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

• Author: Waters, Timothy William
• Position: II. Not 1968: U.S. Characterizations of the War B. Illegal Occupation and Violation of the Ceasefire through IV. Waiting for a Mechanism (Which We Already Have

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.

3. 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)

4. 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. (105) That is, in the U.S. critique, disproportionality served primarily as evidence of ajus ad bellum violation. (106)

   Western governments were far more cautious about characterizing Russia's actions as ethnic cleansing or genocide. Ethnic cleansing is an omnibus descriptor for a number of illegal acts, such as deportation and extermination. (107) Genocide is a defined crime: The commission of certain acts (such as killing) with intent to destroy, in whole or in part, a national, ethnic, racial or religious group.(l08) Both Georgia and Russia accused each other of committing genocide or ethnic cleansing, (109) but Western governments appear not to have given reports of genocide credit, and did not emphasize complaints about ethnic cleansing nearly as much as they did the territorial aspects of Russia's incursion.

   In sum, the legal categories that U.S. leaders deployed centered on the sovereignty and territorial integrity of Georgia. They also demonstrated a patterned distinction between South Ossetia--identified as a zone in which Russian peacekeepers were legitimately present and in which Russia had some limited right to act--and "Georgia proper." (110) Thus claims of "aggression," "violation of territorial integrity," "illegal occupation" and "ceasefire violations" were voiced most strongly in connection with Russian incursions beyond the defined zone in South Ossetia. Likewise, claims about "disproportionate use of force" were most frequently identified with incursions into Georgia proper, the very performance of which was seen as an illicit escalation. All of these interpretative moves emphasized (or at least, suggested) legal features more commonly associated with the jus ad bellum--the decision to fight--and the consequences for Georgia as a sovereign territorial state, rather than the particular harms of war.

   Georgia's actions, by contrast, were seen very differently in relation to these categories: However unwise they had been--however difficult a position they had put the United States and other allies in--because Georgia's uses of force took place entirely on its own territory, the norms of jus ad bellum did not even arise.

   3. A CURIOUS OUTCOME: HOW SHOULD THE LAW CHARACTERIZE WHAT HAPPENED IN THE WAR?

   The 2008 Georgian War was not a conflict over legal definitions. Still, Western policymakers did claim Russia had violated important international legal norms, and the most searching condemnations they made concerned jus ad bellum violations of sovereignty: Russia's actions--invading Georgia, continuing to occupy territory, recognizing breakaway regions--and critiques of Russia's disproportionate conduct both implicate a territorial interpretation.

   These are curious grounds for legal criticism, because as we shall see, many of Russia's acts were probably perfectly legal, or at least so indeterminate as to provide dubious grounds for condemnation. Things that were most clearly legally improper made up the smallest part of Western critiques. By following the standard account of events, we can review the conduct of the war against existing legal norms, remembering those norms are not always clear--a fact that does not work in favor of the preferred analysis of the Unites States.

1. Aggression and Violation of Territorial Integrity

   Russian troops unquestionably invaded Georgia, but Russia probably did not commit aggression. There had been a chain of incidents and provocations stretching back several years, but on August 7, 2008, Georgia significantly escalated the level of conflict, initiating major military operations by shelling and attacking Tskhinvali, killing eighteen Russian peacekeeping troops. (111) Russia was evidently ready--probably seeking just such an opportunity--and struck back with overwhelming force the next day. This sequence is decisive. (112)

   The first serious wrongful use of force normally constitutes aggression. (113) While the term "first" appears straightforward enough, it will turn out to do very little independent work. "Serious" means non-trivial; for example, not just a stray bullet, an accidental crossing of a frontier, or even minor military operations. Finally, the term "wrongful" is not a moral assessment but means lacking justification, as in force that was neither authorized by the Security Council nor a defensive response to some prior use of force or threat. Thus a state does not necessarily commit aggression merely because it used force first, or because it uses a serious level of force: it must be serious, unauthorized, and (usually) first--and these three elements interact.

   Let us begin with temporal priority, and see how it quickly implicates seriousness and wrongfulness. On the standard account, Georgia initiated its attack on Tskhinvali on August 7th, before Russia's deployment on August 8th. Georgia contests this, claiming that Russian forces moved through the Roki ttmnel from North Ossetia early on August 7th. Georgia has also claimed it was responding to prior incidents, of which there had been a well-documented series in the preceding months, indeed over the previous eighteen years. Those incidents were principally between Georgian and South Ossetian or Abkhazian units, though some involved Russian forces. (114) If Russia in fact deployed earlier on the 7th, or if these prior incidents themselves were of sufficient seriousness, then later that day Georgia could plausibly have been responding to them in self-defense. This in turn could mean that on August 8th, Russia was not responding, but continuing a conflict it had begun by an earlier violent action. Let us see how these possibilities work out.

   To use force in self-defense, a state must be responding to some prior and sufficiently serious act. Just as not every cross-border incursion constitutes aggression, not every incursion gives grounds for the full range of self-defense measures; although all are violations of sovereignty and territorial integrity, there must be a...