I have a commentary at the Radio Free Europe/Radio Liberty website today on the EU’s Independent International Fact-Finding Mission on the Conflict in Georgia. It expands on my earlier remarks about the gap between the report’s findings and the political spin:
“Those who read the entire report will find it is a masterpiece of legal and evidentiary analysis. The authors have painstakingly synthesized multiple branches of international law with scores of interviews, reams of source material, and numerous reports from NGOs. The report itself is nearly 500 pages ‘applying principles to facts.’ Despite a few inconsistencies, it is generally fair-minded, objective and apolitical. It should have done the job.
But in putting together the detailed legal analysis too little thought appears to have been given to the political impact or how to frame the report so that its key findings are intelligible to a public and press corps not intimately familiar with the details of international law. In failing to deliver the key findings up front with savvy and punch, the EU Mission allowed the report to be hijacked by interested parties for a continuation of the very political argument it should have put to rest.
For example, after reading the whole thing I must qualify my earlier suggestion that the report doesn’t distinguish between the interstate and intrastate dimensions of the conflict. It does at several places. But the title and executive summary do not – which probably explains why journalists and politicians have been able to spin it as they have.
More importantly, the authors’ conclusions about Georgia’s guilt in “starting” the war with S. Ossetia do rely on what I find to be an unconvincing application of the UN Charter regime to an intra-state war, essentially blurring the distinction between the two.
More on this – and the other “few inconsistencies” I wasn’t able to cover in the space limit given me by RFE/RL – are at Current Intelligence, where I’ll be posting periodically on war law issues for the foreseeable future.
The EU released its report on the August war between Georgia and Russia on Wednesday, and for the last two days the press has reported that it proves “Georgia started the war with Russia.” Even Joshua Keating, who offers a more even-handed round-up at Foreign Policy, says the claim that AP’s claim that “Georgia Started the War with Russia” is “basically correct.”
I’ve only finished the first volume of the report so far, but this is not how I read it at all. Actually, it says exactly the opposite on pg. 31 and 32:
“Any explanation of the origins of the conflict cannot focus solely on the artillery attack on Tskinvali in the night of 7/8 August… overall, the conflict is rooted in a profusion of causes comprising different layers in time and actions combined.”
The “Georgia started it!” frame appears to be grounded in two findings. The report acknowledges Georgia’s armed attack on Tskhinvali was in violation of international law, and also argued that this attack constituted “the first shot” in what became a larger conflict.
But I don’t see how that’s an argument that Georgia “started” the war with Russia. Georgia committed an illegal attack on an population center within its own territory – escalating what was already a low-intensity war within Georgian borders. Russia internationalized this “war” by sending troops across the border in violation of the territorial integrity norm. And given that the report also casts doubt on Russia’s claim to have done so to protect civilians, it’s hard to see how one illegal act within one’s territory can be construed as blame for an international war. At any rate, the report itself nowhere claims as much.
What’s most interesting about Volume I of the report, though, and what may explain the way its findings have been misinterpreted, is that it appears to conflate the civil and interstate wars of which the “August war” was composed. This is particularly ironic given that the report’s authors “notice with regret an erosion of the respect of established principles of international law such as territorial integrity” (p. 31) but then, ironically, blur those very principles in failing to distinguish the civil and interstate elements of the conflict. It is not until p. 36 that the 45-page report summary even acknowledges that there were these two different components to the war; the fact that the authors do not disaggregate these aspects in assigning blame muddles the legal analysis completely.
No wonder both sides can claim the report is a victory for them.