Below is a cursory glance at the legality of what recently happened between Russia and Georgia. This analysis does not aim to be conclusive or exhaustive. It is an attempt to give a legal perspective on a matter that seems to be stuck in the court of mass media.

The most important questions are:

• Was there an armed attack against Russia?
• Was the Russian use of force in response necessary?
• Was it proportional?

Finally, although not discussed here, the 1999 NATO attack on Yugoslavia and several other recent examples of international use of force by major Western powers without a UN Security Council authorization are clearly relevant, especially in a possible theory that they have changed international law.

A historical background.

The Soviet Union was divided into territories, often by titular ethnic group. They had varying degrees of autonomy and different places in the administrative hierarchy. Modern countries like Georgia, Ukraine and Russia itself, known as “newly independent states” after the dissolution of the Soviet Union, held the highest place in the hierarchy as the constituent “republics” of the USSR.

Other territories like South Ossetia ended up as pieces of the larger units. Decisions about the structure of this hierarchy were made by Soviet authorities, and often by individual people like Joseph Stalin. These decisions were sometimes revised, and some units moved up or down in the hierarchy in almost 70 years of the Soviet history. Yet only the top-level territories composing the USSR at the time of its dissolution received international recognition.

When Georgia declared its independence from the Soviet Union, South Ossetia was an “autonomous” unit within the Soviet Socialist Republic of Georgia. As was often the case with “autonomous” regions, the ethnicity of the majority South Ossetia’s population was different from the titular ethnicity of Georgia. When Georgia separated from the USSR, South Ossetia declared its independence from Georgia, which sent troops to keep South Ossetia from breaking away. Russia brokered an agreement to end the war in 1992.

Russia stationed its troops in South Ossetia in 1992 under the deal with Georgia and South Ossetia. The troops had a peacekeeper status and a mandate to separate Georgians and South Ossetians. The latter have been de facto independent from Georgia for 16 years. During this time most of them received Russian citizenship.

Below are some resources on the background of the conflict and the 1992 agreement.

• A US Department of State fact sheet about the conflict.
• An account of the 1992 agreement on the Civil Georgia website.
• An interview with the former Georgian president Eduard Shevardnadze on the Radio Free Europe/Radio Liberty website.
• “1991–1992 South Ossetia War” on Wikipedia.

What happened on August 8, 2008?

Georgia initiated a military assault on Tskhinvali, the capital of South Ossetia, on August 8, 2008 following a week of clashes with South Ossetian troops. Georgian military shelled the city of Tskhinvali with heavy artillery including MRLS (multiple rocket launcher system) and the Georgian air force conducted bombing raids of Tskhinvali. The city fell to Georgians soon after the attack. According to the Russian defence ministry, 12 of its troops stationed in South Ossetia under the 1992 agreement with Georgia were killed and 30 wounded. Their base in Tskhinvali was destroyed.

On August 8 following the Georgian shelling of Tskhinvali, Russian troops entered South Ossetia from Russia. In five days they repelled the Georgian troops and forced them out of South Ossetia. Russian air force systematically destroyed Georgian military infrastructure in various parts of Georgia and bombed the port of Poti. Russian military entered or occupied several towns in Georgia for various lengths of time declaring its intention to destroy or remove abandoned ordnance and maintain security.

Is the use of force by Russia legal?

Jus ad bellum – the law of entering into war, is generally based on the UN Charter. A state can use force either with permission of the Security Council or in response to an armed attack under Article 51 of the Charter. The use of force must pass the test of necessity and proportionality.

In their attack on Tskhinvali Georgian forces used weapons designed to inflict maximum destruction and casualties in a large area. The Georgian military was aware of the civilian population in the city and the Russian military contingent present in Tskhinvali under the 1992 agreement. Most residents of Tskhinvali are Russian citizens. South Ossetia is not Russian territory, and it is internationally recognized to be a part of Georgia although South Ossetian authorities dispute South Ossetia’s status within Georgia. Georgians acted in violation of the 1992 agreement and either targeted the civilians and the Russian military or attacked the city with reckless disregard for their safety and lives.

Even if we accept that the Georgian shelling of Tskhinvali was an armed attack on Russia, the legality of the Russian response by force depends on whether the use of force would be necessary for a legitimate goal under the UN Charter, and whether the cost of the response in civilian lives and damage to civilian property would not outweigh the benefit. For example, if Russians responded by destroying international oil pipelines in Georgia to eliminate competition to its energy transit routes, such use of force would be unnecessary and illegal. If Russia carpet-bombed Georgian cities (like Georgia bombed Tskhinvali) declaring its intention to destroy military bases, it would probably also be illegal because the massive loss of civilian lives in Georgia would be disproportionate to a potential loss of lives, had Georgia continued unfettered.

Russia did none of these things when it used force against Georgia. Instead, its troops appear to be systematically degrading Georgian military. Initially this was accomplished by artillery and air force with a small number of civilian casualties, and later the preferred method appears to be occupation of Georgian military bases and controlled detonation or removal of ordnance, military vessels, aircraft and infrastructure. At some point the Russian military stopped running into any significant resistance from the Georgian troops.

Are Russian actions necessary to protect the civilian population of South Ossetia and its contingent stationed under the 1992 agreement? Three facts stand out: the fierceness of the Georgian attack on Tskhinvali, continuing declarations of resolve to “reintegrate” South Ossetia into Georgia, and the intransigence of the Georgian leadership in accepting any responsibility for the war buoyed by the strong diplomatic support from the United States. To infer that Georgia will attempt another attack on South Ossetia if it retains significant military capability is reasonable.

The biggest question mark over the Russian response to the Georgian attack is its proportionality. To the Russians’ credit, the civilian casualties of their military operation appear minimal, especially compared to some of the recent examples of international use of force unauthorized by the Security Council. However, large numbers of Georgian refugees and the destruction of dual use facilities in Georgia weaken the Russian case. Still, the Georgian attack on South Ossetia also displaced many civilians and, if unfettered, could produce many more in the range comparable to the number of Georgian refugees. The bombardment of the Georgian port of Poti may go some way against assessing the Russian action as proportional although the use of the port to resupply the Georgian military is possible. The Russians can also argue that their air force refrained from destroying the Tbilisi International Airport for humanitarian reasons despite the strong possibility that its runway could be used to resupply the Georgian army or to bring back the Georgian troops from Iraq as reinforcements.

Here are some resources on the international law of war:

• The United Nations Charter on the Yale Law website.
• Judith Gardam, Necessity, Proportionality and the Use of Force by States, (Cambridge, New York: Cambridge University Press, 2004).
• Mary Ellen O’Connell, Book Review of Necessity, Proportionality and the Use of Force by States by Judith Gardam, (2006) 100 Am. J. Int’l L. 973.
• Proportionality and the Use of Force in the Middle East Conflict by University of Notre Dame law professor Mary Ellen O’Connell on the JURIST website.