Plucky Little Russia: Misreading the Georgian War through the Distorting Lens of Aggression
Waters, Timothy William, Stanford Journal of International Law
South Ossetia--which believed itself an independent state--naturally characterized Georgian forces on its claimed territory as illegal occupiers, though it more commonly used the language of aggression. (92) With one exception, Russia seems not to have used the language of occupation; this would be logical, since it still acknowledged Georgia's formal sovereignty and a state cannot occupy its own territory. The likelier reason, however, is that Russia, like South Ossetia, was much more inclined to refer to Georgian aggression. (93) In any event, given the course of the war, Georgian forces were not in a position to be accused of occupation for very long.
C. Recognition of Breakaway States
On August 26th, Russia recognized the independence of South Ossetia and Abkhazia. These entities had long claimed independence, but no state had recognized them. (94) International law places separatists in an ambiguous and difficult position: It is not illegal for a region to secede and constitute a new state, but neither is there any right to do so. (95) The matter is generally considered political, but there are strong if ill-defined prohibitions against states supporting or encouraging secession from other states, as that could violate the territorial integrity and sovereignty norms of the U.N. Charter. (96) An occupier is under a special obligation to maintain the existing legal system and respect the sovereignty of the occupied state, which suggests that there is a higher threshold for a state's recognizing secessionist entities on territory it occupies. (97)
Western reaction was uniform: "We ... condemn the action of our fellow G8 member. Russia's recognition of the independence of South Ossetia and Abkhazia violates the territorial integrity and sovereignty of Georgia and is contrary to U.N. Security Council Resolutions supported by Russia. (98) Almost every Western statement throughout the crisis reaffirmed Georgia's sovereignty and territorial integrity, insisting that any final deal must be consistent with that baseline. (99) For Western states, non-recognition of the separatists was a necessary concomitant of the obligation to respect Georgia's territorial integrity. For Russia, recognition--justified by Georgia's actions--changed the dynamic, and the parameters, of negotiations; in particular, it mooted the ceasefire's limitations on its troop presence, since an independent South Ossetia could simply request that Russian troops remain, as it quickly did. (100)
D. Disproportionate Force and Jus in Bello Objections
In addition to condemning Russia's resort to force and the territorial consequences for Georgia, Western leaders also condemned Russia's conduct during the war--acts generally falling under the jus in bello governing the conduct and modalities of war, such as disproportionate use of force and acts of ethnic cleansing.(101)Jus in bello applies to conflicts whether or not lawfully undertaken; 102 thus even when Western leaders acknowledged the ambiguity of the initial conflict, or allowed that Russia might have had some basis for fighting, they still could, and did, raise criticisms about the way Russia fought.
Indeed, after concerns about territorial integrity violations, claims that Russia used disproportionate force were the most common criticism from Western officials, and were voiced by non-state observers as well. (103) On August 17, for example, U.S. Secretary of State Rice declared that "Russia overreached, used disproportionate force against a small neighbor and is now paying the price for that because Russia's reputation.., is frankly, in tatters." (104) Some criticisms focused on aerial bombardment and the targeting or indiscriminate killing of civilians, yet the main thrust of U.S. critiques was not about the methods of war, but the location: Repeated statements by Rice emphasized that, whatever the legitimacy of Russian actions in South Ossetia, carrying the war into Georgia proper was per se disproportionate. …