Although the Russian invasion of Georgia this summer has receded from the front pages, it is nonetheless the topic of vigorous debate. At stake is not only how we frame our response to the situation in Georgia, but also how we view our ongoing relationship with Russia.

For example, Edward Lucas, the Central and Eastern Europe correspondent for The Economist has posted to his blog a sharp critique of the EU’s policy towards Russia, post Georgian conflict. The essay had originally appeared int he Sunday Telegraph. it begins:

So it is business as usual with Russia. And what a bad business it is. Britain’s decision to allow France to lead the European Union back into normal relations with Vladimir Putin’s ex-KGB regime in Russia is one of the most startling volte-faces in our country’s recent diplomatic history. It has left our allies in Eastern Europe – Poland, the Czech Republic, Estonia, Latvia and Lithuania – aghast at our duplicity. “Our last European hope just —-ed us. We should have known. For we are but a small faraway country about which they know nothing,” a senior official in the region wrote in a despairing email after The Daily Telegraph broke the news on Friday.

European unity after the war in Georgia was never terribly impressive – a mild public rebuke and the suspension of talks on a new “partnership and co-operation agreement” until Russia met the conditions of the loosely worded truce brokered by the French president, Nicolas Sarkozy.

Russia has met some of those conditions – but not all. EU monitors are still unable to inspect the war zone properly. If they could, they would see evidence of ethnic cleansing in the two separatist enclaves of South Ossetia and Abkhazia. They would also see that Russia has increased its military presence. The message to the Kremlin is clear: you can invade a neighbouring country, threaten Europe’s energy supplies, and the EU will do nothing serious about it…

You can read the rest here.  Lucas’ analysis has been in the “new cold war” vein; that is, after all, the title of his book. While I am hopeful that we can manage our relationship with Russia so that we may be competitors but not enemies, I also think that Lucas is an insightful analyst who notices things than many others don’t (or at least notices them first…).

Some of the comments to his post (and his responses to them) are also very interesting. The crux of the critique of Lucas’s argument is the concern that the tide may be turning on the Georgian version of how the fighting began. For example…

Last week the ICJ issued an order for provisional measures  (pdf is here) in the Case Concerning Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Georgia v. Russian Federation) . This case, along with the recent referral to the ICJ for an advisory opinion on the status of Kosovo, are the latest cases arising out of secessionist conflicts that have come to the ICJ docket. Both cases present complex facts and will not only be important regarding the evolving jurisprudence and state practice concerning secession and self determination, but will also be important markers concerning the strengths and weaknesses of the ICJ.

The ICJ will have to also navigate between its desire for relevance and the risk of overstepping its mandate. It will not be an easy task…

(Welcome Instapunditeers and Volokh Conspirators and others; thanks Glenn and Eugene for the links!)

I wrote a couple of weeks ago about my experiences in Georgia in the early 1990s, monitoring the various conflicts - Abkhazia, South Ossetia, and the then-Georgian civil war in Tbilisi - and noting that the secessionist conflicts were marked on each side by ethnic cleansing as extreme as anything I saw in the Yugloslav wars, a country which I also monitored for Human Rights Watch, during the mid-1980s on through the early years of those wars.  The reasons why the two resembled each other seemed to me pretty obvious - the motivations (to clear ground and homogenize populations) were similar, the militia armies similar, the armaments similar …  

Well.  I declined in that post to say anything about the current situation, although I have been pressed by a couple of friends since to say something about it.  I have hesitated because I have only been in Tbilisi a couple of times since those days and I have not spent time focusing on the political situation there and the development of its democracy or the US role.  Anything I have to say can and should reasonably be discounted as unwarrantedly fixed on the situation from fifteen years ago; at the same time, the wars of fifteen years ago are what the current situation is largely about, so it has advantages and disadvantages.  And I can’t say that many of the people with whom I’ve spoken about the situation today were either much aware of the conduct of those wars - unlike, by sharp contrast, their deep awareness of the conduct of the Yugoslav wars - or even appear to have had much contact with the secessionist territories.  

All that said, here are my basic concerns; take them for what you think they are worth, and I fully understand that many will disagree:

Take a look at this commentary about Russia invading Georgia:

In order to be able to deny the invasion of Russian troops, it was first stated that some villages on the Georgian frontier had revolted, embittered by the tyranny of the, Georgians…. Simultaneously, Abkhazia had risen in the extreme northwest, close to the Russian border.

It is a remarkable fact that the rebellions broke out precisely in those places, Armenia, Azerbaijan, and Abkhazia, where large and constantly increasing masses of Russian troops had been quartered since November.

The inhabitants of some Armenian border villages are supposed to have insisted on advancing towards Tiflis (Tbilisi). The Russian Government stated it had endeavored, out of love of peace and benevolence, to help the threatened Georgian regime, and offered its mediation between the Georgians and the Armenians. It could not help it if Georgia contemptuously rejected this mediation.

It was written in 1921.

For anyone following the situation in Georgia and US/ Russian relations, there was a very interesting statement and Q&A today from Secretary of State Rice, who is in Brussels for meetings at NATO. Among other things, she announced the creation of a new NATO-Georgia cooperative framework and also discussed the concerns about isolating Russia. Among other topics, she also answered questions about the decision by the OSCE to send 100 monitors into Georgia. 

Some of her statements are rather strongly worded but, of course, diplomatic announcements are one thing and actual actions are another. So the questions remain:  Is this NATO-Georgia commission an intermediate step towards a further expansion of NATO’s role in the region (thus possibly further angering Russia) or is it a signal to Russia (with a little face-saving on NATO’s part) that NATO has heard Russia loud and clear and it is putting aside plans of expansion into the Caucasus? Time will tell. For now, here’s Rice’s statement and the Q&A (with some highlighting on my part of passages that I think are especially worthy of note)…

UPDATE: See Russian and Georgian reactions (both negative) after the Rice Q&A

Following is a statement that Secretary of State Rice made today in Tbilisi regarding the sirtuation in Georgia, the cease-fire agreement, and next steps. I have also included an excerpt from her Q&A with reporters and highlighted throughout a few parts that I thought were particularly interesting…

Our friend John Boonstra at UN Dispatch calls attention to a little-used provision of the UN Charter that requires members of the Security Council to abstain from voting on substantive matters when they are a party to a dispute.  Here is the text of Article 27(3):

“Decisions of the Security Council on all other matters shall be made by an affirmative vote of nine members including the concurring votes of the permanent members; provided that, in decisions under Chapter VI, and under paragraph 3 of Article 52, a party to the dispute shall abstain from voting.”

John discusses the potential impact of Article 27(3) on a draft resolution circulated by France on Monday that calls for a cessation of hostilities, a return to the August 7 status quo, and a reaffirmation of Georgian territorial integrity.  He notes, quite rightly, that the odds are against the Article being invoked, given that it has not been used since the early days of the UN.  (The most recent example being, according to Security Council Report, Argentina’s abstention from a 1960 vote on whether Israel’s capture of Eichmann on Argentine territory violated its sovereignty.)

It’s a fascinating issue — but my interest in Article 27(3) is a bit different…

The New York Times has posted online the (possibly fraying) cease-fire agreement concerning the conflict in Georgia.

At the time of its signing, President Sarkozy had said something to the effect that this is not a document for a lasting peace, but rather to just to stop the shooting.  Looking at the text, I can see why he wanted to make that clear.  In the various pieces I’ve written (either on this blog or in law journals) on the conflicts in Georgia, Moldova, and the other frozen conflicts, I have tried to show that international law can play a useful role in conflict resolution. Peggy McGuinness introduced me to the phrase “negotiating in the shadow of international law” to describe the phenomenon I was writing about.

This agreement, though, seems more like the result of “negotiating in the shadow of an armored division.”

Here are a few points that I think worthy of note…

UPDATE: Secretary Rice speaks about the cease-fire agreement and next steps.

According to Interfax, Russia is considering referring the situation in South Ossetia to the ICC. It quotes Russia’s Prosecutor General, Yury Chaika, as saying that he “doesn’t think setting up a special [international] court is necessary. Complaints and applications from our citizens which will be referred to the International Criminal Court would suffice.”  That’s an interesting statement, given that Russia has signed but not ratified the Rome Statute (citing constitutional issues) and has strongly criticized Moreno-Ocampo’s decision to indict Bashir on genocide charges. A decision by Russia to formally seek ICC involvement in South Ossetia would thus represent a considerable shift in policy toward the Court, perhaps opening the door to eventual ratification of the Rome Statute — which would be a very good thing, both for Russia and for the ICC.

We will see what happens.  Human Rights Watch has already publicly claimed that Russia is deliberately exaggerating the number of civilian casualties in South Ossetia.  If that’s true, Russia’s ICC claims may prove to be all talk and no action.

UPDATE: You can’t trust the media to get anything right.  The original version of this post cited an AFP report that Georgia had asked the ICC Prosecutor to investigate the situation in South Ossetia.  As Andreas Paulus kindly pointed out in the comments, that report is inaccuate — in fact, Georgia has filed a complaint for ethnic cleansing with the ICJ.

UPDATE 2: Moreno-Ocampo has acknowledged that he has been contacted about the situation in South Ossetia — by whom he does not say — and that “it is a possibility” he will open an investigation into the situation there.

As events move, I fervently hope, to an end to fighting in Georgia, international law discussions of the war will inevitably return to perennial themes - the authority to use force, the role of the Security Council and the Charter, the rationales and precedents offered for and against each side’s use of force, and so on.  So let me introduce one of those perennial, yet unavoidable, discussions - the role of the Security Council in all of this.  But I want to use this post to pose the question in a particular way, drawing on the work of Michael Glennon, and his argument that whatever the Charter might say, the international legal rule on the necessary role of the Security Council in the use of force, if it ever was a rule, is no longer a rule, having fallen into “desuetude.”  What, if anything, does Russia’s intervention imply for the legal role of the Security Council?  I’d like to urge in the comments a specific focus on the legal role of the SC in the wake of the war, in order to distinguish this discussion from the many other issues at hand.

(Update if slightly OT.  I recommend highly Ghost of Freedom: A History of the Caucasus, by Charles King (OUP 2008), reviewed by distinguished University of London scholar Donald Rayfield this week in the Times Literary Supplement.  The book (which I read briefly on a plane ride when it appeared, before all the current stuff, a few months ago) and review are both very timely.)

With the announcement of a six-point plan for a Georgian cease-fire, attention is shifting to how to construct a durable and equitable peace in the Caucasus. As the parties settle-in for some sort of negotiation, I find it interesting how the ideas about international law and norms are used in the statements of the parties.  Here are a couple of examples from a CNN report from this evening:

Sarkozy said he and Medvedev agreed Georgia is an independent country and Russia has no intention of annexing it. But Medvedev also said “sovereignty is based on the will of the people” and “territorial integrity can be demonstrated by the actual facts on the ground.”

Medvedev said, “I think that these are some very good principles in order to resolve the problem which has arisen from this very dramatic situation, and these principles can be used by Georgia and South Ossetia.”

The seemingly innocuous phrase “sovereignty is based on the will of the people” actually has some quite striking implications.  (I will leave aside the territorial integrity comment…)

First of all, the key question is “which people?”  This has been at the heart of debates over what it means for a “people” to have a right of self-determination. My guess is that Medvedev believes that “people” refers to “South Ossetians” and that Saakashvili would say that it refers to “all the people of Georgia.”

Unfortunately, international law has had a pretty hard time defining what a “people” is for the purposes of self-determination…

As the fighting winds down or escalates (depending on whom you believe), the legal battle that Ken discussed yesterday seems to be gearing up and getting more complex, with the International Court of Justice, the International Criminal Court, and the European Court of Human Rights now all being mentioned in news stories…

UPDATE: Be sure to see the new information and links from various commentors in the comments section. Thank you, all!

Military analyst at AEI Fred Kagan has offered a list of provocative possibilities for where the Georgian-Russian war goes next.  What interests me most here are two of Kagan’s comments on possible Russian investigations into alleged Georgian crimes in South Ossetia, presumably in the course of the Georgian push into South Ossetia, but perhaps not limited to that, apparently, according to Kagan, to be referred to a special organ of the Russian government called the Investigative Committee.  Presumably the Investigative Committee of the Russian Procuracy; a recent paper by American University’s Ethan Burger and NYU’s Mary Holland on SSRN describes it as having been created, however, for “corrupt political purposes.”

Like many OJ readers, I’ve been watching with shock and dismay as the situation unfolds in Georgia - unsure what exactly to say about policy and US policy in particular.  I mean, it’s easy to agree with both the Obama and McCain campaign reactions (I paraphrase) … ‘Russian invasions are bad’ (Obama) and ‘Put the tanks in reverse, Putin’ (McCain) - but that’s not policy, it’s a (very) small step toward actual policy. The situation appears to worsen as the hours pass.  It seems to have gone from the natural breaking point, for Russia, in driving the Georgian army from South Ossetia and Abkhazia, apparently to something - hard to say with certainty at this point, but apparently - wildly, frighteningly more aggressive from the standpoint of international law and policy, toppling the government in Georgia and seeing it replaced with something more to Moscow’s liking.

I was in Georgia, South Ossetia, and Abkhazia in the early 1990s when these conflicts got going in the process of the breakup of the Soviet Union and the independence of Georgia.  I was covering these conflicts for the Human Rights Watch Arms Division, which meant a focus on violations of the laws of war in the conflicts and looking at where the weapons used in the violations came from - not that the last question was all that hard to answer in this case.  So, I was in Georgia in 1993; after the civil war that messed up Tbilisi very badly, as the South Ossetia conflict had quieted down, but Abkhazia was in full swing. The Georgian army today is pretty well professionalized, disciplined, and trained, in large part by the US (although obviously not large enough to take on the Russian military), although that is disputed by Moscow, which claims criminal acts in the Georgian military incursion.  But discipline was not the case in the multiple civil wars that were in large part the genesis of the war on-going now.  

In this post, I’m not going to discuss current policy, but instead talk about what I saw in these conflicts as I watched them unfold back then.  Maybe there’s something to understanding the on the ground circumstances of those conflicts fifteen years ago that is relevant now.  Or maybe not.

This is a follow-up to my previous post concerning the legal issues of the conflict in Georgia with some more about the current military and diplomatic situations (and the resultant legal concerns).

The fighting is moving beyond South Ossetia and into other parts of Georgia, such as the port city of Poti…

Russia’s intervention in Georgia is the latest, and most obvious, example of the peculiar role that Russia plays in the various so-called frozen conflicts in former republics of the USSR.  As international security expert Dov Lynch has put it, Russia can be thought of as a “mediator-cum-supporter-cum-combatant.”  Why has Russia undertaken such a foreign policy in Georgia and what, if anything, does international law have to say about the situation?…

The frozen conflict over the Georgian separatist region South Ossetia has become a shooting war. Russia’s invasion of Georgia brings to a head many issues that have been floating around, ranging from arguments over NATO’s invasion of Kosovo to the proper understanding of self-determination to the role of Russia in the other so-called ”frozen conflicts” in the former Soviet Union…