With Friends Like These, Russia is Doomed for Sure (With Enemies Like These, U.S. Bound for Glory)

Let’s talk about the eXile, the self-proclaimed “alternative” news source for information in English within Russia.

The eXile hates the Moscow Times. In La Russophobe‘s opinion, whatever faults the Times may have, any single issue from its archives is worth all the eXile issues that ever have been and ever will be published. If the eXile ceased to exist tomorrow, nobody would be the less for it and nobody would care (just the same can be said for the MT’s late column by the maniacal Chris Floyd). What’s more, the eXile is a profit-making institution, and one of the main ways it seeks to make profit is by helping poor, lonley, pathetic guys like Mr. Ames to hook up with poor impoverished Russian women by featuring advertisements from wedding brokers like this one. In other words, with a certain amount of cynicism (say, the amount Mr. Ames has), you could say Mr. Ames is a pimp.

On the other hand, one must say two things in the eXile’s defense. First, it’s a quintessentially Russian institution. By that we mean that it’s a huge bucket of slop, but every so often if you fish around carefully you can pull out a diamond in the rough. Second, it’s being operated at Ground Zero in Russia, and the authors are risking something by publishing some of the things they do. Granted, it’s the same kind of risk taken by the morons who film those Jackass movies, not a risk run by courageous patriots out of love for humanity. But after all, risk is risk. For this reason, La Russophobe has a link to the eXile’s website. By no means should this link be construed as an endorsement of the site or the publication as a whole, and given what follows there is no way of telling how long she’ll be able to justify it.

So, with this in mind, it’s time to take the eXile to task. Let’s see if they can take it as well as they dish it out (which is rather badly, so it’s quite a low standard even the kiddies at eXile should be able to meet).

A new item in the eXile by editor Mark Ames (pictured above) starts like this:

Bush’s America has gone from the world’s bitch-slappers to the world’s bitch-niggaz. That means that even resurgent Russia is causing Americans a serious case of Putin-Envy.

Mr. Ames is a wonderfully educated and erudite fellow, isn’t he? You can hardly help but credit every word that follows after a brilliant introduction like that. And at the same time he’s so cool and hip, isn’t he? Isn’t it amazing how he can pull off both of them at the same time? It really makes you stop and wonder what sort of vast right-wing conspiracy is at work for such a genius to have been denied a Pulitzer Prize for so long.

Note to Mr. Ames: Not that you care, but I now think of you as maybe a racist mysogenist, and I have no doubt that many others do as well. If you don’t mind leaving that out there, so be it. But maybe you’d like to reconsider and correct this impression in the future?

What proof does Mr. Ames offer his readers of America’s newfound jealousy of Russia? It’s the article from Newsweek magazine previously published by La Russophobe entitled “Why Russia is Really Weak.” There’s not a shred of truth in it, Mr. Ames says, and the only reason it appeared in Newsweek was that Americans are consumed by a frenzied jealousy of wonderful Russia and that Newsweek is the helpless pawn of the Republican party and the religious right.

Mr. Ames refers to the authors of the Newsweek article thusly: “Rajan Menon and Alexander Motyl — a pair of academic beigeocrats with appropriate ethnic names.” Beigeocrat is the term Mr. Ames uses for someone who doesn’t speak in obsenities . A person who punctuates with four-letter-words like Mr. Ames is a Rainbowcrat, I guess. You know, the kind of rainbows you see when you’ve sniffed just a tad too much glue. A white-skinned person with a name like “Ames” might worry about sounding racist by using a phrase like “appropriate ethnic names” but luckily for Mr. Ames he is in Russia, so his main concern is probably whether he sounds racist enough.

You see, dear reader, it’s like this: Mr. Ames isn’t ever going to get published in Newsweek magazine. In fact, he isn’t ever going to get published anywhere that matters (and even if he were he’d be instantly forgotten), and that’s all that matters to him. He fancies himself a “writer” and he’s just sure that he’s cleverer than everybody else on the face of the earth, so it really burns him up that nobody with an actual circulation (other than Playboy) will publish him and guzzle down his wisdom like Russians guzzle vodka, but to better effect. He’s not going to write the great American novel, or the great Russian novel, in fact not even the great Moldovan post card. In the end, after he found it he just couldn’t cut it in America, or any decent country for that matter, he ended up in Russia — where it’s easy for him to feel superior to just about everybody, but after a while that just isn’t very satisfying when you’ve got an ego the size of Mongolia. So then it’s time to start spitting crazed poison.

Oh, and quite a lot of poison, too. 4,194 words worth of it. The article in Newsweek that he was responding to was well under 700 words (666 to be exact — clear proof to somebody like Mr. Ames that it was written by the Devil, I guess). So in other words, Mr. Ames needed more than six words to respond to each one of Newsweek‘s — and yet he criticizes Newsweek for needing to insert the word “really” in the title. You spend enough time in Russia drinking the water and listening to the television, and this is what is bound to happen to your “brain.”

And you tend to gloss over silly little things like facts when you’re “writing” in this state. So, for instance, Mr. Ames fails to let his readers know that Dr. Menon is Monroe J. Rathbone Professor of International relations at Lehigh University in Pennsylvania. He has a PhD from the University of Illinois and a resume of publications as long as your arm (click through on his name for his resume). And likewise he fails to tell his readers (if such there be) that Dr. Motyl holds a PhD from Columbia University and is Professor of Political Science, and Deputy Director of the Division of Global Affairs, and co-director of the Central and East European Studies Program at Rutgers University in New Jersey. Of course, while you’re not mentioning facts like those, you also don’t mention your own educational credentials — or lack thereof. According to Wikipedia, Mr. Ames “attended the University of California.” But it doesn’t say he graduated, or what he studied. He thenplayed in a short-lived punk band” while he “‘lived in poverty and spitefulness with a Czech girlfriend in a suburban California nursing home.” Impressive stuff, is it not? Especially compared to the good doctors. Certainly more than enough credentials to opine on Russia’s economic condition.

Knowing this, you probably wouldn’t have to read through all 4,000+ words “written” by Mr. Ames (as if anyone could, or would) in order to confirm there was no need to read even one of them before concluding that the man (well, very little boy) is really quite insane.

In fact, you probably realized as soon as you saw the opening sentence of Mr. Ames’ “work” that the only thing he got right in his crazed diatribe was the importance of jealousy. But not whether America was “jealous” of Russia’s $300/month incomes, or its 55 year male adult lifespan, or its universal conscription (and horrific military hazing), or its ongoing war in Chechnya, or its declining population, or its pandemic race violence, or its aid to Hamas and Hezbollah. Because, of course, jealousy of those things doesn’t exist. Rather, of course, we’re speaking of Mr. Ames’ puny, pathetic jealousy of Newsweek, and all the significant publications of the world that dared to refuse him their pages for the dissemination of his brilliance.

If you read Mr. Ames, here’s a few of the “facts” you’ll learn:

  • Anyone who reads the Wall Street Journal, the Washington Post or the New York Times is a moron. Only those who read the eXile have intellligence.
  • The fact that the Journal, the Post, the Times and Newsweek, to say nothing of not one but two PhDs, agree with each other and disagree with Mr. Ames proves how smart Mr. Ames is.
  • Russia won the war in Chechnya.
  • It’s just fine to refer to America as “a nation of Bible-thumping, pious militarists” but if you refer to Russia as “weak” this means “it’s okay to hate Russia and to despise it for being weak, because that’s all the bastards deserve” (isn’t it wonderful how Mr. Ames leads by example?).
  • The Newsweek article by two PhDs is “pathetic” and guilty of “schoolyard-taunting” by including the word “really” in the title but Mr. Ames’ article, full of devastating insights like “Fuck no, bitch!” is a work of mature genius.

La Russophobe is informed that David Johnson edited Mr. Ames’ piece to remove all the outrageous, childish profanity (“so it can get through spam filters”), while leaving in of course the racist-sounding statement about the professors’ names, and then ran it in Johnson’s Russia List (the entire boldfaced lead-in appearing at the top of this page was deleted). Sadly, La Russophobe isn’t even a little bit surprised. Good old Dave apparently has plenty of time to run any defense of the Putin autocracy he can find (he’s got plenty of payback obligations after all the octopus he devoured at Valdai), and meanwhile no time at all to put any coverage of racism in Russia on his website. Hopefully, at least a few readers of the JRL will find time to write Dave and object to the circulation of this pornographic slurry of excrement as part of a so-called serious attempt to “understand” Russia — and maybe even ask a few questions about how the Valdai Experience has colored the judgment of the JRL, increasingly superfluous in the Internet Age. You know, like how it is that a person who doesn’t speak Russian and has never lived in the country manages to edit such a publication. And maybe one or two will even find time to write Mr. Ames and ask how he can possibly allow his “writing” to be published on the JRL by David, one of the world’s leading beigeocrats if ever there was one. Not even a little hypocritical? Doesn’t Mr. Ames show himself as an Uncle Tomski among the Rainbowcrats?

On the other hand, if Ames is the best (or any) criticism of Drs. Menon & Motyl, they’re surely due for a Nobel Prize. And if he’s the best friend Russia’s got, the poor country is even more doomed than La Russophobe dared to imagine. Maybe that was the point the JRL was trying to make by publishing this drivel. As if.

So now you, dear reader have a choice. You’ve got a lump of cash in your pocket, and you have to bet it. You can bet on the version of the world etched by Drs. Menon & Motyl (and by La Russophobe every day of the week), or you can bet on the finger painting by Comrade Ames. Think of it like this: You’re going to be transported 100 years into the future and dropped into either Russia or the United States, to take up a position in society chosen purely at random, and live in that position for the rest of your life. Which country will you choose?

It’s up to you.

In closing, it should be pointed out that La Russophobe has not shied away from making tough criticism of academic analysis of Russia, and it’s certainly worthwhile to at least consider the views of someone who is at Ground Zero in Russia, so La Russophobe would be the last one to judge the eXile too harshly. Still, when La Russophobe looks back on her recent criticism of Dr. Stuart Malawer of George Mason University, she feels there is a marked contrast with the eXile’s screed. First, Malawer is at least as much of a “beigeocrat” as Menon and Motyl — yet for some reason the eXile has no problem with Malawer’s pro-Russian beigeocracy. Second, La Russophobe didn’t need to rely on the cheap, shoddy obscenity that permeates the eXile piece. Third, La Russophobe‘s analysis is no longer than that of Dr. Malawer. Fourth, her analysis is permeated with hyperlinks to source material contradicting Dr. Malawer. The eXile offers readers virtually no information of this kind, just the wild-eyed views of its author. Fifth, there is nothing in La Russophobe‘s analysis that disparages higher learning, for which La Russophobe has nothing but the highest respect. The eXile seems to feel that anyone who actually reads books and does research should be shipped of to a gulag.

Still, though, the eXile’s tirade is so pathetic, so devoid of meaningful content and so self-indulgently puerile that it actually gives La Russophobe pause. It can’t be denied that the eXile’s tone was vaguely present in the Malawer piece, and the association is embarrassing. Even though La Russophobe had every right to be outraged at the gross misrepresentations contained in the Malawer piece and to express that outrage, and even though she showed remarkable restraint compared to the eXile’s example, maybe she went a bit too far with the tone and not quite far enough in acknowledging Malawer’s credentials. She will bear this in mind for future reference. She will not become an eXile. And if the eXile itself can’t get a grip, she’ll have no choice but to delist them. So it just goes to show that you can learn something even from an idiot.

Shame on you, boys. Get a grip!

23 responses to “With Friends Like These, Russia is Doomed for Sure (With Enemies Like These, U.S. Bound for Glory)

  1. It’s funny how much breath Russophobe wastes on the eXile, despite the fact that it is a self-recognized SATIRICAL publication. However, Mark Ames has also written in all seriousness about issues such as the US-orchestrated war in Georgia and other such affairs. I’d really like to see Russophobe focus his enormous capacity for hatred on those. hahaha

    • Did you read the independant report Slavboy?

      It was more damning of Russia than any other state actor in that little drama.

  2. Yep, I sure read the Independent report, if by that, you mean the EU special investigation. It does not shrink from the fact that trigger-happy Saka fired the first shot and that Russian reacted, legally and legitimately, against attacks on its peacekeepers. As for the report being damning, it critisized us for disproportionality, which is in the eye of the beholder. The Euro-Atlantic community is perfectly willing to “damn” us for disproportionality, but is perfectly OK with its bombing of weddings in Afghanistan, so its not as if their claim carries any weight.

    • Actually retard, the report stated “there is no evidence of Georgian attacks on Russian peacekeepers”

      • Andrew
        [Actually retard, the report stated “there is no evidence of Georgian attacks on Russian peacekeepers”]

        No, the retard here is you. It is exactly the OPPOSITE. You don’t have any reading comprehension. What the Report said was that “there is no evidence that the Georgian attacks on Russian peacekeepers were justified”. THus, there was no doubt that Georgians attacked Russian peacekeepers, and the only question was whether this attack was justified. And the Report says: “No, this attack was NOT justified.”

        Buy yourself a brain, Andrew.

        Independent International Fact-Finding Mission on the Conflict in Georgia

        An additional legal question is whether the Georgian use of force against Russian peacekeeping forces on Georgian territory, i.e. in South Ossetia, might have been justified. Again the answer is in the negative.

        This Report went out of its way to go gentle on Georgia, but it found Georgia to be the aggressor. See more extensive quotes later in this thread.

    • It also states that the invasion from Abkhazia was completely illegal and constituted an invasion that breaches the UN charter.

      It also stated that Russia’s recognition of Abkhazia and South Ossetia was illegal.

      Furthermore it scomments about who fired the first shot also had the caveat that Georgia was reacting to multiple Russian/Separatist provocations, but should have shown more restraint.

      Learn to read slavboy

      • “The shelling of Tskhinvali (the South Ossetian capital) by the Georgian armed forces during the night of 7 to 8 August 2008 marked the beginning of the large-scale armed conflict in Georgia,” the report says.
        It adds later: “There is the question of whether [this] use of force… was justifiable under international law. It was not.”
        It also says Georgia’s claim that there had been a large-scale Russian military incursion into South Ossetia before the outbreak of war could not be “sufficiently substantiated”

        Read Up, Wonderboy

        International law is based on precedent, thus once Euro-Atlantic criminal violated international law by dismantling Yugoslavia and creating their puppet state in Kosovo, the international ramifications of recognizing dubious territories with at bes weak claim for sovereignty become a non-issue, whether you like it or not. Besides, compared to the charade in Kosovo, the Ossetians and Abhazians actually have a legitimate claim for statehood.

    • Was the US occupation of Afghanistan and Iraq a “proportional response” to 9-11?

  3. Here are more extensive quotes from this report:

    Independent International Fact-Finding Mission on the Conflict in Georgia

    An additional legal question is whether the Georgian use of force against Russian peacekeeping forces on Georgian territory, i.e. in South Ossetia, might have been justified. Again the answer is in the negative.

    There was no ongoing armed attack by Russia before the start of the Georgian operation. Georgian claims of a large-scale presence of Russian armed forces in South Ossetia prior to the Georgian offensive on 7/8 August could not be substantiated by the Mission. It could also not be verified that Russia was on the verge of such a major attack, in spite of certain elements and equipment having been made readily available.

    There is also no evidence to support any claims that Russian peacekeeping units in South Ossetia were in flagrant breach of their obligations under relevant international agreements such as the Sochi Agreement and thus may have forfeited their international legal status. Consequently, the use of force by Georgia against Russian peacekeeping forces in Tskhinvali in the night of 7/8 August 2008 was contrary to international law.

    In the first instance, there seems to be little doubt that if the Russian peacekeepers were attacked, Russia had the right to defend them using military means proportionate to the attack. Hence the Russian use of force for defensive purposes during the first phase of the conflict would be legal.

    There were reportedly more than a hundred US military advisers in the Georgian armed forces when the conflict erupted in August 2008, and an even larger number of US specialists and advisors are thought to have been active in different branches of the Georgian power structures and administration. Considerable military support in terms of equipment and to some extent also training was equally provided by a number of other countries led by Ukraine, the Czech Republic and Israel, the latter contributing in terms of technology and quality rather than quantity, all of them adding to the new military strength of Georgia, which was proudly displayed on suitable occasions such as National Day parades.

    … Georgia had been given much-needed protection against ravaging neighbours. The installation of a system of modern administration ranging from road building to an efficient education system was another achievement brought to Georgia by Russia… Georgians were to some extent even a privileged nation within the Russian Empire.

    Yhere were many in Georgia with an aversion to Russian imperial power and its heavy-handed and backward ways, but at the same time they were attracted by modern civilisation and a European outlook as offered by and through Russia.

    There were reportedly more than a hundred US military advisers in the Georgian armed forces when the conflict erupted in August 2008, and an even larger number of US specialists and advisors are thought to have been active in different branches of the Georgian power structures and administration. Considerable military support in terms of equipment and to some extent also training was equally provided by a number of other countries led by Ukraine, the Czech Republic and Israel, the latter contributing in terms of technology and quality rather than quantity, all of them adding to the new military strength of Georgia, which was proudly displayed on suitable occasions such as National Day parades.

    2.) On the night of 7 to 8 August 2008, a sustained Georgian artillery attack struck the town of Tskhinvali. Other movements of the Georgian armed forces targeting Tskhinvali and the surrounding areas were under way, and soon the fighting involved Russian, South Ossetian and Abkhaz military units and armed elements.

    3.) The shelling of Tskhinvali by the Georgian armed forces during the night of 7 to 8 August 2008 marked the beginning of the large-scale armed conflict in Georgia

    During the period of transition to post-Soviet sovereignty the country´s first President, Zviad Gamsakhurdia, then did a lot in terms of nationalism to alienate the two smaller political-territorial entities of Abkhazia and South Ossetia from the Georgian
    independence project, proclaiming ethno-centrist slogans such as “Georgia for Georgians”.

    Zviad Gamsakhurdia´s successor, President Eduard Shevardnadze, had to ask Moscow for assistance in October. Russian troops helped as requested. In October 1993 Eduard Shevardnadze signed Georgia´s accession to the Russian-led Commonwealth of Independent States (CIS) and Collective Security Treaty (CST), too. Four Russian military bases extended their presence on Georgian soil and Russian border troops remained deployed along Georgia´s border with Turkey and patrolled the sea shores. In addition, Russian forces undertook peacekeeping responsibilities both in South Ossetia and later in Abkhazia.

    An agreement concluded in June 1992 in Sochi between the two leaders Eduard Shevardnadze and Boris Yeltsin established the Joint Peacekeeping Forces (JPKF) for South Ossetia, consisting of one battalion of up to 500 servicemen each of the Russian, Georgian and Ossetian sides, to be commanded by a Russian officer.

    There is the question of whether the use of force by Georgia in South Ossetia, beginning with the shelling of Tskhinvali during the night of 7/8 August 2008, was justifiable under international law. It was not.

    Georgia had acknowledged that the prohibition of the use of force was applicable to its conflict in South Ossetia in specific legally binding international documents, such as the Sochi Agreement of 1992 or the 1996 Memorandum.

    It is not possible to accept that the shelling of Tskhinvali during much of the night with GRAD multiple rocket launchers (MRLS) and heavy artillery would satisfy the requirements of having been necessary and proportionate in order to defend those villages. It follows from the illegal character of the Georgian military assault that South Ossetian defensive action in response did conform to international law in terms of legitimate self-defence.

    Legitimate self-defence.

    • I love you, man. But not in that way :) Russophobe just a few hours ago threatened to ban me from this distinguished bin of information. Next, an idea struck me. Why not get some willing people together and start up a blog that is dedicated to promoting actual civil discourse on the whole spectrum of issues concerning the new Russia ? I don’t claim to have much expertise in the tech side, but it could be something to start thinking about, right ?

      • Sounds interesting. Let’s talk more. Do you want to discuss this on your blog pages?

      • Awww, how sweet. You two lovebirds are planning to start a Putin fan blog together? How romantic. You’d have to compete with a lot of other propaganda websites though. But good luck!

        • If I were to start a blog, I would not try to “compete” with other pro-Russian blogs. I would view them as friends, not foes.

          I would hope that if I write compelling arguments, supported by numerous evidence, I will find my audience.

        • Let me tell you of a glorious term. It’s name be “objectivity” Not that you’d know anything about that, little Andrew. And please, don’t use the term “propaganda website” to describe LR’s competitors. Are you really that crass that you would think LR is anything other than a propaganda website ? It’re more humorous how you’re passionately obsessed with this blog and its contents, which place no premium on coherent arguments, empirical evidence or daily realities.

  4. Let me remind the readers how even the most anti-Russian Western media


    Probe Finds Georgia Violated Law, Provoked War With Russia

    Washington Post, September 30, 2009

    MOSCOW, Sept. 30 — An independent inquiry ordered by the European Union has concluded that Georgia violated international law and triggered last year’s war with Russia by attacking the breakaway region of South Ossetia. “None of the explanations given by the Georgian authorities in order to provide some form of legal justification for the attack lend it a valid explanation,” The
    European investigation is considered the most authoritative and independent inquiry into the causes of the war to date.


    Georgia Started the South Ossetia War


    Independent Experts Blame Georgia for South Ossetia War

    EU Investigators Debunk Saakashvili’s Lies

    Der Spiegel, 10/01/2009

    The truth about the war sounds somewhat convoluted, as expressed in the final report of the independent EU fact-finding mission. To put it more simply: It was Georgia who started the war.

    The EU report, which is extensive, detailed and well-informed, makes clear that the Georgian claims are completely fabricated. “It was Georgia which triggered off the war when it attacked Tskhinvali” said Heidi Tagliavini, the mission head, in a statement. Although the EU commission tactfully avoided using the word “lie,” the report implies that Saakashvili did not tell the truth about how the war started. Just a few days ago, Georgian President Mikheil Saakashvili had insisted that no one took seriously reports that his country was responsible for the war.

  5. http://news.bbc.co.uk/2/hi/8281990.stm.

    Georgia ‘started unjustified war’

    BBC News, 30 September 2009

    The war in Georgia last year was started by a Georgian attack that was not justified by international law, an EU-sponsored report has concluded.


    Russia triumphant as EU’s Georgia war report sees light


    Georgia Started the South Ossetia War

    Atlantic Review, European Issues
    US Foreign Policy, October 1, 2009

    That is the central conclusion of the report of the Council of the European Union, which was released today. And even the Wall Street Journal, which has published a fair amount of columns by the Georgian President Saakashvili, had a headline that reads ‘Report: Georgia Triggered War With Russia’.

  6. http://news.bbc.co.uk/2/hi/europe/8284046.stm

    BBC News, 30 September 2009

    Uncomfortable conclusions for Georgia

    It said Georgia’s use of force on the night of 7 August 2008 was not justifiable in the context of international law. It also said that it could not substantiate “Georgian claims of a large-scale presence of Russian armed forces in South Ossetia prior to the Georgian offensive on 7/8 August”.

    The Georgian government’s response – as expected – has been to dismiss those comments. Wednesday evening’s national TV news bulletins said the report pinned the blame on Russia.

    “This report lays out the extent of the problem the country faces,” argues Lincoln Mitchell, a professor of international politics at Colombia University.

    Most Georgian people have also made up their minds. Large-scale street protests calling for Mr Saakashvili’s resignation in April 2009 were in part an expression of demonstrators’ belief that their president recklessly dragged the country into a war Georgia could not win. But the country’s leader refused all calls to step down, pointing out that only a minority of his countrymen had taken to the streets to denounce him.

  7. How then should Georgians respond? There are many good ways (for a broader consideration, see Paul W. Blackstock’s classic study, “The Strategy of Subversion”) but three immediately suggest themselves.

    First, no Georgian should be in the business of helping Moscow to spread its lies about Georgia. That means not issuing emotional responses every time the Russians say something. If Georgian leaders could say something like “Moscow has released the latest in a long line of lies about our country” and leave it at that, Georgia and Georgians would be much better off. Only the FSB would suffer, and it seems unlikely many Georgians would see that as a bad thing.

    Second, no member of the Georgian opposition should be afraid of speaking out about either how absurd the Russian charges are or about his or her disagreement with how Georgian government officials are responding to them. If opposition figures are frightened of doing either, they are serving neither their own interests nor those of Georgia; they are serving the interests of those in Tbilisi who do not want democracy and those in Russia who do not want Georgia to be independent.

    Third, given the rapid multiplication of Russian charges in this area, Georgians, both in the government and outside it, would almost certainly benefit from the formation of an international commission that could assess these charges. Such a group would both move the issue beyond a “he said-she said” situation of the kind in which Georgia found itself after the August 2008 war and provide the kind of cover Georgians of various political stripes may need to act as vigorous members of a democratic polity.

    Obviously, there will always be the temptation among government circles to charge critics with being supporters of an outside power, especially in a country with Georgia’s history and location. But that temptation must be fought, because failure to fight means that Georgians, despite all their convictions to the contrary, will be playing into Moscow’s hands.

  8. Arthur, try READING THE REPORT. I mean we all know you are s ycophantic Putin worshipper but still….. The Russian military advances in the Zugdidi district and in other areas south of the Inguri river created a risk of encirclement for the Georgian security forces deployed in the upper Kodori Valley. In the night of 11-12 August, Georgian forces left the upper Kodori Valley with most of the local population. Abkhaz and Russian forces occupied the area on 12-13 August.75 In an attempt to justify its armed incursion into the upper Kodori Valley, the Abkhaz side referred to the presence of the Georgian security forces in the area as a “threat to the Abkhaz statehood”.76 However, the Russian authorities acknowledged that the Abkhaz side had been planning its military operation in the upper Kodori Valley “in case of Georgian military actions against Republic of South Ossetia”.77 Indeed, the operation against the upper Kodori Valley seems to have been well-prepared in advance and the forces assigned to this operation reportedly started their deployment in the lower Kodori Valley already on 6 August. ….. The Georgian allegations of a Russian invasion were supported, inter alia, by arguments of illegal entry into South Ossetia of a large amount of Russian troops and armour, prior to the commencement of the Georgian operation. According to the official Georgian answers to the IIFFMCG questions, the process of the build-up of Russian forces in South Ossetia started in early July 2008 and continued in the course of August, including troops and medical personal, tents, armoured vehicles, tanks, self-propelled artillery and artillery guns. This process allegedly intensified in the night of 6-7 August and in the late evening of 7 August. Georgian allegations concerning a Russian military build-up in South Ossetia prior to 8 August 2008 were denied by the Russian side. According to Russian official information provided to the IIFFMCG, the first Russian units entered the territory of South Ossetia and the Russian air force and artillery started their attacks on Georgian targets at 14.30 on 8 August,107 i.e. immediately after the decision on an intervention was made by the leadership of the Russian Federation. At the time of the writing of the Report, the Mission was not in a position to consider the Georgian claim concerning a large-scale Russian military incursion into South Ossetia before 8 August 2008 as substantiated. However, there are a number of reports and publications, including of Russian origin, indicating the provision by the Russian side of training and military equipment to South Ossetian and Abkhaz forces prior to the August 2008 conflict. They also indicated an influx of irregular forces from the territory of the Russian Federation to South Ossetia in early August as well as the presence of some Russian forces in South Ossetia, apart from the Russian PKF battalion, prior to 14.30 hours on 8 August 2008.108 Also, it seems that the Russian air force started its operations against Georgian targets, including those outside South Ossetian administrative boundaries, already in the morning of 8 August, i.e. prior to the time given in the Russian official information.109 2. In the course of the armed conflict, subsequently named a “five-day war” (7–12 August 2008), and its immediate aftermath, the Russian side justified its military intervention in Georgia by the intention to stop an allegedly ongoing genocide of the Ossetian population by the Georgian forces as well as to protect Russian citizens residing in South Ossetia and the Russian contingent of the Joint Peacekeeping Forces, deployed in South Ossetia in accordance with the Sochi Agreement of 1992. In this connection, the Russian side claimed that in the morning of 8 August 2008 two Russian peacekeepers were killed and five wounded by the Georgian attacks on the peacekeepers’ premises in Tskhinvali, which casualties “gave the right to the leadership of the Russian Federation to take a decision on the introduction of troops into South Ossetia”110. The Georgians denied their deliberate attacks on the Russian peacekeepers, arguing that the Georgian troops entering Tskhinvali were fired at from the Russian peacekeepers` compounds and that they had to return fire. At the time of the writing of this Report, the Mission did not have access to reliable independent reports which could substantiate or refute the allegations of either side in this regard. Albeit, taking into account the existing dangerous environment on the ground, casualties among the Russian PKF personnel were likely. There were no reports on clashes between the Georgian forces and the Russian peacekeepers outside Tskhinvali. As far as the Russian accusations of genocide are concerned, they became less frequent in later months as the casualties among the Ossetian civilian population turned out to be much lower than initially claimed. Russian officials stated initially that about 2 000 civilians had been killed in South Ossetia by the Georgian forces and eventually the figure of overall civilian loses in the course of the August 2008 conflict was reduced to 162.111 3. A number of foreign politicians and international analysts have criticised the Russian military operation in Georgia in August 2008. In particular, the crossing by the Russian forces of the administrative boundaries of South Ossetia and Abkhazia and their advancements deep into Georgia’s territory were qualified as an unjustified and “disproportionate use of force”. Moscow called its military actions in Georgia a “peace enforcement operation”, while Tbilisi characterized it as an “aggression”. The Russian side justified its military advances/attacks deep into the Georgian territories112 by operational needs on the eastern front (prevention of possible Georgian counter-attacks from the Gori region) and by the alleged danger of an imminent Georgian attack on Abkhazia in the west.113 Notwithstanding the legal aspects of the issue, the following comments may be noted in this context: – The Georgian armed forces were hardly ever able to conduct military operations on two fronts at the same time, i.e. South Ossetia and Abkhazia simultaneously. Certainly, such operations were even less feasible after the commencement of the large-scale Russian intervention in the region; – In practical terms, there were no Georgian combat troops in western Georgia when the Russian operation there started, since the Georgian 2nd Infantry Brigade from Senaki and the 3rd Infantry Brigade from Kutaisi were deployed on the eastern front and were already largely defeated by the Russian forces by that time. The Georgian security forces in the upperKodori Valley (2 800-strong according to the Russian official assessment114 and 500-800- strong according to assessments by UNOMIG officers115) with their fortified positions there seemed to have defensive tasks in August 2008. Taking into account the mountainous terrain, most military experts also believe that any operation against the Abkhaz-controlled territories initiated from the upper Kodori Valley could have only a supportive role to a larger operation across the Inguri river and from the Black Sea, but such Georgian operations in August 2008 were not at all feasible. …. Generally, the beginning of the armed conflict between Georgia and South Ossetia is dated at 7 August 2008 at 23.35, the open hostilities between Georgia and Russia are considered to have started on 8 August 20082, and the bombardment of the upper Kodori Valley by Abkhaz forces started on 9 August3. In fact, however, a violent conflict had already been going on before in South Ossetia. In previous years, tensions had been constantly rising, involving more and more open clashes between Georgian security forces and the militia of the breakaway territories.4 Already in spring 2008, military incidents also occurred involving Georgia and Russia, such as the downing of a Georgian unmanned aerial vehicle (UAV) by the Russian air force over Abkhazia on 20 April 2008.5 Bombing raids and military clashes were reported both in Abkhazia and in South Ossetia throughout the first half of 2008. The military escalation first concentrated more over Abkhazia, but the focus later shifted to South Ossetia. The tensions intensified in the beginning of July when three improvised explosive devices killing Nodar Bibilov, the local chief of the South Ossetian militia in Dmenisi, and another bombing raid allegedly targeted Dimitri Sanakoyev, Head of the Georgian Temporary Administration of South Ossetia. Russia was directly involved in the conflict, sending four combat aircraft across the international border into the conflict zone. Fighting intensified in the first days of August. There is sufficient evidence to support the finding that all the conflicting parties – Georgia, Russia, South Ossetia, and Abkhazia – prepared for armed confrontation in the summer of 2008, with preparations being intensified and concentrated at the beginning of August. President Saakashvili’s order on 7 August 2008 at 23.35 and the ensuing military attack on Tskhinvali turned a low-intensity military conflict into a full-scale armed conflict. Therefore this action justifiably serves as the starting point for the legal analysis of this conflict. Nevertheless, it has to be seen as but one element in an on-going chain of events for military violence had also been reported before the outbreak of the open hostilities on 7 August 2008. …… IV. Threats issued by Russia The Report established the following facts for the spring and summer of 2008 (see Chapter 1 “Historical Background and International Environment”): (1) In April, Russia warned Tbilisi that Georgian NATO membership would result in the permanent loss of its breakaway territories and that Russian military bases would be established there.13 (2) Also in April, the Russian Foreign Ministry issued a warning stating that Moscow was prepared to use military force if Georgia started an armed conflict with Abkhazia and South Ossetia.14 (3) Russian warplanes repeatedly flew over Abkhaz and South Ossetian territory in a clear warning to Tbilisi. Moscow claimed a right to conduct the flights, while denying Georgia the right to fly reconnaissance drones in the same area.15 At least one Georgian drone was shot down by a Russian combat plane. (4) In May, Russia increased its troop levels in Abkhazia and sent railway construction troops on a “humanitarian mission” into the region, without permission of Georgia.16 In July, Russian troops performed the “Kavkaz 2008” military exercise. Although it was declared as a regular exercise, numerous features made it appear an extraordinary threat. Moreover, after completion of the exercise, some Russian troops remained in the area and on increased levels of alert.17 All these facts are legally relevant against the background of the tension prevailing between Georgia and Russia at the time. Since its independence in 1991, Georgia’s relations with Russia had gone through a series of military crises. Rising defence budgets and and arms build-up between 2004 and 2008 fed a general perception of insecurity and anticipation of the use of force in the region.18 On the part of Russia, this was fostered through a gradual increase in activities conducive to reinforcing Georgian fears of territorial disintegration, such as the imposition of economic sanctions, the expulsion of ethnic Georgians from Russia, the withdrawal from the 1996 CIS restrictions on Abkhazia and the establishment of direct political ties to their political leadership, and the omission of any reference in Russian statements to the territorial integrity of Georgia.19 By any reasonable definition, the sum of actions undertaken by Russia by mid-2008 amounted to a threat of force vis-à-vis Georgia. For Tbilisi, both official statements by Moscow and the military operations it authorised on the border and within Georgian territory generated a definite sense that, within the context of earlier experiences and of the latest developments, Georgia ran a substantial risk of Russian military intervention. This risk involved the de facto partition of Georgia and thus a re-definition of its territorial boundaries. While some of the political steps undertaken by Russia, such as the granting of Russian nationality, did not in and of themselves constitute a threat of force because they lacked a specific reference to the use of force, they contributed to a perception of a threat and to crisis escalation. The Russian side did not limit its threats to the exclusive objective of discouraging an armed attack, but sought to gain additional political concessions. V. Threats issued by South Ossetia and Abkhazia The facts with regard to South Ossetia and Abkhazia are less certain. As early as April 2008, there were increasingly frequent shootouts, mortar attacks, car bombings and other violent incidents between Georgian and South Ossetian forces.20 Bomb attacks also took place in May, July and August.21 Eduard Kokoity, the pro-Russian de facto President of South Ossetia, threatened to attack Georgian cities and to call for irregulars from the North Caucasus.22 South Ossetian forces also detained Georgian soldiers in July.23 In Abkhazia, the de facto authorities claimed to have downed Georgian reconnaissance aircraft in spring.24 Moreover, both breakaway territories seem to have welcomed the supply of military training and weapons by Russia,25 as well as the arrival of irregulars from other regions of the Caucasus, on whose help they would rely in case of Georgian military intervention.26 Furthermore, on 20 June 2008, Abkhaz de facto President Raul Khajimba publicly stated that the use of force might be required to seize control over the Georgian-controlled upper Kodori Valley.27 It is unclear to what extent these incidents formed part of a concerted effort directed against Georgia which was orchestrated or actively condoned by the de facto authorities of the two breakaway territories. With regard to South Ossetia, the publicly-announced intention to attack Georgian cities suggests this was the case, while in Abkhazia’s case, the public claim to have downed Georgian spy planes would serve the same purpose. Both breakaway regions sought the assistance of Russia in the hope that they would receive support should armed hostilities break out, and consequently undermined efforts to defuse the crisis. In this sense, their behaviour is hardly consistent with the provisions of Art. 2(3) of the UN Charter, namely the obligation to seek the settlement of disputes by peaceful means, and also, at least potentially in contradiction to Art. 2(4). Part 2: Use of force by Georgia 2. The Georgian attack on Tskhinvali and the surrounding villages as prohibited use of force The next question is whether the Georgian shelling and ground offensive was “use of force” in the sense of Art. 2(4) of the UN Charter. The prohibition of the use of force covers all physical force which surpasses a minimum threshold of intensity.49 Two General Assembly resolutions, the so called “Friendly Relations Declaration” of 1970,50 and the General Assembly Resolution “Definition of Aggression” (3314 (XXIX)) of 1974 51 offer guidance for determining the material scope of Art. 2(4) of the UN Charter. The latter Resolution was primarily adopted for defining the term “aggression” in the sense of Art. 39 of the UN Charter, which is not identical with “use of force” in terms of Art. 2(4) of the UN Charter. However, the threshold for “use of force” is lower than that of “aggression”. Put differently, when an act of military violence constitutes an aggression, it a fortiori also constitutes prohibited use of force.52 Resolution 3314 distinguishes different forms of attacks in its Art. 3. The following are relevant in the context of the Georgian action in South Ossetia: “(a) The invasion or attack by the armed forces of a State of the territory of another State, or any military occupation, however temporary, resulting from such invasion or attack, or any annexation by the use of force of the territory of another State or part thereof;(b) 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; c) An attack by the armed forces of a State on the land, sea or air forces, or marine and air fleets of another State”. Although there were no internationally determined borders dividing the territory of Georgia and the territory of South Ossetia, the city of Tskhinvali and the villages west of Tskhinvali were under South Ossetian de facto jurisdiction. Therefore the attacks by the armed forces of Georgia against the city of Tskhinvali and the villages by means of heavy weapons might even be qualified as acts of aggression under Art. 3 (a) and (b) of UN Resolution 3314, and a fortiori as prohibited use of force. They were not directed against the territory of “another state”, but against the territory of an entity short of statehood outside the jurisdiction of the attacking state. But as argued above, the prohibition of the use of force applies here as well. The attack was primarily targeted at the South Ossetian militia defending the city of Tskhinvali and the surrounding villages. Therefore it might fall under Art. 3 (d) Resolution 3314, and a fortiori constituted “use of force” in the sense of Art. 2(4) of the UN Charter. III. Justification of Georgia’s use of force against South Ossetia The fundamental question therefore is whether the use of force by Georgia against South Ossetia can be justified under international law. Georgia’s base argument claims self-defence. 1. Facts The long history of hostilities between Georgian security forces (paramilitary, heavily armed “police”) and South Ossetian militia considerably intensified after spring 2008 both in quality and quantity. In July 2008 several armed clashes took place. For a legal assessment of the Georgian air and ground offensive starting on 7 August it is important to note the incidents that were extensively described by the Georgian side.53 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 the UN Charter. To assess the justification of the Georgian reaction, it is necessary to take into account the series of incidents that had occurred since the beginning of August. a) Attacks on Georgian villages by South Ossetian forces as “armed attack” on Georgia Although both terms are not explicitly linked in the UN Charter, General Assembly Resolution 3314 on the Definition of Aggression can serve as the reference for the definition of the notion of “armed attack”.54 The threshold of an “armed attack” is higher, hence not every “aggression” is considered an “armed attack”.55 Still, states relied on Resolution 3314 to determine what is considered an “armed attack”.56 ICJ case-law confirms that at least some graver actions which qualify as aggression under that Resolution also constitute an armed attack in terms of Art. 51 of the UN Charter.57 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,58 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. 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 peacekeepers59 and against Georgian police.60 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 Military actions constitute an armed attack in the sense of Art. 51 of the UN Charter only if they surpass a certain threshold. According to the ICJ, it is necessary to distinguish the gravest forms of the use of force (those constituting an armed attack) from other less grave forms.62 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”.63 On the other hand, the ICJ has assumed that a cumulative series of minor attacks may constitute an armed attack.64 According to the findings of the Mission, the acts preceding the outbreak of the hostilities led to several fatalities on both sides. They not only involved de facto border guards, but also the inhabitants of the villages that were attacked. From 6 August on, continuous heavy fighting took place. As explained in the section on International Humanitarian Law, the firing caused many civilians to leave their villages.65… a) Immediacy of the Georgian reaction Self-defence must be immediate and may not happen when an attack has ended. It is generally accepted that there may be a time-lag between the original armed attack and the response of the victim state, because it is necessary to prepare self-defensive operations.70 A stricter minority view holds that self-defence may only be undertaken while the armed attack is in progress.71 The South Ossetian attacks on Georgian villages near Tskhinvali and the attacks on Georgian “police” and peacekeepers that had started in the beginning of August were a protracted action. They were still on-going when the Georgian military operation began on 7 August 2008. Therefore the Georgian reaction was still “immediate” even under the stricter regime. ….. iii) The facts of the case under scrutiny Russia bombarded Georgian positions in South Ossetia. It also conducted military activities outside the South Ossetian administrative borders and posted military vessels in the Black Sea before the Georgian harbour of Poti. Due to Russian bombs on Poti, oil deliveries from Baku to the port city of Supsa had to be temporarily suspended. Also the railway track from Tbilisi to the coast was damaged. Oil transport on that railway was interrupted. Thereby the entire Georgian economy was affected. According to the Georgian representative in the Security Council, as of 19 August 2008 the total number of people killed in the conflict reached 250 on the Georgian side, civilians and Georgian Ministry of Defence personnel combined. Over 1 469 were injured.167 The data given to the Fact-Finding Mission in mid 2009 differ substantially: about 410 people killed (170 military, 228 civilian, and 12 police), 1 747 wounded.168 iv) Assessments of governments At the Security Council emergency session of 10 August 2008 Russia explained its actions in the Black Sea as follows: “The aim of that operation is to ensure that we protect Russian citizens who are in that region, to provide support to the Russian peacekeeping contingent if there should be a military attack against them, and also to provide humanitarian assistance to the civilian population who are in the zone of the conflict. With the aim of preventing incidents in the area patrolled by Russian ships, we have established a security zone. These actions do not seek to establish a maritime blockade of Georgia. Force will be used only in accordance with Art. 51 of the Charter, in exercise of the right to self-defence by the Russian Federation.”169 In the answers given to the Fact-Finding Mission, Russia explained that “the deployment of additional Russian troops [in Abkhazia] was necessary since there were compelling reasons to believe that an attack similar in scale was to be launched against Abkhazia once the Ossetian issue was resolved. The assumption that Georgia harboured such plans was confirmed by the information gathered by Russian and Abkhaz intelligence services.”170 In contrast, various Security Council members gathered in emergency sessions during August repeatedly estimated the Russian activities to be disproportionate.171 The representative of the United Kingdom stated: “Russian forces have certainly violated respect for the international norms of peacekeeping, and it is a gross distortion by Russia to claim peacekeeping duties as the reason for its action.”172 d) Conclusions: Lack of necessity and proportionality As an act of self-defence against the attack on the Russian military bases, the only admissible objective of the Russian reaction was to eliminate the Georgian threat for its own peacekeepers. The expulsion of the Georgian forces from South Ossetia, and the defence of South Ossetia as a whole was not a legitimate objective for Russia, because Russia could not rely on collective self-defence in favour of South Ossetia, as will be shown below. The admissible Russian objective was therefore limited. The military reaction of Russia went beyond the repulsion of the Georgian armed attack on the Russian bases and was thus not necessary. Russia mainly targeted military objectives, and at least some of the targeted military objectives were related to the Georgian attack in South Ossetia. Nevertheless, Russian military support for the use of force by Abkhazia against Georgia cannot be justified in this context. The bombing of large parts of the upper Kodori Valley was in no relation to any potential threat for the Russian peacekeepers in South Ossetia (see below). The same applies to the posting of the ships in the Black Sea. An impartial observer, putting himself in the place of Russia, would not have qualified the Russian reaction as reasonably related to the objective of halting the Georgian attack on the Russian peacekeepers stationed in South Ossetia. 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 Russia claimed that both the peacekeeping units and the further reinforcing units “continued to carry out their peacekeeping mission until the European Union Monitoring Mission was deployed in accordance with the “Medvedev-Sarkozy” agreements (…).”173 As explained above, peacekeeping units are defensive in nature. They have to be neutral and must not take sides with either of the conflicting parties. They are normally equipped only with light weapons for self-defence; their number is clearly limited. According to the 1992 Sochi Agreement, the Russian peacekeepers were a part of joint forces “under” the Control Commission (Art. 3(3)). The Joint Control Commission’s task was “to exercise control over the implementation of ceasefire, withdrawal of armed formations, disbanding of forces of self-defence and to maintain the regime of security in the region.” (Art. 3 (1) of the Sochi Agreement). “In case of violation of provisions of this Agreement, the Control Commission shall carry out investigation of relevant circumstances and undertake urgent measures aimed at restoration of peace and order and non-admission of similar violations in the future.” (Art. 5). These provisions show that any unilateral support for one of the conflicting parties cannot be justified as a peacekeeping mission. Furthermore, it is not possible to combine a peacekeeping task and a military action based on self-defence. The status of a victim of an armed attack is incompatible with the neutral status of a peacekeeper. Whoever is drawn into a conflict can no longer act as peacekeeper.174 The peacekeeping mission was limited to a small number of lightly armed troops which could not be reinforced or replaced by heavily armed “fresh reinforcement units”. Greater use of force was not only against the spirit of the Sochi Agreement, but also against the very idea of peacekeeping. 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 Russia argued that it intervened with military means “following a request from the government of South Ossetia”.175 It is very controversial whether such an invitation is in principle apt to legalize an intervention. 1. The special situation of a war of secession Most historical cases have been civil wars in which two political parties strive to govern and control an entire country. The accompanying scholarly debate on intervention upon invitation relates to this type of situation. The case under scrutiny is distinct because initially it was a war of secession. The two competing parties did not fight over the state of Georgia, but only over the control over South Ossetia. This means that the “civil war” scenario was present (only) with regard to one portion of Georgian territory. But because the war of secession was a regionally limited “civil war” over the rule of South Ossetia, the legal concept of intervention upon invitation is in principle applicable with regard to this territory. In a civil war situation, it is controversial whether one of the competing governments – and if so which – is competent to “invite” a third state and thus can lawfully consent to the third state’s use of force. State practice has been chaotic in this field. In scholarship, three legal answers have been suggested. 2. Legal doctrines on “invitation” of foreign support in civil wars a) Entitlement to invite foreign support only for established government A first answer was given in traditional writing. This answer relies on a distinction: only the established and internationally recognized government can pronounce an invitation with legal effect.176 This legal view leads to an asymmetrical situation: military intervention was deemed permissible in support of the established government (in our case the Georgian Government), but not in support of the “rebels” (in our case South Ossetia). It has even been argued that specifically in wars of secession, a third party may lawfully intervene upon invitation of the established government (which would in our case justify intervention in favour of the Georgian Government only).177 However, state practice does not support this assertion. Third parties have not availed themselves of a right to intervene in any instances of attempted secession solely on the grounds that the government had asked them to intervene and to fight against the seceding parties.178 Moreover, this traditional view presents the problem that third states enjoy discretion as to which government to recognize. Different third states may lawfully recognize different pretending governments of the state. If third states could lawfully support the government of their choice by military means, the consequence would be that the prohibition of the use of force (Art. 2(4) of the UN Charter) would not apply at all to civil wars with foreign intervention. This consequence is undesirable.179 b) New doctrine: the inadmissibility of military intervention in a civil war or secession war To avoid undesirable consequences, the most recent trend in scholarship is to acknowledge that in a state of civil war, none of the competing fractions can be said to be effective, stable, and legitimate. Therefore, it is argued that the principle of non-intervention and respect of the international right to self-determination180 renders inadmissible any type of foreign intervention, be it upon invitation of the previous “old” government or of the rebels. Any taking of sides and intervention in civil law is in that perspective forbidden. This reasoning leads to the conclusion that a military intervention by a third state in a state torn by civil war will always remain an illegal use of force, which cannot be justified by an invitation (doctrine of negative equality).181 c) Invitation by both sides allowed after territorial stabilisation? Given the fact that past state practice has provided no conclusive guidance, it could be argued that no international legal prohibition of intervention has crystallised, so that intervention on either side of a civil war (or war of secession) is allowed (doctrine of positive equality). But the ICJ has rejected this solution: “The Court therefore finds that no such general right of intervention, in support of an opposition within another State, exists in contemporary international law. (…) Indeed, it is difficult to see what would remain of the principle of nonintervention in international law, if intervention, which is already permissible at the request of a government of a State, were also to be allowed at the request of the opposition.”182 However, an important strand of scholarship supports the doctrine of positive equality from that moment on when in an internal war the control of the state’s territory is divided between warring parties.183 The argument is that these situations resemble an inter-state war, and therefore both sides must be allowed to ask for foreign support. That condition is fulfilled in the case under scrutiny, because the territory of Georgia was already clearly divided and the two sides had territorial control over different parts of the territory before August 2008. Only if the doctrine of positive equality were to be applied (which is, however, not recommended as will be explained below), could South Ossetia have invited Russia to intervene and thereby could have created a legally valid permissibility to intervene with military means and to apply military force (at least within the territory of South Ossetia). 3. No valid invitation by South Ossetia One argument against the permissibility of an invitation extended to Russia by South Ossetia is that even if this political entity has a right to self-determination, it is not entitled to use force to exercise this right. Military force is never admissible as a means to carry out a claim to self-determination, including internal self-determination. There is no support in state practice for the right to use force to attain self-determination outside the context of decolonization or illegal occupation. Still less is there support by states for the right of ethnic groups to use force to secede from existing states.184 This means that the use of force by secessionist groups is in any case illegal under international law, even assuming that a right to secede exists. The general rule is that South Ossetian authorities and armed forces were not themselves entitled to use force in order to attain self-determination. This also means that a secessionist party cannot validly invite a foreign state to use force against the army of the metropolitan state. In any case, even if one were to accept the academic opinion that the South Ossetian authorities were in principle competent to invite the Russian intervention on the grounds of the international right to (internal) self-determination, they were not competent to authorize intervention in the whole of Georgia. The use of force within the territory of Georgia beyond the administrative boundaries of South Ossetia cannot be justified by “invitation”, whatever position is taken in the doctrinal debate. 4. Discussion and conclusions: no permissible invitation by South Ossetia The doctrine of positive equality, even if it is limited to situations of stable territorial control, condones the escalation of military force and is therefore not in conformity with the objectives and principles of the United Nations. It is very open to abuse. In contrast, the legal solution to prohibit intervention in a civil war or a war of secession (doctrine of negative equality) is prudent from a policy perspective, because it removes the pretext of “invitation” relied on by third states in order to camouflage interventions motivated by their own policy objectives. This solution is also more operational and practical than the contrary one, because it relieves lawyers of the difficult task of identifying and proving a valid invitation. Finally, state practice rather seems to confirm the legal solution. In many historical cases, states have condemned and declared inadmissible interventions supposedly conducted upon invitation. 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. This conclusion is corroborated by the argument that secession may never be lawfully carried out by military means, even if it were justified under exceptional circumstances, which is not the case here. And if the seceding party is prohibited from the use of force, it must also be prohibited from inviting third states to use military force. This means that the use of force by Russian troops in the territory under control of South Ossetian armed forces and authorities was not justified by the invitation. VI. No justification of the use of force by collective self-defence Sergey Lavrov, Foreign Minister of the Russian Federation, spoke on 27 Sept. 2008 at the 63rd session of the UN General Assembly. He described the Russian objectives of the military action in Georgia as follows: “Russia helped South Ossetia to repel aggression, and carried out its duty to protect its citizens and fulfil its peacekeeping commitments.”185 He thereby claimed that Russia relied on collective self-defence, defending South Ossetia against an armed attack by Georgia. Art. 51 of the UN Charter expressly speaks of “collective” self-defence. Collective selfdefence in favour of South Ossetia presupposes that there was an armed attack on South Ossetia and that South Ossetia at least implicitly and covertly requested Russian help. As explained above, South Ossetia had a right to self-defence under Art. 51 of the UN Charter against the Georgian operation starting on 7 August 2008. 1. Request for help by South Ossetia The consent of the attacked entity (in this case South Ossetia) is a pre-condition for collective self-defence against military operations by the intervening military power (in this case Russia) in its own territory. Consent manifests itself in the declaration of an armed attack, and the attacked party’s request for help addressed to the third state (Russia). Normally such a declaration and request are made in state practic Some authors opine that no collective defence is possible if the state which deems itself a victim of an armed attack has not requested help.186 According to this opinion, Russia would have to await a call for help from the entity it purportedly sought to assist before its additional troops were allowed to enter Georgian territory. (These troops numbered above the threshold allowed under the Sochi Agreement.) But the prevailing opinion is that such a request can also be informal and implicit. An explicit and express declaration of the victim state (or entity, in this case South Ossetia) that it deems itself the victim of an armed attack is not a formal condition of the legality of collective selfdefence. 187 The International Court seems not to consider a declaration and request as a legal condition.188 The ICJ merely takes the absence of such a declaration and request as a confirmation that there had been no armed attack.189 To sum up, a formal request is only one factor to be taken into account in the assessment of the legal grounds for collective selfdefence: it is not a conditio sine qua non.190 The South Ossetian authorities requested formal assistance from Russia only at 11:00 on 8 August 2008.191 However, according to the prevailing opinion as discussed above, an implicit previous request for help would have been sufficient. To conclude, the three requirements for collective self-defence, namely an armed attack on South Ossetia, South Ossetia’s consent to supportive military activity within the territory under South Ossetian control, and a request for help, however informal, addressed to Russia by South Ossetia, were probably met. But this does not yet resolve the issue. 2. No collective self-defence through intervention of a third state Even if self-defence by an entity short of statehood were allowed (which is highly controversial, as shown above), this does not inevitably mean that Russia could rely on collective self-defence as well. The fact that Russia also signed the 1996 Memorandum as a mediator does not per se entitle it to defend South Ossetia because a mediator’s role is to facilitate the resolution of conflicts by peaceful, not military, means. The involvement of Russia in the open hostilities is a specific question which, in scholarship, is mostly discussed under the heading “intervention upon invitation”. Scholarship and state practice show that a third state is not allowed to intervene in a war of secession upon invitation of and in support of “rebels” (see above). In practice, collective self-defence overlaps with military intervention upon invitation. In doctrinal terms, the two concepts are distinct, but the legal evaluation of a situation must be parallel and come to an identical result, independently of the legal heading under which the situation is assessed, for the following reason: the inadmissibility of an intervention upon invitation by the South Ossetian de facto Government would be undermined by allowing collective self-defence in favour of South Ossetia. Therefore, in order not to create a selfcontradictory legal regime, both potential grounds of intervention must be assessed identically. It is not inconsistent to allow an entity short of statehood to defend itself against armed attacks, while at the same time limiting its right to “invite” foreign support. Individual selfdefence and collective self-defence are not logically linked, especially where the right to individual self-defence flows, as here, not unequivocally from Charter law or customary law, but mainly or even exclusively from the special treaties between the sides. The right to individual self-defence is a necessary counterpart to the prohibition on the use of force. If South Ossetia is bound to refrain from the use of force, it must in consequence also be entitled to defend itself. These two concomitant rules serve to appease the conflict. It is another question whether military intervention in the form of collective self-defence is allowed. Such a right would not de-escalate, but escalate the conflict and therefore run counter to the objectives of the United Nations. The conclusion is that, although South Ossetia could rely on unilateral self-defence in order to repel Georgian attacks, collective self-defence was not allowed. 3. Necessity and proportionality Even if it were admitted that collective self-defence was possible in favour of South Ossetia, Russian collective self-defence would still have to be necessary and proportionate. Proportionality means a reasonable and fair relationship between the means employed and the objective pursued.192 The Russian objective in pursuing collective self-defence in protection of South Ossetia differed from the objective to defend its own peacekeepers in individual self-defence. The legitimate objective of collective self-defence was to bring to a halt the Georgian attack on South Ossetia. However, according to the criteria and factors set out above, the Russian reaction was disproportionate to this objective as well. 4. Conclusions 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” Russia did not explicitly claim a “humanitarian intervention”. However, President Medvedev pointed out in his statement on the situation in South Ossetia on 8 August 2008 that “Russia has historically been a guarantor of the security of the peoples of the Caucasus, and this remains true today.” He also pointed out that “[c]ivilians, children, and old people, are dying today in South Ossetia”.193 Also, the frequent Russian use of the term “responsibility to protect” has some overlap with the new international concept of a responsibility to protect, which relates to the protection of populations independent of their nationality. With these statements, the question of a humanitarian intervention has at least implicitly been raised by Russia. Humanitarian intervention means a coercive, notably military action across state borders by a state or a group of states aimed at preventing or ending widespread and grave violations of human rights of individuals other than its own citizens, without the permission of the state in whose territory force is applied.194 While this scholarly definition is clear, the entire debate on humanitarian intervention often does not distinguish between the protection of own nationals and the protection of people of a different nationality. The term is frequently used to designate military interventions with the objective of preventing or terminating human rights violations, independently of the victims’ nationality. Under international law as it stands, humanitarian interventions are in principle not admissible and remain illegal. The intense scholarly and inter-state debate in the aftermath of NATO’s Kosovo intervention of 1999 has not yet led to a development of international law in favour of unilateral humanitarian interventions without a Security Council mandate.195 State practice and opinio iuris do not support the claims scholars have made in favour of a rule on humanitarian intervention without a Security Council mandate, and the law has not developed in the direction of the experts’ proposals, however morally desirable such a rule might be. The cautious endorsement of the concept of “responsibility to protect” by international actors barely affected the law on unilateral interventions, because the “responsibility to protect” was quickly limited to UN-authorized operations. So the potentially emerging international principle of a “responsibility to protect” only allows humanitarian actions authorized by the Security Council, (if at all). 196 Moreover, Russia has consistently and persistently objected to the justification of NATO’s Kosovo intervention as a humanitarian intervention. It is therefore estopped from invoking this very justification for its own intervention. And as a directly neighbouring state, Russia has geostrategic interests in South Ossetia. In such a constellation with dominant geostrategic considerations, humanitarian interventions are not permitted.197 Even some proponents of a right to humanitarian intervention admit that one condition of the legality of such an intervention would be a collective action, based on deliberations among a group of states, such as within NATO.198 A unilateral intervention decided upon by one single state would not meet this procedural criterion of legality. 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 5. Application to this specific case Even if it were accepted that a Georgian attack on Russian citizens were in principle apt to constitute a case of self-defence, the legal conditions for self-defence were not met in the case at hand. First of all, the Russian intervention in Georgia was not limited to a “Blitz”-type action and was not solely focused on rescuing and evacuating Russian citizens. Its intensity surpassed the minimum threshold of intensity required by Art. 2(4) of the UN Charter. It cannot be said that the military action was not “directed against the territorial integrity or political independence” of Georgia, because it did support the territorial separation of South Ossetia. The constitutional obligation to protect Russian nationals (Art. 61(2) of the Russian constitution, quoted above) cannot serve as a justification for intervention under international law. Domestic law can in principle not be invoked as a justification for a breach of an international legal rule.211 At most, domestic constitutional law could be invoked as a defence against obligations imposed on a state by international law if those obligations contradict core elements of the national constitution. But this situation is not present here, because Art. 61(2) is not a basic principle of Russian constitutional law, which would be constitutive of Russian constitutional identity. Moreover, it is not clear that this provision required Russian authorities to take military action. Russia cannot argue that the international legal obligation to refrain from intervening in Georgia violates a core principle of its constitution. Furthermore, a distinction must be drawn between those citizens who have possessed Russian citizenship for a long time, and those citizens who have only recently acquired Russian citizenship in the course of the broad Russian policy to confer Russian nationality in a simplified procedure (see Chapter 3 “Related Legal Issues”). With regard to this latter group of “new” Russians, it seems abusive to rely on their need for protection as a reason for intervention, because Russia itself has created this reason for intervention through its own policy.212 This is especially the case if an effective or genuine link between Russia and those new citizens is lacking. Although the conferral of citizenship and nationality lies in the domaine reservé of states, citizenship will be recognized by international law for the purpose of diplomatic protection only if there is a sufficiently genuine link between the persons concerned and the state. Put differently, a state is entitled to exercise diplomatic protection only for those “genuine” citizens. The ICJ has in the Nottebohm case described the genuine link “with regard to the exercise of protection” as follows: preference must be given “to the real and effective nationality, that which accorded with the facts that based on stronger factual ties between the person concerned and one of the States whose nationality is involved. Different factors are taken into consideration, and their importance will vary from one case to the next: the habitual residence of the individual concerned is an important factor, but there are other factors such as the centre of his interests, his family ties, his participation in public life, attachment shown by him for a given country and inculcated in his children, etc.” 213 This rather strict requirement also applies to other types of protective activity abroad, including military protection.214 Because this type of protective action is – contrary to diplomatic action – controversial in itself, the requirements concerning the relationship between the protecting state and the protected persons must arguably be even closer. With regard to most citizens living in South Ossetia, a genuine link in the sense just described is obviously lacking (see above Chapter 3 “Related Legal Issues”). 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 I. Facts In the morning of 9 August 2008 Abkhaz authorities demanded UNOMIG to leave Upper Abkhazia; UNOMIG left the area. This was a clear indication that a military operation in the Kodori Valley was imminent. According to the Georgian account, between 13:40 and 14:40, Russian military aircraft bombed the villages controlled by the central government in the upper Kodori Valley. At 15:50 the Abkhaz de facto Government announced that it had decided to send its armed forces towards the administrative border and to start a military operation. On 10 August at 17:40, the Abkhaz de facto President Sergey Bagapsh declared mobilisation and martial law on the territory of Abkhazia. By 18:30 Russian troops and Abkhaz militia were deployed along the administrative border at the Inguri River, and the Kodori Valley was bombed by artillery and aircraft. On 11 August Russian troops and Abkhaz militia reportedly started to occupy villages in the upper Kodori Valley. The civilian population had been evacuated.215 According to the Abkhaz side, air attacks started on 9 August at 14:30.216 The Abkhaz views submitted to the Fact-Finding Mission note that “the operation in the gorge was carried out by the Armed Forces of the Abkhaz Republic without any outside assistance and was confined strictly to the territory of the Republic of Abkhazia.”217 According to the Russian side, on 9 August 2009 “by 18:00 the Armed Forces of Abkhazia augmented their troup presence in the area designated as a CIS peacekeeping force observation post (NP No. 107) in order to carry out an operation in the Kodori gorge. During the night of 9 to 10 August 2008, units of the Abkhaz Armed Forces conducted a raid along the southern bank of the Inguri River to identify any Georgian military presence.” Further it is stated that “the Abkhaz troops aided by the airborne battalion task force undertook a sequence of actions and occupied the Kodori Valley virtually without encountering any resistance.”218 As a matter of fact, most ethnic Georgians left the upper Kodori Valley. The territory was occupied by Abkhaz forces, supported by Russian paratroopers. II. Legal qualification of the Abkhaz and Russian offensive: violation of the prohibition of the use of force and armed attack on Georgia As explained in Chapter 3, Abkhazia is a state-like entity. The prohibition of the use of force is applicable. This is also explicitly confirmed by the 1994 Moscow Agreement (Agreement on a ceasefire and separation of forces) which states: “The parties shall scrupulously observe the ceasefire on land, at sea and in the air and shall refrain from all military operations against each other.“219 Although there was no clear ceasefire line in the Kodori Valley, the upper Kodori Valley did not belong to Abkhaz-controlled territory under the provisions of the Moscow Agreement. The attack on the upper Kodori Valley by Abkhaz troops supported by paratroopers must therefore be qualified as use of force prohibited by Art. 2(4) of the Charter and moreover as an “armed attack” on Georgia in the sense of Art. 51 of the UN Charter.220 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 1. Argumentation by Abkhazia and Russia The Abkhaz side gives basically four explanations for the use of force. First, Abkhazia claimed that the operation was “launched to liberate the Kodori Gorge.”221 Second, Abkhazia claimed that military action was necessary to counter terrorist attacks. Thus in the context of explaining why refugees were prevented from returning it was stated: “Shortly before the events of August the Georgian special services carried out a series of terrorist attacks in Abkhaz cities, targeting the civilian population. Innocent people suffered as a consequence and on 6 July 2008, a terrorist attack in the city of Gali caused the deaths of four people and serious injuries to several others.”222 Third, Abkhazia claimed self-defence against an imminent threat of Georgian attack. In this respect, the official explanation in the address given by de facto President Bagapsh on 9 August at 13:00 is the following: “In connection with military provocations that took place in the security zone last night, with the shooting at Abkhaz posts by the Georgian side we have taken the decision to lead subdivisions of the Abkhaz army into the region of Gali, into the zone of collective responsibility of peacekeeping forces. The Commander of the peacekeepers and the UN Mission have been informed about all our actions. Clearly knowing that in this way Abkhazia violates the Moscow Agreement, with the full understanding that this is a violation of the Moscow Agreement, we have nevertheless taken this decision, because there was no other solution. I repeat once more that our actions are absolutely justified; their aim is to ensure the security of the people, the Abkhaz State.”223 The introduction of the state of war has been explained as follows: “In connection with the armed attack of Georgia against South Ossetia, and also with the direct threat of an aggression by Georgia against the Republic of Abkhazia …”.224 Fourth, Abkhazia argues that it was obliged “to open a second front” in order to distract the Georgian forces from South Ossetia. This purported obligation was derived from the Treaty on Friendship and Cooperation between the Republic of Abkhazia and the Republic of South Ossetia, concluded on 19 September 2005. The justification given by the Russian side is the following: “Despite the fact that the Georgian side never attacked Abkhazia, the deployment of additional Russian troops in the territory was necessary since there were compelling reasons to believe that an attack of some size was to be launched against Abkhazia once the Ossetian issue was resolved. The assumption that Georgia harboured such plans was confirmed by the information gathered by Russian and Abkhaz intelligence services.”225 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 (which was not present, as will be shown), 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 Abkhazia argues that it had to “liberate” the Kodori Valley. This refers to a Georgian operation or military occupation of Abkhaz territory. Such action might qualify as “aggression” in the sense of Art. 3(a) Resolution 3314, and therefore also as an armed attack in the sense of Art. 51 of the UN Charter. Yet, even if Abkhazia shows all characteristics of a state-like entity, it had no right to secession under international law (see Chapter 3 “Related Legal Issues”). Abkhazia had no legal title to that territory. This also follows from the Moscow Agreement under which the Kodori Valley falls outside the jurisdiction of Abkhazia. Conclusions: For these reasons, the presence of Georgian police or military in the Kodori Valley cannot be considered as an armed attack on Abkhazia. b) No preceding terrorist attacks sponsored by Georgia The Abkhaz military operation cannot be justified by alleged earlier terrorist attacks attributable to Georgia either. The involvement of Georgia could not be confirmed by UNOMIG. c) No imminent armed attack on Abkhazia as a whole by Georgia As explained above, it is very controversial whether an imminent attack confers the right to self-defence. In any case, Abkhazia cannot claim that a Georgian attack on Abkhazia as a whole was imminent. When the Abkhaz operation in the Kodori Valley started with Russian support, the Georgian troops were already “on the run”. Even if there had been a Georgian plan to attack Abkhazia, it was evident that on 9 August 2008 no such attack was “imminent” or even feasible. International law does not allow self-defence against putative attacks or attacks that might have been planned, but were never carried out. 3. Military support by Abkhazia for South Ossetia As explained above, neither collective defence nor the principle of intervention upon invitation legally justified the Russian military support of South Ossetia. Abkhazia’s military actions were not even supportive of South Ossetia, but aimed at conquering additional territory. Therefore they cannot be justified as collective self-defence in support of South Ossetia. 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. Human Rights Here are the main findings under IHL and HRL: • Allegations of genocide against Ossetians are not substantiated by evidence. • There is serious and concurring evidence to indicate that ethnic cleansing has been committed against ethnic Georgians in South Ossetia, through forced displacement and the destruction of property. • Violations of IHL and HRL were committed by Georgia, Russia and South Ossetia. Very few examples of violations by Abkhaz forces were documented during the conflict or in its aftermath. • While the August 2008 conflict lasted only five days, numerous violations of IHL were committed during this period by Georgia, Russia and South Ossetia. • Very serious violations of IHL and HRL were committed by South Ossetian forces, armed groups and individuals after the cease-fire. • Violations mainly concern IHL on the conduct of hostilities, treatment of persons and property and forced displacement. • More specifically, violations include indiscriminate attacks and a lack of precautions by Georgia and Russia; a widespread campaign of looting and burning of ethnic Georgian villages by South Ossetia, as well as ill treatment, beating, hostage-taking and arbitrary arrests; and the failure by Russia to prevent or stop violations by South Ossetian forces and armed groups and individuals, after the cease-fire, in the buffer zone and in South Ossetia. • The situation of the ethnic Georgians in the Gali District following the conflict and still at the time of writing this Report gives cause for serious concern under HRL. • The situation of the ethnic Georgians in the Akhalgori region also raises serious concerns, as many continue to leave this region at the time of writing. • Issues relating to insecurity and the destruction of property are key obstacles to the return of displaced persons, in particular the return of ethnic Georgians to South Ossetia. • Dangers posed by explosive remnants of war, notably unexploded munitions from cluster bombs, also need to be addressed. • Measures still need to be taken by all sides to ensure accountability and reparation for all violations.
    • Andrew, that spam/core dump that you have just unleased, is a great show of your respect for other readers and for lR herself.

      Keep it up!

      P.S. Did several people ask me why I don’t read Andrew’s long posts?

      • Correcting the typo:

        Andrew, that spam/core dump that you have just unleashed on htis blog, is a great show of your respect for other readers and for lR herself.

  9. For the record:

    You have dumped the total of 47 pages, 34 lines per page, Andrew.

    That’s more than 1500 lines of text. A whole book!

    Had I posted a message that’s only 5% of that – I would have been banned by LR.

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