International Law and the War

Although the dust is far from settled in Georgia, and indeed I am getting firsthand reports of ongoing Russian troop movements, we will soon have to begin taking a serious look at the international law implications of this military action, and ask some tough questions about 1) the status of Russia’s “peacekeeping” mission and their range of duty, 2) the legal status of South Ossetia and Abkhazia pre- and post-conflict, and 3) the legal basis for the deployment of Russian troops into Georgian sovereign territory. Eventually I’d like to address all these questions, but tonight, let’s just start with the status of the Russian peacekeepers.

Although the Kremlin PR machine sputtered and coughed in the early days of the war, things are really catching up now (there are three separate articles attacking the Georgian cause in the Washington Post alone today). However one of the earliest and most important pieces was a by-lined article by Russia’s Foreign Minister Sergei Lavrov published in the Financial Times back when Gori was still burning, outlining the Russian legal view on the invasion. Lavrov’s piece argues the following: “Russia responded to this unprovoked assault on its citizens by launching a military incursion into South Ossetia. No country in the world would idly stand by as its citizens are killed and driven from their homes. Russia repeatedly warned Tbilisi that it would protect its citizens by force if necessary, and its actions are entirely consistent with international law, including article 51 of the UN charter on the right of self-defence.“However, can the Russians successfully describe the war as a humanitarian intervention? Article 51 states that nothing “shall impair the inherent right of individual or collective self-defence if an armed attack occurs” – meaning that Lavrov appears to be implying that South Ossetia comprises part of the Russian Federation, and that the only goal of the military incursion into Georgia was the protection of Russian citizens. The charge of “ethnic cleansing” therefore becomes essential to the Russian legal position.With these questions in mind, I had a chat with one of the world’s foremost expert on international criminal law and peacekeeping missions (and an affiliate of my law firm) Geert Jan Alexander Knoops, who has testified before the international criminal court on Rwanda and the Supreme Court on Hamdan vs. Rumsfeld, to get an idea of his view of the status of the Russian case for war.Knoops told me that he believes that on the basis of the facts of the case, it can not be held that the Russian forces act(ed) as ‘peacekeepers’ in this conflict. Under international law, the basic tenets of peacekeeping operations are that of ‘ neutrality’ and the absence of active involvement in an armed conflict. As soon as “peacekeeping forces” become actively engaged in an armed conflict, they are in fact a party to the conflict and part of the international or internal war. Accordingly, such forces cease to exist as ‘ peacekeepers’ or at the least their initial status evaporates.Additionally, Knoops told me that there is no legal precedent in history whereby “peacekeepers” were engaged in bombing military targets, let alone civilian targets. The Kosovo intervention by NATO in 1999 was thus rightfully not qualified as a “peacekeeping mission.” Moreover, this operation, purportedly a “forcible humanitarian intervention,” had no legal foundation in international law. By way of analogy, Knoops argues, the Russian intervention in Georgia has no basis in international law.The discussion of the Kosovo precedent is of course a topic of considerable conversation, as Russia seems to have undergone a foreign policy revolution, whereby in recent months they had adamantly opposed any type of intervention by foreign states (even going so far as to protect Zimbabwe’s Robert Mugabe from international action), the invasion in Georgia sends the complete opposite message, trumping up the Kosovo example which they had so bitterly opposed in the past, and perhaps even giving an ill-considered glimmer of hope to their own separatist regions in places like Chechnya.This is the subject of one of Quentin Peel’s recent articles in the FT, which argues that Russia’s claims to present the war as “ethnic cleansing” by the Georgians reflects nothing by way of what is happening on the ground, but is rather a very important aspect to their legal basis for war – by putting it on par with Kosovo. However, the article notes that highly mixed region of Ossetian and Georgian villages makes it nearly impossible to call this a case of ethnic cleansing by either side – though no doubt the victims of indiscriminate violence are considerable on both sides.How the United Nations proceeds with dealing with the war and its aftermath will begin to tease apart the facts of the invasion, but at present, it doesn’t look like the Russians will find a way to make their military conduct appear even marginally lawful.