Abstract
The aim of this chapter is to apply the international law on the use of force – the jus ad bellum – to the events in the Caucasus in the summer of 2008. Specifically, it focuses on the claim of the Russian Federation that its intervention into South Ossetia and beyond into Abkhazia and ‘Georgia proper’ was justified in international law as an action of self-defence. It is notable that comparatively few western legal scholars have examined the lawfulness of the Russian intervention into Georgia.1 It is therefore important that the Russian self-defence claim is properly assessed.
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Notes
1. This point is made by N.N. Petro (2009) ‘The Legal Case for Russian Intervention in Georgia’, Fordham International Law Journal, 32, 1524.
5. This chapter is not the place to discuss the concept of unilateral humanitarian intervention. There is a vast amount of literature on the subject; a good starting point is J.L. Holzgrefe and R.O. Keohane (eds) (2003) Humanitarian Intervention: Ethical, Legal and Political Dilemmas (Cambridge: Cambridge University Press).
14. J. Gardam (2004) Necessity, Proportionality and the Use of Force by States (Cambridge: Cambridge University Press), particularly at p. 6 and p. 11.
15. J.A. Green (2006) ‘Docking the Caroline: Understanding the Relevance of the Formula in Contemporary Customary International Law Concerning Self-Defence’, Cardozo Journal of International and Comparative Law, 14, 450–457.
16. R. Wedgwood (1992) ‘Proportionality and Necessity in American National Security Decision Making’, American Society of International Law Proceedings, 86, 59.
18. J.A. Green (2009) The International Court of Justice and Self-Defence in International Law (Oxford: Hart Publishing), particularly pp. 31–42.
19. I. Brownlie (1963) International Law and the Use of Force by States (Oxford: Oxford University Press), pp. 278–279.
22. Y. Dinstein (2005) War, Aggression and Self-Defence, 4th edn (Cambridge: Cambridge University Press), p. 178.
24. This definition is adapted from the one given in A.C. Arend and R.J. Beck (1993), International Law and the Use of Force (London: Routledge), p. 94.
25. There is a wealth of literature on the protection of nationals abroad. Key texts include: T.C. Wingfield (1999–2000) ‘Forcible Protection of Nationals Abroad’, Dickinson Law Review, 104, 447; N. Ronzitti (1985) Rescuing Nationals Abroad through Military Coercion and Intervention on the Grounds of Humanity (Dordrecht: Martinus Nijhoff); D.W. Bowett (1986) ‘The Use of Force for the Protection of Nationals Abroad’ in A. Cassese (ed.) The Current Legal Regulation of the Use of Force (Dordrecht: Martinus Nijhoff), p. 39; R.B. Lillich (T.C. Wingfield and J.E. Meyen, eds) (2002) ‘Lillich on the Forcible Protection of Nationals Abroad’, International Law Studies Series, US Naval War College, 77, i; T. Ruys (2008) ‘The “Protection of Nationals” Doctrine Revisited’, Journal of Conflict and Security Law, 13, 233; and R.J. Zedalis (1990) ‘Protection of Nationals Abroad: Is Consent the Basis of Legal Obligation?’, Texas International Law Journal, 25, 209.
28. D.J. Gordon (1977) ‘Use of Force for the Protection of Nationals Abroad: The Entebbe Incident’, Case Western Reserve Journal of International Law, 9, 131–132.
30. T. Gazzini (2005) The Changing Rules on the Use of Force in International Law (Manchester: Manchester University Press), p. 170.
31. C. Gray (2008) International Law and the Use of Force, 3rd edn (Oxford: Oxford University Press), p. 157.
32. M. Iqbal and S. Hassan (2008) ‘Armed and Ready’, New Law Journal, 158, 1277. It is also notable that two judges of the ICJ appeared to take this view in regard to the ill-fated attempt by the United States to rescue hostages in Tehran in April 1980. See United States Diplomatic and Consular Staff in Tehran (United States v Iran) merits [1980] I.C.J. Rep. 3, dissenting opinion of Judge Morozov, 56–57; and dissenting opinion of Judge Tarazi, 64–65. However, in arguing that the United States had not suffered an armed attack against it, neither judge was particularly clear as to whether this was because of issues of gravity, or because attacks on nationals abroad could never constitute an armed attack. It is also worth noting that the majority merits decision took no position on this point (as the Court concluded the American intervention was not a matter before it), see 43–44 of the judgment.
33. Ronzitti, supra note 25, 12; Arend and Beck, supra note 24, 106 and 110; and J. Quigley (1990) ‘The L egalit y of t he United States Invasion of Panama’, Yale Journal of International Law, 15, 287.
34. A. Randelzhofer (2002) ‘Article 51’ in B. Simma (ed.), The Charter of the United Nations: A Commentary, Vol I, 2nd edn (Oxford: Oxford University Press), pp. 798–799.
35. Ruys, supra note 25, 259–263; Ronzitti, supra note 25, 62–64; and J. Allain (2004) ‘The True Challenge to the United Nations System of the Use of Force: The Failures of Kosovo and Iraq and the Emergence of the African Union’, Max Planck Yearbook of United Nations Law, 8, 243.
39. T.J. Farer (1990) ‘Panama: Beyond the Charter Paradigm’, American Journal of International Law, 84, 505.
41. See supra note 11; and also A. Nuβberger (2009) ‘The War between Russia and Georgia – Consequences and Unresolved Questions’, Göttingen Journal of International Law, 1, 359–360; and A. Dworkin (2008) ‘The Georgian Conflict and International Law’, Crimes of War Project, online: http://www.crimesofwar.org/onnews/news-georgia.html.
47. M.J. Levitin (1986) ‘The Law of Force and the Force of Law: Grenada, the Falklands, and Humanitarian Intervention’, Harvard International Law Journal, 27, 650.
48. UN Doc. S/PV.2899, 31–37; and the letter dated 21 December 1989 from President Bush to Congress, extract in R. Wedgwood (1991) ‘The Use of Armed Force in International Affairs: Self-Defence and the Panama Invasion’, Columbia Journal of Transnational Law, 29, 609.
57. Farer, supra note 39, 505. In the quoted passage, Farer was specifically referencing the Grenada intervention of 1983, though it is notable that in the same article he takes the view that one can argue for the lawfulness of the protection of nationals abroad concept, but not the Panama intervention of 1989 (for the same reason). See also V.P. Nanda (1990) ‘The Validity of United States Intervention in Panama Under International Law’, 84 American Journal of International Law, 494, 496–497.
61. Some have argued that Georgia did withdraw its consent to the presence of the peacekeepers, based upon a number of resolutions of the Georgian Parliament (passed in 2005 and 2006), which called for the revocation of consent. See N.M. Shanahan Cutts (2007–2009) ‘Enemies through the Gates: Russian Violations of International Law in the Georgia/Abkhazia Conflict’, Case Western Reserve Journal of International Law, 40, 302–304; and C.P.M. Waters (2008) ‘Russia, Georgia and the Use of Force’, Jurist, Forum, online: http://jurist.law.pitt.edu/forumy/2008/08/russia-georgia-and-use-of-force.php. In contrast, others have taken the opposite view, based on the fact that the President of Georgia’s National Security Council stated in 2008 that the government itself had no intention of withdrawing consent. See Petro, supra note 1, 1529.
78. Slaughter, supra note 62; Waters, supra note 61; Evans, supra note 4; Dworkin, supra note 41; T.M. Franck (2008) ‘On Proportionality of Countermeasures in International Law’, American Journal of International Law, 102, 734; and Nuβberger, supra note 41, 362–363.
88. See C. Henderson and J.A. Green (2010) ‘The Jus ad Bellum and Entities Short of Statehood in the Report on the Conflict in Georgia’, International and Comparative Law Quarterly, 59, particularly at 131–134; and Dworkin, supra note 41.
95. C. King (2008) ‘The Five-Day War: Managing Moscow After the Georgia Crisis’, Foreign Affairs, 87, 7.
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© 2010 James A. Green
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Green, J.A. (2010). Passportisation, Peacekeepers and Proportionality: The Russian Claim of the Protection of Nationals Abroad in Self-Defence. In: Green, J.A., Waters, C.P.M. (eds) Conflict in the Caucasus. Euro-Asian Studies. Palgrave Macmillan, London. https://doi.org/10.1057/9780230292413_4
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