By Charli Carpenter
On 30 September, the European Union released its report on last year’s August war in the Caucasus. The aim was to establish what happened, since as stated in the preamble, “there can be no peace in the South Caucasus as long as a common understanding of the facts is not achieved.”
Since its release, however, these “facts” have been appropriated by both sides and misconstrued by the press. Russia — and numerous reporters — have spun the report as an indictment of Georgia for “starting” the war. Georgia claims a victory as well, since the report acknowledges the war’s causes must be understood in historical perspective.
Whose interpretation is right? And why did the report fail at its task of creating a “common understanding of the facts” that would move forward the process of reconciliation?
To answer the first question, neither perspective is accurate. In fact, the report blames Russia for starting the war with Georgia. But it also blames Georgia for starting a civil war within its own borders, and no acknowledgments of the historical context lessen that blame. Perhaps more importantly, both parties violated the laws of war.
In a nutshell, two armed conflicts, not one, took place in the Caucasus in August 2008. And two relevant branches of international law — on the use of force and on the conduct of force during and after hostilities — governed the legality of these wars.
The first armed conflict was a civil war within the borders of the state of Georgia, between the Georgian military and militias associated with the breakaway republics of South Ossetia and Abkhazia. This war (or set of wars) began as a low intensity conflict. Georgia is to blame for escalating it to the level of a civil war through an attack on the South Ossetian capital, Tskhinvali, on August 7, 2008.
The report also found the attack on Tskhinvali violated the laws of war, which govern not whether armed conflict is legitimate, but how it may be carried out. The South Ossetian militias behaved badly too, the report finds, especially after the ceasefire — looting, pillaging, raping, and burning villages — but at least they were acting in self-defense at the start.
The second armed conflict was an international war between Georgia and Russia, which entered the conflict in support of South Ossetia and Abkhazia on August 8, 2008. Russia started this second, international war by sending troops across the Georgian border in violation of the territorial integrity norm set out in the UN Charter.
Illegal Wars
The report demonstrates that this was also an illegal war. In the absence of a UN Security Council resolution, such an act is permissible only in self-defense. The report found that Russia was not acting in self-defense because Georgia had not attacked Russia, only its own territory, and there was no evidence that Georgia had intentionally fired upon Russian peacekeeping troops in Tskhinvali. A moral case can sometimes be made for invasion to protect civilian populations from massive human rights abuses, as NATO claimed to have done in Kosovo in 1999. The EU report found no evidence that such a claim was valid in this case, as the civilian loss of life did not rise to such levels, much less to “genocide.”
Not only was Russia’s invasion of Georgia illegal, but like Georgia in its civil war, Russia also conducted its war illegally — by using disproportionate force and by deploying cluster munitions in such a way as to cause civilian deaths.
Two illegal wars, each started by a different guilty party, both conducted illegally. So why are both sides claiming victory here? And why have so many commentators claimed that the report in fact “proves Georgia started the war?” How did the EU lose control of the message?
The key problem is that the report is framed in such a way as to conflate the civil and interstate wars of which the “August war” was composed. The title of the report refers to “the Conflict in Georgia.” It is not until page 36 that the 43-page summary of the report even acknowledges that there were two different components to the war, governed by separate international rules. Although the authors do in fact disaggregate these aspects to some extent in the actual report, the fact that they fail to do so in the summary muddles the legal analysis completely. No wonder both sides now claim the report exonerates them on the question of “who started it.”
This is a shame, since the longest chapter of the report deals not with who might be blamed for starting the war, but with the way hostilities were conducted by all parties. Regardless of a war’s legality, there are legal and illegal ways of fighting. Commentators desperate to focus on the blameworthiness of one party or the other for the war itself have diverted attention from the report’s discussions of war crimes — which were committed by all sides, especially by the one party (South Ossetia) least to blame for taking up arms in the first place.
Ultimately, those who read the entire report will find it is a masterpiece of legal and evidentiary analysis. The authors have painstakingly synthesized multiple branches of international law with scores of interviews, reams of source material, and numerous reports from NGOs. The report itself is nearly 500 pages of “applying principles to facts.” Despite a few inconsistencies, it is generally fair-minded, objective and apolitical. It should have done the job.
But in putting together the detailed legal analysis, too little thought appears to have been given to the political impact, or how to frame the report so that its key findings are intelligible to a public and press corps not intimately familiar with the nuances of international law. By failing to deliver the key findings up front with savvy and punch, the EU Mission allowed the report to be hijacked by interested parties for a continuation of the very political argument it should have put to rest.
Charli Carpenter is a professor of international relations at the University of Massachusetts-Amherst. The views expressed in this commentary are the author’s own, and do not necessarily reflect those of RFE/RL or DefenceTalk.
