European Court of Human Rights rules on Russian aggression against Georgia

by Konstantin Kavtaradze, Ambassador of Georgia to Canada

Thirteen years ago, on August 7, 2014, Russia invaded Georgia on land, by sea, by air and via cyberspace, and committed a full-scale military aggression against Georgia. The move was unprecedented in its scale and impact. Nine of 12 Georgian regions became the target of Russian aviation bombardments; more than 30 cities and villages, including Tbilisi and Kutaisi were shelled by Russian strategic bombers and military aircraft; cluster bombs and other types of prohibited weapons were used. As a result, hundreds of civilians and military personnel were killed and wounded; thousands of locals joined half a million Internally Displaced Persons (IDPs) and refugees expelled during the previous waves of ethnic cleansing; 53 Georgian villages in and around the Tskhinvali region/South Ossetia were fully cleansed and destroyed; 35 000 houses belonging to ethnic Georgians were deliberately burnt and ruined. In August 2008, Russia took control additionally over five valleys and 125 villages of Georgia. Despite the fact that on August 12, 2008, the Russian President undersigned the EU-mediated Ceasefire Agreement and obliged to withdraw all its military forces to the pre-war positions, Moscow continued aerial bombardments throughout the whole territory of Georgia, and two weeks after the Kremlin decided to recognize the so-called independence of Georgia’s indivisible regions of Abkhazia and Tskhinvali region/South Ossetia.

This unprecedented assault was an attack on the fundaments of the rules-based international order, blatant violation of the basic norms and principles of international law, and a huge blow to the UN Charter and the Helsinki Final Act (1975) that defines the rules for multilateralism and international peace.

After the end of the Cold War, the 2008 aggression was Russia’s first attempt of redrawing sovereign borders in Europe and open attack against the whole democratic community, which made clear that Moscow was promoting the so-called “new order”, “new realities”, and was challenging the entire European security architecture, employing all the available hybrid warfare tools in its arsenal. Russia’s invasion and illegal occupation of the Georgian regions of Abkhazia and Tskhinvali region/South Ossetia was only a beginning of the Kremlin’s far-reaching strategy. Years after, it was followed by Russia’s similar aggressive scenario in Crimea and Eastern regions of Ukraine.

It is obvious that back in 2008, Russia perceived the lack of a decisive and consolidated response by the international community as a green light and expanded the target area well beyond Ukraine and even into the Eastern Partnership region, considering the low-price tag for its illegal actions. Today, we can trace the Russian hybrid warfare tools all over the European and Euro-Atlantic space attacking the very core of international security and stability. These range from targeted assassinations, cyber-attacks, disinformation campaigns and propaganda machinery to paramilitary and military maneuvers. In fact, the Kremlin understands that is does not need to engage in a large-scale armed hostilities anymore, as the methods of non-conventional warfare are delivering the results for Moscow’s aims with lower expenses. Hence, it does not hesitate to overstep legal boundaries and fears no repercussions. Thus, the total disregard of heavy humanitarian and human rights consequences of its unlawful actions became the Kremlin’s modus vivendi to the detriment of the rest of the international community.

Strasbourg Court establishing the truth around the August 2008 war

The European Court of Human Rights (ECHR) ruled its verdict in the case concerning the armed conflict between Georgia and the Russian Federation in August 2008 and its consequences and established the legal fact that Russia has been occupying and exercising effective control over the Georgian regions of Abkhazia and Tskhinvali region/South Ossetia following the EU-mediated 12 August 2008 Ceasefire Agreement.

The Strasbourg Court found Russia responsible for violation of multiple provisions of the European Human Rights Convention, including for killing, torture, ill-treatment and arbitrary detention of Georgian civilians and military personnel; looting and burning of Georgian homes; ethnic cleansing, and inhuman treatment of Georgians targeted as an ethnic group; deprivation of the right of IDPs and refugees to return to their homes.

Key  Findings  of  the  ECHR  Judgement

Russian Federation occupied and continues to occupy the Georgian regions

  • …the Court considers that a distinction needs to be made between the military operations carried out during the active phase of hostilities and the other events which it is required to examine in the context of the present international armed conflict, including those which occurred during the "occupation" phase after the active phase of hostilities had ceased, and the detention and treatment of civilians and prisoners of war, freedom of movement of displaced persons, the right to education and the obligation to investigate. (para. 83).

  • The Russian armed forces progressively invaded the following Georgian territories: (i) all of Abkhazia, including Upper Abkhazia (upper Kodori Valley), formerly under Georgian control; (ii) all of South Ossetia, including the Akhalgori district, formerly under Georgian control; that district was occupied from 16 August 2008; (iii) the village of Perevi (Sachkhere district), situated in undisputed Georgian territory, to the west of South Ossetia; (iv) the "buffer zone", including the zones bordering South Ossetia and Abkhazia, situated in undisputed Georgian territory, after the Russian armed forces had withdrawn from the town of Gori on 22 August 2008. (para. 39). With regard to the “buffer zone,” it appears undeniable that it was also occupied by Russian armed forces during the period in question […]. (para. 173).

  • Accordingly, having regard to the seriousness of the crimes committed during the active phase of the hostilities, and the scale and nature of the violations found during the period of occupation, the Court considers that the investigations carried out by the Russian authorities were neither prompt nor effective nor independent, and accordingly did not satisfy the requirements of Article 2 of the Convention. (para. 336).

Russia continues violation of the EU-mediated 12 August 2008 Ceasefire Agreement

  • A ceasefire agreement was concluded on 12 August 2008 between the Russian Federation and Georgia under the auspices of the European Union, providing, inter alia, that the parties would refrain from the use of force; immediately end hostilities; provide access for humanitarian aid; and that Georgian military forces would withdraw to their usual bases and Russian military forces to the lines prior to the outbreak of hostilities. (para. 40).

  • On 10 October 2008 Russia completed the withdrawal of its troops stationed [only] in the “buffer zone”, except for the village of Perevi (Sachkhere district), situated in undisputed Georgian territory, from which the Russian troops did not withdraw until 18 October 2010. (para. 44).

  • Amnesty International report, “Civilians in the line of fire: the Georgia-Russia conflict,” November 2008: in its report (p. 10) Amnesty International observed that even after the ceasefire had been brokered the Russian Federation continued deploying troops on territories situated outside South Ossetia and Abkhazia. (para. 155).

  • […] the relevant passages of the report by the International Crisis Group, “South Ossetia: The Burden of Recognition,” 7 June 2010, read as follows:

  • […] Thus, Russia has consolidated its military presence in both regions, instead of withdrawing forces to pre-conflict positions as stipulated by the Medvedev-Sarkozy agreement. (para. 158).

  • […] the Court considers that the Russian Federation exercised “effective control”, within the meaning of the Court’s case-law, over South Ossetia, Abkhazia and the “buffer zone” from 12 August to 10 October 2008, the date of the official withdrawal of the Russian troops. Even after that period, the strong Russian presence and the South Ossetian and Abkhazian authorities’ dependency on the Russian Federation, on whom their survival depends, as is shown particularly by the cooperation and assistance agreements signed with the latter, indicate that there was continued “effective control” over South Ossetia and Abkhazia. (para. 174).

Russia is responsible for ethnic cleansing of Georgian population

Pre-Trial Chamber I of the International Criminal Court stated as follows:  

  • ”The attack targeted mainly ethnic Georgians following a consistent pattern of deliberate killing, beating and threatening civilians, detention, looting properties and burning houses. The level of organization of the attack is apparent from the systematic destruction of Georgian houses, the use of trucks to remove looted goods, and the use of local guides to identify specific targets. Valuable items were removed from houses or farms before they were set on fire.” (para. 208).

    • […] the Court considers that it has sufficient evidence in its possession to enable it to conclude beyond reasonable doubt that there was an administrative practice contrary to Articles 2 and 8 of the Convention and Article 1 of Protocol No. 1 as regards the killing of civilians and the torching and looting of houses in Georgian villages in South Ossetia and in the “buffer zone”. Having regard to the seriousness of the abuses committed, which can be classified as “inhuman and degrading treatment” owing to the feelings of anguish and distress suffered by the victims, who, furthermore, were targeted as an ethnic group. (para. 220). There has therefore been a violation of Articles 2, 3 and 8 of the Convention and Article 1 of Protocol No. 1, and the Russian Federation is responsible for that violation. (para. 222).

    • The relevant passage of the January 2009 report by the Parliamentary Assembly Monitoring Committee reads as follows:

    • […] credible reports indicated that looting and pillaging, as well as acts of ethnic cleansing were taking place on a daily basis in the areas under Russian control, including in the so-called ‘buffer zone’. (para. 319).

Russia was obliged to enable inhabitants of Georgian origin to return home

  • […] the Court concludes that there was an administrative practice contrary to Article 2 of Protocol No. 4 as regards the inability of Georgian nationals to return to their respective homes. That situation was still ongoing on 23 May 2018, the date of the hearing on the merits in the present case, when the parties submitted their most recent (oral) observations to the Court. (para. 299).

  • The Court therefore considers that there has been a violation of Article 2 of Protocol No. 4 […] and that the Russian Federation is responsible for that violation (para. 301).

  • […] de facto South Ossetian and Abkhazian authorities, and the Russian Federation, which has “effective control” over those regions, have a duty to enable inhabitants of Georgian origin to return to their respective homes, pursuant to their obligations under the Convention (para. 298).

RF bears responsibility for torture of Georgian prisoners of war & civilians

  • […] the Court concludes that there was an administrative practice contrary to Article 3 of the Convention as regards the conditions of detention of some 160 Georgian civilians and the humiliating acts to which they were exposed, which caused them undeniable suffering and must be regarded as inhuman and degrading treatment. (para. 250).  Lastly, the Court considers that the ill-treatment inflicted on the Georgian prisoners of war caused “severe” pain and suffering and must be regarded as acts of torture within the meaning of Article 3 of the Convention. (para. 278).

  • […] the Court concludes that there was an administrative practice contrary to Article 3 of the Convention as regards the acts of torture of which the Georgian prisoners of war were victims. (para. 279). There has therefore been a violation of Article 3 of the Convention, and the Russian Federation is responsible for that violation. (para. 281).

RF bears responsibility for HR violations in 2008 war & period of occupation

The Russian Federation bears responsibility for the violation of human rights in the occupied territories in the August 2008 war as well as the period of further occupation, including for:

  • deprivation of the right to life;

  • torture, inhuman and degrading treatment.

  • ethnic cleansing; burning, looting and destroying of the Georgian villages.

  • violation of the right to liberty and security.

  • infringement of rights to freedom of movement, right to respect for private and family life and property rights.

  • violation of the rights of IDPs and refugees to return to their homes.

Important references to the ICC & IIFFMCG

  •           […] Pre-Trial Chamber I of the International Criminal Court also made the following observations:

  • “[…] there is sufficient indication that the Russian Federation exercised overall control over South Ossetian forces, meaning that also the period before the direct intervention of Russian forces may be seen as an international armed conflict. (para. 160).

  • […] EU Fact-Finding Mission refers to “creeping annexation” of South Ossetia and Abkhazia by the Russian Federation:

“The clearest demonstration of this Russian policy of integrating separatist entities of neighbouring states into its own legal jurisdiction was ‘passportisation’, the awarding of Russian passports and citizenship of the Russian Federation to residents of Abkhazia and South Ossetia. Another aspect of ‘creeping annexation’ was the fact that the separatist governments and security forces were manned by Russian officials. Russia appointed its former civilian and military leaders to serve in key posts in Abkhazia and especially in South Ossetia […]” (Para. 169).

For years, Russia has been spreading disinformation regarding the August 2008 war, in an attempt to distance itself from the conflict and deviate from its responsibility. In this light, the ECHR Judgement carries extra weight, as Russia’s responsibility in the 2008 war, its occupation and effective control over two Georgian regions are no longer a merely political assessment but pose a legally established fact. The decision explicitly outlines the true degree of Russia’s legal responsibility and deprives it of possibility to manipulate further.

There is no doubt that the ECHR Judgement is an important legal instrument in the peaceful conflict resolution process. It should also serve as a backbone to consolidation of international efforts to push Russia to fulfill its international obligations and end illegal occupation of two Georgian regions.  

What is needed after 13 years?

Since the August 2008 invasion, Georgia and its people have further faced all forms of Moscow’s lasting hybrid war, combining conventional as well as non-conventional tools. Russia’s illegal occupation intertwined with its steps towards de-facto annexation; reinforced military build-up and constant drills in both regions of Abkhazia and Tskhinvali region/South Ossetia; building of Berlin Wall in the heart of Georgia and fortifying the occupation line while erecting the barbed wires, fences and artificial barriers; routine practice of illegal detentions and kidnappings by Russian FSB troops; torture and deprivation of lives on the basis of ethnicity; restriction of freedom of movement and increasing isolation from the rest of Georgia; intensive Russification accompanied with prohibition of education in native Georgian language; ethnic discrimination and severe forms of human rights violations ¾ all these define daily life of people residing in two Georgian regions and the villages adjacent to the occupation line. The human rights and humanitarian conditions of the conflict-affected people have been further deteriorated amid the COVID-19 pandemic. The peaceful civilians have become political hostages of the Russian occupation regimes.

All this is only one part of the same pattern Moscow is applying in the Eastern Partnership space and the wider Black Sea region. We all have too many examples of how Russia’s illegalities undermine peace and stability of nations and regions. We all know how rogue and unpredictable Moscow can be if it is not stopped and held accountable for attacking the international legal order and violating internationally recognized frontiers of sovereign states. If Russia sees that the West turns a blind eye to those violations and is ready to engage with it in a “business as usual” environment, with little consideration of heavy toll of Russia’s illegal actions, this will only encourage Moscow to seek further destabilization in the wider region. We all need to see the broader context and realize that today those might be Georgians or Ukrainians, who are being targeted, but no state is going to be safe if disrespect for the basics of international law becomes a “norm” and “established practice.” It is not only the European security architecture that is at stake today, but the fate of the entire rules-based international system. If we fail to uphold the fundamental norms of international law, what guarantees do we have to feel safe in increasingly challenging and unpredictable world?

With this in mind, we appeal to the international community, partner countries and international organizations to recognize the urgency to act and take decisive stance in defending the values, principles, and the core norms of the international legal order. We urge the international community to dully assess the violations Russia has been committing in Georgia’s occupied territories for the last 13 years since its military aggression against Georgia.

We appeal to the international partners to call upon Russia to meet its international obligations, inter alia: to implement the EU-mediated 12 August 2008 Ceasefire Agreement and withdraw Russian military and security forces from Georgia’s occupied territories; to reverse the recognition of so-called independence of the Georgian regions of Abkhazia and Tskhinvali region/South Ossetia; to ensure safe and dignified return of all IDPs and refugees to their homes based on the principles of international law.

As we are trying to cope with the consequences of the pandemic, there are many pressing issues that still require our attention. You are well aware that for Georgia main challenge lies with the continued occupation of its territories by Russia.

Despite attempts by Georgia to ease the tension, we are still witnessing growing Russian military build-up on the occupied territories, erecting of razor and barb wire fences and trenches along the occupation line that artificially hinder the movement of the population. Every day grave violations of human rights including killing, abduction of civilians, illegal imprisonment is taking place. Small number of remaining local Georgian population are denied of their right to have education in native language, occupation forces are hampering the return of the IDPs and refugees to their homes.

We deeply appreciate Canada’s traditional vocal support to Georgia’s territorial integrity and sovereignty. Canada has always been unequivocal in stating that Russia should respect rules of international law.

Konstantin Kavtaradze is the Ambassador of Georgia to Canada and the Permanent Representative of Georgia to ICAO