J.D. Candidate, The University of Iowa College of Law, May 2010. I would like to thank everyone at Transnational Law & Contemporary Problems for their assistance on this Note, especially Hudson Kingston, William Baresel, Michael Bartholomew, and Umair Kazi. I would also like to thank my parents, Ted and Mary Musselman, for their never ending support.
In early August 2008, tensions between the Georgian military and South ossetian separatists escalated to the point of widespread violence.1 on August 8, 2008, the Russian Federation ("Russia") sent its military into Page 319 Georgian territory.2 Russian and Georgian troops continued to clash at various levels of intensity for days, with Russian troops remaining in Georgia for well over a month.3
Although exact numbers appear impossible to obtain, it is alleged that the conflict resulted in the deaths of hundreds of people, the destruction of cities and villages, and the displacement of tens of thousands of people.4Recognizing the importance of international perception, Georgia and Russia have released contradictory factual accounts supporting their respective actions.5 Initial reports and articles from Western media outlets focused on Russia as the aggressor and the escalator of the conflict.6 Many Western states and organizations, such as the United States and the European Union, relied on these accounts and broke diplomatic ties with Russia.7Subsequently, as independent groups began to gather more information directly from the conflict areas, the international community began to cease its one-sided rhetoric and resume ties with Russia.8
During the conflict, Russia and Georgia, aided by their own factual accounts, battled for international support by exchanging allegations of Page 320 international law violations. Each country claimed that the other had violated the U.N. Convention on the Elimination of All Forms of Racial Discrimination ("CERD"), and that the other country's attacks were unjustified.9 After major violence ceased, Georgia took its allegations to the World Court, which published a preliminary decision concerning the alleged racial discrimination that took place during the conflict. 10 Noting the convoluted nature of the conflict and the lack of credible information, the World Court refused to place blame or settle the events of the conflict. 11Instead, the Court reaffirmed the parties' duties under the CERD.12
Moreover, Russia and Georgia provided differing factual accounts, claiming that their respective military actions conformed to U.N. Article 51's allowance of the use of force in self-defense.13 To this date, neither the international community nor the International Court of Justice ("ICJ") has issued an official position on whether either country had the right to claim self-defense.
The Russian-Georgian conflict has exposed two major flaws in the international legal system. First, the international legal structure currently lacks a legitimate standing fact-finding system, which forced the international community to rely on Russia's and Georgia's conflicting and uncorroborated factual accounts. As a result, the international community was unable to take a unified stance, and the World Court was unable to assign culpability to either country. Furthermore, the one-sided international reaction to the conflict disrupted diplomatic attempts to end the conflict, and at the same time put Russia on the defensive.14 Second, the international Page 321 system lacks a clear definition of self-defense under international law as demonstrated by the legal ambiguity concerning Russia's and Georgia's legal right to self-defense under the U.N. Charter.15
Using the Russian-Georgian conflict as a case study, this Note will analyze the failings of the international self-defense doctrine and the international fact-finding system, both of which permit countries to skirt responsibility for their actions during times of conflict. It will go on to advise changes to the current international fact-finding system and the current self-defense doctrine. These changes are an attempt to create an international environment that will allow for legal accountability in the wake of an armed skirmish such as the Russian-Georgian Conflict.
Parts II, III, and IV of this Note address the differing Russian and Georgian factual accounts and the reactions of various international actors. These sections illustrate that "fact wars" can occur when the international community does not have access to reliable information. Parts V and VI of this Note discuss the two major flaws in the international legal system as exposed by the Russian-Georgian conflict. Part V discusses the World Court's decision on human rights violations in this conflict, which illustrates the significant need for a legitimate fact-finding organ. Part VI addresses the question of how the Russian-Georgian conflict exposes a need to resolve the ambiguities present in Article 51's self-defense standards. It goes on to propose an addendum to Article 51. Finally, Part VII of this Note discusses current international fact-finding structures and presents the need, and possible framework, for an international fact-finding organ.
Georgia, a small ex-Soviet state, lies between Russia, Turkey, and the Black Sea.16 Georgia contains two politically unstable regions: South Ossetia and Abkhazia.17 These regions have been striving for independence since 1991, when Georgia became independent from the USSR.18 Moscow has traditionally kept close ties with these regions and Russia has maintained peacekeepers in these territories since the early 1990s. 19 Page 322
In late April 2008, Russia and Georgia accused each other of improper military buildup as tensions over the breakaway regions began to escalate. 20In early July, a firefight occurred between Georgian troops and South Ossetian separatists. 21 In early August, skirmishes between Georgian forces and South Ossetian separatists intensified, spiraling into the most concentrated fighting in the region since June 2004. 22 On August 8, Russia entered the conflict, sending troops and armor into South Ossetia and conducting airstrikes on Georgian troops.23
The actual details of the conflict are highly contentious. The next Part of this Note attempts to make sense of the differing factual accounts that Russia and Georgia presented to the international community and world courts. This Note will endeavor to show how, in the absence of a standing fact-finding organization, countries will attempt to present one-sided factual accounts to the international community.
Both Russia and Georgia released factual timelines only a few days after the conflict.24 Each country also presented an official fact pattern to the ICJ during the Request for Provisional Measures phase of the Case Concerning Application of the International Convention on the Elimination of All Forms of Racial Discrimination.25 The next sub-parts of this Note will analyze the Russian and Georgian factual accounts and discuss the international response based on those claims. These sub-parts will illustrate how countries involved in a conflict will cultivate their own factual accounts to support their respective positions that their actions conform to international law. Page 323
The Georgian government alleged that Russia premeditated its military assault.26 It pointed to substantial Russian troop and equipment buildup prior to the conflict as evidence for this assertion.27 It also asserted that, before Russia's entry into the country, Georgia's military actions were limited to peacekeeping and quelling separatist shelling of Georgian cities.28 Georgia also alleged that it sent its military troops to South Ossetia and Abkhazia only "in response to the persistent shelling of ethnic Georgian villages in South Ossetia by separatist...