In August 2008, elements of the regular army of the Russian Federation crossed Georgia's borders and launched a large-scale military operation. This war left very few people still convinced that the conflicts existing in Georgia since the 1990s are ethnic conflicts. The open aggression in August 2008 made it clear to everyone that there is only one conflict – the Russia-Georgia conflict, and that Abkhazia and the Tskhinvali region are occupied by Russia.
Almost five years have passed since the 2008 Russia-Georgia war. During that time, number of reports have been released on this war, including the report of the EU-sponsored Independent International Fact-Finding Mission on the Conflict in Georgia, drafted by the so-called Tagliavini commission; and the report of Georgia's parliamentary commission, the Temporary Parliamentary Commission on Investigation of the Military Aggression and Other Actions of Russia Undertaken against the Territorial Integrity of Georgia. Establishing special commissions to analyze and evaluate military conflicts is a relatively well tested practice. For example, 2003 and 2006 saw U.S. Congress establish two commissions to study the issue of the Iraq war: the Select Committee on Intelligence on the U.S. Intelligence Community's Prewar Intelligence Assessments on Iraq, and the Iraq Study Group. In 2009, upon the initiative of Prime Minister Gordon Brown, the United Kingdom also set up an independent commission: the Iraq Inquiry.
Fact-finding commissions of this type do not perform the function of criminal prosecution. Their mandates are not designed to place blame on individuals or to raise the issue of their responsibility. The goal of such commissions is to investigate facts, identify systemic problems and draw up forward-looking recommendations. The activities of both the so-called Tagliavini commission and Georgia's temporary parliamentary commission were guided by these principles.
As regards legal assessments of this conflict, the case is being considered in the European Court for Human Rights and cooperation with the International Criminal Court also continues.
Within the framework of international organizations, Georgia seeks international legal and political assessments of the illegal use of force by Russia and the gross violations of human rights on a mass scale, occurring both during and after the conflict; and seeks to achieve the de-occupation of its territories through diplomatic efforts.
According to international law, Georgia had the right to use force because it was conducting a war of self-defense in its own territory against an aggressor and its proxies.
This complex and resource-intensive process started during the rule of the previous government and it was logical to expect that it would be continued by the new government. In regards to the 2008 war, however, the issue that has been repeatedly raised by the new government is the question of who started the war. And that happens against a background of almost nothing being said about the gross violations of international humanitarian law and human rights, the ethnic cleansing of Georgians and other grave crimes.
The investigation into alleged offenses during the war was initiated by the Georgian Chief Prosecutor's Office as early as August 2008. This investigation is still under way. Even though a great amount of important information and evidence has been obtained by this investigation, the work must be continued in regard to a number of issues. Georgia has to take care of important international disputes, the successful completion of which will require comprehensive and irrefutable evidence. The previous government of Georgia actively cooperated with the International Criminal Court on these issues, regularly supplying it with the necessary information and raising with it the issue of the responsibility of Russia for ethnic cleansing and other grave crimes. Even though the Georgian investigation has not been completed, the information obtained did not contain any evidence about the Georgian military committing war or other international crimes.
All the issues mentioned above are undoubtedly very important for our country, yet they have recently been put on the back burner, whereas the question of "who started the war" has once again moved to the forefront. In April, the Prime Minister of Georgia, as well as the justice minister and the chief prosecutor, raised this issue yet again and, speaking with one voice, declared their intention to launch the investigation into the August war anew. This issue has become a topic of internal political speculation which is to the detriment of Georgia's interests.
War, i.e. the use of force, is regulated by the norms of international law. In particular, the UN Charter prohibits the threat or use of force against the territorial integrity or political independence of any member state of the organization. At the same time, the UN Charter recognizes the right to self-defense as an inseparable right of a state.
In August 2008, the military conflict took place on the territory of Georgia and its borders were crossed by the regular Russian army. In addition, for years Russia had been training and equipping illegal military groups in Abkhazia and the Tskhinvali region. There is little reasonable doubt that Russia controlled these military groups both before and after August 2008. Consequently, Russia can be blamed not only for the actions of its regular army but also for the actions of the illegal armed groups operating in Abkhazia and the Tskhinvali region.
Various sources, including Russian ones, indicate that Russian military regiments entered Georgian territory, namely the Tskhinvali region, several days, perhaps even weeks, before the war broke out (the 2009 report of the Tagliavini commission also mentions those sources). Moreover, before wide-scale military actions were launched, Georgian villages and the checkpoints of Georgian peacekeepers repeatedly came under intensive shelling that threatened the lives of the civil population. On 5 August, several Georgian peacekeepers were wounded.Against that backdrop, the question as to who started the war on 8 August 2008 is devoid of any sense as the war had already started before that. There is only one answer to the question of whether or not international law permitted Georgia from using force in those conditions – yes, Georgia had the right to use force because it was conducting a war of self-defense in its own territory against the aggressor and its proxies. From the standpoint of international law, there is no problem in this regard.
For the purposes of international law, a war can only be waged by a state and not a physical person. Consequently, the responsibility for the use of force lies with the state. Even though the 1998 Rome Statute envisages the future expansion of the jurisdiction of International Criminal Court to include the crime of aggression committed by an individual as an international crime, these provisions have not entered into force yet. Therefore, according to current international law, the individual responsibility of persons for the use of force cannot be raised, and the actions of political leaders will be blamed on the state and constitute grounds for the responsibility of the state.
If the aim of the national criminal investigation is to establish who started the war, this issue is crystal clear by the factual circumstances available to us – Georgia did not start the war, it exercised its right to act in self-defense of its own territory.
If the investigation intends to study whether or not international humanitarian law and human rights were breached during the war, this is simply a continuation of the investigation which was under way by the previous government. At the same time, one must keep in mind that the Georgian investigation lacked, and still lacks, any possibility of inspecting the largest part of the territory affected by the war; of interrogating Russian military personnel or of obtaining evidence from the relevant Russian bodies. Hence, in reality, the national investigation cannot be highly efficient. But the statements of political leaders jumping to preliminary conclusions will put the government in a situation where it will have to constantly prove that this investigation is not merely a form of political retaliation.
No matter what the declared goal of the investigation is, its results will be detrimental to Georgia. Questioning the country's right to self-defense and seeking an "accomplice" of the aggressor from among our own ranks will undermine the non-recognition policy and jeopardize our ongoing and future disputes in the international courts.
At present, the European Court for Human Rights is considering Georgia's claim against the Russian Federation in relation to the August 2008 war. The claim concerns violations of a number of articles of the European Convention on Human Rights and Fundamental Freedoms and its additional protocols, which were committed both during the war and thereafter, under the conditions of Russian occupation. Before lodging the claim, on 11 August 2008 the Georgian government requested the European Court for Human Rights to apply interim measures against Russia prohibiting it from taking such actions that would result in the death, torture, inhuman and degrading treatment of people. On 12 August 2008, the President of the European Court for Human Rights satisfied the request of the Georgian side.
It was after that that Georgia, within the timeframe established by the convention, filed a complaint with the European Court for Human Rights. This complaint has passed a significant stage of admissibility and, upon the decision of the Court, will be considered on merit. However, it must be noted that the European Court will inevitably return to the important issue of the admissibility of this claim, including to the issue of whether the internal legal means for dispute resolution have been fully exhausted. To put it simply, Georgia will have to counteract the arguments of the Russian Federation to prove that the resources of dispute settlement have been exhausted at the national level and that the issue now requires analysis and evaluation by international law. The futile optimism about investigating all aspects of the war on the national level will be used by Russia to thwart Georgia's complaint being considered on merit by the European Court for Human Rights.
It is not surprising that the Russian Federation is concerned about case № 2, Georgia vs. Russia, the so-called war case; especially considering that another Georgia-Russia case concerning the expulsion of Georgians from the Russian Federation on ethnic grounds in 2006 has been already considered and awaits the court's decision.
Throughout this time, the Russian government has tried to dissuade the European Court for Human Rights from considering the war case, claiming, among other issues, that the actions of the Georgian side nudged it to use force in order to protect human rights and avoid the dire consequences of human rights violations. The Georgian side spared no effort in counteracting Russia's arguments to prevent the European Court for Human Rights from taking them into account. However, until the court delivers its final decision on the case, nothing is irreversible.
The Russian state tries to justify its clearly illegal actions, but what does the Georgian state do? Rather than continue taking the Russian Federation to account because of their illegal use of force, the occupation of Georgia's territories and the crimes committed in Georgian territory, the Georgian state instead now questions the legality of its own actions.
It is in the vital interests of our country to put an end to the political fuss which has been kicked up around this topic. If this is not done, we will not be able to raise the issue of the responsibility of the sole culprit, the Russian Federation, and thus maintain the international pressure for the de-occupation of our territories.