My analysis of the legal case for Russian intervention was recently published in the Fordham International Law Journal, vol. 32, issue 5.
1. What in your opinion sparked the conflict in the Caucasus last year?
While the conflict has it origins in the desire for greater national recognition going back long before the collapse of the USSR, it was exacerbated by the post 1991 Georgian leadership, which either pandered to nationalist sentiments, as in the cases of Zviad Gamsakhurdia and Mikheil Saakashvili, or simply failed to tame it, as in the case of Eduard Shevarnadze.
The military conflict that erupted in early August 2008, however, required considerable planning. This has been pointed out by Georgian officials close to the Saakashvili, such as former defense minister Irakli Okruashvili, former ambassador to Russia Erosi Kitsmarishvili, and the former head of the Border Police Badri Bitsadze. The Georgian military plan anticipated a rapid "restoration of order" in Southern Ossetia. Had this scenario been successful, it would have emboldened President Saakashvili to push into Abkhazia, and fulfill his campaign promise of uniting all of Georgia.
Perhaps the best summation of last year's events remains the unguarded remarks of the head of the Georgian parliamentary commission of inquiry, Paata Davitaia, caught by television cameras last December: "They [the Georgian authorities] started the war; what else should they find out? They have started it, because of the wrong policies they have been pursuing throughout these years; that's all." (Civil Georgia, December 21, 2008).
2. Do you consider the reaction of the Russian Federation to the actions embarked upon by Georgia in South Ossetia justified?
As typically occurs in such situations, Russia's rationale for intervening has undergone a certain amount "mission creep." The original rationale cited Georgia's violation of the 1992 Sochi Agreement (also known as the Dagomys Agreement), and its attack on the OSCE sponsored peacekeeping mission in South Ossetia. The intense scrutiny by the Russian media soon forced the government to add to its rationale for intervention, stemming the tide of refugees and defending the civilian population of South Ossetia.
Ultimately, therefore, Russia has relied on two distinct arguments to justify its use of military force. First, defense of its peacekeepers, who were shelled by Georgian forces shortly after 18:00 GMT on August 7th. Second, the humanitarian argument that arose immediately as a result of the 35,000 refugees who fled before the Georgian assault, many of whom brought with them assertions of genocide against South Ossetians civilians.
3. Do you think the Russian reaction was adequate and proportionate?
This is, of course, the central question. I believe it ought to be answered in stages. First, one should ask whether the response of the relevant international institutions to Georgia's operation to "restore constitutional order throughout the region - this includes NATO, the United Nations, and the OSCE - was appropriate. As we now know, between 06:00 GMT on August 8 and 23:00 GMT on August 9, Russia tabled three resolutions at the UN Security Council calling upon all sides to renounce the use of force. Each time its efforts were opposed by the United Kingdom and the United States, who sided with Georgia's UN Ambassador Irakli Alasania (now one of Saakashvili's leading political opponents). On August 11 Russia also called for an emergency meeting of the Russia-NATO Council to appeal for NATO's assistance in ending the crisis. Again, however, this initiative was blocked by the United States.
Second, therefore, and in the context of the international community's failure to act, one should ask whether Russia's reaction was appropriate and proportionate.
4. Would you draw a distinction between the Russian response in South Ossetia and examples of humanitarian intervention demonstrated by the Western policymakers in Africa, Serbia , etc?
Despite the universal condemnation of genocide enshrined in legal documents, most notably, the "Convention on the Prevention and Punishment of the Crime of Genocide" adopted by the United Nations on December 9, 1948, international law has followed political reality in severely constraining the prerogatives of nations to intervene on behalf of the victims. There have been a few notable exceptions, sanctioned by the UN Security Council, but these have been rare and post facto.
In the case of the 1999 NATO bombing of Yugoslavia, certain Western nations sought to establish the precedent that, in the absence of a global consensus, a regional organization could claim to act on behalf of the entire international community. This stance has almost no support outside of a handful of Western states, since it potentially justifies military intervention by stronger states seeking to impose their wishes arbitrarily on weaker states.
5. In your opinion, was there any significant influence of the Russian peace operation on international law?
I believe that the Russian "peace enforcement" operation in Georgia could be an excellent case study for international legal scholars. It raises several important issues regarding a relatively new aspect of international law known as the "responsibility to protect," or "R2P."
If it is taken seriously, R2P obviously constrains the traditional supremacy of state sovereignty when it comes to gross violations of human rights. I think there is growing international sympathy with this view, though most scholars would rely on the consensus of the international community, as expressed through the UN Security Council, to define when such a gross violation has taken place. Russia's decision to intervene unilaterally helps us to focus on the question of when states might be justified in acting unilaterally, citing the need to preserve human life, even in the absence of such a consensus.
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