpose of the Master
Thesis
• To analyze the potential interference of the
International Criminal Court in the August events
of Georgian-Russian conflict 2008

• Provide deep observation of the exiting facts

about August conflict in order to make the most
appropriate evaluation under the strict margins
of International Criminal Court’s jurisdiction
 The importance of the Master
Thesis
• The topic is new and since not elaborated
• Conflict arose the number of legal questions that
needs to pay attention from the perspective of
ICC Statute
• The situation in Georgia is under analysis of ICC
Prosecutor Office about starting criminal
proceedings
• First Non-African case
• It simultaneously would serve the interests of
several thousands of victims damaged during the
August conflict of 2008
 Main focus on the following
conventional crimes:
• Crime against Humanity
• War Crimes
 The brief overview of Russian-
Georgian Conflict August of 2008
• armed conflict of August 2008 happened in the territory
of secessionist de-facto republic of South Ossetia is not
the first one.
• It has its historic roots and full-scale hostilities began in
January 1990
• Georgian central government lost the control over the
region Samachablo/South Ossetia
• Secessionist armed forces by the considerable assistance
of Russian controlled forces, illegally took the power
established their control over Tskhinvali and some of the
villages in the vicinity of conflict zone, mostly in the
motorway leading it to the Russian border
• A thousand of ethnic Georgians residing in these areas
lost their houses as they were forcefully displaced.
Almost the same situation happened with many ethnic
Ossetians were living on the Georgian-control villages in
the territories within the region.
• The active phase of the first conflict in
Samachablo/South Ossetia ended by December 1991
• The interim administration of the military council, as well
as the new government formed in the spring of 1992
• The formal cease-fire agreement was signed on June 24,
1992
 War of August 2008

• After almost 17 years frozen conflict new armed conflict

escalated
• On the night of 7 to 8 August 2008 ever-mounting
tensions and incidents heavy fighting erupted in around
the town of Tskhinvali in South Ossetia
• The conflict lasted for five days, caused serious
destruction, reaching levels of utter devastation in a
number of towns and villages
• Altogether about 850 persons lost their lives, more than
100 000 civilians who fled their homes, Around 35 000
still have not been able to return to their homes
 War of August 2008

• War of August 2008 resulted in civilian losses was the

heavy artillery shelling from the secessionist-controlled
territories launched on July 29
• On August 5, the self-proclaimed government of the
South Ossetian secessionists ordered the destruction of
the Georgian village of Nuli
• at 23.35 on August 7 the President of Georgia issued an
order to start a defensive operation
• The date of the beginning of the full-scale hostilities is
widely considered as August 7
 War of August 2008

• Most severe part of the conflict began aftermath of the

Georgian military troops started a massive retreat from
the conflict zone around the 9 of August 2008
• The militias were moving behind the Russian forces and
thus on “cleaned” paths, with no armed opposition
which were not controlled by the secessionists prior to
the conflict
• With the purpose of making the life calm and undisputed
in the future they decided to expel the ethnic Georgians
from conflict zone with brutal means and methods and
approximately 35,000 of them became the long-term
IDPs
 Materials
• Independent international sources, which
are open to the public and whose
reputation is generally undisputed.
• Impartial and objective assessment of the
facts (Human rights watch, Amnesty
international, ODIHR)
• Independent international fact-finding
mission on the conflict in Georgia, Council
of European Union. Heidi Tagliavin
 Value of the Reports
• The factual basis thus established may be considered
as adequate for the purpose of fact-finding
• Self-restricted approach
• It arise the doubt and criticism about the
unwillingness of any possible implication of its inquiry
for the purpose of any other potential instruments
• one would not consider the present report as enough
authoritative and significant
• Certainly the international fact-finding mission is not
a judicial body or ad hoc tribunal making binding
judgments
 Positive role of reports

• Common practice of international judicial bodies

using some factual materials provided by the
international organizations
• There does not exist any obstacle for the use of
facts enshrined in the report for the purpose of the
post-conflict criminal justice
• Credibility of reference to the report is high as the
methods of enquiry had been used by the Mission
• Conclusion: implication of the reports depend to the
extant it might be used for different destinations
 International or Non-international
armed conflict?
• Belligerence erupted between Russia and Georgian should
be qualified as international armed conflict without any
reasonable doubt
• On the other hand, as the territory of Abkhazia and South
is internationally recognized as integral part of Georgia
conflict within the Georgian territory should be qualified
as non-international character
• Georgian side considers that the August conflict should be
qualified as overall international character as the Russian
side had been exercising effective control over the
territories of South Ossetia during the entire process of
hostility
 (ICTY) judgment in Tadic case
• Court had to determine the character of the
conflict in order to establish whether the Trial
Chamber could exercise its jurisdiction over
alleged grave breaches of humanitarian law
envisaged upon by the common article 2 of the
Geneva Convention as it applies to the
international armed conflict
• it was the sole question of the ICTY and “overall
control” test was employed for above objectives.
The proposal of “overall control” of the ICTY in the
Tadic Case defines the criteria for control by a
State over individual or group of individuals
 War Crimes

• Alleged violation of customary international law

principle of distinction, proportionality and
discrimination
• Alleged attack on Peacekeepers
• Alleged attack on School, hospital, religeous
and cultural objects
• Alleged attack on civilian population
• Destruction of Property
• The Forced displacement
 ICC Statute and alleged attack on
Peacekeepers

• peacekeepers enjoy the protection given to civilians or

civilian objects under the international law of armed
conflict (part of customary international law)
• Directing an attack against personnel and object
involved in a peacekeeping mission in accordance with
the Charter of the United Nations, as long as they are
entitled to the protection given to civilian and civilian
objects under international humanitarian law 8(2)(b)(III)
and (e)(III)
• 10 Russian peacekeepers were killed and further 30
injured in the course of the attack (Amnesty
international, Human Rights Watch)
• Georgian side claims that Georgian peacekeepers were
attacked by South Ossetian irregular armed groups in
the evening of the 7 August and armed formations of
proxy regime were guided by Russian peacekeepers and
were firing from the peacekeepers posts
• That allegation was admitted by the Amnesty
International
Neutrality of Russian peacekeepers mission

• If do not participate in the hostilities should be treated

as civilians and enjoy protection from attacks under the
IHL
• Once they are taking direct part in the hostilities they
loose the mandate of peacekeepers and subsequently
becoming the military objective may lawfully be subject
to attack
• legal assessments would be problematic on the basis of
established relevant facts from the ICC Statute
perspectives. But above already constitutes a reasonable
doubt of commitment the war crimes under the Article
8(2)(b)(III) of ICC Statute subsequently requiring
thorough investigation
 ICC practice Darfur Case

• In the Darfur case 12 peacekeepers were

murdered and 8 injured in North Darfur, while a
thousand of rebel-led soldiers surrounded and
attacked the Haskanita camp
• Courts approach towards the attack on the
peacekeepers is intolerable
• In the course of Russian-Georgian conflict the
alleged attack against peacekeepers require
thorough investigation
 ICC Statute and alleged attack on
civilian population

• Attacks against civilians reflect the fundamental

principle of the immunity of the civilian population
in time of armed conflict and their effective
protection
• belligerent parties are primarily required to
distinguish at all time combatants and civilians from
each-other and subsequently conduct their military
operation only against combatants 8(2)(b)(II) ICC
Statute
• As customary rule, it is relied on the principle of
distinction
 Facts

• Georgian military force attacked on civilians fleeing the

conflict zone mainly on the Dzara road
• On response of that Georgian authorities stated in a
letter to this organization that they directed attacks on
armor and other military equipment traveling from the
Roki Tunnel along the Dzara Road and not at civilians
• Human Right Watch provides several cases of aerial
attacks on civilian convoys fleeing South Ossetia near
Eredvi carried out by more Russian forces
 One might put the Question

• Whether or not the Georgian forces were entitled under

IHL rules for directing the attack against military
objectives regardless being aware of civilians deployed
there
• The answer, admittedly will lead the reader to the
exceptional circumstances justified by the military
necessity with thorough compliance of precautionary and
proportionality principles
 ICTY Dario Kordic and Mario Cerkez case

• If it’s not determined that attack against civilians was

followed from military objective and incidental loss could
not be avoided and damage was proportional with gained
military advantage, it might constitute the composition of
war crimes under the ICC Statute
• Direct attack against the civilian population regardless its
customary character is not absolutely protected and
contains some exclusion (well discussed in the Blaskic
case ICTY)
• The legal protection for civilians may be diminished when
the object of the attack consists of military objectives and
attacking side can not avoid presumable collateral
damage ICTY in the Kyuperskic case
 Summarize

• If conducted attack against civilians were substantiated

with military necessity, it will not constitute the war
crimes under ICC statute if it was unavoidable and the
principle of proportionality is fully complied
• Grounds indicating the need of ICC Court interference,
as the further investigation is nonetheless necessary and
will also facilitate the determination of several facts in
question, moreover when they are enough complex and
complicated
 Destruction of Property

• Most widely practiced in the course of Russian-Georgian

conflict
• Large-scale campaign of intentionally burning took place
basically in the ethnic Georgian villages of Sough Ossetia and
its adjacent areas to the administration border
• All proposed evidences basically coincide to each-other and
substantiates the above-mentioned practice of property
destruction on ethnic grounds
• Various reports shows a large scale pillage, looting and
burning Georgian villages, which was undertook as a
systematic campaign against predominantly ethnic Georgians
Solid grounds for the further investigation in
this direction
• There is a reasonable basis to believe that war crime
under the ICC jurisdiction was committed and further
it is a job of the prosecutor case-by-case to determine
at the certain stage which of the particular prohibited
conduct took place from the possible three:
1. Article 8(2)(a)(iv) ‘Extensive destruction and
appropriation of property, not justified by military
necessity and carried out unlawfully and wantonly’
2. Article 8(2)(b)(xiii) ‘destroying or seizing the enemy's
property unless such destruction or seizure be
imperatively demanded by the necessities of war’
3. Article 8(2)(b)(xvi) ‘pillaging a town or place, even when taken by
assault
 Forced displacement
• Representative of the Secretary-General on the human
rights of the internally displaced persons declared: some
133.000 persons became displaced within Georgia, some
37 605 IDPs will not return in the foreseeable future
• Commissioner for Human Rights of the Council of Europe
indicated that according to the available information a total
number of approximately 138,000 people were displaced in
Georgian
• The Commissioner for Human Rights of the Council of
Europe after visiting the conflicting territory and gathering
the evidences stated that great number of displaced
persons had forced to leave their homes due to the
hostilities
 Reasons of forces displacement

• Notwithstanding the difficulties of identifying the exact

or particular reasons for displacement and distinguishing
the general motive of fleeing the people from their
houses, basically, looting, destruction and burning of
houses and property were the substantial grounds for
displacement of ethnic Georgians from the places of
their resident.
 Presumable qualification
• Article 8(2)(a)(vii) ‘unlawful deportation or transfer or
unlawful confinement’

• Article 8(2)(b)(viii) ‘the transfer, directly or indirectly, by

the Occupying Power of parts of its own civilian
population into the territory it occupies, or the
deportation or transfer of all or parts of the population of
the occupied territory within or outside this territory’.

• Elements of this War Crime is well described in the

Kovacevic judgment and Simic and Others
 Mens rea

• In the course of forced displacement during the

Russian-Georgian conflict is not arguable
• The mental element constitutes all violations of
Article 2 of the ICC Statute, including both guilty
intent and recklessness
• Clearly, deliberate and special motive of ethnic
Georgians expulsion undoubtedly composes mens
rea in the present case
 Crime against Humanity
• Main emphases are made to the ethnic cleansing had
been committed against ethnic Georgians by the methods
of forced displacement
• Directed by the Russian armed forces or through their
consent by South Ossetian’s militias on the territory of
conflicting zone falling under the control of Russian
Federation.
• Demonstrated the main facts and further analyzes
ascertaining with high persuasiveness that prohibited
conduct of forced displacement as part of widespread and
systematic attack had been committed in the context of
Rome Statute Regime
 Ethnic Cleansing

• Allegation of committing ethnic cleansing against ethnic

Georgians is considered as serious accusation towards
Russian Federation
• Having a huge resonance and interest of world
community
• Relevant provision under the ICC Statute is Article 7(1)
(d) criminalizes ‘deportation or forcible transfer of
population’
 clarification whether in what situation internal
displacement would be regarded as unlawful and
arbitrary
• UN Guiding Principles on the Internal Displacement,
which indicates to the occasions when it is based on
‘ethnic cleansing’ or similar practices aimed or resulting
in alteration of the ethnic, religious or racial composition
of the affected population
• Guiding Principles speak that through displacement,
ethnic cleansing can be achieved through the treat of
attacks against the civilian population and destruction of
property
• The Security Council Commission of Experts on violation
of IHL during the war in the former Yugoslavia as they
determined “ethnic cleansing” with meaning of rendering
an area ethnically homogeneous by using force or intimidation
 Ethnic cleansing in the Course of
conflict
• Parliamentary Assembly of the Council of Europe stated that it
was especially concerned about credible reports of acts of
ethnic cleansing committed in ethnic Georgian villages in
South Ossetia and buffer zone by the irregular militia and
gangs which the Russian troops failed to stop and further it
stressed in this respect that the process of ethnic cleansing
mostly took place after the signing of the cease-fire
agreement on 12 August 2008.
• Rapporteurs of the Committee on the Honoring of Obligations
and Commitments by Member States of the Council of Europe
(Monitoring Committee) gave the qualification of ethnic
cleansing against ethnic Georgians undertaken in the place of
South Ossetia
 Ethnic cleansing in the Course of
conflict
• Human Right Watch (HRW) officially concluded that
ethnic cleansing took place in Georgia
• Absolutely majority of organizations whether
governmental or non-governmental are unanimous with
respect to the ethnic cleansing was carried out during
and aftermath of the conflict (OSCE, AI)
 Strong argument indicating the clear intent
of ethnic purification of the Georgian
occupied territories is
• So-called ‘president’ of the de facto South Ossetian
administration, Eduard Kokoity, who in his interview of
15 August 2008 given to the Russian periodical
Kommersant, on the question: ‘will Georgian civilians be
allowed to return?’, answered the following: ‘We do not
intend to let anybody in here anymore
• When the Economist quoted a ‘South Ossetian
intelligence officer’ as follows: ‘We burned these houses.
We want to make sure that they [the Georgians] can’t
come back, because if they do come back, this will be a
Georgian enclave again and this should not happen
 ICJ Georgia v Russian Federation

• Georgia has also raised the issue of the ethnic

purification of its territories in the proceedings
• Affirmation of courts jurisdiction and order imposing on
request of Georgia about interim measures by the Court
will obviously serve as an authoritative judicial
evaluation of this issue.
 ICC interference as Post-Conflict
Justice tool with relation to the
Russian-Georgian Conflict 2008
• essential to the attainment of justice
• redress and prevention
• preservation, restoration and maintenance of peace
• Goals of the ICC reflect what international criminal justice
is intended to embody as values and policies of the
international community
• prohibited conducts committed with high credibility in the
course of Russian-Georgian conflict under the scope of
Rome Statute regime, concerns not only to the conflicting
parties, but also to interest of the world community due
to its importance and gravity of atrocities.
 The purpose and objective of post conflict
criminal justice
• Punish war criminals is primary issue before the world
community in the context of the ICC jurisdiction
• ICC interference will positively impact on the prospects to
establish post-conflict justice aftermath of Russian-
Georgian conflict
• ICC can become a symbol of justice as well as an
effective judicial institution that can fairly provide
retributive and restorative justice
• providing victim’s redress is substantially important and
serves the objectives of principle to exercise the social
order.
• International criminal justice is the only way to ensure
that Georgian ethnic conflict will not exacerbate and lead
to the atrocities again
• Only to freeze the conflict and stop the hostilities for a
certain period of time is not enough due to their melting
effect as it is dangerous for the future perspectives.
• Conclusion: ICC interference as a tool of exercising
retributive post-conflict criminal justice adequately to the
social order, it would satisfy demands of victims and
decrease the tension between the conflicting parties
 Conclusion

• Number of prohibited conducts within the category of

War Crimes and Crimes Against Humanity under the
Regime of ICC Statute has been committed with high
credibility in the course of Russian-Georgian conflict
2008
• From the perspective of Rome Statute Regime the
grounds for ICC’s investigation of the August events of
Georgia definitely exist and its presumable interference
in the post-conflict situation is high.