1.2 International Legal Framework

This chapter addresses the general international legal issues related to the August 2008 conflict in Georgia. This includes international humanitarian law relating to the conduct of hostilities, humane treatment, and occupation; international human rights law; and international law concerning displaced persons and the right to return. Discussion of specific violations of International humanitarian law and human rights law are found within the relevant chapters below.

International Humanitarian Law Governing Hostilities

The conduct of the armed conflict in Georgia and South Ossetia is primarily governed by international humanitarian law, also known as the laws of war. International humanitarian law imposes upon parties to a conflict legal obligations to reduce unnecessary suffering and protect civilians and other non-combatants, or those hors de combat, such as prisoners. It does not regulate whether states and armed groups can engage in armed conflict, but rather how they engage in hostilities.[60]  All armed forces involved in the hostilities, including non-state armed groups, must abide by international humanitarian law.[61] Individuals who violate humanitarian law with criminal intent may be prosecuted in domestic or international courts for war crimes.[62]

Under international humanitarian law, the hostilities that occurred between Russia and Georgia constitute an international armed conflict-a conflict between two states. The law applicable to international armed conflict includes treaty law, primarily the four Geneva Conventions of 1949 and its First Additional Protocol of 1977-Protocol I-and the Hague Regulations of 1907 regulating the means and methods of warfare, as well as the rules of customary international humanitarian law.[63] Both Georgia and Russia are parties to the 1949 Geneva Conventions and Protocol I.[64]

Since South Ossetia is recognized as part of Georgia, fighting between the non-state South Ossetian forces and militia and Georgian forces falls under the laws applicable to non-international (internal) armed conflict.[65] Internal armed conflicts are governed by article 3 common to the four Geneva Conventions of 1949 (Common Article 3), the Second Additional Protocol of 1977 to the Geneva Conventions (Protocol II, to which Georgia is a party), as well as customary international humanitarian law.[66]

Customary humanitarian law as it relates to the fundamental principles concerning conduct of hostilities is now recognized as largely the same whether it is applied to an international or a non-international armed conflict.

International human rights law also continues to be applicable during armed conflicts.[67] Georgia and Russia are both parties to the major international and regional human rights treaties, including the International Covenant on Civil and Political Rights (ICCPR) and the European Convention on Human Rights (ECHR).[68] These treaties guarantee all individuals their fundamental rights, many of which correspond to the protections afforded under international humanitarian law including the prohibition on torture, inhuman and degrading treatment, nondiscrimination, and the right to a fair trial for those charged with criminal offenses.[69]

Basic Principles of International Humanitarian Law

The fundamental tenets of international humanitarian law are "civilian immunity" and "distinction,"[70] While humanitarian law recognizes that some civilian casualties are inevitable, it imposes a duty on warring parties at all times to distinguish between combatants and civilians, and to target only combatants and other military objectives.[71]Civilians lose their immunity from attack when and only for such time that they are directly participating in hostilities.[72]

Civilian objects, which are defined as anything not considered a military objective, are also protected.[73]Direct attacks against civilian objects, such as homes, businesses, places of worship, hospitals, schools, and cultural monuments are prohibited -unless the objects are being used for military purposes.[74]

Humanitarian law further prohibits indiscriminate attacks. Indiscriminate attacks are of a nature to strike military objectives and civilians or civilian objects without distinction. Examples of indiscriminate attacks are those that are not directed at a specific military objective, or that use weapons that cannot be directed at a specific military objective or that use weapons that cannot be limited as required by humanitarian law. Prohibited indiscriminate attacks include area bombardment, which are attacks by artillery or other means that treat as a single military objective a number of clearly separated and distinct military objectives located in an area containing a concentration of civilians and civilian objects.[75]

Also prohibited are attacks that violate the principle of proportionality. Disproportionate attacks are those that are expected to cause incidental loss of civilian life or damage to civilian objects that would be excessive in relation to the concrete and direct military advantage anticipated from the attack.[76]

Humanitarian law requires that the parties to a conflict take constant care during military operations to spare the civilian population and "take all feasible precautions" to avoid or minimize the incidental loss of civilian life and damage to civilian objects.[77]These precautions include doing everything feasible to verify that the objects of attack are military objectives and not civilians or civilian objects,[78] and giving "effective advance warning" of attacks when circumstances permit.[79]

International humanitarian law does not prohibit fighting in urban areas, although the presence of civilians places greater obligations on warring parties to take steps to minimize harm to civilians. Forces deployed in populated areas must avoid locating military objectives near densely populated areas,[80]and endeavor to remove civilians from the vicinity of military objectives.[81]Belligerents are prohibited from using civilians to shield military objectives or operations from attack-"shielding" refers to purposefully using the presence of civilians with the intent to render military forces or areas immune from attack.[82]At the same time, the attacking party is not relieved from the obligation to take into account the risk to civilians on the grounds that it considers the defending party responsible for having located legitimate military targets within or near populated areas.

With respect to persons within the control of a belligerent party's forces, humanitarian law requires the humane treatment of all civilians and captured combatants. It prohibits violence to life and person, particularly murder, mutilation, cruel treatment, and torture.[83]It is also unlawful to commit rape and other sexual violence; to carry our targeted killings of civilians, including government officials and police, who are not participating in the armed conflict; and to engage in pillage and looting.[84]

Captured members of the Russian and Georgian armed forces are considered prisoners-of-war and fall under the extensive provisions of the Third Geneva Convention.  For captured members of South Ossetian militias to qualify as prisoners of war would require that militia members had a regular chain of command; wore distinct insignia or uniforms; carried arms openly; and conducted operations in accordance with the laws of war.[85]  As discussed below, the South Ossetian militias did not meet all four conditions and so must be detained, along with other civilians who are taken into custody, in accordance with the Fourth Geneva Convention on the protection of civilian persons.

Individual Criminal Responsibility

With respect to individual responsibility, serious violations of international humanitarian law, including deliberate, indiscriminate, and disproportionate attacks harming civilians, when committed with criminal intent, are considered war crimes.[86] An act is carried out with criminal intent if it is done deliberately or recklessly.  For example, a commander who knew that civilians remained in an area but still indiscriminately bombarded that area would be criminally responsible for ordering an unlawful attack.

Individuals may also be held criminally liable for attempting to commit a war crime, as well as assisting in, facilitating, aiding or abetting a war crime. Responsibility may also fall on persons planning or instigating the commission of a war crime.[87]

Commanders and civilian leaders may be prosecuted for war crimes as a matter of command responsibility when they knew or should have known about the commission of war crimes or serious violations of human rights and took insufficient measures to prevent them or punish those responsible.[88]

States have an obligation under the Geneva Conventions and customary humanitarian law to investigate alleged war crimes committed by their nationals and members of their armed forces, or which were committed on territory that they control, and appropriately prosecute.[89]

Position of Peacekeepers under International Humanitarian Law

The Sochi agreement of 1992 established the Joint Peacekeeping Forces in South Ossetia (see Chapter 1.1).[90]

Under international humanitarian law, as long as peacekeepers remain neutral and do not participate in hostilities they are to be treated as civilians who enjoy protection from attacks.[91] While peacekeepers may on occasion be required to resort to use of force, such force must be strictly limited to actions that are necessary for self defense or defense of any civilian objects that they have a mandate under the peacekeeping agreement to protect. Force used in this way must be strictly proportionate to that goal.

Attacks directed against peacekeepers who are not participating in hostilities would be a serious violation of international humanitarian law and a war crime.

If peacekeepers act in a manner that is not neutral, for example by facilitating combat forces from one side, or engaging in hostile acts of firing, they lose the protection afforded them as civilians and may lawfully be subject to attack. The attacks, however, must also comply with the requirements of international humanitarian law regarding means and methods of warfare and the treatment of enemy combatants. Peacekeepers who use their protected status to carry out attacks are acting perfidiously, which is a serious violation of international humanitarian law.

During the conflict peacekeeping posts manned by Russian and/or Ossetian forces were targeted and Human Rights Watch witnessed the extensive damage caused to the peacekeepers' posts by Georgian attacks.[92]  Both Russia and Georgia have made serious allegations with respect to attacks on or by peacekeeping forces, none of which Human Rights Watch was able to corroborate or refute. Georgian authorities claimed that South Ossetian forces fired artillery from peacekeeping posts, rendering them a legitimate target. Russian officials have claimed that Georgian troops deliberately and brutally killed members of peacekeeping troops, which would be a war crime whether the peacekeepers were entitled to civilian status or had participated in hostilities.[93]

Law on Occupation and Effective Control

Under international humanitarian law territory is considered "occupied" when it is under the control or authority of foreign armed forces, whether partially or entirely, without the consent of the domestic government. This is a factual determination, and the reasons or motives that lead to the occupation or are the basis for continued occupation are irrelevant. Even should the foreign armed forces meet no armed resistance and there is no fighting, once territory comes under their effective control the laws on occupation become applicable.[94]

International humanitarian law on occupation applies to Russia as an occupying power wherever Russian forces exercised effective control over an area of Georgian territory, including in South Ossetia or Abkhazia, without the consent or agreement of the Georgian government.[95] Russia also assumed the role of an occupying power in the Kareli and Gori districts of undisputed Georgian territory until the Russian withdrawal from these areas on October 10, 2008, because Russian presence prevented the Georgian authorities' full and free exercise of sovereignty in these regions.

Occupying powers are responsible for security and well-being of protected persons-those who find themselves in the hands of a party to the conflict or occupying power of which they are not a national.

Once an occupying power has assumed authority over a territory, it is obliged to restore and maintain, as far as possible, public order and safety.[96]  Ensuring local security includes protecting individuals from reprisals and revenge attacks.Military commanders on the spot must take all measures in their power to prevent serious public order violations affecting the local population.[97]  In practice this may mean that occupying forces should be deployed to secure public order until the time police personnel, whether local or international, can be mobilized for such responsibilities. An occupying power may take such measures of control and security as may be necessary as a result of the war.[98]

Under the Fourth Geneva Convention, the occupying power must also respect the fundamental human rights of the territory's inhabitants and ensure sufficient hygiene and public health standards, as well as the provision of food and medical care to the population under occupation.[99] Collective punishment and reprisals are prohibited.[100] Personnel of the International Red Cross/Red Crescent Movement must be allowed to carry out their humanitarian activities.[101] Everyone shall be treated with the same consideration by the occupying power without any adverse distinction based, in particular, on race, religion, or political opinion.[102] A party has a duty to protect property in areas that its forces exercise control over or occupy. Private property may not be confiscated.[103] Pillage is prohibited, and the destruction of any real or personal property is only permitted where it is rendered absolutely necessary by military operations.[104]

The Fourth Geneva Convention requires an occupying power to investigate "grave breaches" of the convention.[105] Customary international law further obliges states to investigate and prosecute serious violations of international humanitarian law, including launching deliberate attacks against civilians, and attacks causing indiscriminate or disproportionate civilian loss.

Under international law, the law of occupation is no longer in effect when the hostile armed forces cease to control the occupied territory, either because of a voluntary or forced withdrawal, or as the result of a peace treaty or other agreement.  The law of occupation also will no longer be in effect upon agreement between states that leaves the occupying government present or in control of the territory, but no longer as a belligerent force.[106]  At this writing, Russia remains an occupying power in South Ossetia.

Right to Return

As this report documents, as many as 20,000 ethnic Georgians displaced from their homes in South Ossetia by the fighting are currently not able to return to their homes. International law provides various protections to persons displaced from their homes, including the right to return.[107] 

People who flee their homes as a result of war are entitled to return to their home areas and property, a right known as the "right to return." The right to return to one's former place of residence is related to the right to return to one's home country, which is expressly recognized in the Universal Declaration of Human Rights and international human rights conventions.[108] The right to return to one's place of origin within one's country, or at least the obligation of states not to impede the return of people to their places of origin, is implied. For example, article 12 of the International Covenant on Civil and Political Rights recognizes the right to choose freely one's own place of residence, which incorporates the right to return to one's home area.[109] In some cases, the right to return to one's former place of residence is also supported by the right to family reunification and to protection for the family.

Of both direct and indirect relevance to the displacement of ethnic Georgians is article 49 of Geneva Convention IV, which maintains that civilians who have been evacuated during an occupation "shall be transferred back to their homes as soon as the hostilities in the area in question have ceased."  This provision is directly relevant to persons evacuated as a result of international armed conflict; it is indirectly relevant to persons displaced as a result of internal armed conflict insofar as it reflects the principle that parties responsible for breaches of international humanitarian law (in those cases where evacuation or forced displacement did not occur for imperative military reasons or for the safety of the affected population) are responsible for redressing such violations.

Recognizing these various rights, the UN Sub-Commission on the Promotion and Protection of Human Rights has reaffirmed "the right of all refugees ... and internally displaced persons to return to their homes and places of habitual residence in their country and/or place of origin, should they so wish."[110] Numerous resolutions of the UN General Assembly and of the Security Council as well as several international peace agreements also recognize the right to return to one's home or property.[111]

In reference to previous displacement of civilians in Georgia, the UN Security Council passed Resolution 876 on October 19, 1993, in response to the situation in Abkhazia, which "affirmed the right of refugees and displaced persons to return to their homes."[112]

The UN Guiding Principles on Internal Displacement, which reflect existing international human rights and humanitarian law, restate and clarify the rights of displaced persons.[113]  This includes the rights to freedom of movement and to choose their place of residence,[114] as well as the responsibility of competent authorities to establish the conditions and provide the means for internally displaced persons to return voluntarily to their homes or places of habitual residence or to resettle voluntarily in another part of the country.[115] The Guiding Principles also set out the prohibition on arbitrary deprivation of property through pillage, direct or indiscriminate attacks or other acts of violence, using internally displaced persons as shield for military operations or objectives, as well as making them object of reprisal.[116] The property of displaced persons should not be destroyed or appropriated as a form of collective punishment. The Guiding Principles also clarify the obligation of the authorities to protect the property of internally displaced persons from such acts as well as from arbitrary and illegal appropriation, occupation or use,[117] to assist displaced persons with recovery, to the extent possible, of their lost properties and possessions or to ensure compensation or other just reparation.[118]