Next Week at the ICJ: Georgia v. Russia Oral Proceedings and Swearing-in of Donoghue and Xue

by Chris Borgen

Next week the ICJ will have oral proceedings in the case Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Georgia v. Russian Federation). The .pdf of the press release is here. As far as I can tell, unlike in the Kosovo proceedings, there will not be an internet simulcast. (The Kosovo simulcast was very glitchy anyway, but now you can watch it archived.) Provisional measures have already been granted in this case; my take on the order is here.

Monday will also see the swearing in of Joan Donoghue and Xue Hanqin. The Court’s press release (pdf here) notes that this is the first time the ICJ has included two women.

Russia and the “Bilateralization” of the Georgian Conflict

by Chris Borgen

In the latest chapter of its attempt to consolidate its power over Georgia regarding the South Ossetia and Abkhazia, Russia has vetoed the continuation of the UN mission in the region. According to the AP:

Russia has exercised its veto power in the U.N. Security Council and brought an end to the nearly 16-year-old U.N. observer mission in Georgia and breakaway Abkhazia.

Russia’s veto late Monday toppled a Western plan to extend the life of the mission. The vote was 10-1 with four abstentions — China, Vietnam, Libya and Uganda.

CNN reports:

“The U.N. mission’s previous mandate has actually ceased to exist in the wake of Georgia’s aggression against South Ossetia last August,” said Vitaly Churkin, Russia’s U.N. ambassador, who said it was “unacceptable” to extend the mission.

The CNN report later explains:

The crux of the controversy remains Georgia’s territorial integrity. As a result of last year’s war, Russia now considers South Ossetia and Abkhazia sovereign nations independent from Georgia. Russia has no international support for that position aside from the nation of Nicaragua.

This veto is in line with an ongoing Russian strategy to end multilateral involvement (where possible) concerning conflicts in its “near abroad” and to make the resolution of such conflicts a bilateral matter between the country with the separatist conflict and Russia. Besides the veto of the UN mission in Georgia, Russia has also recently attempted to circumvent the multilateral “5+2” mediation process over the conflict in Moldova (Moldova, the separatists, OSCE, Ukraine, Russia + The EU and the US) with new “2+1” talks (Moldova, the separatists, and Russia).

Keeping in mind that the separatists in Georgia (and in Moldova) have been financially, politically, and militarily backed by Russia, the negotiations for any ongoing peace really becomes a negotiation between Georgia (or Moldova) and Russia. By strategically using its veto, Russia has ensured that it remains the indispensable party for peace in Georgia. Without the UN, a new effort at multilateralizing would likely mean either boosting the role of the OSCE or of the EU. (I think a NATO role is unlikely at this point.) But, without any “boots on the ground” as the Russians have in Abkhazia and South Ossetia (or, soon, even a UN observer mission), these other international organizations are at a disadvantage in terms of bargaining power. Moreover, it is unclear that some western European nations will want to play hardball on this issue while they are also dependent on Russia for natural gas.

Thus, I think we are seeing here one more step in Russia bilateralizing (de-multilateralizing?) the situation in Georgia. Such bilateralization is a common technique used by great powers in the relations with relatively weaker states (think “bilateral investment treaties,” for an economic example). I have the impression, though, that Russia tends to use this technique a bit more than other great powers in regards to security issues, posibly due to its historic distrust of multilateral organizations.

The Framing of the Georgian Conflict

by Chris Borgen

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…

The Provisional Measures Order in Georgia v. Russian Federation: Trying to Navigate Between Scylla and Charybdis

by Chris Borgen

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…

Georgia, South Ossetia, and Abkhazia

by Kenneth Anderson

(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:

Interesting Quote on Russian Invasion of Georgia

by Chris Borgen

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.

SecState Rice Announces New NATO-Georgia Commission and Discusses U.S.-Russia Relations

by Chris Borgen

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

Statement from SecState Rice on Georgian Cease-Fire Agreement and Next Steps

by Chris Borgen

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…

The Curious Article 27(3) of the UN Charter

by Kevin Jon Heller

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…

Parsing the Georgian Cease-Fire Agreement

by Chris Borgen

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.

Russia’s Reversal on the ICC?

by Kevin Jon Heller

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.

The Security Council and the Use of Force Post-Georgia War? Michael Glennon and ‘Desuetude’

by Kenneth Anderson

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.)