Georgia Wins a Legal War Against Russia

Georgia turned to the European Court of Human Rights (ECHR) almost exactly three years after the August 2008 invasion of its territory by Russian forces, charging Russia with violating eight articles of the European Convention on Human Rights, including those referring to the right to life, prohibition of torture, liberty and security, protection of private and family life, as well as the rights to property and freedom of movement.

In its submission, the Georgian government said Russian planes carried out more than 100 attacks on Georgian targets over five days. There was overwhelming proof that Russian bombs were dropped on civilian areas, killing and injuring innocent people, it added. The evidence included witness statements, satellite footage, and video and phone intercepts.

In a landmark judgment, the ECHR ruled that Moscow is responsible for violating six articles of the European Convention on Human Rights, and numerous grave violations committed during and since the war. The Russian Federation was found guilty of ethnic cleansing of Georgian civilians, the burning of their houses and their expulsion from homes in the Tskhinvali region (the so-called ‘South Ossetia’ territory of Georgia which Russia continues to occupy). Russia was also found accountable for the ill-treatment and torture of prisoners of war and the perpetration of ‘humiliating acts’ against 160 detained Georgian civilians, actions which the Court held ‘had to be regarded as inhuman and degrading treatment’.

The ECHR ruled that Russia deliberately prevented Georgian nationals from returning to their homes in occupied regions. Furthermore, Moscow failed to investigate the series of events which preceded the active phase of the 2008 war, or those which came after the ceasefire agreement concluded on 12 August 2008.

Implications

The legal victory in this case is historic. It is only the fourth time the ECHR has ruled on an inter-state case in its entire and rather long history. And its ruling also puts it on record that Russia is fully accountable and responsible for events during and since the war, which have inflicted so much damage and human losses on Georgia. Such conclusions may seem evident and were not much in doubt.

Nonetheless, the ECHR ruling represents a new chapter and a historic moment for Georgia that its government ought to use in its favour. For despite Western support for Georgia, the reality remains that until now Russia has got away without paying a price for its atrocities in 2008, which were merely a prelude for policies that still seek to achieve the gradual occupation of Georgia’s territories. And it is plainly obvious that the lack of international pressure in response to the August war of 2008 encouraged the Kremlin to pursue the annexation of Crimea in 2014 – another action the ECHR recently ruled as illegal.

Georgia now has a legal backing to work with strategic partners and allies to ensure that the Kremlin pays a price for its war crimes. Imposing sanctions against Russia for its continuous aggression against Georgia would be one way of punishing Moscow for its systemic human rights violations. Furthermore, the West needs to push Russia to grant full access to the EU Monitoring Mission to the occupied regions, for in its absence the Kremlin continues to enjoy an unfettered ability to commit further grievous human rights violations.

Apart from providing the necessary support to put further diplomatic pressure on Russia, the ruling also established some legal precedents of an even greater importance.

The Court found that Russia exercised ‘effective control’ over the Tskhinavli region, Abkhazia and the ‘buffer zone’ from 12 August 2008 to the date when Russia’s armed forces supposedly withdrew, passing control over these lands to what Moscow claimed to be local civilian authorities. Yet, the ECHR ruling states that since then, the de facto authorities in these occupied regions have remained heavily reliant and dependent on Moscow, indicating that Russia has a continued presence and ‘effective control’ over Georgia’s occupied regions. What this means in practice is that the Russian ruse has been rejected by the Court.

Moscow has consistently rejected the idea that it is supporting local separatists; indeed, it does not even consider itself party to the conflict over these Georgian territories. But the ECHR ruling not only demolishes these arguments, but also dismantles Russia’s attempts to portray itself as a neutral player and a mediator in the conflict.

For the past 12 years the Kremlin has continued its war against Georgia by other means. Russia actively pursues its ‘borderisation’ policy, which aims at gradually grabbing further Georgian land. Forces backed by the Kremlin systematically detain, kidnap or even kill Georgian citizens. The Court’s ruling has the effect of directly attributing these deeds to Russia, and no longer allows the Kremlin the privilege of declining responsibility. 

Russian Aggression Continues

On 18 January, just three days before the announcement of the ECHR ruling, Russian-backed separatist forces illegally detained three Georgian citizens near the village of Khurcha, a territory controlled by Georgia. All three have since been released. Yet, few have been lucky enough to regain their freedom. Another Georgian citizen who was illegally detained by separatists on 18 April 2020 in Khurvaleti, a village located close to the Russian-occupied Tskhinvali (South Ossetia) region, attempted suicide on 19 January. The village is divided by barbed wire and fences that separate families and make the daily lives of ordinary citizens unbearably difficult. Those who dare to cross the line face detention and inhuman treatment by de facto forces. Since 2008, Moscow has occupied 125 more villages, while constantly violating the Sarkozy-brokered ceasefire agreement and deploying more than 11,000 troops on two of its military bases located in occupied territories.

In response to the ECHR ruling, Maria Zakharova, spokesperson for the Russian Foreign Ministry, maintained the fiction that Russia is merely an outsider to what is going in occupied Georgian territories. She claimed that Russia supports South Ossetia in becoming a modern and democratic state. She added that relations between Russia and the so-called South Ossetia ‘republic’ are ‘based on the principles of alliance and integration and are not subject to momentary considerations’.

It is wishful thinking to believe that the Kremlin may abide by the ECHR ruling. In fact, the most recent constitutional change in Russia prepared legal grounds for Russia to ignore decisions made by international adjudicating bodies or tribunals. And the Kremlin already has a track record of violating international law and disregarding its international obligations.

Nonetheless, the ECHR ruling is a major victory for Georgia – a small country that found justice while facing continuous Russian aggression. Tbilisi has a long and difficult path ahead to achieve the de-occupation of its occupied territories. But it is fortified by the fact that its position has been legally vindicated, a useful turn of events as the country seeks to engage more closely with its allies, and most importantly with the new Biden administration in Washington.

The views expressed in this Commentary are the author's, and do not represent those of RUSI or any other institution.