This is a cursory glance at the legality of what recently happened between Russia and Georgia. This analysis does not aim to be conclusive or exhaustive.
The most important questions are:
- Was there an armed attack against Russia?
- Was the Russian use of force in response necessary?
The recent examples of international use of force by major Western powers without a UN Security Council authorization are clearly relevant, especially in a possible theory that they have changed international law.
History
The Soviet Union was divided into territories, often by titular ethnic group. They had varying degrees of autonomy and different places in the administrative hierarchy. Modern countries like Georgia, Ukraine and Russia itself, known as “newly independent states” after the dissolution of the Soviet Union, held the highest place in the hierarchy as the constituent “republics” of the USSR.
Other territories like South Ossetia ended up as pieces of the larger units. Decisions about the structure of this hierarchy were made by Soviet authorities, and often by individual people like Joseph Stalin. These decisions were sometimes revised, and some units moved up or down in the hierarchy in almost 70 years of the Soviet history. Yet only the top-level territories composing the USSR at the time of its dissolution received international recognition.
When Georgia declared its independence from the Soviet Union, South Ossetia was an “autonomous” unit within the Soviet Socialist Republic of Georgia. As was often the case with “autonomous” regions, the ethnicity of the majority South Ossetia’s population was different from the titular ethnicity of Georgia. When Georgia separated from the USSR, South Ossetia declared its independence from Georgia, which sent troops to keep South Ossetia from breaking away. Russia brokered an agreement to end the war in 1992.
Russia stationed its troops in South Ossetia in 1992 under the deal with Georgia and South Ossetia. The troops had a peacekeeper status and a mandate to separate Georgians and South Ossetians. The latter have been de facto independent from Georgia for 16 years. During this time most of them received Russian citizenship.
On August 8, 2008, Georgia initiated a military assault on Tskhinvali, the capital of South Ossetia, on August 8, 2008 following a week of clashes with South Ossetian troops. Georgian military shelled the city of Tskhinvali with heavy artillery including MRLS (multiple rocket launcher system) and the Georgian air force conducted bombing raids of Tskhinvali. The city fell to Georgians soon after the attack. According to the Russian defence ministry, 12 of its troops stationed in South Ossetia under the 1992 agreement with Georgia were killed and 30 wounded. Their base in Tskhinvali was destroyed.
On August 8 following the Georgian shelling of Tskhinvali, Russian troops entered South Ossetia from Russia. In five days they repelled the Georgian troops and forced them out of South Ossetia. Russian air force systematically destroyed Georgian military infrastructure in various parts of Georgia and bombed the port of Poti. Russian military entered or occupied several towns in Georgia for various lengths of time declaring its intention to destroy or remove abandoned ordnance and maintain security.
Opinion :
Is the use of force by Russia legal? Jus ad bellum - the law of entering into war, is generally based on the UN Charter. A state can use force either with permission of the Security Council or in response to an armed attack under Article 51 of the Charter. The use of force must pass the test of necessity and proportionality.
In their attack on Tskhinvali Georgian forces used weapons designed to inflict maximum destruction and casualties in a large area. The Georgian military was aware of the civilian population in the city and the Russian military contingent present in Tskhinvali under the 1992 agreement. Most residents of Tskhinvali are Russian citizens. South Ossetia is not Russian territory, and it is internationally recognized to be a part of Georgia although South Ossetian authorities dispute South Ossetia’s status within Georgia. Georgians acted in violation of the 1992 agreement and either targeted the civilians and the Russian military or attacked the city with reckless disregard for their safety and lives.
Therefore, that the Georgian shelling of Tskhinvali was an armed attack on Russia, the legality of the Russian response by force depends on whether the use of force would be necessary for a legitimate goal under the UN Charter, and whether the cost of the response in civilian lives and damage to civilian property would not outweigh the benefit. For example, if Russians responded by destroying international oil pipelines in Georgia to eliminate competition to its energy transit routes, such use of force would be unnecessary and illegal. If Russia carpet-bombed Georgian cities (like Georgia bombed Tskhinvali) declaring its intention to destroy military bases, it would probably also be illegal because the massive loss of civilian lives in Georgia would be disproportionate to a potential loss of lives, had Georgia continued unfettered.
So, Russia did none of these things when it used force against Georgia. Instead, its troops appear to be systematically degrading Georgian military. Initially this was accomplished by artillery and air force with a small number of civilian casualties, and later the preferred method appears to be occupation of Georgian military bases and controlled detonation or removal of ordnance, military vessels, aircraft and infrastructure. At some point the Russian military stopped running into any significant resistance from the Georgian troops.
Are Russian actions necessary to protect the civilian population of South Ossetia and its contingent stationed under the 1992 agreement?
Lastly, the Russian response to the Georgian attack is its proportionality. To the Russians’ credit, the civilian casualties of their military operation appear minimal, especially compared to some of the recent examples of international use of force unauthorized by the Security Council.
Continuing military operations deep into Georgian territory and fortifying their positions days after a cease-fire and withdrawal of troops has been signed is a clear violation of international law. But as they say ‘there is nothing new under the sun’
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