Law in a Global Context.

The UN sought to prevent aggressive war by all member states acting in accordance to Art. 2(4) and is considered to be part of the Customary International Law.  Legally, it is not easy to use force against another state without permission.  The law has evolved from allowing conflict except where specifically forbidden by mutual agreement, to the current state of preventing the use of force in all but a select few permitted circumstances.  However, it had been recognized that there were occasions when violence would erupt and attempted to make provisions for them.  Article 51 specifically allowed states to use force in self defence and collective action under Chapter VII of the Charter in order to preserve international peace and security.  Furthermore, these two measures have been restrictive as decided in Nicaragua v USA.  In this case, peace treaties and ceasefire agreements are very imperative.

It has been stated that Russia had violated the sovereignty of Georgia and the country’s right to have its own existence protected under International Law.  It is inter alia clearly laid down in Art.2(1) of the UN Charter that the sovereign is equal to all member states.  Nevertheless, declared by George Bush he stated that “…Georgia’s sovereignty and territorial integrity be respected, and Moscow must honour its pledge to withdraw all its invading forces from Georgian territory.” South Ossetia and Abkhazia, even though are on an unrecognised independency, the two regions still lie on Georgian territory.  Russia used illegal force against the territorial sovereignty, which killed a number of Georgian citizens.  

Russian has refused to withdraw its military forces from Georgia, and it is stated “…the Russian Federation’s actions are an attempt to militarily annex a sovereign nation-the nation of Georgia.  This is direct violation of international law…”  According to Art.2(3), all members “shall settle their international disputes by peaceful means…” therefore, between states disputes should be settled peacefully and not violate one’s territory.

Under the Art.2, Russia has unilaterally used force against the territorial integrity of Georgia, not in self defence, or in the furtherance of the peaceful purposes of the UN; but rather to facilitate the disintegration of the territorial fabric of an independent and democratic nation.  ‘…Russia overreached, and used disproportionate force…’ and thus since a rule of international law governs the use ‘force against the territorial integrity…of another state’  and that rule or standard has been flagrantly contravened by Russia, for example in Kosovo mission which was branded as illegal (Russia objected the independency of Kosovo) its unilateral conduct is diminutive. Russia has set reasons to justify its armed intervention in Georgia, where the breakaway regions of Abkhazia and South Ossetia are nonetheless under Georgian sovereignty. Russia argues that its invasion was aimed at stopping Georgia’s aggression against South Ossetians.  This reason does not hold legal grounds, as Georgia sending its troops to South Ossetia was no doubt reckless but it did not breach any international rule, however nominal its sovereignty may be.

The other legal claim made by the Georgia, is that Russia had violated the International humanitarian law for war crimes.  Unlike Russia, Georgia is a state party to the Rome Statute of the International Criminal Court (ICC).  It was established in 2002 of the ICC that has a general jurisdiction over individuals in respect of:

 “…the most serious crimes of concern to the international community (ICC Statute Art.5), being genocide, crimes against humanity, war crimes and crimes of aggression.”

The war between Georgia and Russia had serious and lasting consequences for the civilians as they had been caught in the cross-fire.  It is forbidden to carry out indiscriminate attacks or attacks that cause damage disproportionate to the anticipated concrete military advantage.  As Georgia is a state party of Rome Statute, it could have requested the ICC prosecutor to investigate its own allegations of Russian crimes as well as Russia’s allegations of war crimes and genocide.  According to the Rome Statute, intentionally directing attacks against the civilian population or against individual civilians not taking direct part in hostilities is a war crime. 

International humanitarian law prohibits the use of weapons that are by nature indiscriminate and weapons that are of nature to cause superfluous injury or unnecessary suffering.  Evidence gathered by the Amnesty international reports that serious violations of international humanitarian law were committed by Russia, both during the conflict and the aftermath.

Evidently, Russia have used cluster bombs in the conflict during which have been arbitrary.  Stated by Nicola Duckworth, ‘Cluster bombs thrown by Russia, looting, shooting, explosions and abductions have all been reported…’ Using cluster bombs can be dropped by aircrafts, or fired by artillery or rocket launchers.  In compliance to the BBC and other international media, Russian tanks have reportedly reached the northern suburbs of Tskhinvali while Russian air forces carried out air raids in South Ossetia and further into Georgian territory.  Under Art.2(4) this has violated the territory and sovereignty of Georgia and Russia has committed a war crime being indiscriminate to the civilians in Georgia and South Ossetia.

The use of these bombs in areas where there is a concentration of civilians violates the prohibition of indiscriminate attacks. On the other hand, Russia has also violated the humanitarian law by using mass destruction weapons which were prohibited by international treaties in Georgia.  Russia has made half the citizens of Georgia, as well as South Ossetia and Abkhazia refugees.  In relation to the protection of civilians, Russia has been known for mass destruction and violation against its own civilians in Kosovo.  

Other forms of violation under the International humanitarian law, committed by Russia are bombing villages and residential areas and also “extensive pillaging and arson…wrought large scale…majority settlements on territory controlled by Russian armed forces.” To attest the violation of the IHL, it clearly shows that Russia had systematically forced civilians to flee the territory due to its invasion.  Nevertheless, Russia denies the use of such violence but the Amnesty International report delegates a number of evidential reports and victims suggesting their use; and thus “all sides must remember that attacks on civilians…clearly violate international humanitarian law, and may constitute war crimes.”

In contrast, Russia has made a number of counter claims of violations against Georgia.  One foremost counterclaim made against Georgia is for the self determination of the peoples of South Ossetia and Abkhazia.  This allegation made by Russia in opposition to Georgia was the breakaway territories of the two small states.

The right to self determination, a fundamental principle of human rights law is “an individual and collective right to ‘freely determine’…political status and [to] freely pursue…economic, social and cultural development.” The crucial point is that self-determination requires “a free and genuine expression of the will of other people’s concerned…” (Western Sahara Case).

South Ossetia and Abkhazia have become breakaway territories as independent states.  By recognising independence of Abkhazia and South Ossetia, the Russian Federation violated the principles of the equal rights and self-determination of peoples enshrined in the UN Charter and Helsinki Final Act 1975, which constitutes fundamental principles of international law.

In an attempt to justify its own actions by deliberately misinterpreting the fundamental norms of international law, the Russian Federation gravely violates the basic of the contemporary international system.  In legal terms, the right of people to self-determination means that the process should proceed within democratic frames.  As it is the foremost rule of jurisdiction, to exercise this jurisdiction is to see if the states are in territory of another state.  Georgian population which took part in the referendum freely expressed to live in an independent state.   Therefore, all claims made by the Russian Federation that Georgia’s international legal status was defined as disregard for the will of the Abkhazia and South Ossetian people are groundless.  

The referendums in Abkhazia and South Ossetia referred to by the president of Russia as the basis of his decision were declared as illegitimate by the international community as they violated all the basic principles of international law. It was stated by the Georgian President that “The regions of Abkhazia and South Ossetia are recognized by international law as being within the borders of Georgia.”  Therefore, Georgia has not violated the self-determination of the peoples in the two states, but emphasises the imperativeness of placing this process with a democratic framework and the necessity of upholding the fundamental principles of the contemporary international system; respect the territorial integrity of sovereign states and inviolability of frontiers.

Russia had violated the self determination of the two states by ethnic cleansing.  The ethnic cleansing was recognised by the OSCE Summits in 1994. “…the Russian Federation is seeking to validate the use of violence, direct military aggression, and ethnic cleansing to forcibly change the borders of a neighboring state.”   Through military aggression performed by Russia against Georgia and by unilateral recognition of independence of Abkhazia and South Ossetia, the Russian Federation has shown to the international community that it does not refrain from violation in respect of the fundamental principles; and illegal indiscriminate use of force against its neighbouring sovereign state.  Furthermore, it is cynical of Russia having violated the principles of the UN Charter by ethnic cleansing and to accuse Georgia of the actions perpetrated by Russia itself.

In conclusion, the conflict between Georgia and Russia has resulted in a number of consequences resulting under the Article 2 of the UN Charter for aggression.  It has been proven that Russia violated the article using unilateral force within and around the territorial integrity and sovereign state of Georgia.  It had violated the right of life and international humanitarian law for genocide and war crimes using mass destruction and munitions killing innocent lives and violating territorial integrity of Georgia, Abkhazia and South Ossetia.  Despite previous crisis such as Kosovo, the Russian Federation objected to the separation of states and using such methods jeopardise the statehood of Georgia as well as the modern world order.

Bibliography

Cases

Nicaragua v USA (1986) ICJ Rep 14

Western Sahara Case (1975) ICJ Rep 12

Yugoslavia v Belgium etc (1999) 39 ILM 950

Books and Resources

Annexes, doc.2, p9-11

Annexes, doc.4, p16

Annexes, doc.5, p16

Cassess, A., Self Determination of Peoples (Cambridge University Press, 1995)

Dixon, M., International Law citing Art.2(1) UN Charter 1945, (6th edn, OUP, 2007) 312

Provost, P., International Human Rights and Humanitarian Law, (Cambridge University Press, 2002) 95

Shaw, M.N & Nathan, M., International Law, (5th edn, Cambridge, 2003) 429

Journals

Akehurst, M., Jurisdiction in International Law, (1992-3) 46 BYIL 145

Simma, B., Nato, the UN and the Use of Force: Legal Aspects, (1999), European International Law, JSTOR

Schwarzberger, The Fundamental Principles of International Law, (1955) 8 7 Rec des Cours 190, 212-214

Electronic Resources

Cameron: Curb Russian Aggression citing N.Duckworth, Director of Amnesty International, BBC News, 12th August 2008, <http://news.bbc.co.uk/1/hi/uk_politics/7556028.stm> accessed 14/01/2009

Georgia Conflict: Key Statements, BBC News, 19th August 2008, <http://newsvote.co.uk/mpapps/pagetools/print/news.bbc.co.uk/1/hi/world/europe/7556857.stm> accessed 11/01/2009

Mardell, M., Georgia Crisis tests EU, BBC News, 27th August 2008, < http://www.bbc.co.uk/blogs/thereporters/markmardell/2008/08/s_1.html> accessed 12/01/2009

UK Warns of Russia ‘Catastrophe’, BBC News, 12th August 2008, <http://news.bbc.co.uk/1/hi/uk_politics/7553508.stm> accessed 14/01/2008

Legislation

Article 1(1) of the Convention on Cluster Weapons

Article 8(2)(b)(iv) The Rome Statute

Article 2(1) United Nations Charter 1945

Article 2(3) United Nations Charter 1945

Article 2(4) United Nations Charter 1945

ICJ – International Court of Justice

ICC – International Criminal Court

EHRR – European Human Rights Report

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