On the Occasion of the Five-year Anniversary of the Russian-Georgian War: Is Georgia Occupied?

Natia Kalandarishvili-Mueller is a Lecturer in Humanitarian Law at Tbilisi State University, Institute of International Law, Faculty of Law, and a PhD Candidate at the University of Essex, School of Law.

Five years have passed since war broke out between Russia and Georgia. The Independent International Fact Finding Mission on the Conflict in Georgia, established by the Council of the EU by decision of 2 December 2008, found that:

“On the night of 7 to 8 August 2008, a sustained Georgian artillery attack struck the town of Tskhinvali. Other movements of the Georgian armed forces targeting Tskhinvali and the surrounding areas were under way, and soon the fighting involved Russian, South Ossetian and Abkhaz military units and armed elements. It did not take long, however, before the Georgian advance into South Ossetia was stopped. In a counter-movement, Russian armed forces, covered by air strikes and by elements of its Black Sea fleet, penetrated deep into Georgia, cutting across the country’s main east-west road, reaching the port of Poti and stopping short of Georgia’s capital city, Tbilisi […] After five days of fighting, a ceasefire agreement was negotiated on 12 August 2008 between Russian President Dmitry Medvedev, Georgian President Mikheil Saakashvili and French President Nicolas Sarkozy…”. (pp. 10-11 of the Report)

However, the Russian Federation appears to be in violation of Point 5 of the Sarkozy peace plan, which had stipulated “the withdrawal of Russian military forces to the lines they held before hostilities broke out…”. What is more, on 26 August 2008 Russia recognized the independence and sovereignty of Georgia’s two breakaway regions, Abkhazia and South Ossetia.

This post examines the validity of Georgia’s contention that 20 percent of its territory is occupied by Russia. I first discuss the parties’ opposing positions and then assess the facts in light of the applicable law on military occupation.

The stances of the parties

On 23 October 2008, almost two months after the active hostilities, the Parliament of Georgia adopted The Law of Georgia on Occupied Territories, deeming the Autonomous Republic of Abkhazia, the Tskhinvali Region, waters in the Black Sea (territorial inland waters and sea waters of Georgia), and the air space over the territories to be under Russian occupation.

On the other hand, in the Report of the Independent International Fact Finding Mission on the Conflict in Georgia, Russia did not acknowledge being an occupant. In particular, Russia

holds that it does not at present, nor will it in the future, exercise effective control over South Ossetia or Abkhazia; and that it was not an occupying power […]. Despite having crossed into the territory of Georgia in the course of the conflict, Russia was not an occupying power in terms of IHL. (p. 308, Vol. II of the Report)

In the same report, the Russian government further stated that “the presence of an armed force in the territory of another state is not always construed as occupation […] the number of Russian troops stationed in South Ossetia and Abkhazia (3,700 and 3,750 servicemen respectively) does not allow Russia in practice to establish effective control over these territories which total 12 500 sq. kilometres in size.” (ibid., pp 308-309)

Contrary to this assertion, the 2011 Implementation Review: Six Point Ceasefire Agreement between Russia and Georgia, prepared by the National Committee on American Foreign Policy and the Institute for the Study of Human Rights, raised concerns that:

Russia not only failed to withdraw, it expanded territory under its control beyond the pre-war conflict zones […] Russia established a troop presence in 51 villages it did not control before the war… Russia also deployed new weapons systems […] Russia signed 49-year lease agreements with automatic 5-year renewals in Gudauta and Tskhinvali. Russia has built 5 permanent military bases in South Ossetia manned by approximately 5,000 security personnel. Another 5,000 are based in Abkhazia. Both deployments include regular army troops, border guards and FSB [Russian secret service] personnel. (p. 10 of the Review)

The International Crisis Group, in a 2010 report on “South Ossetia: The Burden of Recognition”, similarly held that:

the day after President Medvedev signed the September 2008 ceasefire with President Sarkozy of France […] the Russian defence minister made it clear that Moscow intended to deploy 3,800 troops in the breakaway Entities […] (p. 7 of the Report).

A more recent report of the International Crisis Group, Abkhazia: The Long Road to Reconciliation, finds:

At the same time, given its control over Abkhazia’s ‘borders’, roads and sea, Russia need not maintain a heavy permanent presence, as it can move military equipment and troops into and out of the entity at will. The exception is the heavy Russian military and FSB border guard presence along the ABL, on the edge of the Gali district. (p. 5 of the Report)

And an explanatory memorandum, submitted to the Council of Europe’s Parliamentary Assembly, which served as the basis for Resolution 1916 of 2013, reconfirms the large presence of Russian troops in South Ossetia and Abkhazia (para. 104 of the Memorandum).

Moreover, media reports trickling in from 2009 averred that the Russian troops controlling the territories and the so-called administrative boundary lines wantonly started shifting the “boundary” between South Ossetian occupied villages and Georgian-controlled territories. Reports were made of hindering villagers in South Ossetia from accessing forests to gather wood for winter or move about or visit family graves. Civilians from Georgian villages were reportedly detained on the grounds of “illegal crossing” of the de facto borders between the villages.

Amid these developments, reports started to emerge from 2011 of Russian troops, at times with the Ossetian de facto authority forces, erecting high coils of razor or barbed wires to divide the South Ossetian de facto territory from the rest of Georgia and thereby setting the boundaries. Barbed wires run across villagers’ gardens and other objects of civilian usage. In some instances, garden proprietors could not access their plots or come out of their homes because the “boundary” of barbed wire ran around their property.

According to Georgia’s Interior Ministry, “there is no fencing activities at the administrative border of Georgia’s other breakaway region of Abkhazia, where the Enguri river serves as a natural dividing line […] But Russian troops there […] were blocking the pathways to prevent ‘illegal’ movement across the administrative boundary line”.

Finally, the statement by the US Ambassador to Georgia of 5 August 2013 on the August 2008 conflict draws attention to the potential danger ahead: “…There is no place in the modern world for building a new Berlin wall.”

What do these developments signify and in how far is international humanitarian law addressing them?

To be or not to be occupied, that is the question!

Occupying States generally do not want to acknowledge their status as occupant and usually prefer considering themselves not to exercise effective control over a territory because

[…] the concept of occupation has a pejorative connotation and has often been characterized, usually by its critics, as ‘unlawful’ and contrary to the overall objective of international peace and security set by the United Nations Charter. (ICRC Report on Occupation and Other Forms of Administration of Foreign Territory, p. 4)

Accepting occupant status also places on a State a host of obligations under international humanitarian law (IHL) toward the population of the occupied territory, increasing the financial burden of the occupying State.

A number of States have denied being occupants: Israel in Gaza, Armenia in Nagorno Karabakh, Azerbaijan, and Turkey in Northern Cyprus. Similarly, Russia contends that its military presence on the territory of Georgia is based on the invitation of the local de facto authorities or the “new governments” in Abkhazia and South Ossetia. Nevertheless, Russia’s recognition of these two regions runs contrary to the international community’s stance, as evidenced by Council of Europe Parliamentary Assembly Resolutions N. 1633 (2008), paras. 9-10; N. 1647 (2009),  para. 1, N. 1683 (2009), para. 10, and N. 1916 (2013), para. 10.

Is the Georgian contention that 20 percent of its territory is occupied by Russia congruent with Article 42 of the Hague Regulations (1907)? The facts summarized above suggest that it is.

A situation of occupation under IHL occurs only in times of international armed conflict, and the definition provided by Article 42 of the Hague Regulations 1907 is of customary nature, as stated by the Nuremberg Tribunal (International Military Tribunal (Nuremberg) 1946, 41 AJIL 172, at pp. 248-9). The key aspect in the definition of military occupation is the issue of actual control, i.e. effective control. In this regard, the deliberations of the International Court of Justice (ICJ) and the International Criminal Tribunal for the Former Yugoslavia (ICTY) are instructive. The ICJ considered Article 42 in the Case Concerning Armed Activities on the Territory of the Congo, having had to determine whether “Uganda was an occupying power in the parts of Congolese territory where its troops were present at the relevant time.” (para. 166 of the judgment)

The ICJ stated that whether or not a state’s military forces are “present on the territory of another State” as a result of an intervention, in order to identify

[…] an ‘occupying Power’ in the meaning of the term as understood in the jus in bello, the Court must examine whether there is sufficient evidence to demonstrate that the said authority was in fact established and exercised by the intervening State in the areas in question (para. 173 of the judgment, emphasis added).

“Authority […] in fact established and exercised” includes not only an occupant having an administrative apparatus on the ground in full operation. As the ICTY in the Naletilić case further clarified, an occupying power ought to possess the capacity of making its authority felt. The ICTY Trial Chamber, therefore, considers that an occupying power must have “a sufficient force present, or the capacity to send troops within reasonable time to make the authority of the occupying power felt.” (para. 217 of the judgment)

Hence, one of the constitutive factors for effective control in terms of military occupation is the State’s ability to make its authority felt, which Russia is undoubtedly doing, as described above.

Finally, Georgia has brought an inter-state case against Russia before the European Court of Human Rights (ECtHR) concerning the armed conflict between the two states (para. 18 of the decision). The Council of Europe has called on the ECtHR to expedite the hearing of the case. It is hoped that the ECtHR will assess the situation on the ground and acknowledge Russia’s occupant status. In addition, the ECtHR’s view on the extraterritorial application of the European Convention on Human Rights would be edifying. A more authoritative judgment than the one presented in this blog post, therefore, is to be expected soon.