Part 5: International Scrutiny of Rights Violations in the Conflict

International Inquiry Commissioned by the European Union

In December 2008 the European Union commissioned a broad, six-month inquiry into the conflict. Headed by a former head of the United Nations Observer Mission in Georgia (UNOMIG), Heidi Tagliavini, the inquiry is to examine "the origins and the course of the conflict ... with regard to international law, humanitarian law and human rights, and the accusations made in that context."[581] An EU diplomat told Human Rights Watch that the August war will only be a small part of the final report, which will look also at the events of the early 1990s, and the historical context.[582] The final report is due to be presented to the EU, the UN, the OSCE, Russia, and Georgia on November 30, 2009.

The Council of Europe commissioner for human rights published three reports on visits-in August, September, and November-to Georgia and Russia to assess the human rights situation with respect to the conflict. The commissioner's September 2008 report set out six principles for the protection of human rights in the context of the conflict, which focused on the right of all persons displaced by the conflict to return, the need for demining, and end to the torching and looting of civilian property, the need for protection of prisoners of war and other detained individuals, and the need for international agencies to be engaged in human rights protection in the region.[583] The two subsequent reports followed up on developments under these six principles.[584]

Complaints to International Courts

In addition to carrying out its own investigation, the Russian Prosecutor's Office has assisted South Ossetia residents in preparing complaints against Georgia to international and regional courts. On August 12, 2008, the prosecutor general of the Russian Federation, Yury Chaika, announced that he had created "a special brigade of prosecutors that would provide legal assistance in preparing appeals and complaints to the European Court of Human Rights and the Hague International Criminal Court."[585] While individual complaints can be lodged with the European Court of Human Rights, it is a matter for the Prosecutor of the International Criminal Court to determine whether there will be any cases opened against individuals in any given situation. Individuals, governments, or organizations can submit information to the Prosecutor about alleged crimes.

As a result, in the following two months, hundreds of complaints were submitted to the European Court of Human Rights and cases for investigation sent to the ICC Prosecutor.

European Court of Human Rights

On October 9, 2008, the European Court of Human Rights announced that it had received 2,729 applications from South Ossetians. According to the Court's communiqué,

These applicants allege that, in connection with the intervention of Georgian armed forces last August, they have been the victims of violations of the rights guaranteed by Articles 2 (right to life), 3 (prohibition of inhuman or degrading treatment), 8 (right to respect for private and family life), 13 (right to an effective remedy) and 14 (prohibition of discrimination) of the European Convention on Human Rights and by Article 1 of Protocol No. 1 (protection of property) to the Convention. Among other complaints, they claim that they have sustained damage to their health and breaches of their property rights.[586]

On January 14, 2009, the court announced that it had examined seven applications against Georgia, and that it had received a total of 3,300 cases "with a similar factual background." [587]

Several Georgian nongovernmental organiations, including the Georgian Young Lawyers' Association and the Human Rights Information and Documentation Centre are preparing about 180 cases, some of which unite the complaints of multiple individuals from specific villages.[588] The complaints are expected to concern articles 2, 3, 5, 6, 8, 13, and 14.[589]   

International Criminal Court

In addition, nongovernmental organization Residents of South Ossetia against Genocide, appealed to the ICC chief prosecutor to investigate the crimes committed by Georgian citizens on the territory of South Ossetia. Shortly after the end of hostilities, the organization submitted to the ICC several hundred appeals from the residents of South Ossetia; the head of the organization said she was convinced that Georgian forces had committed crimes which "fall under the jurisdiction of the International Criminal Court."[590]

On August 20 the prosecutor of the ICC confirmed that in "light of information related to the alleged commission of crimes under ICC jurisdiction," the situation was "under analysis by his office," but since then has not provided any further comments on the matter.[591]

By September 11, according to the Russian official publication Rossiiskaya Gazeta, 2,500 South Ossetia residents submitted complaints of violations by Georgian forces to the ICC.[592]

International Court of Justice

The first case to be filed on the conflict was an interstate complaint the Georgian government lodged against Russia at the International Court of Justice. In its complaint the Georgian government sought from the court a declaration that Russia was in violation of its obligations under the International Convention on the Elimination of Racial Discrimination (ICERD) and asked for compensation.[593] The complaint claims that Russia, acting through its own agencies and "separatist Abkhaz and South Ossetian forces under its direction and control has practiced, sponsored or supported racial discrimination through attacks against and mass explusions of ethnic Georgians … in South Ossetia and Abkhazia." It also accused Russia of trying to change or consolidate changes in the ethnic composition of Abkhazia and South Ossetia by preventing forcibly displaced people from returning to their homes in these territories.

During the conflict the court made no conclusive ruling on jurisdiction or the merits of the case. On October 15, 2008, it issued an order on provisional measures calling on Russia and Georgia to observe their legal obligations under the ICERD to prevent "irreparable prejudice" to the rights of persons before the court could rule on the merits of the case.