Legal Evaluation of the Actions of the Government of Georgia during the Events of August 2008

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We would like to note from the outset that our aim herein is not to produce a legal justification of Russia’s actions before and after August 2008. It is absolutely obvious for us that Russia was a conflicting party and an active supporter of the separatist governments within the ongoing conflicts in Abkhazia and the Tskhinvali Region whose actions before the August 2008 aggression can only be evaluated as “creeping annexation.” As for the military aggression, it is clear that Russia forcefully invaded Georgia and violated all norms of international law, occupied a part of its territory and later annexed both the former Soviet South Ossetian Autonomous Region and Abkhazia despite what the final estimate of Russia’s action may be; that is, if it is assessed (by the international community) as a non-provocative aggression or a disproportionate response to Georgia’s actions in the Tskhinvali Region. An analysis of the situation in these two regions and their present separatist governments shows that the fact of the actual annexation of these territories cannot be annulled by Russia’s declaration of independence of the Abkhazian and South Ossetian Republics which followed.

This legal assessment of the actions of the Georgian authorities during the August 2008 events is not directed at estimating their intentions nor judging the appropriateness of specific actions which were taken. Instead, our aim herein is to evaluate the actions of the Government of Georgia in terms of legality in order to estimate whether or not the specific decisions were legal and if the Government complied with constitutional obligations and observed the rules established by the law when taking their decisions.

We consider such an analysis extremely important given the fact that the interests of the Georgian state and its most significant part — its citizenry — have been greatly impaired as a result of the August events. We have lost more territories and the sovereignty of the state has been considerably restricted with a drastically reduced capability for the country to solve domestic and international problems independently. The rights to life, health, freedom, property and other fundamental rights have been massively violated which makes the war of August 2008 the greatest tragedy of modern Georgia. Given this reality, it is necessary to determine whether or not the actions of the Government of Georgia were expedient in terms of legality without which it will be impossible to establish the extent of its responsibility.

Analysed Legal Acts

In order to make a legal analysis of the August 2008 events, it is necessary to determine the constitutional and legal rights and duties that the supreme bodies and the high ranking officials had, on the one hand, and to what extent their actions and the legal acts issued by the Government in August- September of the current year matched the extant circumstances and their rights and duties, on the other hand. Legal acts provide the historical and judicial basis upon which it is possible to establish legal facts as well as assess the decisions of the Government.

Within this research, we had access to only published legal acts and, as such, it is not possible to comment assertively upon those unpublished or the verbal decrees. Indeed, there has been a great deal of talk about these verbal decrees, including those issued by unauthorised persons, with their fulfilment being the direct obligation of investigative bodies.

Based upon the context of the August events, we have analysed the Constitution of Georgia, the organic Laws On the National Security Council, On Martial Law, On the State of Emergency, On Defence of Georgia and On International Agreements of Georgia, the Statute of the General Staff of the Georgian Armed Forces (approved by the decree of the President of Georgia) and legal acts issued by the President of Georgia as the Supreme Commander-in-Chief, the Georgian Parliament, the Government and the Ministry of Defence within the period of 1 August to 10 September 2008 deemed the most critical period of the crisis.

The Right to Use Military Forces

In compliance with Article 98 of the Constitution of Georgia, a “defensive war shall be a sovereign right of Georgia” and it has the armed forces “for the defence of the independence, sovereignty and territorial integrity of the country, as well as for the honouring its international obligations.”

As in the given case we do not deal with the honouring of its international obligations, the use of armed forces was only admissible as a means of serving the defence of the independence, sovereignty and the territorial integrity of the country:

a) Either to wage a defensive war, for which it is necessary that the fact of invasion or its equal was extant,

b) Or under the state of emergency to “liquidate consequences of martial law, for maintenance of public order and for the safety of citizens” (the Law on the State of Emergency, Article 9).

The state of emergency had not been declared on any part of Georgia from 1 August to 3 September 2008. We should note, however, that the existing situation in Tskhinvali provided all the grounds for the declaration of the state of emergency in this period, as well as in the preceding one, according to the Constitution of Georgia (Article 73.1 h). The Article states: “The President of Georgia: … in the case of war or mass disorder, infringement upon the territorial integrity of the country … or in other cases, when state bodies are unable to normally exercise their Constitutional powers shall declare a state of emergency throughout the whole territory of the country or a certain part thereof and submit this decision to the Parliament for approval within 48 hours.”

The use of armed forces, therefore, was only possible for a defensive war. The right to defence emerges only under the existence of the fact of the infringement on the territory of the country or its equal.

Exercising the right to defence means that you do not admit and eradicate the intervention of the army of a foreign country into your own country, the occupation of the territory of your own country by the army of a foreign country.

The attack would be equal to such a state when the so-called peacekeeping troops of the Russian Federation dislocated in the conflict regions upon our consent would be deprived of the status of peacekeepers but they would not vacate the territory of Georgia in due period. In this case, their stay would signify “occupation” which is defined by the armed forces of one country being disposed upon the territory of another country without another’s permission and having part or the whole territory under their actual control. The presence of former peacekeepers without permission and the keeping of Georgia’s territory under their actual control would equal an armed attack on the country. Herein, the right to use armed forces to wage a defensive war would arise even more so as the Russian Federation brought in additional armed forces under the pretext of defending the peacekeepers or eliminating the possibility of their withdrawal.

Since the Government of Georgia did not terminate the agreements which allowed Russian peacekeepers to remain in the conflict regions until 28 August 2008, their stay therein and thereto cannot legally be considered as occupation and, consequently, cannot serve as the grounds for originating the right to defence.*

The Government of Georgia, therefore, had the right to use armed forces and carry out military operations only upon one occasion; that is, in the case of a military intervention of the Russian Federation in Georgia.

In order to answer the questions of whether or not the use of armed forces (military operations) by the Government of Georgia was legal and, consequently, if it conformed with the obligations set out by the Constitution and the law, it is essential to establish the exact time of the military intervention of the Russian Federation in Georgia.

Obligations of the Government of Georgia in the Event of Armed Attack on Georgia

In order to evaluate the actions of the Government of Georgia, it is necessary to investigate which obligations are imposed upon the Government by Georgian legislation and who is responsible for certain actions in the event of a military attack:

The President of Georgia shall: …declare martial law in the case of an armed attack on Georgia, make peace when appropriate conditions exist and submit the decisions to the Parliament for approval within 48 hours (The Constitution of Georgia, Article 73.1 g).

Martial law shall mean the proclamation of special rules throughout the whole territory of the country in case of an armed attack on Georgia in accordance with the defence interests of the country. Martial law shall be proclaimed pursuant to the Constitution of Georgia and present Law and shall set as its purpose the maintenance of the territorial integrity of the country, the protection of state security and the observance of public order (The Law of Georgia on Martial Law, Article 1).

“1. Martial law throughout the whole territory of Georgia shall be proclaimed by the President of Georgia.

2. The President of Georgia shall warn the population of the proclamation of martial law throughout the whole territory of the country via the mass media and present his decision to the Parliament of Georgia for approval within 48 hours after the proclamation…” (Article 2 of the abovementioned law).

“Motives for the proclamation of martial law and its term shall be specified in the decree of the President of Georgia upon the proclamation of martial law” (Article 3.1 of the same law).

1. After the proclamation of martial law, the functions of the executive agencies in the field of maintenance of the defence of the state, the observance of public order and the protection of state security throughout the whole territory of the country shall be transferred to the President as the Commander-in-Chief of the Military Forces of Georgia.

2. During the effective period of martial law, according to the certain circumstances, the supreme executive agencies of Georgia, within the limits of their competence and according to the requirements of law, may take the following measures: temporarily evacuate citizens from dangerous areas with an obligatory granting of permanent or temporary accommodation and; introduce a special regime for the entry of these citizens into and their exit from in the area in which martial law is proclaimed (Article 4 of the same law).

The President of Georgia shall: … give orders to the Military Forces of Georgia on conducting the war operations” (Law of Georgia on the Defence of Georgia,” Article 5.2 o).

The President of Georgia shall: … decide upon the proclamation of the mobilisation on the territory of Georgia” (Article 5.2.).

By the assignment of the President of Georgia, the National Security Council:

• With the aim of defending the country, in extraordinary cases and in conformity with the law in force, considers the matters of bringing, employing and moving armed forces of other states in the country.

• Drafts directives of the President of Georgia as the Supreme Commander-in-Chief of the Armed Forces to achieve the goals set by the armed forces.

Reviews the issues related to the declaration of the state of emergency or martial law by the President of Georgia (Organic Law of Georgia on the “National Security Council,” Article 2).

The National Security Council elaborates recommendations to facilitate decisions of the President of Georgia on the matters under review.

Upon the basis of recommendations elaborated by the National Security Council, the President of Georgia issues corresponding acts (Article 5 of the same law).

Analysis of the Actions of the Government of Georgia

I. The following can be concluded based upon the development of events described above:

• Before 9 August 2008, neither martial law nor a state of emergency had been proclaimed.

• The Russian Federation started the armed attack on Georgia on 8 August 2008.

• Martial law was proclaimed on 9 August 2008.

• Georgian military forces started their operations not later than 8 August 2008.

Based upon the above four facts and taking into account the circumstances under which it is possible to use armed forces, we should conclude that on the order of the Government of Georgia and, particularly, on the President’s order, starting military operations with the use of armed forces was a grave violation of the Constitution and legislation of Georgia. Moreover, martial law was declared not at the time of the attack (8 August) but only the day after on 9 August which is also in violation of the Constitution.

The functions and the purpose of the military forces of Georgia are not defined by the Constitution solely. Georgia has military forces for the defence of independence, sovereignty and territorial integrity of the country and for the fulfilment of international obligations. There does not exist any single reference regulation to other laws and no one, including the Supreme Commander-in-Chief, has the right to use them for other purposes. The use of military forces for any other purpose, therefore, is a gross violation of Article 98 of the Constitution and despite the consequences, it creates the legal grounds for the President’s impeachment.

An analysis of the actions of the Government of Georgia would be incomplete if we did not also investigate the attempts of high ranking officials to explain and justify the use of military forces on 7 and 8 August who have claimed the following: “We did not start the war. We launched the attack only after it became known that the Russians conducted a forced crossing through the Roki Tunnel in order to eliminate the assault.” If this were true, we should deal with the violation of the standing law in the Constitution (Article 73.1) which imperatively obliges the President of Georgia to declare a state of war in the event of the armed attack on Georgia with the decision having to be submitted to the Parliament for approval within 48 hours. This time period is only the term for the submission of the decision to the Parliament with the fact of the attack being divulged immediately and the state of war, proceeding from the anticipated threats, requiring immediate declaration. These articles of the Constitution, as well as the Laws “On Martial Law” and “On the Defence of Georgia,” define the obligations of the President of Georgia and other state bodies in the case of armed attack including the President’s obligation to:

• Declare martial law and warn the population throughout the whole territory of the country via the mass media about the declaration of martial law and submit this decision to the Parliament of Georgia for approval within 48 hours.

• Indicate the motive of adopting the decision after the declaration of martial law through a presidential decree; that is, provide justification for the declaration of martial law and state its effective period.

• Issue orders on “Conducting Military Operations by the Armed Forces.”

If the attack on Georgia started on 6 or 7 August indeed and not on 8 August, therefore, then why was martial law declared only two-to-three days later on 9 August? This question may have four presumptive answers: 1) the President of Georgia had no information about the attack, 2) he was not able to assess the situation adequately, 3) he concealed the fact of the attack from the population or 4) he did not consider a fulfilment of the requirements of the legislation as obligatory. In spite of which answer turns out to be the correct one, the extremely heavy consequences of the actions allow the right to raise the issue of bringing the President of Georgia as the Supreme Commander-in-Chief to a legal responsibility for the war.

As can be seen, irrespective of the time when the armed attack on Georgia took place — on 8 August or before 8 August — we are facing the facts of the violation of the Constitution and legislation by the President of Georgia which are followed by serious consequences which permit the right to bring the President under political (impeachment) responsibility.

In one instance we are dealing with the excessive use of official duties by the state authority (Criminal Code of Georgia, Article 333, the crime prescribed by Parts 2 and 3) which was expressed in the excessive use of military force when the fact of the armed attack on the country had not yet been established, martial law had not yet been declared and, consequently, the use of military forces was not rightful. As a result of the excessive use of official duties, the interests of the public and the state were seriously infringed.

In another instance, we are dealing with the inadequate fulfilment of Constitutional duties by the President of Georgia such as, in particular, the declaration of martial law two-to-three days later which violated Article 73, Sub-Paragraph G of Paragraph 1 according to which the President shall declare martial law (a declaration of martial law two-to-three days later cannot be considered a reasonable period which the Supreme Commander-in-Chief would need for analysing the fact or facts of an assault and making the right decision) and Paragraph 5 of Article 37 of the Constitution which stipulates that “individuals have the right to complete, objective and timely information on their working and living conditions” (by not providing objective information about the working and living conditions during these two-t-three days, many people’s rights were infringed which resulted in heavy consequences).

II. We should single out the issue of Upper Abkhazia (Kodori Gorge) as a separate point. It is a fact that the local population and representatives of the Government of Georgia were able to leave the Gorge without any resistance as soon as the territory was assaulted by the de facto authorities of Abkhazia and Russian Federation armed forces not having an opportunity to attempt to eliminate the aggression and defend Upper Abkhazia. As a result, one more part of our territory was lost and its population turned into refugees. This happened after the President of Georgia declared martial law and when he certainly had the legal right to use military forces to fulfil the Constitutional duties and defend this part of Georgia although he never did. By such nonfeasance, he violated Paragraph 2 of Article 69 of the Constitution of Georgia according to which the President of Georgia “guarantees the unity and integrity of the country.” In fact, the Government did not even attempt to explain the reason for such an action to the population. This reason has to be clarified indeed as the issue of bringing the Government and, in particular, the President of Georgia to political responsibility greatly depends upon it.

III. The fulfilment of the provisions in Articles 69 and 100 of the Constitution is also the subject of a separate discussion. According to Paragraph 2 of Article 69 of the Constitution, the President of Georgia “guarantees the unity and integrity of the country.” To fulfil this obligation, the Constitution prescribes an additional right to the President; namely, the President “for the purpose of state defence, in special cases, or cases envisaged by law,” shall take the decision “to permit the entrance in, use and movement of military forces of other countries on the territory of Georgia” which has to immediately be submitted to the Parliament for approval (Article 100.2).

Naturally, then, the questions arise: Under those circumstances when a state, which is much more powerful than ours, launched a military intervention, did the President of Georgia in fact use this right? Did he seek help? If so, which country did he address? If not, then what was the reason? If he really believed in whatever he was trying to persuade the public on 7, 8, and 9 August: “As once the heroic Finnish army did, we will also defeat the aggressors,” then he is responsible for an inadequate assessment of the capacity of military forces of Georgia which caused the defeat of Georgia. If he assessed the capacity of the military forces adequately, then why did he not ask another country for military aid? We cannot say what response he would receive, of course but not using this right (that is, asking for aid) equals an inadequate fulfilment of the responsibility prescribed by the Constitution which is to guarantee the unity and integrity of the country.

IV. Likewise, we need to discuss the cease-fire agreement (the so-called six-point agreement between Presidents Sarkozy, Medvedev and Saakashvili) of 12 August 2008 as a separate point in order to see how constitutional and legal this agreement is.

Due to the fact that the official text of this agreement is not available for us, it is impossible to make a comprehensive legal analysis of the document and come up with precise legal decisions thereto. With the absence of this information, however, it is impossible for us to answer the question of whether or not the sovereignty and state independence of Georgia was restricted by this cease-fire document. In the case that it was, such an action is considered a crime according to Part 2 of Article 309 of the Criminal Code of Georgia.

According to information known to the wider public, we can conclude that the aforementioned agreement is of a military character. In this case, it is obligatory that the Parliament of Georgia ratify the agreement according to Article 65. 2.b. According to Article 24. 2 of the Law on International Agreements of Georgia, however, “if Georgian legislation requires the fulfilment of any intrastate procedure before international agreement enters in force, then such agreement will come into force for Georgia only after the required procedure has been fulfilled.” In the given case “the required procedure” is the ratification of the agreement which, in fact, had not been done and so putting the agreement into operation without its ratification meant that the norms of the Constitution of Georgia and the Law On Treaties and Agreements of Georgia were violated.

V. In order to give a legal assessment of the actions of the Government of Georgia, it is important to clarify the role which the National Security Council played in the reviewed period and what recommendations it provided to the President of Georgia.

In accordance with Article 99 of the Constitution of Georgia, the National Security Council was created “with the view to organise the military construction and defence of the country.” According to the organic Law On the National Security Council, however, the Council elaborates recommendations upon whose basis the President of Georgia issues corresponding acts (Article 5); that is, all of the abovementioned acts issued by the President should be based upon the recommendations elaborated by the National Security Council. For this reason it is of utmost importance to clarify whether or not the six members of the Council-K. Lomaia, Secretary of the Council; L. Gurgenidze, Prime Minister; E. Tkeshelashvili, Minister of Foreign Affairs; D. Kezerashvili, Minister of Defence, V. Merabishvili, Minister of Internal Affairs and N. Gilauri, Minister of Finance — were competent enough to come up with proper recommendations for the President, especially as concerned the inadmissibility of certain actions. From the legal point of view, these are the persons who were obliged to give not only recommendations but to assess and estimate the main trends of anticipated internal and external threats in the existing situation in the sphere of the security of the state, consider the issues of combat and mobilisation of military forces, elaborate proposals for Georgia’s co-operation with collective security systems, consider the matters of bringing, employing and moving the armed forces of other states into the country in extraordinary cases with the aim of defending the country and consider the issue regarding the declaration of martial law or the state of emergency by the President (See Article 2 of the same law).

There are questions which naturally arise: How correctly were the external threats evaluated in the case of a potential use of armed forces for the aim of restoring territorial integrity and constitutional order? How correctly were the issues of the combat and mobilisation readiness of the Georgian military forces assessed if they had to confront those same forces from Russia? Was there any self-defence strategy elaborated for such a confrontation and intervention? Was Georgia a member of any of the collective security systems? Was there a preliminary agreement with any country on the provision of military aid in the event of an extraordinary situation? Taking into account the existing answers to these questions, were the members of the National Security Council responsible for giving a negative recommendation on the use of military forces with the aim of restoring territorial integrity and constitutional order? What were their recommendations about the anti-Constitutional and illegal decisions made by the President?

For the moment, a thorough study of the minutes of the National Security Council meetings may shed light on these unanswered questions as well as on the issues of competence and the decisions made by the members of the National Security Council. The fact is that apart from the President of Georgia as the Supreme Commander-in-Chief, the responsibility for the decisions and the lost battle lies directly upon these six persons.

Conclusions

Despite the fact that many questions still remain unanswered, the above analysis, which is based upon legal documents issued by Georgian authorities, allows us to make the following conclusions:

I. If the Russian Federation launched the armed attack on Georgia on 8 August 2008, the use of military forces on the President’s command on 7 August was a violation of Article 98 of the Constitution of Georgia and the Law on the Self-Defence of Georgia. Additionally, martial law was declared not at the moment of the attack (8 August) but on the second day (9 August) which is a violation of Sub-Paragraph g of Paragraph 1, Article 73 of the Constitution.

II. If the Russian Federation had launched the armed attack before 8 August 2008, then it is a case of the President of Georgia having violated the Constitutional norm which imperatively prescribes him to declare martial law in the event of an attack on Georgia (Article 73.1.g). Additionally, Article 37 of the Constitution will also be violated in this case; that is, the right of individuals to have complete, objective and timely information on their working and living conditions.

III. The President of Georgia, whose obligation is to guarantee the unity and integrity of the country [Article 69], did not exercise the Constitutional right to bring in and use armed forces of other states with the aim of defending the country (Article 100.2] and, therefore, is in violation of this Article.

IV. The Government of Georgia fulfilled the cease-fire agreement of 12 August 2008 (the so-called six-point agreement between Presidents Sarkozy, Medvedev and Saakashvili) without its ratification which is a violation of Article 65.2, b and Article 24.2 of the Law On International Treaties and Agreements of Georgia.

V. The abovementioned violations resulted in extremely heavy consequences and allow the right to bring the President of Georgia to political responsibility (impeachment). Additionally, his actions contain the elements of crime as is provided for by Parts 2 and 3 of Article 333 of the Criminal Code of Georgia; that is, exceeding the limits of official authority.

*We should note that by the Resolution of the Parliament of Georgia of 28 August 2008 (Resolution on the “Occupation of the Territory of Georgia by the Russian Federation” N 243-lm), Russian armed forces on the territory of Georgia, amongst them the so-called peacekeeping troops to be declared as occupational armed forces, and upon the Decree of the Government of Georgia of 28 August 2008 (Decree on “The Dislocation of Peacekeeping Forces of Russia on the Territory of Georgia,” Resolution N 3483-lm of the Parliament of Georgia of 28 July 2006 and about guaranteeing the implementation of the measures determined by Resolution N243-lm of the Parliament of Georgia) the “necessary procedures of prompt prevention of the operations by the so-called peacekeepers on the territory of Abkhazia and South Ossetia and the rapid withdrawal of the armed forces of the Russian Federation from the territory of Georgia” started. This means that before the end of the carrying out of the “necessary procedures,” the presence of the so-called peacekeeping forces in Georgia is considered legal. (This does not refer to the additional military forces brought in by Russia.)

Zakaria Kutsnashvili, Vakhtang Khmaladze,

\”Crisis in Georgia, 2008. Preconditions, Reality, Perspectives\”,

Independent Experts\’ Club

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