The Tagliavini Report Revisited: Jus ad Bellum and the Legality of the Russian Intervention in Georgia

• Author: Alexander Lott
• Position: Utrecht University School of Law, LL.M. Public International Law (2011); University of Tartu, LL.B. (2010)
• Pages: 4-21

e Tagliavini Report Revisited: Jus ad Bellum and the Legality

of the Russian Intervention in Georgia

Alexander Lott

Merkourios 2012 – Volume 28/Issue 74, Article, pp. 04-21.

URN: NBN:NL:UI:10-1-112847

ISSN: 0927-460X

URL: www.merkourios.org

Publisher: Igitur, Utrecht Publishing & Archiving Services

Copyright: this work has been licensed by the Creative Commons Attribution License (3.0)

Keywords

Georgia-Russia War 2008, EU Fact-Finding Mission, Use of Force, Self-defence, Protection of Peacekeepers, Protection of

Nationals Abroad

Abstract

e purpose of this manuscript is to critically examine the legal ndings of the Tagliavini Report in hope of contributing to

the debate on its principal conclusions. e establishment of an independent fact-nding commission to explore the origins

and course of the conict marked the rst time in its history that the EU, key mediator in concluding the Georgia-Russia

conict’s ceasere, intervened actively in an armed conict.

e author, disparate from the Fact-Finding Mission, does not nd Georgia to have the right of self-defence in regard of

attacks by Ossetian secessionist forces preceding the Russian invasion. e author argues, analogously to the Tagliavini

Report, that Georgian oensive on Tskhinvali in South Ossetia represented an excessive use of force which violated Article

2(4) of the UN Charter.

In regards to the central issue, the author contends that the Russian military intervention in Georgia on 8 August 2008

following Georgian oensive on Tskhinvali was not justied under the scope of reinforcing its peacekeeping force, or on

the grounds of humanitarian intervention, intervention by invitation, or protection of citizens. Distinct from the Tagliavini

Report, this manuscript reaches the conclusion that Russia was neither entitled to invade Georgia for protecting its

peacekeeping contingent that comprised part of an international peacekeeping force.

Author Aliations

Utrecht University School of Law, LL.M. Public International Law (2011); University of Tartu, LL.B. (2010). Counsellor,

Public Law Division at the Estonian Ministry of Justice. e author would like to thank Professor Eric Myjer, Chisom Udeze

and Kati Jakobson-Lott for their help and support in writing this manuscript.

Article

Merkourios - International and European Security Law - Vol. 28/74 04

Case Note

Article

I. Introduction

In the prevailing opinion, Georgia has been held liable for initiating the ‘ve-day’ international armed conict against Russia

in August 2008. is is due to the argument that it allegedly commenced military activities in South Ossetia and thus

purportedly acted as an aggressor State under the ‘rst strike rule’. Yet, as Sir Gerald Fitzmaurice has noted: ‘When you get a

war involving a group of States, you get a chain of events in which it is very dicult to say which action comes rst, and vis-

à-vis whom.’1 is characterization describes ttingly the situation on 7/8 August in South Ossetia as well as the days leading

up to the escalation of the conict.

us, this analysis addresses the events leading up to the outbreak of the August 2008 armed conict in Georgia with focus

on the legality of the Russian intervention in the South Ossetia conict. is paper aims to deconstruct the controversial

legal narrative,2 in hope of contributing to the debate on whether the Russian Federation had the right under international

law to invade Georgia on 8 August 2008.3 In this light, this study is divided into four main chapters; the rst three chapters

address the state of aairs in South Ossetia prior to 8 August so as to provide the basis for examining the legality of the

Russian invasion on 8 August in the fourth chapter. Here, the analysis focuses on four main justications set forth by Russia:

intervention by invitation, humanitarian intervention, protection of citizens, and protection of peacekeepers.

e key materials used for the analysis are the extensive volumes of the report conducted by the Independent International

Fact-Finding Mission on the Conict in Georgia (‘Tagliavini Report’ and ‘Fact-Finding Mission’ used interchangeably).

e Fact-Finding Mission noted that its report marked ‘the rst time in its history that the European Union has decided to

intervene actively in a serious armed conict.’4 is intervention incorporated the input of twenty experts on military, legal,

humanitarian and historical issues, and this mission provided an invaluable material used in this study. Hence, this paper

draws heavily from and critically analyses the ndings of the Tagliavini Report. e following chapter provides an overview

of its principal conclusions.

II. Description of the main ndings of the Tagliavini Report

Hostilities between the Georgian paramilitary and police units and the Ossetian militia escalated in July 2008. e latter

had eective control over most part of the breakaway region.5 A report was issued at the beginning of August 2008 by the

observers of the Organization for Security and Cooperation in Europe (OSCE) and the representatives of Russian forces in

South Ossetia. ey claimed that there was evidence of attacks, involving heavy weapons prohibited under the 1992 Sochi

Agreement,6 against ethnic Georgian villages in the region.7

e Fact-Finding Mission established that the hostilities did not only aect the paramilitary units and militia of the warring

parties, but also had a signicant impact on the inhabitants of the villages under attack. Consequently, fatalities occurred

on both sides and the hostilities were characterized as ‘heavy ghting’ from 6 August 2008 onwards.8 e evacuation of the

Ossetian civilian population from South Ossetia to Russia had commenced in early August 2008 and explicitly indicated

the extent of the warfare in the region.9 e Tagliavini Report characterized the conict as a low-intensity war prior to the

Russian intervention on 8 August 2008.10

e Tagliavini Report concluded that the Georgian oensive on 7/8 August 2008 on the South Ossetian capital Tskhinvali

1 Quoted in SM Schwebel, Justice in International Law (Cambridge University Press 1994) 568.

2 For an illustrative example of Georgia’s and Russia’s contrasting interpretations of relevant facts see Case Concerning Application of the International Convention

on the Elimination of All Forms of Racial Discrimination (Georgia v Russian Federation) [2011] ICJ Rep (1 April 2011).

3 For an analysis of the conict through the prism of international relations see eg PW Schulze, ‘Geopolitics at Work: the Georgian-Russian Conict’ [2009] 1

GoJIL 332. For a study on the region’s history see eg SE Cornell, Small Nations and Great Powers: A Study of Ethnopolitical Conict in the Caucasus (Curzon Press

2001).

4 H Tagliavini (ed), ‘Independent International Fact-Finding Mission on the Conict in Georgia’ 1 (Report, e Council of the European Union 2009) 2.

5 C Welt, ‘e awing of a Frozen Conict: e Internal Security Dilemma and the 2004 Prelude to the Russo-Georgian War’ [2010] 62 Eur Asia Stud 93-94.

See also A Bellal and S Casey-Maslen, ‘Enhancing Compliance with International Law by Armed Non-State Actors’ [2011] 3 GoJIL 184.

6 Art 3 of the Agreement on Principles of Settlement of the Georgian – Ossetian Conict 1992 in T Diasamidze, Regional Conicts in Georgia – the Autonomous

Oblast of South Ossetia, the Autonomous SSR of Abkhazia (1989-2006) e Collection of Political-Legal Acts (e Regionalism Research Centre 2006) 98.

Subsequently references in relation to Georgia’s legal acts are made to the latter compilation, albeit the documents are available also at

accessed 4 May 2011.

7 M Malek, ‘Georgia & Russia: e “Unknown” Prelude to the “Five Day War”’ [2009] 3 CRIA 229.

8 H Tagliavini (ed), ‘Independent International Fact-Finding Mission on the Conict in Georgia’ 2 (Report, e Council of the European Union 2009) 245.

9 ibid 208.

10 ibid 209.

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