Original-Textpassagen aus dem Bericht
Extracts of the Report
Seite 239:
… Consequently, a government is generally not prevented from using armed force in internal conflicts, e.g. against insurgents starting a civil war or against territorial entities fighting violently for
secession. …
Seite 244 – 246:
2. Legal assessment: “Armed attack” by South Ossetia on Georgia?
The underlying question is whether the military operations of the South Ossetian militia preceding the Georgian air and ground offensive constituted an “armed attack” on Georgia which could justify the use of force by Georgia as an act of self-defence based on Art. 51 of 53 See Chapter 5 “Military Events of 2008”. …
a) Attacks on Georgian villages by South Ossetian forces as “armed attack” on Georgia
… The attacks on Georgian villages (Zemo Nikozi, Kvemo Nikozi, Avnevi, Nuli, Ergneti,
Eredvi and Zemo Prisi) by South Ossetian forces can be qualified as equivalent to an “attack by the armed forces of a State on the territory of another State” resembling the situations described in Art. 3(a) of UN Resolution 3314. In this context, the delineation of the territories of South Ossetia and Georgia follows de facto jurisdiction of the South Ossetian entity short of statehood. Because the Georgian villages attacked by South Ossetian forces were not under the jurisdiction of South Ossetia before 8 August 2008, the actions by the South Ossetian militia are equivalent to an attack on the “territory of another State”.
To the extent that heavy artillery was used, the attacks against Georgian villages by South
Ossetia can also be qualified as “bombardment by the armed forces of a State against the territory of another State or the use of any weapons by a State against the territory of another State” (cf. Resolution 3314, Art. 3(b)). These acts were serious and surpassed a threshold of gravity and therefore also constituted an “armed attack” in terms of Art. 51 of the UN Charter.” in terms of Art. 51 of the UN Charter. …
b) South Ossetian attacks on the Georgian peacekeepers and police as an “armed
attack”
The South Ossetian attacks on the villages were primarily directed against Georgian peacekeepers and against Georgian police. This constitutes an attack by the armed forces of
South Ossetia on the land forces of Georgia, as also described in Art. 3 (d) UN Resolution
3314.61
c) Military action by South Ossetia beyond a minimum threshold
… There may be military operations which amount to a use of force but nevertheless do not yet
constitute an armed attack in the sense of Art. 51 of the UN Charter. To be deemed an armed
attack, an operation must have a minimum “scale and effects”. …
It can therefore be assumed that the South Ossetian attacks on Georgian villages as well as on Georgian peacekeepers and police had a minimum scale and effects, but further conditions must be met in order to allow for the Georgian claim of self-defence, which will discussed next. …
3. Burden of proof for the armed attack
The problem remains that it cannot be clearly determined which side began the fighting prior
to the Georgian air and ground offensive. The situation was highly explosive, and both sides
seem to have prepared for use of force and were ready to use force. It is impossible to decide
who fired the first shot in the incidents noted above. …
When Georgia argues that its air and ground offensive on 7 August 2008 is justified by self-defence because of a cumulative armed attack by South-Ossetia, the burden of proof falls on Georgia.
IV. Conclusions: no self-defence by Georgia beyond on-the-spot reactions
To the extent that the attacks on Georgian villages, police and peacekeepers were conducted by South Ossetian militia, self-defence in the form of on-the-spot reactions by Georgian troops was necessary and proportionate and thus justified under international law.
On the other hand, the offensive that started on 7 August, even if it were deemed necessary, was not proportionate to the only permissible aim, the defence against the on-going attacks from South Ossetia.
Part 3: Use of force by South Ossetia against Georgia – ab Seite 262
I. Facts
As explained above, the South Ossetian militia were involved in shooting at Georgian villages, police and peacekeepers before the outbreak of the armed conflict. After the air and ground offensive by the Georgian army the South Ossetian militia probably tried to defend their positions.
II. Legal qualification: use of force, but partly justified as self-defence
To the extent that South Ossetian militia initiated the shooting on Georgian villages, police and peacekeepers before the outbreak of the armed conflict, South Ossetia violated the prohibition of the use of force, which was applicable to the conflict.
South Ossetian use of force could have been justified as self-defence only in the event of an armed attack by Georgia on South Ossetia. ... Use of force by South Ossetia after 12 August 2008 is not justifiable as self-defence, because there was no longer any on-going attack by Georgia. A ceasefire agreement had been concluded. The Georgian army had by that time retreated from the territory of South Ossetia. Use of force was therefore illegal from the ius ad bellum perspective. ...
Part 4: Use of force by Russia against Georgia
I. Facts
Russia was involved in the conflict in several ways. First, Russian peacekeepers who were stationed in South Ossetia on the basis of the Sochi Agreement were involved in the fighting in Tskhinvali. Second, Russian regular troops were fighting in South Ossetia, Abkhazia and deeper in Georgian territory. Third, North Caucasian irregulars took part in the fighting. Finally, Russia supported Abkhaz and South Ossetian forces in many ways, especially by
training, arming, equipping, financing and supporting them.
II. Legal qualification of the Russian involvement in the conflict
Under Art. 2(4) of the UN Charter and the parallel customary law, the military operations of the Russian army as described in Chapter 5 “Military Events of 2008”130 in the territory of Georgia (including South Ossetia and Abkhazia and elsewhere in Georgia) in August 2008 constituted a violation of the fundamental international legal prohibition of the use of force. The main legal issue is whether these activities could be justified as legally recognized exceptions.
III. No justification of the use of force as self-defence
... The means employed by Russia were not in a reasonable relationship to the only permissible
objective, which was to eliminate the threat for Russian peacekeepers. In any case, much of
the destruction (see Chapter 5 “Military Events in 2008”) after the conclusion of the ceasefire
agreement is not justifiable by any means. According to international law, the Russian
military action taken as a whole was therefore neither necessary nor proportionate to protect
Russian peacekeepers in South Ossetia.
IV. No justification of Russian use of force as fulfilment of the peacekeeping mission
… Conclusion: Russia could not justify its use of force as a mere reinforcement and fulfilment
of its peacekeeping mission.
V. No justification of the use of force by invitation of the South Ossetian authorities
… To conclude, both under the doctrine of asymmetry and under the new doctrine of negative equality concerning intervention in a civil war, the South Ossetian authorities could not validly invite Russia to support them by military means.
VI. No justification of the use of force by collective self-defence
… Russian military activities against the Georgian military forces were not justified as collective self-defence under international law.
VII. No justification of the use of force as “humanitarian intervention”
To conclude, the Russian use of force cannot be justified as a humanitarian intervention.
VIII. No justification of the use of force as action to rescue and protect nationals abroad
In conclusion, the Russian intervention in Georgia cannot be justified as a rescue operation for Russian nationals in Georgia.
Part 5: Use of force in Abkhazia
II. Legal qualification of the Abkhaz and Russian offensive: violation of the prohibition of the use of force and armed attack on Georgia
III. Legal qualification of the Georgian operation: self-defence
The military operation in the upper Kodori Valley was, for the reasons just explained, an armed attack on Georgia. The use of force by Georgia was justified as self-defence.
IV. No justification of the Abkhaz and Russian use of force against Georgia
... All these arguments can constitute a legally permissible justification only to the extent that
they point to an armed attack by Georgia on Abkhazia. Only in the event of an armed attack
by Georgia … could Abkhazia have relied on selfdefence. Russian involvement could not be justified as collective self-defence in favour of Abkhazia, because third-party involvement in an internal military conflict in support of the seceding
party is not allowed for the reasons explained above. ...
2. No previous “armed attack” by Georgia
a) No Georgian military operation in the Kodori Valley by Georgia
b) No preceding terrorist attacks sponsored by Georgiab) No preceding terrorist attacks sponsored by Georgia
c) No imminent armed attack on Abkhazia as a whole by Georgia
4. Conclusion
The use of force by Abkhazia was not justified under international law and was thus illegal.
The same applies to the Russian support for Abkhaz use of force.
Stichworte: Georgien, Abchasien, Süd-Ossetien, Russland, Sprache: deutsch, englisch, Archiv: #
