http://www.russiaotherpointsofview.com/2009/10/the-eu-report-little-and-late.html#more

Reprinted

JRL/2009/187/32

http://www.republicofsouthossetia.org/

http://www.therepublicofabkhazia.org/

http://www.abkhazworld.com/headlines/320-the-eu-report-little-and-late-by-patrick-armstrong.html

http://circassianworld.blogspot.com/2009/10/eu-report-little-and-late.html

The long-delayed Report of the Independent International Fact-Finding Mission on the Conflict in Georgia was finally issued on 30 September, 13 months after the war. It is to be found here: Vol I (Introductory); Vol II (Report); Vol III (Submitted material). In what follows quotations are from the BBC-supplied version (which is somewhat faster loading). Generally speaking, I regard it as rather little, rather late, naïve and incomplete. It is also excruciatingly delicate – even precious – in what it says and what it avoids saying. It concludes with a number of unexceptionable, but rather vague, recommendations.

It is incomplete because it, evidently seeing the conflict as one between Georgia and Russia as other commentators have, leaves the Ossetians out. While the authors feel it useful to give some historical background on Georgia, going back to the Treaty of Georgievsk in 1783, there is no equivalent discussion of the Ossetian (or Abkhazian) point of view. But, if asked, Ossetians would certainly speak of their unwillingness to be part of Georgia and refer to earlier Georgian attacks in 1920 and 1991. Their arguments for independent status (here is Abkhazia’s) should be heard out even if they are to be refuted. Tendentious perhaps but a significant factor in Ossetian (and Abkhazian) perceptions. The fact is that the Ossetians, rightly or wrongly, do not want to be part of Georgia, fought for their independence when the Russian Empire collapsed, were placed in the Georgian SSR by Stalin-Jughashvili, tried to be excluded from it when the USSR collapsed, fought another independence war and, very probably, stopped the Georgian attack before the Russian forces got there (some Tskhinvali combat footage at 7:50). To leave their point of view out of the Report is to be incomplete. Added to which, the discussion about their citizenship (the authors assert that they were Georgian citizens) is to altogether ignore their contention that, while they were certainly Soviet citizens in 1991, they never agreed to becoming Georgian citizens. Indeed the world recognised Georgia, in the borders that Stalin gave it, while the disputes in South Ossetia and Abkhazia were actually going on.

The Report is legalistic: “According to the overwhelmingly accepted uti possidetis principle, only former constituent republics such as Georgia but not territorial sub-units such as South Ossetia or Abkhazia are granted independence in case of dismemberment of a larger entity such as the former Soviet Union. Hence, South Ossetia did not have a right to secede from Georgia, and the same holds true for Abkhazia for much of the same reasons.” This may well be true from a narrow legal perspective but by dismissing the Ossetians’ wishes it hardly points to a solution of the problem. Nor should it mean that South Ossetia and Abkhazia should lose the status they had had under the Soviet system just because Tbilisi says they should. It is not Moscow’s fishing in Georgian waters, but Tbilisi’s refusal under Gamsakhurdia in the 1990s to entertain the possibility of South Ossetia and Abkhazia retaining the quasi-autonomy they had had in the Georgian SSR that is where and when this latest round in the conflict began. The world recognised Stalin’s Georgia without consideration of this problem (just as it did with Azerbaijan and Karabakh and Moldova and Transdnestr. And Russia and Chechnya). In retrospect, it would have been better had we all made recognition conditional on a civilised compromise (as, for example, Ukraine’s government negotiated with Crimea).

The Report is incomplete because it fails even to mention two important pieces of evidence. One from the former Georgian Defence Minister, Irakly Okruashvili: “But Okruashvili, a close Saakashvili ally who served as defence minister from 2004 to 2006, said he and the president worked together on military plans to invade South Ossetia and a second breakaway region on the Black Sea coast, Abkhazia.” The second, from Georgia’s former Ambassador to Russia in 2008 Erosi Kitsmarishvili who said in his November testimony in Tbilisi:

• first that an attack was considered in 2004 (“During that meeting, President Saakashvili asked the question whether to launch a military assault on Tskhinvali or not?… We were very close to taking a decision in favor of the operation, because Okruashvili, who was in favor of the military operation, was at that time very close associate to President Saakashvili”);
• second that there was a plan to attack Abkhazia earlier in the year that was put off (“The military operation should have been undertaken in direction of Abkhazia; military instructors from Israel were brought here in order to prepare that military operation; Kezerashvili also said at that meeting that the operation should have started in early May, or at least before the snow melted on the mountain passes; This decision was not materialized);
• and third that Saakashvili thought that he had Washington’s approval for the attack on South Ossetia (“In the second half of April, 2008, I have learnt from the President’s inner circle that they have received a green light from the western partner to carry out a military operation; When asked to specify “the western partner” Kitsmarishvili said: after a meeting with the U.S. President George W. Bush [the meeting between Bush and Saakashvili took place in Washington on March 19], our leadership was saying that they had the U.S. support to carry out the military operation; In order to double-check this information, I have met with John Tefft, the U.S. ambassador in Tbilisi and asked him whether it was true or not; he categorically denied that;”).

Thus, these two men, close to Saakashvili and to decision-making in Tbilisi, attest there was always a war plan and that there had been several close calls. This is a very important part of the background to the August war: one can assume that Moscow and Tskhinvali had knowledge of this. To leave testimony from such sources out of the Report altogether is to seriously distort the discussion of the immediate background.

The Report is naïve in its discussion of the ceasefire. In one part the authors say “On 10 August, the Georgian Government declared a unilateral ceasefire and its intention to withdraw Georgian forces from South Ossetia. This ceasefire, however, was not followed by the opposite side”. Why would Moscow believe Saakashvili? He preceded the attack on Tskhinvali with a ceasefire declaration. It is naïve of the authors to expect Moscow – or anyone – to trust Saakashvili’s declarations after that. But at another place they write: “After five days of fighting, a ceasefire agreement was negotiated on 12 August 2008 between Russian President Dmitry Medvedev, Georgian President Mikheil Saakashvili and French President Nicolas Sarkozy”. But did Saakashvili sign it? A French Report says that he did but another report suggests that he only signed on the 15th. There was also some confusion over just what he signed. Then the Report refers to an implementation agreement on 8 September. The Report charges “However, the Russian and South Ossetian forces reportedly continued their advances for some days after the August ceasefire was declared”. My question is which “August ceasefire?” the 10th, the 12th or the 15th? At one point the authors write “Furthermore, all South Ossetian military actions directed against Georgian armed forces after the ceasefire agreement of 12 August 2008 had come into effect were illegal as well.” Ah, but when did it “come into effect”? It is naïve to think that there is any such thing as a unilateral ceasefire and it is naïve to expect forces in contact to stop shooting immediately.

The Report is incomplete in its charge that “Russian armed forces, covered by air strikes and by elements of its Black Sea fleet, penetrated deep into Georgia” going “far beyond the reasonable limits of defence”. Georgia is not a very large country, to be sure, and “deep” there does not mean the same distance as it would in a larger country. But of the list of towns mentioned in the Report – Gori, Zugdidi, Senaki and Poti – Senaki, at about 40 kilometres from the Abkhazian border, is the deepest. I would not have used the word “deep” here, but that is a matter of opinion. What is more important, showing both naïvety and incompleteness, is that no reason for the Russian “penetration” is entertained. But the fleeing Georgian forces, still in contact, with no mutually agreed ceasefire, abandoned significant amounts of weapons, armoured vehicles, ammunition and fuel in the army bases at Senaki and Gori (at least a battle group’s worth in the latter). In the case of Gori, certainly and probably also Senaki, all local authorities, from the mayor to the police, had fled with the retreating army. Should Russian forces have just left these weapons unguarded? One can imagine what the authors of the Report would have said had the Russian commanders shrugged their shoulders and left these tanks, APCs and artillery pieces, fuelled and armed, to the first group of Ossetians or Abkhazians bent on revenge. Poti was a naval base for warships that had fired at Russian ships and Zugdidi is on the way to Senaki. War has its logic and part of that logic is that forces, once set in motion, seek out the enemy and destroy his resources. Until there is a ceasefire, and as we have seen, the authors of the Report fudge the issue of just when there was a mutual ceasefire, that military logic holds. Therefore this charge is weak, naïve and, its use of “deep” is rather questionable.

The Report several times charges the Russian forces with “massive and extended military action ranging from the bombing of the upper Kodori Valley to the deployment of armoured units to reach extensive parts of Georgia, to the setting up of military positions in and nearby major Georgian towns as well as to control major highways, and to the deployment of navy units on the Black Sea.” More naïvety: just because an artillery piece, or air base firing on Russian forces is not actually located in South Ossetia does not give it immunity. Russian forces attacked Georgian air assets until they stopped action; it attacked artillery units until they stopped action. It occupied key positions until there was a solid ceasefire and then it left them. That is war and, it is to be recalled, Saakashvili chose war. At least the Report avoids the fatuous expression “disproportionate”. The Russian reaction was in fact quite “proportionate”. If one wishes to see what a “disproportionate” use of force would be, one may consider the case of Novy Sad which was bombed many times by NATO aircraft in 1999: every single bridge over the Danube was destroyed, the oil refinery was destroyed, the TV station was destroyed and its water and electrical supplies were knocked out. Novy Sad is over 200 kilometres from Kosovo. Nothing like that happened to Georgia.

Many refugees were created (“far more than 100 000 civilians who fled their homes. Around 35 000 still have not been able to return to their homes”). And, given the way the war turned out, most of them are Georgians who have left (or been pushed out) from South Ossetia and Abkhazia. The Report spends much time discussing them, and rightly. But it fails to take into consideration what would have happened had the outcome been different. Which is naïve. There is some reason to suspect that the Georgian aim, by bombarding the population of Tskhinvali just after Saakashvili had secured surprise by saying “I have been proposing and I am proposing Russia act as a guarantor of South Ossetian autonomy within Georgia”, was to force as many Ossetians to flee north as possible. The Report ought to at least entertain the alternative possibility. But, throughout, it refuses to speculate on Tbilisi’s intentions. Which is remarkable given that the authors accept that Tbilisi fired first. What was Tbilisi trying to do? The authors are quite incurious.

On the other hand, the authors are clear that Tbilisi fired first and that its action was unjustifiable: “There is the question of whether the use of force by Georgia in South Ossetia, beginning with the shelling of Tskhinvali during the night of 7/8 August 2008, was justifiable under international law. It was not…. It is not possible to accept that the shelling of Tskhinvali during much of the night with GRAD multiple rocket launchers (MRLS) and heavy artillery would satisfy the requirements of having been necessary and proportionate in order to defend those villages.” The authors of the Report judge the action, but they do not understand it because they fail to ask the key question: “What war did Saakashvili think he was starting?” Certainly not the war he got. This failure is probably the most naïve and unreflective part of the Report. The authors treat the events of August and September 2008 as if they were disconnected: Russia is justified to do this but not that; Georgia that but not this (“In a matter of a very few days, the pattern of legitimate and illegitimate military action had thus turned around between the two main actors Georgia and Russia”). When Saakashvili ordered the opening of fire, he took an irrevocable step and transformed a long crisis into something else. The Ossetians fought back, the Russians intervened, the Georgians collapsed and fled leaving their weapons and the population they were supposed to defend behind, a period of confusion ensued in Tbilisi and elsewhere, revenge for the devastation of Tskhinvali was taken, soldiers secured themselves against danger, eventually an agreed settlement appeared and it stopped. It is a continuous flow of actions and reactions; it cannot be packaged into discrete segments and judged independently. The weakness of the legalistic approach taken by the authors of the Report is precisely this lack of context and understanding of the connectedness of events. Especially as concerning wars which are easy to start but difficult to finish. The authors seem to assume that everyone had perfect knowledge and perfect control.

But at least the Report got who started the war right and most of the headlines have concentrated on that point. It is amusing to see Tbilisi’s apologists now pretending that the bombardment didn’t really matter: “Tagliavini’s Report does state that Georgia started the war. That should not be confused with the question of responsibility. Indeed, the Report acknowledges that firing the first shot does not necessarily mean bearing responsibility for the conflict”. This is to burke the essence of what happened: Saakashvili claimed that Ossetians were Georgian citizens, and after professing his “love” for them – indeed the timing means that he must have already given the preparatory orders – ordered what the Report calls “a sustained Georgian artillery attack” on the town of Tskhinvali. Curious indeed to pretend that this action, from which there could be no turning back, is not “responsibility”.

The Report is dismissive of Moscow’s claimed justifications for action. To prevent “genocide”: well, it’s true that there were no mass deaths in Tskhinvali but the Report does not take into consideration the excited reports of casualties at the time, the thousands of refugees fleeing north or what might have happened had Tbilisi won. This is consistent with its inexplicable lack of curiosity over what Tbilisi’s plans and intentions were. It spurns Moscow’s rationale of protecting Russian citizens by decreeing that the South Ossetians were not Russian citizens at all, dismissing the issue of whether, in the conditions of the collapse of the USSR and the skirmishing already happening there (and in Abkhazia), it is really correct to say that they were Georgian citizens, given that to have accepted Georgian passports would have been to concede their whole argument and desire. It dismisses the “humanitarian intervention” justification in what seems to me to be a rather confused paragraph, (“Could the use of force by Russia then possibly be justified as a “humanitarian intervention”, in order to protect South Ossetian civilians? To begin with, it is a highly controversial issue among legal experts whether there is any justification or not for humanitarian intervention. It might be assumed, however, that humanitarian intervention to prevent human rights violations abroad is allowed only under very limited circumstances, if at all. Among major powers, Russia in particular has consistently and persistently objected to any justification of the NATO Kosovo intervention as a humanitarian intervention. It can therefore not rely on this putative title to justify its own intervention on Georgian territory. And as a directly neighbouring state, Russia has important political and other interests of its own in South Ossetia and the region. In such a constellation, a humanitarian intervention is not recognised at all”.)

But, to be sure, there was plenty of hypocrisy on Moscow’s side. In August 2008 Moscow posed as a humanitarian hero – a quality in short supply in the Chechen wars, especially the first – and a defender of self-determination, ditto. But NATO’s position (and the EU’s) was equally hypocritical: they took their stance on the principle of territorial integrity – something that apparently didn’t apply in Kosovo – and Russia’s supposedly “disproportionate” response, despite their actions in Kosovo. Moscow’s real concern, in my opinion, was the fear that Georgia’s war with South Ossetia and Abkhazia would, as it did in the 1990s, attract fighters from the North Caucasus and spread back into Russia. But, it is certain, Moscow cannot be unhappy with Saakashvili’s discomfiture and the likely end of Georgia’s entry into NATO.

Saakashvili’s story changed several times. Initially, in his “victory speech” on the 8th when he believed Georgian forces controlled “most of South Ossetia”, he made no reference to Russian forces entering South Ossetia before the Georgian attack. It was later, on the 23rd when he had a catastrophic defeat to explain away, that his story became “Russia then started its land invasion in the early hours of Aug. 7”. (No matter how preposterous the idea was that, having giving the Russian forces an 18-hour head start on a 55 kilometre road race, he would order the attack anyway). It is evident that the later charge was false – had he had evidence that the Russians had invaded, he would certainly have mentioned it on the 8th. The Report is coy in its assessment of this obvious falsehood: “The Mission is not in a position to consider as sufficiently substantiated the Georgian claim concerning a large-scale Russian military incursion into South Ossetia before 8 August 2008.” Not “sufficiently substantiated” – does that mean it’s not true? Tergiversations like this justify the adjective “little”.

As to Abkhazia; of course it seized its chance to clear Georgian forces out of the last corner of the former Abkhazian ASSR – and Tbilisi should count itself fortunate that Svanetia, Javakhetia and Ajaria did not: perhaps they would have had the war lasted longer. But, as Kitsmarishvili’s testimony shows, Abkhazia had reason to fear it would be next on the list.

This sentence caught my eye: “The military aid [from Washington to Tbilisi] was at first designed to assist Georgia in regaining full control over the Pankisi Valley in the Caucasus where Chechen fighters had allegedly sought refuge, as Russia had claimed.” “Allegedly” “as Russia claimed”? More tergiversation: was Russia correct in so claiming? A very confused sentence altogether. In fact, Moscow was correct in so claiming, as Georgian officials finally admitted in 2003 and the earlier denials by the Georgian government helped to form Moscow’s opinions about Tbilisi’s veracity and reliability.

This Report is late because all of its conclusions, thirteen months afterwards, were knowable at the time. There is nothing in the Report from Tbilisi’s starting the shooting, to the falseness of Saakashvili’s claims, to the hypocrisy of Russia’s stated war aims that I (and many others) did not see.

Thus the Report is little, late, naïve and incomplete.

And finally, I don’t pretend to any kind of knowledge of international law but, according to Wikipedia, uti possidetis is defined as “a principle in international law that territory and other property remains with its possessor at the end of a conflict, unless provided for by treaty. Originating in Roman law, this principle enables a belligerent party to claim territory that it has acquired by war. The term has historically been used to legally formalize territorial conquests, such as the annexation of Alsace-Lorraine by the German Empire in 1871”. Does that mean that South Ossetia and Abkhazia were independent in 2008 by virtue of having won their independence wars against Georgia in the early 1990s? The Report is clearly referring to this meaning of the term, but one can ask. Certainly the so-called international community has to come up with a better answer to long-held grievances than the mantra of “territorial integrity”. Especially when the territory in question was designed by someone like Stalin.