Investigating Crimes against Peacekeepers in the Situation in Georgia

The Office of the Prosecutor (OTP) of the International Criminal Court (ICC) has officially requested authorisation from the court to initiate an investigation into alleged war crimes and crimes against humanity committed during the armed conflict in Georgia between the breakaway region of South Ossetia and Georgia (also involving the Russian Federation) in August 2008. A key strand of the investigation concerns alleged attacks against peacekeepers, in this case, the Joint Peacekeeping Forces Group or JPKF, created in 1992 to monitor the Sochi agreement between Georgia and Russia, and comprised of peacekeepers from Russia, Georgia and North Ossetia.

In its request, the OTP argues that there is reasonable basis to believe that both South Ossetian (potentially with Russian armed forces exercising overall control) and Georgian armed forces committed the war crime of attacking personnel or objects involved in a peacekeeping mission. Georgian peacekeepers were reportedly heavily shelled from South Ossetian positions, killing two Georgian peacekeepers and injuring five more, while, in a separate incident, ten Russian peacekeepers were reportedly killed and thirty wounded as a result of an alleged attack by Georgian forces against their base, which was also, reportedly, destroyed. While the OTP faces many challenges in this case (for discussions see here, here and here), from the perspective of sufficiency of evidence for substantive crimes, these allegations may be the most difficult to prove.

The ICC Statute gives the Court jurisdiction over the crime of intentionally directing attacks against personnel, installations, material, units or vehicles involved in a humanitarian or peacekeeping missions in accordance with the UN Charter, as long as they are entitled to the protection given to civilians or civilian objects under international humanitarian law (Articles 8(2)(b)(iii) and 8(2)(e)(iii)). Proving that an attack against peacekeepers has occurred is a two stage test. Firstly, it must be shown that the force in question was ‘a peacekeeping mission established in accordance with the UN Charter’, a concept that is open to different interpretations. The ICC has already considered this matter in some detail in its Abu Garda Decision on the Confirmation of Charges, where the Pre-Trial Chamber relied upon three basic principles when determining whether or not a peacekeeping mission was constituted, namely: (i) whether the consent of the parties to the mission has been obtained; (ii) that the mission is impartial; and (iii) that the mission did not use force other than in self-defence. If these principles are fulfilled, the mission constitutes a peacekeeping mission, and its personnel are entitled to civilian status and consequent protection under international humanitarian law (IHL).

The OTP acknowledges that there are difficulties surrounding whether the JPKF in fact fulfilled these criteria. This is particularly so regarding whether the mission was impartial (paras. 151-155). For example, the submission refers to sources cited by the Government of Georgia arguing that Russian peacekeeping sources were not impartial, but were supporting the South Ossetian de facto authorities (para. 152), there are also suggestions that infrastructure connected with Russian peacekeeping forces was being used to make an effective contribution to the military action of a party to the conflict (para. 172). Thus, the OTP’s conclusion that the ‘JPKF fulfilled the criteria of a peacekeeping mission in accordance with the UN Charter and so was entitled to protected civilian status’ (para. 160) is open to question. Continue reading

Advertisements

On Crimean Secession, Fairness, and Self-Determination

On March 16th, 2013, the Crimean people voted in a referendum, expressing their desire to secede from Ukraine and re-join Russia (Crimea was a part of Russia until 1954, when Khrushchev transferred it to Ukraine; some historical accounts suggest that Khrushchev was drunk at the time).  Crimean population is predominantly Russian, with a large Ukrainian minority and a somewhat smaller ethnic Tatar community.  Much has been written so far on the Crimean crisis, and the recent Russian involvement in the region.  Here, I will focus on the issue of self-determination and secession, in order to shed light on the legality of the Crimean referendum and the de facto separation of Crimea from Ukraine and its de facto merger with Russia. 

International law recognizes the right of self-determination for every “people.”  In the decolonization context, the right to self-determination has been interpreted as leading toward remedial secession, because the colonized peoples were not properly represented by the governments of their mother-states (the colonial powers).  Outside of the decolonization context, however, international law does not positively recognize the right for groups to separate from their mother states.  Instead, international law proposes a distinction between so-called internal self-determination and external self-determination.  The former signifies that groups or peoples are entitled to a form of self-government or autonomy within the confines of their mother state.  This type of autonomy may translate into a free exercise of cultural or linguistic rights, or into the creation of a regional parliament, at best.  As long as the mother state respects the people’s right to internal self-determination, the analysis should stop there (see the Canadian Supreme Court in its advisory opinion on the proposed secession of Quebec).  The latter, more drastic form of self-determination, so-called external self-determination, gets triggered by the mother state’s utmost lack of respect for the relevant people.  If the mother state’s central government is so abusive toward the people that its rights are not properly represented, then international law may suggest that such a people should have a right to external self-determination, which would lead to its separation from the mother state.  Most states, unsurprisingly, are extremely reluctant to recognize a right to external self-determination for any minority group, and the International  Court of Justice, in the recent advisory opinion on Kosovo, failed to develop any sort of a useful normative framework on self-determination (the court instead found that the Kosovar declaration of independence was legal, but did not proclaim that external self-determination or secession would ever be legal).  This state of affairs has led some scholars to note that international law “tolerates” external self-determination and secession, but that no positive right to secession exists within international law. 

How does the above discussion translate into the Crimean situation? One possible argument for the legality of Crimean secession is to focus on the Crimean people’s right to external self-determination.  The argument would go as follows: the Ukrainian central government was no longer representative of ethnic Crimean Russians’ rights, and this triggered the latter’s right to external self-determination, leading toward a remedial secession.  Why was the Ukrainian central government not properly representative of the ethnic Crimean Russians’ rights? Because the Ukrainian Parliament recently voted to cease the use of the Russian language in public life, and because the Crimean Russians felt threatened that this was the first step toward an annihilation of their other rights.  This argument is a stretch because of its speculative nature – while it is possible that the Ukrainian government was about to stop respecting ethnic Russians’ rights, we simply do not know as of now that this was going to happen.  Another argument to support the legality of Crimean secession is to compare Crimea to other secessionist regions around the world.  Unsuccessful recent secessions or attempts at secession include Chechnya and Georgian provinces (South Ossetia and Abkhazia), whereas successful secessions include East Timor, Kosovo, Eritrea, and South Sudan.  How is Crimea different from the former and similar to the latter, or similar to the former and different from the latter? Crimea can arguably be distinguished from Kosovo, because the Serbian government in that case was highly abusive toward the Kosovar Albanians, whereas Ukraine has so far treated ethnic Crimean Russians fairly well.  Crimea can probably be distinguished from East Timor, Eritrea and South Sudan, because all three latter regions (now states) involved instances od delayed decolonization, or delayed rectification of post-colonial borders.  But is Crimea legally distinguishable from Chechnya and the Georgian provinces? If Crimea is entitled to separate from Ukraine, shouldn’t Chechnya be allowed to separate from Russia, and shouldn’t South Ossetia and Abkhazia be allowed to separate from Georgia? And what about other state-like entities, inhabited by peoples entitled to the respect of their self-determination rights, which have been denied statehood due to geo-political reasons (here, I am thinking of Tibet, the Palestinian territories, Northern Cyprus, Republika Srpska, Bougainville, etc.).  At best, one can conclude that self-determination quests by various peoples across the globe have not produced consistent results, and that such quests are often influenced by Great Powers’ politics and foreign policy stances. 

Finally, from a fairness perspective, let me quote a question which one of my International Law students recently posed: since Crimea used to be a part of Russia until 1954, since the legitimacy/rationale of its transfer to Ukraine in 1954 is dubious, and since the majority of its population is Russian and may truly wish to re-join Russia, what is so bad about the referendum and its result? The biggest obvious issue related to the referendum has to do with its own fairness – were the people of Crimea truly able to vote and express their wishes, or was the referendum influenced by the presence of Russian forces? Were the results properly tallied? Assuming that the referendum was conducted fairly, my student’s question seems pertinent and right on point. 

I do not mean to suggest that secessions should start occurring throughout our planet all the time, or that any group should be able to stand up and proclaim its right to separate from its mother state.  I also do not mean to suggest that Putin is a “good guy” – many of his policies appear outright aggressive and calculated to derive the most benefit for Russia at the expense of smaller regions/state.  If Putin truly cared for international law, he should be the first one to recognize the Chechens’ right to self-determination and possible secession from Russia.  What I try to argue in this post is that the Crimean issue is complex, and that instead of simply proclaiming that Ukraine is right and Russia is wrong, we need to step back and analyze the region’s history, as well as to take into account its population’s true desires. 

P5+1: The international agreement where all parties are happy

Sunday 24 November 2013, it was announced that the P5+1 (the United States, United Kingdom, Germany, France, Russia and China, facilitated by the European Union) had reached an agreement with Iran regarding the latter’s nuclear program. According to each country’s statements the agreement is a success and everyone is a winner. But when have we ever witnessed an agreement of such kind?

Although the agreement is not officially published in full, we get a glimpse of some of its important features from the points that have been released in media. The least interesting thing about the “Nuclear agreement” is the nuclear issue.

For a non-democratic regime that faces strong opposition from within and which has been severely crippled by economic sanctions, the agreement proves to be a life-saving last solution- at least for six months. Under the agreement, a few of the economic sanctions are lifted. In return the regime will stay a live and in power as a de facto protectorate with minimal economic sovereignty still intact. The agreement places the major income source- the oil trade- under the control of the P5+1, by providing that Iran’s crude oil sales cannot increase in a six-month period, resulting in what is estimated to be about $30 billion  in lost revenues to the country. Further restrictions are placed on Iran’s access to its oil sales; on its foreign exchange holdings and on a number of other financial services. A regime that preaches fight against imperialism and “the West”, now finds itself in the peculiar situation where its survival rests precisely on “the West” and a new kind of economic imperialism resulting from the country’s lack of acknowledgement of international law and the rules of the game.

On the bright side, the agreement might have prevented a more serious conflict. But here we can only guess. What we can be certain about, however, is that any agreement where the world’s major powers are involved and where all are smiling has wider geopolitical significance than the nuclear issue.