Plucky little Russia: misreading the Georgian War through the distorting lens of aggression.

• Author: Waters, Timothy William
• Position: Introduction: Puzzling Criticism, and a Doctrinal Puzzle - War Without a Legal Wrong? to II. Not 1968: U.S. Characterizations of the War B. Illegal Occupation and Violation of the Ceasefire, p. 176-200

One might expect massed armor crossing an international frontier to constitute the paradigmatic example of aggression---a case perfectly fit to analyze with the rules of jus ad bellum--and in the first flush and shock of the Georgian War in 2008, this is exactly how Western leaders described Russia's actions. Yet that August, a constellation of circumstances combined to produce an anomalous outcome: an international war without any aggressor or any wrongful violation of territorial integrity. In theory--in doctrine--this is not supposed to happen.

The key to this puzzle is the special regime created by the 1992 Sochi Agreement, which functioned as an internationalized mechanism regulating the internal conflict between Georgia and South Ossetia by creating a new territorial status within Georgia's sovereignty. Once we view Sochi in this way, the performance of the various actors in August 2008 looks rather different." Rather than aggressors, Russian tanks are a responsive mechanism designed to stop Georgian incursions in violation of the Sochi regime--a mechanism, moreover, that actually worked as it was supposed to. Understanding the Georgian War in this way leads us to confront our present, dualistic approaches to sovereignty: Under international law, it is by definition impossible for Georgia to aggress against itself or violate its own territorial integrity, and it is only because of the Sochi regime that we can describe Georgia's actions as wrongful.

In some ways, the 2008 war looks like part of a rising phenomenon: the effort to regulate the resort to violence within states. Indeed, the Sochi regime suggests a far better mechanism than some of the current proposals, since it creates a new category of protectable territory, rather than identifying levels of harm that trigger a reaction; this may be particularly useful in selfdetermination disputes, in which separatists challenge the very fact of the state's sovereignty. Still, seeing the Georgian War in this way is not necessarily a source of optimism. Sochi was the product of a specific context, and there is no reason to suppose it is generalizable. But the greatest source of pessimism concerns the rhetorical reactions to the war: Western leaders resorted to the vocabularies of the jus ad bellum in ways that distracted them from the actual operation of the mechanism regulating the underlying conflict. It seems we remain enchanted by categories, ill-equipped to recognize the real logic of our own imperfect efforts to regulate internal wars.

INTRODUCTION: PUZZLING CRITICISM, AND A DOCTRINAL PUZZLE--WAR WITHOUT A LEGAL WRONG? Some Prefatory Notes on Methodology and Purpose I. THE SOCHI REGIME: INTERNATIONALIZING AND FREEZING AN INTERNAL CONFLICT II. NOT 1968: U.S. CHARACTERIZATIONS OF THE WAR A. Aggression and Violation of Territorial Integrity B. Illegal Occupation and Violation of the Ceasefire C. Recognition of Breakaway States D. Disproportionate Force and Jus in Bello Objections III. A CURIOUS OUTCOME: HOW SHOULD THE LAW CHARACTERIZE WHAT HAPPENED IN THE WAR? A. Aggression and Violation of Territorial Integrity B. Illegal Occupation and Violation of the Ceasefire C. Recognition of Breakaway States D. Disproportionate Force and the Geographic Scope of the Conflict IV.WAITING FOR A MECHANISM (WHICH WE ALREADY HAVE): INTERNATIONALIZING TERRITORIALITY IN INTERNAL CONFLICTS A. Layered Territoriality: Sochi as a Special Constraint on Georgia's Sovereignty B. From Lex Specialis to a General Rule: Internationalizing Internal Conflicts C. Reasons for Pessimism: A Mechanism We Do Not Recognize When It Works INTRODUCTION: PUZZLING CRITICISM, AND A DOCTRINAL PUZZLE-WAR WITHOUT A LEGAL WRONG.'?

The August 2008 Georgian War (1) elicited immediate, strong condemnation of Russia by most Western states. While understandable from a geopolitical perspective or as an expression of shared political values, the particular critiques Western states employed were curiously suffused with the language of law. Western states accused Russia of aggression, disproportionate use of force, occupation of Georgian territory, and improperly recognizing the independence of two secessionist regions--all defined modes of conduct in international humanitarian law, international criminal law, or general international law. In fact, the dominant rhetoric of Western officials centered on these categories rather than calculating geopolitical interests or invoking human suffering.

These critiques had common themes: Western policymakers were much more critical of Russia's decision to invade Georgia than of the way Russia fought once it did. In legal terms, they made critiques arising out of the jus ad bellum rather than the jus in bello. (2) Second, they were very concerned with where Russia fought. They objected much more to the war's territorial consequences--its threat to the integrity of the Georgian state--than the human costs of the conflict, though these were well known even as the war was going on.

From a certain perspective, this is not surprising: Shifts in control over territory and challenges to the political order excite more concern than mere death. Nor would one expect policymakers to be particularly fastidious in their legal claims. Few are trained international lawyers, and in any event, the laws of war are open to many interpretations--it is the rare actor who does not find the mote in his enemy's eye sooner than the beam in his ally's. Political actors have been accusing each other of violating the laws of war, with or without a basis in fact, since laws of war were first articulated--presumably always with some combination of cynical manipulation and genuine indignation.

So, in calling Russia's decision to fight illegal, Western policymakers may have both sincerely thought themselves right and consciously been deploying law as a tool of policy. What is of interest is the particular shape that otherwise typical exercise in opportunism and perspectival bias took: Policymakers--already predisposed to support an ally--chose particular arguments that show us not merely preferences, but blind spots. Whether sincere or strategic, the categories policymakers deployed were seriously mismatched not only to the Georgian War, but also to the nature of modern conflicts of the kind that war represents.

A candid evaluation of known events in the Georgian War, mapped against the existing state of the law, suggests real difficulties with contemporary Western critiques as acts of legal interpretation. As we will see, accusations that Russia violated the jus ad bellum are largely unfounded. Yet it is immediately obvious that Georgia did not violate the rules on aggression or territorial integrity either--given that all its operations were within its own territory, it hardly could have. Indeed, it might seem that no party committed aggression or illegally violated another state's territorial integrity, yet there still was what we would call, in common parlance, a war. In theory, this should not happen--unless the Security Council has acted, a party's use of force should always violate some other sovereign's control of territory--but this is exactly what seemed to happen in August 2008 in the Caucasus.

The key to understanding this puzzle is the special regime that governed South Ossetia, the separatist region of Georgia at the center of the 2008 war. The justification for Russia's use of force is founded on its legitimate presence in the disputed area, and in turn explains why there is a doctrinal basis for describing Georgia's actions as violative--but doing so requires us to confront our present, highly dualistic approaches to the jus and bellum and to sovereignty over territory.

As we shall see, what specially characterized the situation in Georgia before the war was the existence of an internationalized internal conflict and a mechanism, already in place, to regulate the resort to force on part of Georgia's territory. And what marked the subsequent reaction, once the war began, was a patterned failure to understand and react to this legal and political reality. Instead, Western actors resorted to the existing categories and vocabularies of the jus ad bellum, in ways that distracted from the operation of the system for regulating the underlying internal conflict between South Ossetia and Georgia, in which Russia had become involved. Their responses to the Georgian War suggest that policymakers--who are generally focused on political interests and values, rather than formal categories--may nonetheless be curiously affected by the dysfunctional doctrinal framework of contemporary humanitarian law, and discover themselves, quite unwittingly, adopting positions that are difficult to understand or motivate.

This gap in the law arises from the rigidity of a jus ad bellum focused entirely on interstate conflict. This narrow dogmatism increasingly appears as an anomaly in a discipline that has become more realistically engaged with the nature of...