RELVASTATUD JÕU KASUTAMISE ÕIGUSPÄRASUS GEORGIA-VENEMAA KONFLIKTIS
The Legality of the Use of Armed Force in the Georgian-Russian Conflict

Summary/Abstract: The Georgian-Russian conflict of August 2008 constitutes just one phase in the protracted conflict between Georgia and its break-away regions Abkhazia and South Ossetia. For the first time since the dissolution of the Soviet Union, Russia employed direct armed force against another sovereign state (as opposed to its indirect interference in the affairs of other states). In the case of Georgia, Russia had played different roles over the years, from facilitating peaceful dispute resolution between the conflicting parties to supporting the separatist regimes in Abkhazia and South Ossetia. In the summer of 2008, the situation between Georgia and South Ossetia was deteriorating, e.g. armed clashes along the separation line had become more frequent and serious, with political meetings often called off and failing to reduce tensions. On 7 August 2008 at 23:35, Georgia launched its military operation against South Ossetia, claiming self-defence before the United Nations Security Council, in order “to protect the sovereignty and territorial integrity of Georgia as well as the security of Georgia’s citizens”. Since South Ossetia had previously been recognised by the international community as an integral part of Georgia, its action to regain control over the separatist region did not lead to any serious legal debates regarding its right to use armed force. On the whole, Georgia was regarded as the victim, and it seemed that the international community was not expecting Georgia to offer more elaborate legal explanations. Russia, on the other hand, claimed that it was also exercising self-defence. Namely, it was compelled to defend its peacekeepers and nationals in South Ossetia. The right to use armed force to protect peacekeepers from attacks was the most feasible legal argument put forward by Russia. Indeed, peacekeepers have the right of unit self-defence, and their sending state may also have the right of state self-defence, provided that the necessary conditions are met. However, the Independent International Fact-Finding Mission on the Conflict in Georgia was not able to determine whether there had been an (intentional) attack by Georgia against Russian peacekeepers. Russia’s second argument, the right to use armed force to protect nationals abroad, is controversial. Although there have been incidents where states have claimed such a right, and have actually employed armed forces to protect nationals abroad, it has almost always resulted in criticism from the international community. There are also cases of states acquiescing to non-combatant evacuation operations where armed forces rescue civilians from conflict areas. However, even in those cases, most states have not conceded that such operations are permissible under international law, opting to refrain from condemning such operations. Moreover, Russia’s arguments are weakened by the fact that it had laid the groundwork for the conducive circumstances granting it the right to protect nationals abroad, having readily “handed out” Russian nationality to the residents of South Ossetia and Abkhazia since the 1990s and especially in 2008. Although the residents of these regions welcomed Russian nationality, Georgia regarded Russia’s actions as the gradual establishment of a foothold to be used as a pretext for future invasion. Ultimately, although Russia may have had legal grounds to protect its peacekeepers and nationals, the extensive five-day military operation that followed in South Ossetia, Abkhazia and in other parts of Georgia was nevertheless not permissible under international law because self-defence must be necessary and proportionate.

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