23 января 2009 г

2.3 Attacks by Georgian Forces on Civilians Fleeing the Conflict Zone

Many Ossetian civilians who did not manage to leave South Ossetia before the fighting attempted to flee to North Ossetia on August 8–10. Human Rights Watch received a number of disturbing reports of Georgian attacks on civilian vehicles fleeing the conflict zone, resulting in death and injuries. The cases described below indicate that-in these cases at least-the attacks caused excessive civilian loss and that precautions were not taken to protect civilian life.

Attack on the Dzhusoev family, August 8

An elderly resident of Tskhinvali, Zaur Dzhusoev, lost his son, Mairbek, and two of his teenage grandchildren, Dina and Aslambek, in one such attack. Dzhusoev told Human Rights Watch that on the morning of August 8, when the shelling of the city subsided for a while, his son decided to take his family out of the city. The civilian car (a Zhiguli Semerka) was packed with civilians-in addition to Mairbek Dzhusoev, who was driving, there were five children (Mairbek's two teenagers, a six-month-old baby, a two-year-old, and a seven-year-old), Mairbek's wife, and another female relative. Mairbek Dzhusoev was wearing civilian clothes. Zaur Dzhusoev, who learned the details of the incident from eyewitnesses, told Human Rights Watch,

I didn't want to let them go, but my son said, "Dad, not to worry, I'll get through!" It was around 9 a.m. He promised to call when they got out of the city, and I was waiting and waiting for his call. I didn't know that my children were no longer alive …
I only found out around 4 p.m., but then I couldn't do anything. Later I learned from our militias who were in the area that it happened at the intersection of Geroev and Isaaka streets. The militias noticed his car and tried to make signals for him to turn around because there was a Georgian tank. My son turned the car, but it was too late-the tank fired at the car, and that was it … 
Later, I saw the car-it was apparently hit by a very big shell. The two women managed to get out with the three younger kids, but my son and grandchildren couldn't. Maybe they were killed instantly or maybe they died from the wounds-no one could approach the car to help them, because Georgians were shooting all the time. They just burned in the car-the only remains I could retrieve and bury were just ashes! That's all I have left from my family ….[143]

Attacks on civilian cars on the Dzara road

A number of interviewees told Human Rights Watch that they tried to flee north out of Tskhinvali along the Dzara road, hoping to get to safety in North Ossetia, when they came under Georgian fire.[144]

Petr Petaev, a resident of Tskhinvali, was trying to flee the city with his wife and son on August 9.  A grenade hit Petaev's car, killing his wife and injuring Petaev and his son. Petaev told Human Rights Watch,

For two nights and one day I was hiding in the basement with my wife and son and then, on the 9th we could not take it anymore and decided to leave. We got into our car in the evening and drove out of the city. Some militias told us that a humanitarian corridor was opening up that evening and everyone should try to leave. So, there we were driving through Tbet [Tbeti] onto the Zar [Dzara] road.
And we were shot at right there. My wife was killed by the very first shot. My son and I just sat in the car next to her dead body for another half-hour or so. And they just continued shooting! My son got wounded in the head and I was wounded in my leg. Before we reached that place where we got shot at we saw 10 burning cars.[145]

Another civilian killed during evacuation along the Dzara road was 54-year-old Diana Kodjaeva, who tried to flee Tskhinvali with her neighbors on the night of August 7-8. Kodjaeva's cousin, who learnt about her death the next day, told Human Rights Watch that the car in which they had been traveling came under heavy fire on the Dzara road and "burnt to ashes." He did not know the circumstances of how the car came under fire, and found only the burnt remains of his cousin and two of her neighbors. He said,

I immediately went there and found what remained of the car. It was a burnt wreck. And I could not even bury [my cousin] properly. I just picked up a few handfuls of dust from the car and pretended these were her ashes. But I don't know whether they were really hers or [those of the two other people in the car]. I needed to bury something, right? And this just had to do.[146]

Another interviewee recounted to Human Rights Watch how his brother tried to evacuate his wife and eight-year-old son from Tskhinvali on the night of August 7. He said,

On the detour [Dzara] road, the car came under heavy fire from the Georgian troops. My brother first pushed his wife and son out of the car and they hid in a ditch on the side of the road. He drove further, trying to lead the fire away from his family. Then he jumped out of the car, and managed to crawl back to where he left his wife and child. Georgians continued to fire at the car, and it burnt almost completely. My brother and his family spent the night in the ditch, and in the morning managed to get to Java, where they got some help. The child was seriously traumatized and is now undergoing rehabilitation in Vladikavkaz.[147]

(An unverified claim that Georgian forces used cluster munitions in their attacks on the Dzara road is discussed in Chapter 2.4).

Attacks on vehicles and international humanitarian law

Human Rights Watch was not able to conclude whether the civilian deaths that resulted from the attacks on the vehicles were the consequence of acts contrary to the laws of war, and believes that the circumstances of these killings warrant further investigation.

At least two factors suggest the presence of legitimate military targets. First, starting early on the evening of August 8, Russian forces and armaments were moving south from the Roki tunnel on the Dzara road: In a letter to Human Rights Watch, the Georgian government stated that its forces "fired on armor and other military equipment rolling from the Roki Tunnel along the Dzara Road, not at civilian vehicles."[148] Second, as one witness recounted to Human Rights Watch, Ossetian forces had an artillery storage facility and firing position on a hill about one kilometer from the Dzara road.[149]

Both Russian forces moving south on the Dzara road and the Ossetian firing position were legitimate military targets. But in carrying out these attacks Georgian forces had a duty to take precautions to minimize civilian harm and to ensure these attacks conformed to the principle of proportionality.

The Georgian government has said that "during movement of military columns, particularly during combat, all movement of civilian vehicles was halted. Consequently, there were no civilian vehicles present during [Georgian armed forces] fire against the mouth of the Roki Tunnel and along the Dzara Road."[150] It appears, however, that Russian columns moving south did not preclude civilian vehicles' moving north. Indeed, Georgian forces should have been fully aware that in the first days of the conflict the Dzara road was the only way out of Tskhinvali that civilians could use.

Information collected by Human Rights Watch suggests that many of the cars were driven by South Ossetian militiamen who were trying to get their families, neighbors, and friends out of the conflict zone. A militia fighter is a combatant and a legitimate target when he or she is directly participating in hostilities.

It is not inconceivable that some of the militia fighters driving civilians to safety were wearing camouflage, were armed, or in other ways appeared to pose a legitimate threat to Georgian forces. But it was the responsibility of the Georgian troops to determine in each case whether the vehicle was a civilian object or not, and if it was believed to be a legitimate military target, whether the anticipated military advantage gained from an attack on such vehicles would outweigh the expected harm to civilians.

[143] Human Rights Watch interview with Zaur Dzhusoev, Tskhinvali, August 17, 2008.

[144]The main road north out of Tskhinvali is the TransCam, which goes through ethnic Georgian villages administred by Tbilisi, and was closed by the de facto authorities in South Ossetia several years earlier. Since then and until the end of the August hostilities, Tskhinvali residents wishing to travel in the direction of Java had to take a detour through the village of Zar, along the Zarskaya road, known in Georgian as the Dzara road. Nearly one-seventh of the 365 deaths listed by the Public Commission for Investigation of War Crimes in South Ossetia allegedly occurred "on the Zarskaya [Dzara] road." As noted elsewhere in this report, it is not known whether the deceased on this list were civilians or combatants, where they were killed, and under what circumstances. 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).

[145]Human Rights Watch interview with Petr Petaev, Tskhinvali, September 8, 2008.

[146] Human Rights Watch interview with Diana Kodjaeva's cousin (name withheld), Tskhinvali, September 8, 2008.

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

[148]Letter from Alexander Lomaia, secretary of the Georgian National Security Council, to Human Rights Watch, December 3, 2008.

[149]Human Rights Watch interview with Ruslan B., November 24, 2008.

[150]Letter from Alexander Lomaia to Human Rights Watch, December 3, 2008.