The Duck of Minerva

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International Justice: Miscarriages and Misconstruals

August 14, 2008

The latest on atrocity allegations between the parties to the smoldering conflict in the Caucasus, from the New York Times:

In South Ossetia, investigators began to look into accusations of atrocities. Human Rights Watch reported that researchers witnessed “terrifying scenes of destruction” in four ethnic Georgian villages, and said the villages had been looted and burned by South Ossetian militias.

Some thoughts: I’m happy to see a joint like Human Rights Watch has got boots on the ground, but surprised it’s allowing its researchers to issue subjective statements like this, which have very little value other than for propaganda. How terrifiying a scene of destruction may be is probably as much a product of how inexperienced or, on the other hand, jaded, a particular HRW researcher is as of any objective facts. Come on, how about some specific evidence to help us sort out competing claims of atrocity? That’s your comparative advantage, eh?

Anna Neistat, one of the researchers, said by telephone from Tskhinvali, the capital of South Ossetia, that they had found no evidence to substantiate Russian assertions of widespread brutality by Georgian troops. Human Rights Watch has been able to confirm fewer than 100 deaths.

Now, that’s very interesting. Doesn’t mean, of course, that there weren’t plenty more deaths… HRW errs on the side of conservative estimates, and deaths are often hard to confirm in these cases. But bear in mind that civilian dead doesn’t necessarily mean war crimes, since it’s perfectly legitimate under international law to kill innocent people as long as you don’t mean to. In other words, the equation of civilian body counts with “war crimes” is problematic. What matters is whether you can reasonably infer from the evidence of targeting decisions that the belligerents did not make attempts to minimize civilian casualties. Judging by the liberal body counts put forth by both sides, I’d say the evidence is scant so far… even 2,000 civilian dead sounds low to me if a military like Russia’s is hell bent on mowing down the innocent… what seems to have happened here was well-intentioned efforts to evacuate civilians from besieged areas, followed by attacks on infrastructure that caught some of the remaining civilians in the cross-fire.

Then there’s the looting that BBC reported in Gori:

“Russian tanks were in the streets as their South Ossetian separatist allies seized Georgian cars, looted Georgian homes and then set some homes ablaze.”

But again, let’s be careful not to infer a systematic Russian plan to commit atrocity from some random acts by victorious soldiers: this is quite typical in areas taken by siege (not excusable, of course, but typical): what we should watch for is how Russia reacts and whether there materializes any evidence that troops were instructed to behave this way. Only then can you claim that this constitutes evidence of a policy of anything like “ethnic cleansing.”

This is a term, by the way, of which we increasingly hear both parties accused. Before we toss it around too loosely, it’s useful to reflect on its history. Ethnic cleansing was a euphemism for forced displacement, originally developed by the Bosnian Serb Army drawing on Nazi discourse, and signifying the “pollution” of territory by the wrong ethnic group. It was ironically appropriated by Western powers during the conflict in ex-Yugoslavia as a way to avoid calling the killing “genocide” and invoking the responsibility to intervene. Conceptually, it best describes efforts to move people off disputed land in order to create a one-to-one relationship between nation (as a people) and state (as in territorialized political entity). In short, it’s both broader than “killing of civilians” (because it involves a concerted strategy to clear land, not simply to kill) and narrower (because it can involve merely displacement, not killing). As far as I know, however, ethnic cleansing is not a legal term reflected in any international treaty. Forced displacement, however, is a war crime – if indeed it’s occurring, rather than simply regrettable but unavoidable collateral damage.

Finally, returning to the New York Times:

Russian leaders have said they would like to bring Mr. Saakashvili to face war crimes charges in The Hague. Meanwhile, Georgia has filed a lawsuit against Russia at the International Court of Justice in The Hague for its actions on and around Georgia from 1991 to 2008, the court said in a statement.

This characterization would seem a little more accurate than the Georgian Deputy Interior Minister, who was quoted as claiming that:

“Georgian government is going to lodge a suit against Russia at the International Criminal Court (ICC) in The Hague, said Eka Zguladze, Georgia’s Deputy Interior Minister… Zguladze said that the suit contains facts of genocide against Georgians in Abkhazia in 1992, current developments and Russia’s acts in Georgia. Earlier, Russia announced it intended to file claims against Georgia at the ICC and the European Court of Human Rights in Strasbourg for the Georgian attack on South Ossetia. Russian prosecutors are now collecting evidence of genocide in South Ossetia.”

Georgia of course cannot “file suit” at the ICC in the Hague, since only the International Court of Justice functions like a civil court in which countries can sue one another: the ICC is a criminal court in which individuals are tried by an international institution, not by states.

Russia’s request that the ICC investigate war crimes and “genocide” make more procedural sense… but Russia will have to come up with more than 100 civilian dead to support an indictment like that, and also perhaps read up on the definition of genocide, which isn’t based simply on the killing of civilians but rather on the intent to wipe out a specific national, ethnic, racial or religious group – so far their version of events hasn’t really supported such a claim, just a claim of “war crimes” at best. But it’s cool to see them get behind the idea of international justice: so far they’ve refused to ratify the ICC statute, and Sudan was so confident of their anti-ICC stance that it recently asked Russia to block the indictment of Bashir in the Security Council. Perhaps the quest for the moral high ground will have a healthy socializing effect on Russia; one can only hope.

As for Saakashvili’s lawsuit at the ICJ, good luck: that court has less authority than Judge Judy. However I hope the case goes forward because it will contribute to clarifying some of the fascinating legal questions brought to the fore by these events, such as: is S. Ossetia a state? To what extent is sovereignty dependent on “the will of the people” in international law? How might nations understand the threshold requirements for the Responsibility to Protect? Excellent coverage of legal issues pertaining to this conflict here and here.

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Charli Carpenter is a Professor in the Department of Political Science at the University of Massachusetts-Amherst. She is the author of 'Innocent Women and Children': Gender, Norms and the Protection of Civilians (Ashgate, 2006), Forgetting Children Born of War: Setting the Human Rights
Agenda in Bosnia and Beyond (Columbia, 2010), and ‘Lost’ Causes: Agenda-Setting in Global Issue Networks and the Shaping of Human Security (Cornell, 2014). Her main research interests include national security ethics, the protection of civilians, the laws of war, global agenda-setting, gender and political violence, humanitarian affairs, the role of information technology in human security, and the gap between intentions and outcomes among advocates of human security.