On 21 January this year, the European Court of Human Rights found Russia responsible for a number of major human rights violations during the 2008 war against Georgia. In this opinion piece, Erekle Koplatadze gives his perspective on what this decision means.
Twelve years after Russia started the ethnic cleansing of Georgians from the Tskhinvali Region (South Ossetia), the European Court of Human Rights (ECHR) delivered its long-awaited judgment, holding the Russian Federation accountable for this violation of human rights.
In 2008 the Russian military sent its tanks into Georgia and initiated the bombing of both military targets and Georgian civilian populations. At the time, the Georgian Government addressed the ECHR with a request for interim measures, and in 2009 filed a full application accusing Russia of disregarding the European Convention of Human Rights and its protocols. In 2011 the Court declared the case admissible, which marked the second time it had taken an interstate case of Georgia against Russia. In its ruling in January, the Court found Moscow responsible for five major categories of violation of the Convention.
The Court agreed to only rule on events taking place after 12 August 2008, namely once the active phase of hostilities was over, the ceasefire agreement had been signed, and Russia’s effective control over the situation could be established. As the Court can only hold a state responsible for violations that happen under its jurisdiction or on territory under said state’s effective control, it was decided that the events taking place during the active phase of hostilities – 8-12 August – remained outside the scope of the Court’s examination, since it could not confirm Russia’s effective control of the territory during that period. This considered, the Court found Russia responsible for the following violations:
- ‘the systematic killing of Georgian civilians and the torching and looting of houses in the Georgian villages situated in the conflict zone’;
- ‘that Georgian civilians were routinely subjected to inhuman and degrading treatment during their unlawful detention in Tskhinvali in August 2008’;
- ‘that there was an administrative practice of Georgian prisoners being subjected to torture’;
- ‘the lasting inability of Georgian civilians to return to their homes in the Abkhazian and South Ossetian regions [...] which constitutes judicial acknowledgment of the continuing factual situation of ethnic cleansing of the Georgian population from these regions’; and
- the failure ‘to carry out an adequate and effective investigation not only into the events which occurred after the cessation of hostilities […] but also into the events which occurred during the active phase of hostilities’.
There are several implications of the ruling that deserve attention. This is the first time such a ruling goes against Russia and where it is held responsible for such an extensive violation of human rights. The Court accepted the Georgian side’s claim that the Russian forces and de facto militias acted on ethnic lines and were engaged in ethnic cleansing by - amongst other things - committing “humiliating acts” against 160 detained Georgian civilians and expelling nearly the entire ethnic Georgian population in the region. Establishing that Russia has effective control over the region is another legal victory for the Georgian side. Even now, the survival of the de facto authorities depends on Moscow and their decision making on key issues is heavily interlinked with that of Russia. The Court’s finding strips away Moscow’s often-repeated argument that the de facto authorities are independent and should be treated as such, and that their actions are sovereign. The finding that Russia has exercised effective control over the territories since August 12 is important as it infers occupation of Georgian territories and gives Georgia political and legal leverage to start a long process of de-occupation.
However, despite this victory, Georgia and the victims of these violations can point out some of the shortcomings of the Court’s decision. The mandate of the European Court of Human Rights, together with its legally binding judgements, is one of the few mandates that Russia recognises. Therefore, the Court’s decision not to rule on violations occurring 8-12 August – especially when it held Russia responsible for similar violations committed after that date – came as a disappointment to many. This is the most sensitive issue for the families of 12 civilians who lost their lives in Gori to a Russian Iskander missile fired on August 12. Among the casualties was a Dutch journalist, Stan Storimans. His murder, together with the other civilians that lost their lives during this 5-day period, will not be investigated by the ECHR. The only other international court that could hold Russia, as a state, responsible for the violations during this period is the International Court of Justice (ICJ); however, due to procedural technicalities, Georgia has been unable to successfully lodge an application. Consequently, from a legal standpoint, Russia, thus far, has not been found guilty of the violations it committed during this 5-day period.
Unsurprisingly, these decisions have been interpreted differently in Georgia and Russia. Current Justice Minister of Georgia and incoming Judge at the International Criminal Court (ICC), Gocha Lordkipanidze, described the ruling as historic, stressing that the Russian Federation had committed acts of ethnic cleansing. Similarly, the Georgian media broadcast the legal victory over Russia. Conversely, the Russian Ministry of Justice disagreed with the conclusions and instead emphasised that Georgian complaints related to the period of fighting were unfounded. Throughout the investigation and afterwards, the Kremlin deployed the well-tested tactic of denial. Similar to their actions following the downing of MH17 and many other international investigations, the Russian side offered alternative explanations to avoid consequences and waste the time, resources, and patience of those involved in the case. Finally, the Russian media continues to twist the facts and hail a Russian victory, claiming that Georgia lost the case or that the Court concluded that Russia was not responsible for the violations during the active phase of fighting.
Unfortunately, neither Georgia nor anyone else expects Russia to suddenly move its military presence out of Georgia and let the internally displaced people return to their homes. Considering that the Russian constitution can overrule any international bearing on Russia as unlawful, prospects of sudden change are further diminished. However, this ruling can have long-term implications. Firstly, it is just another building block for Georgia’s eventual de-occupation. Now Georgia’s claims are not only political, but they are well-founded and backed by international law. Additionally, the Courts conclusion is expected to be referenced at the ICC, which is investigating crimes committed by individuals during the war. In a wider context, this ruling could pave the way and influence the Ukrainian case against Russia; in its preliminary findings, the Court ‘found that there was sufficient evidence for it to conclude that Russia had exercised effective control over Crimea in the period in dispute between the parties’. More interestingly, Georgia’s British Barrister, Ben Emmerson, claims that it is by no coincidence that the findings were published a day after President Biden’s inauguration, who is expected to take tougher approach towards the Kremlin. Therefore, this judgement can be one of many justifications for the international community to take a tougher approach and pressure Russia into respecting international law.
But as for now, Georgia keeps fighting for its truth. For a country with a slightly bigger territory than the Netherlands but a population of only 3.7 million, this legal victory means a lot. Aware that alone it does not stand a chance against Russia, Georgia does everything in its power to enable the international community to exert pressure on Russia. This ruling once again proves that these often-heard accusations against Moscow do not stem from baseless Georgian political stubbornness, but rather from a reality that Russia’s neighbouring countries face daily. Therefore, the ECHR ruling should be used by Georgia’s international partners to justify their tougher approach towards President Putin’s Russia. Even today, the EU’s Monitoring Mission in Georgia is unable to access the occupied regions to serve its mandate of stabilisation, normalisation and confidence building. And one might easily forget that ethnic cleansing still happens in Europe and that the de facto regimes in Tskhinvali and Abkhazia, even after this ruling, continue to abduct, torture and murder Georgian civilians. This once again proves that more action is needed by international partners to bring light to ongoing violations in Georgia’s occupied regions and to defend the rights of the most vulnerable.
