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International law, genocide, S. Ossetia

13.08.2008 Alexander MEZYAEV A Criminal From Tbilisi. Aspects of Genocide in South Ossetia from the Standpoint of the International Law Recently Russian political leaders – the President and the Prime Minister – have a number of times described the Georgian invasion of South Ossetia as «aggression» and «genocide». Initiating the court prosecution of individuals responsible for crimes against civilians in the region, it is necessary to define with greater precision the meaning of the above legal terms and the legal consequences which can be expected in case the charges are confirmed via a judicial procedure.

Aggression It is clear from the political and moral points of view that Saakashvili’s regime has launched an aggression against South Ossetia. This fact cannot be disputed. As for legally qualifying the corresponding events, the international law in its current form does leave the Georgian President an escape route. The countries responsible for the worst aggressions in the modern world – the US, Great Britain, and a number of others – continue to impede the adoption of a treaty–based definition of aggression. At present a legal definition of aggression is provided solely by the 1974 Resolution of the UN General Assembly. This definition has not been established in the treaty framework so far – negotiations on the issue in the International Criminal Court continue. As long as the treaty–based definition is not agreed upon, the 1974 Resolution remains in effect, by which the term aggression is applicable only to an offensive launched by a state against another state. However, Article 1 on the Resolution includes an explanatory note saying that «the term "State" is used without prejudice to questions of recognition or to whether a State is a member of the United Nations». This note could be used to strengthen Russia’s position in case Russia recognized South Ossetia as an independent state.

Genocide From the political standpoint, the use of the term genocide to describe the Georgian offensive in South Ossetia which included the extermination of civilians, the demolition of schools and hospitals, the destruction of infrastructures, etc is certainly warranted. The legal definition of genocide is a more complicated matter. Western media wrote a lot about genocide during the Yugoslavian crisis, but even the International Criminal Tribunal for the former Yugoslavia recognized only one episode of the war as genocide.

Saying on August 10 that the Georgian side’s offensive in South Ossetia had a massive character and targeted the civilian population, and that people were killed, burned alive, run over by tanks, and also that people’s throats were cut, Russian president D. Medvedev focused on the numbers and cruelty of the crimes committed by the Georgian army. From the standpoint of the international law, the mass character of crimes and their tendency to specifically target civilians provide evidence of war crimes and violations of the laws and customs of war.

The main problem related to qualifying a crime as genocide is the necessity to prove that the intension underlying it was to eradicate a certain ethnic or religious group. However, even before the intention is proven and regardless of Saakashvili’s aim (he keeps talking about restoring Georgia’s "territorial integrity"), it is clear that terror and extermination of the population of South Ossetia were the methods used. Moreover, the implementation of the operations, their character and targets show clearly that killing, terrorizing, and expelling the entire population of South Ossetia were the objectives pursued by the attack. This was not an attack against military targets due to which, as it usually happens during wars, civilians were also victimized. It was an effort to "cleanse" the territory claimed by Georgia from all or most of its population.

It should be noted that according to the 1948 Convention not only murders or severe physical harm, but also the creation of intolerable living conditions for the population count as genocide.

The intention behind the military offensive launched on August 8, 2008 on Saakashvili’s order was to get rid of the Ossetian people as the current Georgian regime needs the territory of South Ossetia but not the people residing in it.

The 1948 Convention on genocide does not say that the intention to exterminate a nation or its part has to be linked to racist views of the perpetrator. The point is to establish that there was the aforementioned intention. In the criminal law, the intention is evidenced by the circumstances of every particular case. Saakashvili’s course of action not only shows the intention to commit genocide – the Georgian President wished to make the entire population of South Ossetia understand what his intention was in order to urge the people to leave their territory (which is what we currently witness).

Conclusions Qualifying Saakashvili’s actions one can definitely conclude (on the basis of the fact that there was an intention to eliminate entirely or partially the population of South Ossetia) that genocide was committed.

The actions of the Georgian leadership correspond entirely to the definitions given in the Statute of the International Criminal Court (see Article 5: Crimes within the jurisdiction of the Court; Article 6: Genocide; Article 7: Crimes against humanity; Article 8: War crimes). Georgia signed the Statute on July 18, 1998 and passed the ratification document on September 5, 2003. Therefore, Saakashvili and his generals are criminals whose crimes are entirely within the jurisdiction of the court.

The Statute of the International Criminal Court applies equally to all individuals regardless of the held official positions such as the head of a state or government (Article 27 of the Statute).

*** According to Saakashvili’s official biography, he is a graduate of the Hague Academy of International Law. This line may impress those who are not specialists in the field. In reality, being the graduate amounts to completing a 3–week–long perfunctory course dealing with particular problems of the international law. Perhaps, due to specific aspects of his background, Saakashvili is sincerely unaware of the punishment to which he can be subjected for what he has done. In any case, former Chairperson of the Parliament of Georgia Nino Burjanadze knows everything perfectly well as an expert in international law who took part in the work of the Russian International Law Association. Though, there is not much she can do for her former ally at the moment – maybe just tell to what term in jail he can be sentenced.

Not relying on Mrs. Burjanadze for the matter, we would like to inform Mr. Saakashvili that the least punishment he is likely to receive for the crimes he has committed is the life sentence (Article 77 of the Statute of the International Criminal Court).

Alexander Mezyaev is a member of the Russian International Law Association

11.08.2008 Andrei ARESHEV Complicity in Genocide The recent events in South Ossetia can be adequately described as genocide. The Russian Defense Ministry says that Georgian forces had a 12–fold superiority in all parameters over the peacekeeping force when the Georgian invasion of South Ossetia began. Georgian guerillas trained by Western instructors practically wiped out Tskhinvali and nearby villages and committed unprecedented atrocities in the occupied territories. Civilians who were hiding in residence basements were killed with hand grenades. People were burned alive, run over by tanks, and shot using all types of weapons. Accounts of demolitions, violence, pillage, and hostage–taking by Georgian forces retreating from the Znaur district are available. Schools, hospitals, cemeteries, and churches were destroyed. Total ethnic cleansing was perpetrated in the eastern Leninogorsk district which was particularly vulnerable to attacks. Ossetians were killed regardless of age. Some of the people are reported to be hiding in forests. The Georgian side leaves no corridors for the evacuation of wounded people and refugees. The tactic demonstrates beyond doubt that the objective is the total extermination of the Ossetian population. Georgian leaders openly threaten to do to the Abkhazians what has been done to the Ossetians. The civilian casualties in South Ossetia cannot be estimated at the moment, but it is clear that the death toll stands at thousands. Tens of Russian peacekeepers were killed or wounded. Some of the corpses have been mutilated to the extent that the Russian Defense Ministry has difficulty identifying the dead. Killing peacekeepers is without precedent in the global practice.

At the same time, Western media are waging an information war against Russia, which is largely similar to the one launched around Kosovo in 1998 on the eve of the strikes on Yugoslavia. In some cases, the "objective and independent" Western media resort to direct falsifications. For example, footage showing the heavy bombardment of Tskhinvali by Georgian forces is combined with a text condemning Russia’s alleged strikes on Georgian towns. Western Internet domains are flooded with staged photos which are meant to shift the responsibility for the tragedy from the Georgian leaders. Journalists from leading Western news agencies and media are working exclusively in Tbilisi whereas no Western journalists are reporting from Tskhinvali. Practically all news briefs covering the conflict begin with new untrue statements made in English by the Georgian President. Russian TV channels are not allowed to reach the Western audience. Efforts are made to block Russian sites in Internet.

Can all of the above be described as something other than complicity in genocide?

The criminal regime in Tbilisi which unleashed the war near Russia’s southern border and massacred Russian citizens of the Ossetian nationality hoped to go unpunished. This hope is based on the fact that the public opinion in the West is isolated from the truth about the events in South Ossetia.

The Kremlin must understand that Russia’s mission in the Caucasus will be impossible and any strategy adopted by Moscow to prevent a humanitarian catastrophe in South Ossetia will fail unless the informational blockade of South Ossetia is broken.