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THE JUS AD BELLUM AND ENTITIES SHORT OF STATEHOOD IN THE REPORT ON THE CONFLICT IN GEORGIA

Published online by Cambridge University Press:  27 January 2010

Christian Henderson  and
James A Green
Christian Henderson
Affiliation:
Lecturer in Law, Oxford Brookes University.
James A Green
Affiliation:
Lecturer in Law, Oxford Brookes University.
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International & Comparative Law Quarterly , Volume 59 , Issue 1 , January 2010 , pp. 129 - 139
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Copyright © 2010 British Institute of International and Comparative Law

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References

1 EU Council Decision 2008/901/CFSP of 2 December 2008 concerning an independent international fact-finding mission on the conflict in Georgia, [2008] OJ 323/66.

2 The Report of the Independent International Fact-Finding Mission on the Conflict in Georgia (IIFFMCG), 30 December 2009, all three volumes at http://www.ceiig.ch/Report.html, see Volume I, 39–43.

3 ibid.

4 ibid.

5 ibid 2.

6 EU Council Decision (n 1) art 1(2).

7 ibid. This phraseology is odd, as it implies that international humanitarian law and international human rights law are not part of international law.

8 IIFFMCG Report, Volume I (n 2) 2.

9 Of course, the ICJ does have a contentious case relating to the conflict on its docket, but this application is jurisdictionally based upon the International Convention on the Elimination of All Forms of Racial Discrimination (CERD). As the Court pointed out in its provisional measures order, it is required to ‘confine its examination...to those [matters] which appear to fall within the scope of CERD.’ See the Case Concerning the Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Georgia v. Russian Federation) (Request for the Indication of Provisional Measures Order) [2008], http://www.icj-cij.org/docket/files/140/14801.pdf para 127.

10 See, in general, IIFFMCG Report, Volume II (n 2).

11 One notable example is that Georgia claimed that the Russian intervention into Georgian territory began on the 7 August 2008 (see M Saakashvili, ‘Georgia Acted in Self-Defence’ Wall Street Journal, 2 December 2008, http://online.wsj.com/article/SB122817723737570713.html), whereas Russia maintained this did not occur until the following day (see UN Doc S/2008/545). Indeed, the conflict was one that was clouded in a great deal of factual disagreement, propaganda, and media misdirection. This is to an extent true with regard to all conflicts, but this was a problem that was particularly pronounced in the case of the Russia/Georgia dispute. Furthermore, as the Report noted, this problem was exacerbated by the technological disruption of so-called ‘cyber-attacks’, which affected all parties and led to the disruption and occasional collapse of servers in the region. See IIFFMCG Report, Volume II (n 2) 117–119.

12 See, for example, ‘Uncomfortable Conclusions for Georgia’ BBC News Online, 30 September 2009, http://news.bbc.co.uk/1/hi/world/europe/8284046.stm.

13 For a detailed legal assessment of various aspects of the conflict see JA Green and CPM Waters (eds), Conflict in the Caucasus: Implications for International Legal Order (Palgrave, Basingstoke, forthcoming 2010). See also Petro, NN, ‘The Legal Case for Russian Intervention in Georgia’ (2009) 32 Fordham Int'l LJ 1524Google Scholar; Nuβberger, A, ‘The War between Russia and Georgia—Consequences and Unresolved Questions’ (2009) 1 Göttingen J Int'l L 341, 359Google Scholar–360; King, C, ‘The Five Day War: Managing Moscow After the Georgia Crisis’ (2008) 87 Foreign Aff 2Google Scholar; Shanahan Cutts, NM, ‘Enemies Through the Gates: Russian Violations of International Law in the Georgia/Abkhazia Conflict’ (2007–2009) 40 Case W Res J Int'l L 281, 302–304Google Scholar; and Iqbal, M and S, Hassan, ‘Armed and Ready’ (2008) 158 New LJ 1277Google Scholar.

14 For example, the Mission's treatment of the criteria of necessity and proportionality in the context of self-defence was cursory and arguably inconsistent with customary international law (cf IIFFMCG Report, Volume II (n 2) 269–274 to J Gardam, Necessity, Proportionality and the Use of Force by States (Cambridge University Press, Cambridge, 2004) 138–187; and JA Green, The International Court of Justice and Self-Defence in International Law (Hart Publishing, Oxford, 2009) 63–109. Other jus ad bellum issues in the Report that are potentially of concern include: reference to a seemingly new concept of ‘formal’ reporting of actions of self-defence to the UN Security Council, the treatment of the notion of ‘reprisals’ and the ‘accumulation of events’ theory in the context of self-defence.

15 It is worth noting that the Mission made it clear that the comparatively short Volume I of the Report should be viewed as authoritative (IIFFMCG Report, Volume II (n 2) 1). Much of the analysis herein relates to Volume II. However, the two volumes do not contradict each other, and Volume I is drawn from the findings set out in Volume II. Ultimately, Volume II still represents the published conclusions of the Mission and is therefore equally worthy of analysis.

16 As Gray remarks, ‘The provisions in Articles 2(4) and 51…are accordingly directed to inter-state conflict.’ See C Gray, International Law and the Use of Force (3rd edn, Oxford University Press, Oxford, 2008) 7.

17 IIFFMCG Report, Volume II (n 2) 229.

18 ibid.

19 The generally accepted view is that ‘[t]he UN Charter, and jus ad bellum generally, only deals with conflicts between States. It treats internal disputes, even those involving secessionist enclaves like South Ossetia and Abkhazia, as a domestic matter,’ A Dworkin, ‘The Georgian Conflict and International Law’ (2008) Crimes of War Project, http://www.crimesofwar.org/onnews/news-georgia.html. However, for the minority contrary view as to the applicability of art 2(4) to non-State entities, see T Gazzini, The Changing Rules on the Use of Force in International Law (Manchester University Press, Manchester, 2005) 180–181.

20 UN Charter, art 2(4).

21 IIFFMCG Report, Volume II (n 2) 239.

22 Art 2(4) also prohibits the threat or use of force against ‘any State’, not ‘another State’ as the Report indicates.

23 Indeed, the misquotation of art 2(4) is not the only basic error of this kind in the Report (though it is perhaps the most concerning). For example, the Report referred to the prominent international legal scholar (and specialist on the jus ad bellum), Professor Christine Gray, as ‘Susan Gray’. See IIFFMCG Report, Volume II (n 2) 255.

24 Y Dinstein, War, Aggression and Self-Defence (4th edn, Cambridge University Press, Cambridge, 2005) 85.

25 IIFFMCG Report, Volume II (n 2) 239–240.

26 As is stressed, in particular, in arts 2(3) and 2(4) of the UN Charter.

27 IIFFMCG Report, Volume II (n 2) 240–241. These agreements are: ‘The Agreement on Principles of Settlement of the Georgian-Ossetia Conflict’ of 24 June 1992 (the so-called ‘Sochi Agreement’); ‘The Agreement on the Further Development on the Process of the Peaceful Regulation of the Georgia-Ossetian Conflict and on the Joint Control Commission’ of 31 October 1994; and ‘The Memorandum on Necessary Measures to be Undertaken in Order to Ensure Security and Strengthening of Mutual Trust between the Parties to the Georgian-Ossetian Conflict’ of 1996. All three documents can be found in T Diasamidze, Regional Conflicts in Georgia (The Autonomous Oblast of South Ossetia, The Autonomous SSR of Abkhazia 1989–2008): The Collection of Political-Legal Acts (Regionalism Research Centre, Tbilisi, 2nd edn, 2008) 110, 192 and 244 respectively.

28 That is, in the 1994 Agreement and the 1996 Memorandum, ibid.

29 That is, in the 1992 Agreement (n 27).

30 IIFFMCG Report, Volume II (n 2) 242, emphasis added.

31 ibid 240.

32 ibid.

33 ibid.

34 UN Security Council Resolutions act as a good illustration of this point. Take, as just one example, Resolution 1701, UN Doc S/RES/1701 (2006), which called for—amongst other things—the ‘immediate cessation by Hezbollah of all attacks’.

35 Gray (n 16) 8. This is also implicit in the conclusions as to the customary international law status of Article 2(4) drawn by the ICJ in the Nicaragua case (as well as in the views of the parties to that dispute on this issue). See Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v. United States of America) (Merits) [1986] ICJ Rep 14 paras 187–188.

36 Dworkin (n 19).

37 Definition of Aggression, annexed to GA Res 3314, 1974.

38 This point is made, with relation to South Ossetia, by Petro (n 13) 1526–1528.

39 Nicaragua (Merits) (n 35) para 195.

40 IIFFMCG Report, Volume II (n 2) 243.

41 IIFFMCG Report, Volume II (n 2) 241.

42 ibid 241–242.

43 The traditional view is that ‘[a]ccording to the law of nations, a state is an entity that is allowed to defend itself.’ Self-defence is therefore triggered when ‘a state (and not a group of people) is physically attacked…’, P Cliteur, ‘Self-Defence and Terrorism’ in A Eyffinger, A Stephens and S Muller (eds), Self-Defence as a Fundamental Principle (Hague Academic Press, The Hague, 2009) 83 and 86 respectively (emphasis in original). Although there is a growing body of practice and literature suggesting the possibility of a non-State entity perpetrating an armed attack against a State and therefore triggering the right of self-defence (see n 49), there has been little discussion as to whether such an entity possesses the right of self-defence itself.

44 IIFFMCG Report, Volume II (n 2) 281.

45 UN Charter, art 51.

46 IIFFMCG Report, Volume II (n 2) 244.

47 It would seem relatively clear that attacks by non-State entities operating from within the State do not engage the jus ad bellum, but instead are manifestations of an internal armed conflict. For example, the ICJ stated in the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (Advisory Opinion) [2004] ICJ Rep 135 para 139 that ‘Israel exercises control in the Occupied Palestinian Territory and … as Israel itself states, the threat which it regards as justifying the construction of the wall originates within, and not outside, that territory.’ As such, the Court viewed the jus ad bellum as being inapplicable to that threat. See also Dinstein (n 24) 204–205.

48 IIFFMCG Report, Volume II (n 2) 244.

49 Green (n 14) 31–42; and Gray (n 16) 147–148.

50 There is a growing trend in State practice that suggests that an armed attack (triggering self-defence) may emanate from a non-State actor. Examples include the 2001 intervention in Afghanistan, taken in response to an attack perpetrated by a non-State terrorist group and Israeli action against Hezbollah in 2006. For detailed discussion of these examples in this context, see Green ibid 156–159. It is worth noting that these two examples are probably not enough in themselves to constitute a change in customary international law with regard to non-State ‘armed attacks’, but they certainly indicate the beginning of a paradigm shift in that direction, see M Byers, ‘Terrorism, the Use of Force and International Law After 11 September’ (2002) 51 Int'l & Comp L Q 401, 407–409.

51 For example, the ICJ has appeared to indicate that an armed attack must stem from a State. See Israeli Wall (Advisory Opinion) (n 47) para 139, where the Court stated that ‘Article 51 of the Charter thus recognizes the existence of an inherent right of self-defence in the case of armed attack by one State against another State’ (emphasis added). See also: Scobbie, I, ‘Words My Mother Never Taught Me: In Defence of the International Court’ (2005) 99 Am J Int'l L 76, 80–81CrossRefGoogle Scholar; and Gazzini (n 19) 184–191.

52 IIFFMCG Report, Volume II (n 2) 282.

53 ibid 282.

54 ibid.

55 cf the views expressed by Judge Schwebel in his dissenting opinion to the Nicaragua case, with regard to the Court's limitation of its ‘proportionate countermeasures’ concept to individual defensive responses only. His objection was similarly based on the position that ‘weak’ States may not be able to defend themselves without collective support. See Nicaragua (Merits) (n 35) dissenting opinion of Judge Schwebel para 177.

56 IIFFMCG Report, Volume II (n 2) 279.