1. What's going on in South Ossetia?
2. What's the background to the latest round of fighting?
3. Is this an internal or international armed conflict? What law governs it?
4. What is a lawful target under international humanitarian law?
5. What precautions must be taken in carrying out military attacks?
6. Are peacekeepers combatants or civilians?
7. Are parties entitled to target infrastructure such as airports, roads, bridges and power stations?
8. What are the parties' obligations regarding the use of civilian areas for military activities?
9. What is meant by using human shields?
10. Can parties to the conflict attack radio and television stations?
11. Should belligerent parties give warnings to civilians in advance of attacks? What constitutes an "effective" warning?
12. What is meant by "collective punishment" of the civilian population?
13. What are the parties' obligations to agencies seeking to provide humanitarian assistance?
14. Are attacks on humanitarian convoys unlawful?
15. What are the obligations under international humanitarian law of Russian forces while they exercise effective control over areas in South Ossetia, Abkhazia or other parts of Georgia?
16. To what extent does international human rights law apply?
17. What laws govern the treatment of the dead?
18. Must parties to a conflict provide humanitarian organizations access to prisoners-of-war and other detainees?
August 15, 2008
1. What's going on in South Ossetia?
Violence has escalated in South Ossetia, a breakaway province of Georgia and one of the "frozen conflicts" of the former Soviet Union. The conflict heated up dramatically in the early morning of August 8, 2008. Georgia declared that it intended to restore constitutional order and launched a large-scale military offensive. Russia sent additional troops to South Ossetia, saying they were reinforcements to Russian peacekeepers who are in the area to monitor a 1992 ceasefire between Georgian and South Ossetian forces.
The following questions and answers set out basic elements of international humanitarian law (the laws of war) governing recent and potential military actions by Russian, Georgian and Ossetian forces in South Ossetia. Human Rights Watch has yet to conclude an on-the-ground investigation of the fighting. Our purpose is to provide analytic guidance on the law for those who are examining the conflict, and to encourage legal compliance by the parties to the conflict as well as those with the capacity to influence them.
This Q & A addresses only the rules of international humanitarian law, known as jus in bello, which govern the way each party to the armed conflict must conduct itself in the course of the hostilities. In accordance with its institutional mandate, Human Rights Watch maintains a position of strict neutrality on issues concerning the legitimacy of using armed force, known as jus ad bellum, because we find it the best way to promote our primary goal of encouraging both sides to a conflict to respect international humanitarian law. Therefore, this Q & A does not address issues of Georgia's territorial integrity, of South Ossetia's bid for independence, Russia's interests in South Ossetia, or other matters concerning the legitimacy of resorting to armed conflict.
2. What's the background to the latest round of fighting?
South Ossetia was an autonomous province of the former Soviet republic of Georgia. It declared independence in 1990, and armed conflict with Georgia ensued in 1991-1992. The conflict culminated in 1992 in a de facto secession of South Ossetia and an agreement that established a ceasefire; a peacekeeping force with Ossetian, Georgian, and Russian peacekeepers; and a framework for quadripartite negotiations involving Russia, Georgia, South Ossetia, and North Ossetia, a province of Russia bordering South Ossetia. For the past year Georgian authorities have aimed to change the negotiations format, which they view as skewed against Georgia, and have refused to participate in negotiations. Russia has called for a renewal of negotiations in the current format. In recent years, Russia has granted Russian citizenship to residents of South Ossetia. Under the 1992 agreement, Russian, Georgian and Ossetian forces acting as peacekeepers have been deployed in South Ossetia. Russia has said that the troops it sent in this week were additional peacekeepers whose mandate is to protect Russian peacekeepers that have come under attack and also to protect Russian citizens. Georgia has said that under the 1992 agreement no new peacekeepers can be added without the consent of all parties to the agreement.
3. Is this an internal or international armed conflict? What law governs it?
Under international humanitarian law, an international armed conflict is that which takes part between two states. Hostilities occurring between Russia and Georgia would constitute an international armed conflict. International armed conflict is governed by international humanitarian treaty law (primarily the four Geneva Conventions of 1949 and its first additional protocol of 1977 (Protocol I), and the Hague Conventions of 1907 regulating the means and methods of warfare), as well as the rules of customary international humanitarian law. Both Georgia and Russia are parties to the 1949 Geneva Conventions and Protocol I.
The authoritative Commentary of the International Committee of the Red Cross notes that the determination of the existence of an armed conflict between states in which the conventions apply does not depend on a formal declaration of war or recognition of a state of hostilities. Rather, the factual existence of armed conflict between two states party automatically brings the Conventions into operation. Thus any hostilities between Georgian and Russian forces would fall within the full Geneva Conventions.
Under international humanitarian law, conflict between a state and a non-state armed force is considered to be a non-international (internal) armed conflict. Because the South Ossetian forces are considered a non-state armed group, any fighting between South Ossetian forces and Georgian forces would be considered an internal armed conflict. 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.
International humanitarian law - whether in international or internal armed conflicts - is designed mainly to protect civilians and other noncombatants from the hazards of armed conflict. A fundamental principle is that parties must distinguish at all times between combatants and civilians. Civilians and civilian objects may never be the object of attacks. As discussed below, warring parties are required to take all feasible precautions to minimize harm to civilians and civilian objects and to refrain from attacks that would disproportionately harm the civilian population or fail to discriminate between combatants and civilians.
International humanitarian law also provides a number of fundamental protections for noncombatants, (such as civilians, peacekeepers, and those who are no longer taking part in hostilities, such as captured combatants, and those who are unable to fight because of wounds or illness). It prohibits violence against such persons - particularly murder, cruel treatment and torture - as well as outrages against their personal dignity and degrading or humiliating treatment. It also prohibits the taking of hostages and "the passing of sentences and the carrying out of executions" if basic judicial guarantees have not been observed.
4. What is a lawful target under international humanitarian law?
Two fundamental tenets of international humanitarian law are those of "civilian immunity" and the principle of "distinction." They impose a duty to distinguish at all times in the conduct of hostilities between combatants and civilians, and to target only the former. It is forbidden in any circumstance to direct attacks against civilians; to do so intentionally amounts to a war crime.
It is also generally forbidden to direct attacks against what are called "civilian objects," such as homes and apartments, places of worship, hospitals, schools or cultural monuments, unless they are being used for military purposes. Military objectives that are legitimately subject to attack are those that make an "effective" contribution to military action and whose destruction, capture or neutralization offers a "definite military advantage." Where there is doubt about the nature of an object, it must be presumed to be civilian.
The mere fact that an object has civilian uses does not necessarily render it immune from attack. It, too, can be targeted if it makes an "effective" contribution to the enemy's military activities and its destruction, capture or neutralization offers a "definite military advantage" to the attacking side in the circumstances ruling at the time. However, such "dual use" objects might also be protected by the principle of proportionality, described below.
Even when a target is serving a military purpose, precautions must always be taken to protect civilians.
5. What precautions must be taken in carrying out military attacks?
All parties to a conflict have a legal duty to protect the life, health and safety of civilians and other noncombatants. The targeting of military installations and other military objectives is permitted, but parties must take all feasible precautions to avoid civilian harm and are prohibited from targeting civilians, launching indiscriminate attacks, or attacking military objects if the anticipated harm to civilians will be disproportionate to the expected military advantage. Military commanders must choose the means of attack that can be directed at military targets and will minimize incidental harm to civilians. If the weapons used are so inaccurate that they cannot be directed at military targets without imposing a substantial risk of civilian harm, then they should not be deployed. Deliberately attacking civilians is in all circumstances prohibited. Individuals who attack civilians with criminal intent are responsible for war crimes.
6. Are peacekeepers combatants or civilians?
Russia has said that it sent additional troops to South Ossetia to support the peacekeepers. Peacekeepers, who are partaking in a peacekeeping mission in accordance with the Charter of the United Nations, are not parties to the conflict and for the purposes of international humanitarian law are treated as civilians and are protected from being objects of attacks. Attacks directed against them would be a serious violation of international humanitarian law. However, peacekeepers are required to maintain neutrality and not become a party to the conflict. Force used must be strictly limited to actions that are necessary for self-defense or defense of any civilian objects which they have a mandate under the peacekeeping agreement to protect. Force used in this way must be strictly proportionate to that goal. If Russian peacekeepers in South Ossetia act in a manner that is not neutral and become a party to the conflict by taking a direct or active part in hostilities, they lose the protection afforded them as civilians and may lawfully be subject to attack.
Peacekeepers who use their protected status to carry out attacks are acting perfidiously, which is a serious violation of international humanitarian law.
7. Are parties entitled to target infrastructure such as airports, roads, bridges and power stations?
Airports, roads and bridges may be dual-use targets if actually used for military purposes. Even then, the rule of proportionality applies, requiring the parties to the conflict to weigh carefully the impact on civilians against the military advantage served; they must consider all ways of minimizing the impact on civilians; and they should not undertake attacks if the expected civilian harm outweighs the definite military advantage. Among the factors to be considered are whether the destruction of particular roads or bridges serve in fact to impede military transport in light of readily alternative routes - that is, whether the infrastructure attacked is making an "effective" contribution to the party's military action and its destruction offers a "definite military advantage" - or whether its destruction seems aimed more at inconveniencing the civilian population and even preventing it from fleeing the fighting and seeking safety.
Electrical facilities supplying the civilian population are unlikely to be legitimate military targets. On the one hand, they might be considered dual-use targets, given that both civilians and armies use electricity. On the other hand, the harm to civilians when electricity supplies fail is often enormous, affecting refrigeration, sanitation, hospitals and other necessities of modern life; in urban society, electricity is arguably "indispensable to the survival of the civilian population," meaning that it can be attacked only in extremely narrow circumstances. Meanwhile, the military effect of targeting electrical facilities serving the civilian population often can be achieved in more focused ways, such as by attacking military facilities themselves or the portion of an electrical grid directly serving a military facility.
8. What are the parties' obligations regarding the use of civilian areas for military activities?
Where attacks on combatants take place in populated areas, all parties must be especially aware of their obligations to protect the civilian population, which will be at significantly higher risk. International humanitarian law obliges all belligerents to avoid harm to civilians and civilian objects.
The defending party must take all necessary precautions to protect civilians against the dangers resulting from armed hostilities. They must to the extent feasible avoid locating military objectives, such weapons, ammunition and headquarters, within or near densely populated areas. They must never use the presence of civilians to purposefully shield themselves from attack, which is a war crime.
In calculating the legality of an attack on premises where military forces are present, parties to the conflict must take into account the risk to civilians. They are not relieved from this obligation on the grounds that they consider the defending party responsible for having located legitimate military targets within or near populated areas, or that the defending party may be using the civilian population as a shield.
In any event, the presence of military forces or military facilities in a populated area never justifies attacking the area as such rather than the particular military target. It is a prohibited indiscriminate attack, and a war crime, to treat an entire area as a military target instead of attacking the particular military facilities or personnel within that area.
9. What is meant by using human shields?
The crime of "shielding" has been defined as intentionally using the presence of civilians to render certain points, areas, or military forces immune from military attack. Taking over a family's house and not permitting the family to leave for safety so as to deter the enemy from attacking is a simple example of human shields. Using human shields is a war crime. While it may be unlawful, as noted above, to place forces, weapons and ammunition within or near densely populated areas, it is only shielding when there is a specific intent to use the civilians to deter an attack.
10. Can parties to the conflict attack radio and television stations?
Military attacks on broadcast facilities used for military communications are legitimate under international humanitarian law, but such attacks on civilian television or radio stations are prohibited if they are designed primarily to undermine civilian morale or to psychologically harass the civilian population. Civilian television and radio stations are legitimate targets only if they meet the criteria for a legitimate military objective; that is, if they are used in a way that makes an "effective contribution to military action" and their destruction in the circumstances ruling at the time offers "a definite military advantage." Civilian broadcasting facilities are not rendered legitimate military targets simply because they spout pro-Russian or pro-Georgian propaganda.
Should stations become legitimate military objectives because of their use to transmit military communications, the principle of proportionality in attack must still be respected. This means that an attacking force should verify at all times that the risks to the civilian population in undertaking any such attack do not outweigh the anticipated military benefit. Special precautions should be taken in relation to buildings located in populated areas. Advance warning of an attack must be given whenever possible.
11. Should belligerent parties give warnings to civilians in advance of attacks? What constitutes an "effective" warning?
International humanitarian law requires, so long as circumstances permit, that warring parties give "effective advance warning" of attacks that may affect the civilian population. What constitutes an "effective" warning will depend on the circumstances. Such an assessment would take into account the timing of the warning and the ability of the civilians to leave the area. Bomb damage to roads and bridges, as well as air attacks on civilian vehicles, would also affect the ability of civilians to flee an expected attack.
Civilians who do not evacuate following warnings are still fully protected by international law. Otherwise, warring parties could use warnings to cause forced displacement, threatening civilians with deliberate harm if they did not heed them. So, even after warnings have been given, attacking forces must still take all feasible precautions to avoid loss of civilian life and property. This includes canceling an attack when it becomes apparent that the target is civilian or that the civilian loss would be disproportionate to the expected military gain.
International humanitarian law also prohibits "acts or threats of violence the primary purpose of which is to spread terror among the civilian population." Statements calling for the evacuation of areas that are not genuine warnings, but are primarily intended to cause panic among residents or compel them to leave their homes for reasons other than their safety, would fall under this prohibition. This prohibition does not attempt to address the effects of lawful attacks, which ordinarily cause fear, but rather those threats or attacks on civilians that have this specific purpose.
12. What is meant by "collective punishment" of the civilian population?
International humanitarian law prohibits the punishment of any person for an offense other than one that he or she has personally committed. Collective punishment is a term used in international humanitarian law to describe any form of punitive sanctions and harassment, not limited to judicial penalties, but including sanctions of "any sort, administrative, by police action or otherwise," that are imposed on targeted groups of persons for actions that they themselves did not personally commit. The imposition of collective punishment is a war crime. Whether an attack or measure could amount to collective punishment depends on several factors, including the target of the measure and its punitive impact, but of particular relevance is the intent behind a particular measure. If the intention was to punish, purely or primarily as a result of an act committed by third parties, then the attack is likely to have been collective punishment.
13. What are the parties' obligations to agencies seeking to provide humanitarian assistance?
Under international humanitarian law, parties to a conflict must allow and facilitate the rapid and unimpeded passage of impartially distributed humanitarian aid to the population in need. The belligerent parties must consent to allowing relief operations to take place, and may not refuse such consent on arbitrary grounds. They can take steps to control the content and delivery of humanitarian aid, such as to ensure that consignments do not include weapons. However, deliberately impeding relief supplies is prohibited, and doing so as part of an effort to starve civilians is a war crime.
Additionally, international humanitarian law requires that belligerent parties ensure the freedom of movement for humanitarian relief personnel essential to the exercise of their functions. This can be restricted only temporarily for reasons of imperative military necessity.
14. Are attacks on humanitarian convoys unlawful?
International humanitarian law requires parties to a conflict to respect and protect humanitarian aid personnel, objects used for relief operations and civil defense personnel as well as civil defense buildings. Attacks intentionally directed at humanitarian personnel or properties are considered war crimes.
15. What are the obligations under international humanitarian law of Russian forces while they exercise effective control over areas in South Ossetia, Abkhazia or other parts of Georgia?
Under international humanitarian law, and in particular the Fourth Geneva Convention and Protocol I, protected persons are those who, in case of a conflict or occupation, find themselves in the hands of a party to the conflict or occupying power of which they are not a national. Under this principle of humanitarian law, if Russia occupies or exercises effective control over particular areas, it must treat all persons humanely, in a nondiscriminatory manner and ensuring full respect for fundamental guarantees, including the right to life, the prohibition on torture, inhuman and degrading treatment, including sexual violence, the right to liberty and security and the right to due process. Individual or mass forcible transfers or deportations of the civilian population are strictly prohibited.
Forces occupying or exercising effective control over a territory must also ensure that the civilian population has access to adequate foodstuffs, medicines and clothing, and in particular that the needs of children and mothers and expectant mothers are met. Hygiene and public health services must be maintained, as must institutions for the care of children. Should any of these basic humanitarian needs not be adequately met, an occupying or controlling force must allow and facilitate impartial humanitarian relief action to be undertaken.
A party has a duty to protect property in areas that its forces exercise control over or occupy. Pillage is prohibited, and the destruction of any real or personal property is only permitted where it is rendered absolutely necessary by military operations. If Russia occupies any territory, it would also have a duty to ensure public order and safety, and must be prepared to provide security to the civilian population at such point as they may be in effective control of any territory. With respect to enforcement of law and order, all guarantees of a fair trial, including the right to counsel of the defendant's choice, should be respected.
16. To what extent does international human rights law apply?
Human rights law is applicable during armed conflicts, and both Georgia and Russia are parties to several international human rights treaties, including the International Covenant on Civil and Political Rights (ICCPR) and the European Convention on Human Rights (ECHR). These treaties outline guarantees for fundamental rights, many of which correspond to the rights to which civilians are entitled under humanitarian law (e.g. right to life, prohibition on torture, inhuman and degrading treatment, nondiscrimination, liberty and security of the person, due process). While in a time of war or public emergency restrictions on and derogations from many of these rights are permitted (e.g. restrictions on freedom of assembly and right to privacy), such restrictions are limited to those strictly required by the necessity of the situation and which are compatible with obligations under international humanitarian law.
Russia and Georgia will be held responsible under international law for any violations of the rights protected by the treaties. In particular, on August 12, the president of the European Court of Human Rights, considering that the situation in and around South Ossetia "gives rise to a real and continuing risk of serious violations of the ECHR" took the step of calling on both states to comply with their obligations under the ECHR, in particular in respect of the right to life and the prohibition of torture.
17. What laws govern the treatment of the dead?
Human Rights Watch learned that it took several days before the bodies of Georgian soldiers killed during fighting in South Ossetia were removed from the village of Khetagorova and from some roads. International humanitarian law requires that the dead be disposed of in a respectful manner and graves respected and properly maintained. Parties to the conflict must endeavor to facilitate the return of the remains and the personal effects of the deceased upon request of the party to which they belong or to their relatives. This rule of customary law is codified in article 34 of Protocol I, which requires that as soon as circumstances and the relations between parties permit, there should be agreement to "facilitate the return of the remains of the deceased and of personal effects to the home country upon its request or, unless that country objects, upon the request of the next of kin."
18. Must parties to a conflict provide humanitarian organizations access to prisoners-of-war and other detainees?Must parties to a conflict provide humanitarian organizations access to prisoners-of-war and other detainees?
The Third and Fourth Geneva Conventions require parties to a conflict to permit access by the International Committee of the Red Cross (ICRC) and other relief agencies to prisoners-of-war (PoWs) and interned civilians. The ICRC must be granted regular access to all persons deprived of their liberty to monitor the conditions of their detention and to restore contact with their families. The ICRC has full liberty to select the places it wishes to visit and to interview persons confidentially. Visits may only be refused for reasons of "imperative military necessity," and as an exceptional and temporary measure. Other humanitarian agencies may request access to PoWs and detained civilians. The detaining authority shall facilitate such visits, though it may limit the number of humanitarian agencies visiting persons held.
