Dr André de Hoogh is a senior lecturer in International Law at the University of Groningen. His Ph.D. dissertation (1995) dealt with the topics of obligations erga omnes and international crimes of State. Recent publications have focussed on the powers of the Security Council, the attribution of conduct to States, legislative powers of UN peacekeeping operations, the war against Iraq, the Bush doctrine of pre-emptive self-defence, and jurisdiction of States.
The Report of the Independent International Fact-Finding Mission on the Conflict in Georgia, solicited by the European Union, covers an impressive breadth of topics ranging, aside from factual matters, from statehood, self-determination and secession, use of force, human rights and international humanitarian law. Having read the Report with appreciation and generally agreeing with its conclusions, nevertheless various queries and concerns may be raised by the Mission’s treatment of the regulation of the use of force in international law. Some concerns relate to the treatment of sources of international law, others concern matters of substantive analysis. This comment will consecutively deal with the applicability and interpretation of the prohibition of the threat and use of force in article 2(4) of the Charter, the requirement of a report on measures of self-defence to the Security Council, and the permissible goals of self-defence under international law.
The Applicability of the Prohibition of the Use of Force
The Report concludes that the use of force, in the Georgian-South Ossetian conflict, “is ‘inconsistent with the Charter of the United Nations’, and therefore the prohibition of the use of force is applicable to the conflict, for the following reasons.” Besides putting the horse behind the cart (after all, if the prohibition is not applicable, how could force be inconsistent with the Charter?), the reasons then set forth do not quite support the applicability of the prohibition in article 2(4) Charter. First to be mentioned in the Report is a clause in the preamble of the 1992 Sochi Agreement, which reaffirms “the commitment to the UN Charter and the Helsinki Final Act”. This is said to amount to Georgian acceptance of the applicability of the prohibition, because, though South Ossetia is not a party to the Agreement, the purpose of the Agreement is to “bring about a cessation of bloodshed” and achieve a settlement of the Ossetian-Georgian conflict. The Report considers, sensibly enough, the prohibition to be included in the reference to the Charter, but fails to consider the (legal) status of a clause in a preamble and does not, as such, account for the fact that the reference may be explained by Georgia and Russia being parties to the Agreement.
Continuing, the Report the calls attention to two further agreements. First of all to the 1994 Agreement on the Georgian-South Ossetian Conflict and the Joint Control Commission, which far more clearly sets out that the parties commit to settle their disputes peacefully, without resort to force or threat of force. Though the Report does not indicate the legal provision in which this is written down, the parties to the 1994 Agreement are Georgia, Russia, South Ossetia and North Ossetia. Because this Agreement is “not that of a treaty in its own right”, the Report argues it is based on the Sochi Agreement and hence “subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation” (art. 31(3b) VCLT). Apparently uncertain of the legal status of the 1994 Agreement under international law, the Report finds it necessary to resort to subsequent practice as an aid to treaty interpretation and tries in this way to bolster its conclusion on applicability of the prohibition of the use of force in the Sochi Agreement. Secondly, the Report refers to the 1996 Memorandum on Measures to Provide Security and Strengthen Mutual Trust, which proclaims “The Parties to the conflict shall denounce application of force or threat of force …” This again is seen as subsequent practice in the application of the Sochi Agreement, though the Report does note that, again, the parties to the agreement are different.
The question one would have wished to be answered, but for which one searches in vain, is whether those Agreements are able to make the prohibition of the use of force in article 2(4) of the Charter applicable in the relations between a State and a non-State entity. The prohibition of the threat or use of force applies in international relations, and quite obviously it does not apply to the armed conflict between Georgia and South Ossetian militias or armed forces. A more persuasive position would have been to argue that Georgia had agreed, under several agreements governed by international law (cf. article 3 in conjunction with article 2(1a) VCLT), not to resort to the use of armed force against South Ossetia, and hence violated such Agreements by its military offensive of 7 August 2008. As such, whatever else may be said, Georgia could not be considered to have violated its obligations under article 2(4) of the Charter.
This conclusion might perhaps change upon a reading of the Declaration of Principles of International Law (GA Resolution 2625 (XXV)), as the Declaration stipulates the non-use of armed force with respect to international boundaries, international (territorial) disputes, and international lines of demarcation (such as armistice lines) established by or pursuant to international agreements. This last part appears to apply to the situation at hand and could be invoked to justify a conclusion of violation of article 2(4) Charter. However, considering the context, this rule being set out under the principle pertaining to non-use of force in a State’s international relations, this still would not lead to a different conclusion as to Georgia’s military offensive of 7 August.
The Interpretation of Article 2(4) of the UN Charter
Another point of interpretation of the terms in article 2(4) may be raised in that the Report suggests (p. 242) that only physical force above a certain “minimum threshold of intensity” would be covered by the prohibition. In the accompanying footnote 49 this is further specified by considering that “[o]nly very small incidents lie below this threshold, for instance the targeted killing of single individuals, forcible abductions of individual persons, or the interception of a single aircraft.” The Report then continues by measuring various acts of Georgia against the standards of article 3 of the Definition of Aggression (GA Resolution 3314 (XXIX)).
It remains unclear to this author on what grounds the Report bases its claim that only acts above a certain minimum level would be covered by the prohibition and why the examples mentioned would not constitute a use of armed force under article 2(4) Charter (aside from the reference in the footnote to R. Kolb, Ius contra bellum: Le droit international relatif au maintien de la paix, 2nd edition, Helbing Lichtenhahn/Bruylant, 2009, p. 247). No doubt it might be possible to argue application of the Roman maxim de minimis non curat praetor, but an inability to seize the magistrate or court of a case because of its minimal significance would not detract from the scope of the rule at stake and would not rule out its (possible) violation. Small incidents such as those mentioned as examples would take on (far greater) significance if the targeted (single) individual were to be a head of State or government, or the abduction of an individual person were to concern the commander in chief, or the interception of a single aircraft were to relate to a nuclear bomber.
Case-law has not considered this particular point, though the International Court of Justice (Oil Platforms, para. 72) did “not rule out that the mining of a single military vessel might be sufficient to bring into play the ‘inherent right to self-defence’ ”. Earlier on it had held (Nicaragua Case, para. 191) that one ought to distinguish the “most grave forms of the use of force (those constituting an armed attack) from other less grave forms.” And even though article 2 of the Definition of Aggression states that the Security Council may take into account that certain acts are not of sufficient gravity to justify a conclusion of aggression, this cannot be taken to mean that the same acts would not constitute a use of armed force prohibited under article 2(4) Charter. However, the Report is clearly on point in arguing (e.g. p. 243) that all the examples of aggression set out in article 3 of the Definition constitute, a fortiori, uses of force.
Later on in the Report (p. 286) it is argued, discussing intervention to rescue nationals abroad, that “[a] ‘Blitz’-type action is legal if it does not fall under the scope of the prohibition of the use of force, because it remains below the threshold of gravity, and/or because it is not ‘directed against the territorial integrity or political independence’ of a state”. Apparently such a Blitz-type of action (exemplified in footnote 205 by reference to the Entebbe incident) may also fall below the minimum threshold, even though this kind of operation is not in line with the examples of targeting or abducting single individuals or intercepting single aircraft. Even more troublesome is the Report’s suggestion that armed force not directed against the territorial integrity or political independence of States is not covered by the prohibition of article 2(4) Charter. As the prohibition covers the use of force inconsistent with the purposes of the United Nations, and applies in international relations, any cross-border use of armed force is inconsistent with the UN’s primary purpose “[t]o maintain international peace and security” (article 1(1) Charter).
Overall the conclusions of the Report are not materially affected by the above observations, as Georgia did violate its obligations under the international agreements mentioned above. In the same vein the Report’s affirmation of the availability of self-defence for an entity short of statehood (pp. 241-242) is not undermined, since Georgia’s commitment to settle the dispute peacefully and not to use armed force is governed by international law and may be invoked by South Ossetia. However, the inapplicability of the prohibition of the use of force in article 2(4) of the Charter combined with the applicability of the Agreements does allow for the possibility that if the Agreements were to be terminated –i.e. as a result of unilateral denunciation or by invocation of material breach as a ground for terminating a treaty (cf., analogously, articles 56 and 60 VCLT), followed possibly by a withdrawal of consent to the presence of peacekeeping troops–, Georgia’s obligations in this respect would also come to an end and allow for a resumption of armed action. At that point, it may be noted, Georgia’s use of armed force would not give rise to a right of self-defence on the part of South Ossetia (whether under article 51 of the Charter, as the Report posits (i.e. pp. 241-242 and 280) consequent upon its finding of applicability of the prohibition, or otherwise).
Turning then to matters of self-defence, with respect to the requirement of a report to the Security Council the Report concludes (pp. 246-247 and 269 respectively) that “Georgia did not formally and ‘immediately’ notify the Security Council”, whereas a Russian letter to the Council “was an ‘immediate’ report in the sense of Art. 51 of the UN Charter, and thus an indication that Russia was itself convinced that it was acting in self-defence.” Striking in its treatment of the issue is that the Georgian statement claiming self-defence in an emergency meeting of the Council on 8 August does not constitute an ‘immediate’ report, but Russia’s letter of 11 August does fulfil the requirement of an ‘immediate’ report. Though the word ‘immediate’ is put in quotation marks by the authors of the Report in both cases, perhaps their assessment rested more on the consideration that Georgia, unlike Russia, did not put its report in a ‘formal’ letter. Such a demand of formalism is not inherent to the text of article 51 Charter, since no qualification applies to the word ‘reported’ other than that it ought to be done ‘immediately’ and the Georgian statement to the Council, made within a day of the start of its military offensive, surely qualifies as such.
Another issue that ought to have been given more attention is the question of the permissible goals of self-defence. At various locations (pp. 249, 250, 251, 271, 275), the Report observes that repelling an armed attack is the only permissible objective of self-defence. However, over and above this primary objective, flowing quite naturally from the nature of defence, at least one other may be mentioned, namely the recovery of (occupied) territory. Though the permissibility of this particular goal of self-defence has been denied in the Partial Award on Jus Ad Bellum by the Eritrea Ethiopia Claims Commission (paras. 9 and 10), it ought to be noted that the Commission confused the goal of recovery of occupied territory in a continuing situation of self-defence with the legal prescription that States shall refrain from the threat or use of force to settle international and territorial disputes. In the situation at hand this would have permitted Georgia to counter incursions into and occupation of areas controlled by Georgia, whether initially by South Ossetian militia or armed forces or later on in response to the Abkhaz and Russian military operations. Whether Georgia would still be entitled to exercise its right of self-defence after an extended period of time may, in the light of requirements of immediacy and necessity, be doubted.
More generally speaking, there is no restriction under international law disallowing Georgia to invoke its sovereignty to reassert, by use of armed force, control over territory held by the armed forces of a secessionist entity. Any international obligations Georgia has to abstain from the use of armed force results from its acceptance of the earlier mentioned Agreements. Whether those Agreements were voluntarily accepted by Georgia may be open to doubt. The factual account set out in the Report (see, e.g. pp. 4-7) shows strong Russian interference in Georgia and Russian support for the Abkhaz and South Ossetian causes. However, to the extent that Georgia wished to counter Russia’s dominance and the creeping annexation of the Abkhaz and South Ossetian territories (Report, pp. 18-19), denunciation of the Agreements and withdrawal of its consent to the presence of peacekeeping forces would have been opportune and would have called into question both the legality and the legitimacy of a continued Russian military presence.
Failing these preliminary (legal) actions on the part of Georgia, the Report makes an admirable attempt to assess the responsibilities of the various parties to the armed conflict based upon their obligations under international law. Though the present author takes rather different views on many of the legal aspects concerned, this should not close one’s eyes to the contribution the Report makes to clarifying such responsibilities. Nevertheless, this comment only scratches the surface, as further discussion could follow on a variety of topics such as the Report’s treatment of threats of force, its discussion of imminent armed attacks, the (non-)attribution of acts of Abkhaz and South Ossetian authorities or (groups of) persons to Russia, the equation of an attack on Russian peacekeepers to an attack on Russian territory, the scale and effects of armed attacks, and so on and so forth. Treatment of such issues stands postponed.