January 23, 2009

2.2 Indiscriminate Shelling of Tskhinvali and Outlying Villages

On the night of August 7-8, Georgian forces subjected the city of Tskhinvali and several nearby Ossetian villages, including Nizhnii Gudjabauri and Khetagurovo, to heavy shelling. That night other villages were also shelled, though less heavily, including Tbeti, Novyi Tbeti, Sarabuki, Dmenisi, and Muguti. Tskhinvali was heavily shelled during daytime hours on August 8. Shelling resumed at a smaller scale on August 9, when Georgian forces were targeting Russian troops who by then had moved into Tskhinvali and other areas of South Ossetia.

Based on numerous interviews with survivors and witnesses, and on an examination of the scene of the attacks, Human Rights Watch concluded that Georgian forces used Grad rockets, self-propelled artillery, mortars, and Howitzer cannons.

Tskhinvali

In Tskhinvali, the most affected areas were the city's south, southeast, southwest, and central parts. Georgian authorities later claimed that their military was targeting mostly administrative buildings in these areas.[121] The shells hit and often caused significant damage to multiple civilian objects, including the university, several schools and nursery schools, stores, and numerous apartment buildings and private houses. Such objects are presumed to be civilian objects and as such are protected from targeting under international law; but as described below, at least some of these buildings were used as defense positions or other posts by South Ossetian forces (including volunteer militias), which rendered them legitimate military targets.[122]  

Human Rights Watch examined damage caused by shelling, including by Grad rockets, and interviewed witnesses from houses and apartment buildings located on numerous streets in different parts of the city.[123]  

Grad rocket attacks on Tskhinvali and outlying villages

One of the civilian objects hit by the Grad rockets in Tskhinvali was the South Ossetian Central Republican Hospital (Tskhinvali hospital)-the only medical facility in the city that was assisting the wounded, both civilians and combatants, in the first days of the fighting.

One of the hospital's doctors told Human Rights Watch that the hospital came under fire for 18 hours, and that hospital staff had to take all of the wounded into the hospital basement because of this. Human Rights Watch documented the damage caused to the hospital building by a rocket believed to have been fired from a Grad multiple rocket launcher: the rocket had severely damaged treatment rooms on the second and third floors. Aivar Bestaev, the chief of the surgery department in the hospital, told Human Rights Watch,

I came to work on August 7, and couldn't leave the hospital for almost a week. We treated all of the wounded in the basement, because they were shelling the hospital non-stop. We were very short-staffed, and I conducted surgery after surgery in terrible conditions, on the cold floor in the basement. Initially, we only had candlelight, then somebody brought a small generator… It's a miracle that all of the wounded (almost 280 people!) whom we treated there survived. The majority had shell wounds, some very serious, and some had bullet wounds as well.

On August 8, my neighbor rushed to the hospital and told me that my house was hit and was on fire-I knew my wife was there, but I couldn't do anything, I was in the middle of a surgery. I had to stay in the hospital. My wife survived-she and other women found shelter in a different house, but for several days I didn't know what happened to her. Everything we had burned in the fire-clothes, furniture, everything![124]

A doctor in the basement of the Tskhinvali hospital where, despite poor lighting and inadequate equipment, medical personnel managed to save, during the fighting, all 273 of their wounded patients. © 2008 Human Rights Watch

Hospitals enjoy a status of special protection under humanitarian law beyond their immunity as civilian objects, and the presence of wounded combatants there does not turn them into legitimate targets.[125]

Vladimir, age 36, showed Human Rights Watch the ruins of his house on Abaev Street in Tskhinvali. He said that five Grad rockets hit his yard and his neighbor's yard on August 7, and he showed Human Rights Watch researchers fragments of the rockets that exploded in his yard. Vladimir and his family had already fled Tskhinvali, but friends were staying in his house on the night of August 7, who told him what happened. Vladimir told Human Rights Watch,

When the shelling started, [my friends] rushed to the basement, removed a water tank and hid in the pit where it used to stand. They spent two days and two nights there, in this pit, unable to get out. On August 10, when the shelling subsided a bit, they went out-and just in time, because the house totally collapsed on the same day!
As I was getting ready to return here, my kids were asking me, "Daddy, can you please check on our toys, see if they're all right?" What am I going to tell them now? Sorry, children, not only your toys are gone but you don't have a home any longer?[126]

Human Rights Watch saw several other houses on the same street destroyed or significantly damaged by Grad rockets or artillery shells.

Another area heavily hit by the Grad rockets was the southern part of Stalin Street. There, several apartment buildings in a row sustained multiple hits on their southern facades. One of the residents of 96 Stalin Street told Human Rights Watch that the building was hit by three Grad rockets almost simultaneously at around 4:20 a.m. on August 8. One of the rockets hit an apartment on the third floor. Two of the apartment's residents, both women, survived with non-life-threatening injuries.[127] The residents of the neighboring house, No. 98, showed Human Rights Watch several large fragments of Grad rockets that they collected in and around the buildings.[128]

Components of BM-21 Grad rockets recovered in an apartment building in Tskhinvali. © 2008 Human Rights Watch

The above are only a few of the examples of damage caused to the South Ossetian capital by Grad attacks.

Several villages to the west and east of Tskhinvali were also subjected to Grad shelling and heavy artillery fire by the Georgian forces.

In the village of Khetagurovo-especially in its southern part, close to the Georgian artillery positions-Human Rights Watch saw many houses completely destroyed or significantly damaged by the shelling. For example, one house on Alanskaia Street on the southern outskirts of the village was hit by four Grad rockets and three mortar shells, and the neighboring house was hit by five mortar shells. Human Rights Watch saw the fragments of the rockets and the shell craters in the yards.

Madina Dzhioeva, age 32, one of the villagers who stayed in Khetagurovo during the attack, described the night of August 7-8 to Human Rights Watch:

At night the shelling started … My mother is very ill and bedridden. So, I had to stay with her. When the shelling started, we spent that first night at home. It was absolutely horrifying. Very early in the morning we carried Mother to the house of our neighbors across the street because there is no basement in our house, and we knew we would have been killed within hours if we stayed at home any longer. We spent three days in our neighbors' basement-there was no food, nothing.[129]

According to Georgian authorities, and one Ossetian interviewee we spoke with, Ossetian forces had firing positions in Khetagurovo.[130] While these firing positions were legitimate targets, given the indiscriminate nature of Grad rockets, using them to hit such targets in an area populated by civilians may constitute an indiscriminate attack. Although the Ossetian forces bear responsibility for endangering civilians by locating military objectives near or among populated areas, Georgia is not relieved from its obligation to take into account the risk to civilians when it attacks the targets.

Human Rights Watch documented similar accounts by the residents of Nizhnii Gudjabauri, Sarabuki, Muguti, Dmenisi, and Novyi Tbeti. For example, in Dmenisi 12 houses were destroyed or severely damaged by the shelling. In Sarabuki a Human Rights Watch researcher saw five houses severely damaged by artillery hits, and others with lesser damage. In both villages Human Rights Watch saw ample evidence of the use of Grad rockets.

Civilians Killed in Shelling

Georgian forces' indiscriminate use of force, using Grad and other weapons, led to civilian deaths and injuries.[131]

In one example, Anisim Dzhagaev, age 74, was killed by what witnesses believed to be a Grad rocket during the shelling of Tskhinvali. On the night of August 7-8 Dzhagaev was with his wife in the basement of their house on Kulaev Street in the southern part of the city. His daughter Dzarisa Dzhagaeva told Human Rights Watch,

He stepped out of the basement during the shelling to see what was happening and saw that the roof of the house had caught fire. He fetched some water and tried to put the fire out. And then he was hit in his right leg.
Mother could hear how those multiple rockets were flying at the same time-she described the sound of multiple explosions and everything.
He was bleeding very heavily and there was just no one to help. He was dying slowly from the loss of blood. Mother helped him make it back into the basement and spent the whole night sitting by his side while he was dying. She had nothing to properly bandage the wound with, soon she ran out of rags, and he was just bleeding away … When he died we could not bury him properly. I made a grave for him right in the vegetable patch. I buried him myself-but only on August 10, when the fighting subsided and I could get out of the basement.[132]

Another interviewee told Human Rights Watch that his mother and aunt were killed on August 9, during one of the last rounds of Georgian shelling. Both women were in their home, located near School No. 6 in Tskhinvali, when a rocket hit their yard. The interviewee, Alan Sipols, age 38, was abroad at the time of the Georgian offensive, but reconstructed the sequence of events based on his telephone conversations with his mother just before her death and on accounts by neighbors. A shell landed in the middle of the garden, leaving a crater some 3.5 meters in diameter:

When it hit, all the sharp, scorching fragments flew into the house, penetrating the walls as if it was paper. When such a fragment hits a person, it just shreds you apart, and I cannot describe what they turned the people I loved most into.
God save you from ever having to collect into a bag the fragments of your loved ones' bodies…

Sipols, who said he had had artillery training in the military, told Human Rights Watch he believed, judging by the fragment and the crater, that the shell had been "a large-caliber shell, some 122 mm or more," fired from a howitzer.[133]

Telman Street, located in southern Tskhinvali, was almost completely destroyed by Georgian shelling, which Sonya Gagloeva said killed one of her neighbors and wounded another. Gagloeva, age 69, said that she was sheltering in a large basement along with many of her neighbors. When she ran out at one point to grab her identity papers from her house, she herself suffered a contusion and minor shrapnel wounds when a shell hit the ground right next to her.

She said the shelling was virtually incessant during the first day, and people in the basement had no food or water. The men tried to get out from time to time to fetch water. One of them was killed as he was on his way out of the basement. Gagloeva said,

Our neighbor, Vasily Bazaev, he was 53 or 54 years old, tried to step outside during that first night, close to dawn [August 8]. He made it halfway up the staircase when a shell hit … When we came up he was still alive. We dragged him down the stairs and he died 10 minutes later. And then we stayed in the same basement next to his body till the afternoon of August 9, when some relatives came to pick up the body.
Another neighbor, Natela-she's 45 or so-got wounded. It was on August 8. She was staying somewhere further down the street and she knew our basement was safer, so she decided to risk it … She almost made it to us but got hit by some fragments of shells just a few steps away from our basement. So, we dragged her into the basement and the poor woman was all covered in blood. We watched over her till the evening of August 9 when some of the guys [militias] finally picked her up and took her to the hospital.[134]

Sonya Gagloeva in front of her destroyed house on Telman Street, in Tskhinvali. © 2008 Human Rights Watch

The number of civilians at risk-and thus the number of casualties-was significantly reduced because many residents of Tskhinvali and neighboring villages, especially women and children, were evacuated or managed to flee their homes before the fighting began, many of them on August 6 and 7. The majority of the remaining civilians spent several days in the basements of their houses to seek shelter from Georgian forces' heavy shelling and ground offensive.

This, however, by no means relieves the Georgian side of responsibility to minimize the risk to civilians when launching an attack and to abide by the principles of distinction. 

In addition, warring parties have a responsibility where possible to give advance warning of an attack that might affect civilians.

No such warning was given by the Georgian side. On the contrary, before the shelling started on the night of August 7-8, President Saakashvili said in a televised statement that "Georgia has unilaterally ceased fire in the current fighting with separatist rebels in the region of South Ossetia" and that his government would engage in direct negotiations to end the conflict.[135] 

A number of witnesses told Human Rights Watch that this announcement influenced their decision to stay in the city, which put them at greater risk.

The positioning of Ossetian combatants

The Georgian authorities have claimed that the strikes on Tskhinvali and neighboring villages were legitimate as they targeted Ossetian military positions and not at civilians. In his testimony to the parliamentary commission studying the August war, Zaza Gogava, chief of staff of the Georgian armed forces, said that "Georgian forces used precision targeting ground weapons only against several administrative buildings, where headquarters of militias were located; these strikes did not cause any destruction of civilians' houses."[136]

Alexander Lomaia, the secretary of the Georgian National Security Council, told the same commission that the goal of the attacks was only to "neutralize firing positions from whereGeorgian positions were being targeted," and that Grad rockets were only used on "Verkhny Gorodok district of Tskhinvali, where [separatist] artillery was deployed," while the city center was hit with "modern, precision targeting weapons."[137]

Numerous witnesses interviewed by Human Rights Watch, including members of South Ossetian militias, indicated that South Ossetian forces were not only present in Tskhinvali and neighboring villages, but also actively participating in the fighting, including by launching artillery attacks against Georgian forces. The witnesses also made it clear that South Ossetian forces set up defensive positions or headquarters in civilian infrastructure, thus turning them into legitimate military targets.  

These locations included some administrative buildings hit by the Georgian artillery, such as the Ossetian parliament building, as well as several schools and nursery schools. For example, witnesses told Human Rights Watch that militias had taken up positions in School No. 12 in the southern part of Tskhinvali, which was seriously damaged by the Georgian fire. Another witness said South Ossetian fighters were co-mingled with civilians in the basement of Tskhinvali School No 6, which drew Georgian tank fire.  No civilian casualties resulted.[138]

Yet another witness, a 50-year-old kindergarten teacher who showed Human Rights Watch the fragments of Grad rockets that hit her kindergarten building on Isak Kharebov Street, also said that volunteer militias had been "hiding" in the building.[139] Several members of the Ossetian militia interviewed by Human Rights Watch confirmed that many of the school and nursery school buildings were used as gathering points and defense positions by the militias.

In some of the villages, such as Khetagurovo, Human Rights Watch was able to establish that the positions of Ossetian militias were in close proximity to the civilian homes hit by the Georgian artillery.[140] Georgian forces said they came under heavy fire from Khetagurovo.

However it is questionable whether the large-scale shelling carried out by Georgian forces against Tskhinvali and outlying villages could be considered a proportionate attack against Ossetian forces, including volunteer militias present in these areas.  In some cases, as mentioned above, the very choice of indiscriminate weapons or weapons that cannot be targeted with precision (such as Grad launchers) would make attacks unlawful in populated areas. Even though the presence of the Ossetian forces may have made the area a prima facie legitimate target, the Georgian forces were still obliged to calculate whether the risk of harming civilians with the Grad rockets was too high to justify the military advantage sought.

It is also not clear to Human Rights Watch to what extent the Georgian command had the necessary intelligence to establish the exact location of the South Ossetian forces at any given moment, in part because the forces were very mobile. At the same time, Georgian military command was clearly aware of the presence of civilians in Tskhinvali and other areas subjected to artillery strikes.[141]

International humanitarian law places clear obligations on warring parties to take all possible steps to minimize harm to civilians and not to attack civilian objects. If any doubt exists as to whether a civilian object is being used for military purposes, "it shall be presumed not to be so used."[142] When a legitimate target exists within a building, the attacking party must still make a proportionality assessment, ensuring that the expected value of destroying the military object outweighs the likely impact of the attack on civilians and civilian infrastructure.

[121] According to Zaza Gogava, chief of the Joint Staff of Georgian Armed Forces, there were Ossetian militias harboured in those administrative buildings. Stanogram of the Session of the Parliamentary ad hoc Commission on Military Aggression and Acts of Russia against the Territorial Integrity of Georgia, Session of October 28, 2008, http://www.parliament.ge/index.php?lang_id=ENG&sec_id=1329&info_id=21212 (accessed January 13, 2009).

[122] See ICRC, Customary International Humanitarian Law, rule 8.

[123]These include: Isak Kharebov Street, Abaev Street, Geroev Street, Telman Street, Shkolnaia Street, Zavodskaia Street, Dzhabiev Street, Ustaev Street, Koblov Street, the Shankhai area (southwest part of the city- Tsereteli Street and Gertzin streets), Lenin Street, Mansurov Street, Luzhkov Street, Stalin Street, Molodezhnaya Street and the Tsarz area (southeast part of the city-Komarov Street).

[124]Human Rights Watch interview with Aivar Bestaev, Tskhinvali, August 17, 2008.

[125]See in particular, Geneva IV, article 19 which states that the "fact that sick or wounded members of the armed forces are nursed in these hospitals, or the presence of small arms and ammunition taken from such combatants and not yet handed to the proper service, shall not be considered to be acts harmful to the enemy." Additionally, should the hospitals be used forcommitting acts harmful to the enemy outside their humanitarian duties, protection may cease "only after due warning has been given, naming, in all appropriate cases, a reasonable time limit, and after such warning has remained unheeded."

[126]Human Rights Watch interview with Vladimir (real name withheld), Tskhinvali, August 16, 2008.

[127]Human Rights Watch interview with residents of 96 Stalin Street, Tskhinvali, August 15, 2008.

[128] Human Rights Watch interview with residents of 98 Stalin Street, Tskhinvali, August 15, 2008.

[129]Human Rights Watch interview with Madina Dzhioeva, Khetagurovo, August 24, 2008.

[130]According to Vano Merabishvili, minister of interior of Georgia, Georgian police posts were often fired at from the villages of Khetagurovo and Ubaiti. Stanogram of the Session of the Parliamentary ad hoc Commission on Military Aggression and Acts of Russia against the Territorial Integrity of Georgia, Session of November 26, 2008, http://www.parliament.ge/index.php?lang_id=ENG&sec_id=1329&info_id=21751 (accessed January 13, 2009); Human Rights Watch interview with Ruslan B. who had been to this facility regularly, Dzara road, November 24, 2008.

[131]See above section, Tskhinvali, for a fuller discussion of this issue. The Public Commission for Investigation of War Crimes in South Ossetia, a group of public activists working with the prosecutor's office of the de facto South Ossetian government, has claimed that 34 people were killed by Grad rockets or other artillery, as included on its list of 365 people killed during the conflict. Another 65 deaths on the list are attributed to obstrel, which can mean shelling or simply "firing." See Public Commission for investigating war crimes in South Ossetia, "List of the Killed Residents of South Ossetia," http://www.osetinfo.ru/spisok (accessed November 8, 2008).  As explained below, the list does not distinguish between civilians and combatants.

[132] Human Rights Watch interview with Dzarisa Dzhagaeva, Tskhinvali, August 14, 2008.

[133]Human Rights Watch email correspondence with Alan Sipols, August 25-26, 2008.

[134]Human Rights Watch interview with Sonya Gagloeva, Tskhinvali, September 7, 2008.

[135]"President Orders Immediate Cease Fire, Says Russian Peacekeepers Acknowledge Having Lost Control Over Separatist Rebels," Georgia Update, http://georgiaupdate.gov.ge/doc/10003551/20080807,%20Cease%20Fire.pdf.

[136] "Chief of Staff Testifies before War Commission," Civil Georgia, http://www.civil.ge/eng/article.php?id=19851.

[137]National Security Council Chief Testifies before War Commission, Civil Georgia, October 29, 2008, http://www.civil.ge/eng/article.php?id=19845 (accessed November 5, 2008).

[138]Human Rights Watch interview with Nar N., Tskhinvali, September 7, 2008. Nar N. (real name withheld) said that the fighters in the basement peeked out of the basement but did not open fire at Georgian forces. If true, this would not change the status of the basement as a legitimate military target.

[139]Human Rights Watch interview with Marina M. (real name withheld), Tkshinvali, August 13, 2008.

[140] Human Rights Watch interviews with Anna A. and Ruslan B. (real names withheld), Dzara Road, November 24, 2008.

[141]The Georgian army chief of staff, Zaza Gogava, made this fact clear in his testimony to a parliamentary commission examining the conduct of the war. See "Chief of Staff Testifies before War Commission," Civil Georgia,http://www.civil.ge/eng/article.php?id=19851.

[142] Protocol I, art. 52(3), states, "In case of doubt whether an object which is normally dedicated to civilian purposes, such as a place of worship, a house or other dwelling or a school, is being used to make an effective contribution to military action, it shall be presumed not to be so used."