INTERNATIONAL COURT OF JUSTICE
APPLICATION OF THE INTERNATIONAL CONVENTION ON THE
ELIMINATION OF ALL FORMS OF RACIAL DISCRIMINATION
GEORGIA
v.
RUSSIAN FEDERATION
MEMORIAL OF GEORGIA
VOLUME I
2 SEPTEMBER 2009VOLUME I TABLE OF CONTENTS
Page
PARTA.I NTRODUCTION ..........................................................................................1
CHAPTER I.NTRODUCTION ......................................................................................3
Section I. Introduction and Overview of the Case.......................................5
Section II. Structure of the Memorial........................................................10
CHAPTER II. EOGRAPHICAL , HISTORICAL ANDL EGAL BACKGROUND ..................17
Section I. The Geographical and Historical Context.................................19
A. Geography..........................................................................19
B. History................................................................................21
1.Toherat........................................................21
2. Moscow’s Support for Ethnic Separatists..............22
3. Georgia’s Resumption of Independence and
National Boundaries...............................................26
Section II. The 1965 Convention...............................................................28
PART B.D ISCRIMINATION BY W AY OFE THNIC CLEANSING AGAINST
G EORGIANS INSOUTH OSSETIA................................................................37
CHAPTER III. IRECTPARTICIPATION BY RUSSIA INETHNIC C LEANSING...............39
Section I. Russia’s Ethnic Cleansing of Georgians ...................................42
A. Russia’s Incitement of Ethnic Hatred................................42
B. Overview of the Ethnic Cleansing.....................................46
C. Russia’s Role in the Ethnic Cleansing...............................54
1. Russia’s Direct Participation..................................54 2. Russia’s Failure to Stop Violent Discrimination
by Separatist Forces...............................................66
Section II. Representative Villages............................................................71
A. Ku Mranicipality.............................................................71
1. Zemo Achabeti and Kvemo Achabeti....................73
2. Kekhvi....................................................................84
3. Othilages........................................................93
B. EreMdvuinicipality...........................................................94
1. Eredvi.....................................................................94
2. Othilages......................................................101
C. TigMvanicipality...........................................................105
1. Avnevi..................................................................105
2. Nuli ......................................................................110
D. The Russian-Occupied “Buffer Zone”.............................112
Section III. Hostage-Taking and Deportations........................................117
A. Detention of Ethnic Georgians.........................................118
B. Deportations.....................................................................126
C HAPTER IV. R USSIA’S RESPONSIBILITY FOR A CTS OFD ISCRIMINATION
COMMITTED BY SOUTH O SSETIAN F ORCES ............................................129
Section I. Ethnic Cleansing, 1991-1992 ..................................................133
Section II. Russia’s Domination of South Ossetia...................................139
Section III. Russia’s Command and Control of South Ossetian
Military Forces, 2008............................................................155
A. Russian Officers in the South Ossetian Administration ..156
ii 1. South Ossetia’s Russian Minister of Defence
and Emergency Situations....................................156
2. South Ossetia’s Russian Secretary of the
Security Council...................................................158
3. South Ossetia’s Russian Minister of Internal
Affairs..................................................................159
4. South Ossetia’s Russian Chairman of the
Committee of State Security................................160
5. South Ossetia’s Russian Commander of the
State Border Guard ..............................................160
6. South Ossetia’s Russian Chairman of State
Control and Economical Security........................161
B. RussIn’egraifn Russian “Volunteers” into
South Ossetian Military Units..........................................162
PARTC.D ISCRIMINATION THROUGH THE FRUSTRATION OF R IGHT OFR ETURN
FOR ETHNIC G EORGIAN IDPS .................................................................169
CHAPTER V. RUSSIA’SD ENIAL OF THERIGHT OFR ETURN TO E THNIC
G EORGIANS FROM SOUTH OSSETIA ........................................................171
Section I. IDPs from the Ethnic Cleansing, 1991-1992..........................174
Section II. IDPs from the Ethnic Cleansing, 2008...................................178
Section III. The Ongoing Prevention of Return to South Ossetia...........181
CHAPTER VI.R USSIAS DENIAL OF THER IGHT OFR ETURN TO E THNIC
G EORGIANS FROM A BKHAZIA .................................................................191
Section I. The Ethnic Cleansing of Abkhazia, 1992-1994.......................194
Section II. Renewed Ethnic Cleansing in Gali, 1998...............................208
Section III. Ethnic Georgians Not Permitted to Return to Abkhazia.......218
A. Forcibly Displaced Ethnic Georgian IDPs.......................218
iii B. AbkhaziaffPiallicy of Preventing the Return of
Ethnic Georgian IDPs......................................................222
C. Russia’s Responsibility for Preventing the Return of
Ethnic Georgian IDPs......................................................225
Section IV. Russia’s Refusal to Allow Ethnic Georgians Displaced in
2008 to Return ......................................................................238
PARTD.D ISCRIMINATION AFTER THEP ROVISIONAL MEASURES ORDER ............245
CHAPTER VII. USSIA’SO NGOING DISCRIMINATION AGAINST ETHNIC
GEORGIANS F OLLOWING T HEISSUANCE OF THE COURT S ORDER ON
PROVISIONAL M EASURES .......................................................................247
Section I. Russia’s Continuing Control in South Ossetia and Abkhazia.250
Section II. Ongoing Discrimination against Ethnic Georgians in South
Ossetia...................................................................................257
Section III. Ongoing Discrimination against Ethnic Georgians in
Abkhazia...............................................................................265
Section IV. Ongoing Prevention of the Return of Displaced Ethnic
Georgians to South Ossetia and Abkhazia............................274
A. The Prevention of Return to South Ossetia......................276
B. The Prevention of Return to Abkhazia............................280
Section V. Ongoing Obstruction of Access to Humanitarian
Assistance and International Monitoring..............................283
PART E.L AW.......................................................................................................289
CHAPTER VIII.URISDICTION AND PROCEDURAL REQUIREMENTS .......................291
Section I. Jurisdiction...............................................................................293
A. The Title of Jurisdiction...................................................293
B. Jurisdiction Over the Parties............................................294
C. Jurisdiction Over the Subject Matter of the Dispute........294
iv D. The Spatial Scope of Russia’s Obligations Under
CERD...............................................................................296
1. Introduction..........................................................296
2. The Practice of the CERD Committee.................299
3. Conclusion...........................................................302
Section II. Procedural Requirements for the Submission of the Dispute
to the Court...........................................................................303
A. The Test for Compliance with Procedural
Requirements...................................................................303
B. Evidence of Negotiations in Respect of the Present Dispute.306
1. Chronology of Bilateral Negotiations..................307
2. The Joint Control Commission for the
Georgian-Ossetian Conflict Settlement ...............315
3. The United Nations Geneva Process and the
Group of Friends of Georgia................................319
4. The Organisation for Security and Cooperation
in Europe..............................................................323
5. Commonwealth of Independent States................326
Section III. Conclusions...........................................................................328
C HAPTER IX. R USSIA’S R ESPONSIBILITY FOR V IOLATIONS OF THE 1965
C ONVENTION ..........................................................................................329
Section I. Introduction to the 1965 Convention.......................................331
Section II. The Definition of Racial Discrimination in Article 1 of the
1965 Convention...................................................................336
Section III. Russia’s Breach of Article 2(1)(A) and Article 5 of the
1965 Convention...................................................................342
A. The Legal Test for Breach of Article 2(1)(a) and
Article 5 of the 1965 Convention and Attribution...........342
v B. The de facto Authorities and Militias in South Ossetia
and Abkhazia are de facto Organs of Russia...................349
1. The Conduct of the De Facto Authorities and
Militias as Conduct Directed or Controlled by
Russia...................................................................359
C. The Evidence Supporting the Breach and Attribution.....362
Section IV. Russia’s Breach of Article 2(1)(b) of the 1965 Convention.367
A. The Legal Test for Breach of Article 2(1)(b) of the
1965 Convention and Attribution....................................367
B. The Evidence Supporting the Breach and Attribution.....370
Section V. Russia’s Breach of Article 2(1)(d) and Article 3 of the
1965 Convention...................................................................372
A. The Test for Breach of Article 2(1)(d) and Article 3 of
the 1965 Convention and Attribution ..............................372
B. Evidence Supporting the Breach and Attribution............380
C HAPTER X. R USSIA’SR ESPONSIBILITY FOR FAILURE TO C OMPLY WITH THE
C OURT ’SO RDER ON PROVISIONAL M EASURES ......................................385
Section I. The Court’s Provisional Measures Order Creates Binding
Obligations............................................................................387
Section II. The Evidence Supporting the Breach of the Court’s Order...388
C HAPTER XI.R EMEDIES .......................................................................................393
Section I. Introduction .............................................................................395
Section II. Applicable Law......................................................................395
Section III. Declaration of the Court........................................................396
Section IV. Duty of Cessation and Non-Repetition.................................397
Section V. Duty to Make Full Reparation ...............................................400
A. RestitKtnd...........................................................401
vi B. Compensation ..................................................................402
PARTF.S UBMISSIONS .........................................................................................405
SUBMISSIONS ........................................................................................................407
LIST OFA NNEXES .................................................................................................411
LIST OFF IGURES AND PHOTOGRAPHS ...................................................................449
vii PART A.
INTRODUCTION CHAPTER I.
INTRODUCTION Section I. Introduction and Overview of the Case
1.1 On 12 August 2008, Georgia instituted proceedings against the Russian
Federation for its actions on the territory of Georgia in violation of the 1965
International Convention on the Elim ination of All Forms of Racial
Discrimination (“CERD” or “1965 Convention”). Georgia’s Application is
based on Article 22 of the 1965 Convention and “seeks to ensure that the
individual rights under CERD of all persons on the territory of Georgia are fully
1
respected and protected” .
1.2 By Order dated 2 December 2008, th e Court fixed 2 September 2009 as
the date for submission of Georgia’s Memorial. This Memorial and
accompanying annexes are submitted in accordance with that Order.
1.3 Since long before August 2008, the Russian Federation has exercised
effective control over Georgia’s sovere ign territory in Tskhinvali Region/South
2
Ossetia and Abkhazia through the presence of its military forces and by its
control over the de facto authorities that it has es tablished and supported to
administer those regions. During the entire period of Russia’s control over these
regions, and continuing to the date of submission of this Memorial, ethnic
Georgians in both regions have endured, and continue to endure, widespread and
violent forms of ethnic discrimination by and attributable to Russia. As a result
of Russia’s discriminatory conduct, mo re than 200,000 ethnic Georgians have
been forcibly and permanently displaced from their homes in Abkhazia in 1992-
1
Application of the International Convention on the Elimination of All Forms of Racial
Discrimination (Georgia v. Russian Federation), Application Instituting Proceedings (12 August
2008), para. 1.
2
For convenience, this area will be referred to as “South Ossetia” in the Memorial.
51994 and again in 2008. Over 30,000 more et hnic Georgians have been forcibly
displaced from their places of residence in South Ossetia in 1991-1992 and again
in 2008. These ethnic Georgian internally displaced persons (“IDPs”) have been
prevented from returning to their homes, in furtherance of creating ethnically
“pure” entities in those regions.
1.4 Russia’s conduct constitutes ethnic cl eansing on a massive scale. Those
few ethnic Georgians who remain in Sout h Ossetia and Abkhazia continue to be
subject to discrimination in violation of the 1965 Convention, including killings,
beatings, looting and destruction of ho mes and other property, and denial of
fundamental rights of citizenship. These acts occur as part of a publicly-declared
effort and policy to force them out of these territories or relinquish their
Georgian nationality and citizenship.
1.5 In view of these circumstances, Georgia initiated this case before the
Court to ensure that Russia complie s with its obliga tions under the 1965
Convention to protect the right of a ll persons living in South Ossetia and
Abkhazia, including ethnic Georgians, to be free from unlawful discrimination.
Georgia also seeks to ensure that all internally displaced ethnic Georgians who
have been forced from their villages and homes in these territories are able to
return to them expeditious ly under conditio ns of security and dignity, in
accordance with the requirements of the 1965 Convention.
1.6 The dispute between the Parties that Georgia has submitted to the Court
is strictly limited to factual and legal issues relating to the application and
interpretation of the 1965 Convention. It raises fundamental issues concerning
obligations to which the international co mmunity has attached great importance;
namely, the obligation not to engage in, sponsor or support racial discrimination
6of any kind. The case requires the Court to examine and establish the facts in
relation to discriminatory acts committed by Russia, and to determine the extent
to which its legal obligations under the 1965 Convention have been violated.
1.7 Before turning to the contents of this Memorial in more detail, four
preliminary points are in order.
1.8 First, it is necessary to underscore what this case is not about. As noted
above, the case is concerned exclusively with discriminatory acts that constitute
violations of the 1965 Convention. A lthough the case was initiated in the
context of Russia’s unlawful use of fo rce against Georgia in August 2008, and
Russia’s widespread violations of inte rnational humanitarian and human rights
law, Georgia does not ask the Court to make any findings in relation to those
issues. This case is concerned exclusiv ely with Russia’s obligations under the
1965 Convention, and in particular its obligations under:
Article 2(1)(a) “to engage in no act or practic e of racial
discrimination against persons, groups of persons or institutions and
to ensure that all public authorities and public institutions, national
and local, shall act in conformity with this obligation”;
Article 2(1)(b) “not to spons or, defend or support racial
discrimination by any persons or organizations”;
Article 2(1)(d) to “prohibit and br ing to an end, by all appropriate
means… racial discrimina tion by any persons, group or
organization”;
Article 3 to “prevent, prohibit and eradicate [racial segregation] in
territories under their jurisdiction”; and
Article 5 “to prohibit and to eliminate racial discrimination in all its
forms and to guarantee the right of everyone, without distinction as to
race, colour, or national or ethnic origin, to equality before the law”.
71.9 Second, with respect to factual parts of this Memorial, Georgia has been
guided by the Court’s jurisprudence on the relative weight and effect of
evidentiary sources, in particular as it applies to situations such as those
pertaining to Georgia. In the Case Concerning Armed Activities on the Territory
of the Congo (Democratic Repub lic of the Congo v. Uganda) , the Court stated
that it “will first make its own determ ination of the facts and then apply the
relevant rules of international law to the facts which it has found to have
existed” 3. The findings of fact necessarily en tail an assessment of the evidence,
and as the Court has indicated, it has “ not only the task of deciding which of
those materials must be considered relevant, but also the duty to determine which
4
of them have probative value with regard to the alleged facts” .
1.10 Having regard to the Court’s approach, this Memorial relies on evidence
drawn from a wide range of sources. It seeks to draw heavily from reports
prepared by independent sources, includi ng sources associated with the United
Nations and other internati onal organisations of the hi ghest repute, such as the
Council of Europe and the Organisation fo r Security and Cooperation in Europe
(“OSCE”). It also draws on eyewitn ess reports by neutral non-governmental
organisations specialized in the pr otection of human rights and conflict
resolution, including Human Rights Wa tch, Amnesty International and the
International Crisis Group. Georgia al so relies on official Russian, Abkhaz and
South Ossetian sources that provide “evidence acknowledging facts or conduct
unfavourable” to Russia . In addition, it relies on first-hand accounts from
3Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda),
Judgment, Merits, I.C.J. Reports 2005, p. 34, para. 57.
4Ibid., p. 34, para. 58.
5
Ibid., p. 35, para. 61.
8persons with direct experience of viol ent discrimination, including numerous
statements from forcibly displaced persons. The cumulative weight of these
highly credible sources es tablishes a long-standing, c onsistent, coherent and
mutually reinforcing body of material that leaves no d oubt as to Russia’s
responsibility for widespread discrimination against ethnic Georgians.
1.11 A third preliminary point concerns the ge ographic scope of the dispute.
The acts for which Russia is responsible ha ve occurred on portions of Georgia’s
territory over which Russia has exercised effective control since the early 1990s.
Its obligations under the 1965 Convention are therefore applicable. This is fully
consistent with the appro ach taken by the Court in Democratic Republic of the
Congo v. Uganda in which the Court stated:
The Court, having concluded th at Uganda was an occupying
Power in Ituri at the relevant time, finds that Uganda’s
responsibility is engaged both fo r any acts of its military that
violated its international obligations and for any lack of vigilance
in preventing violations of hu man rights and international
humanitarian law by other actors present in the occupied territory,
including rebel groups acting on their own account .
1.12 In the Court’s Advisory Opinion in Legal Consequences of the
Construction of a Wall in the Occupied Palestinian Territory, the Court similarly
held that international human rights instruments governed Israel’s conduct in the
Occupied Palestinian Territories by virtue of its exercise of effective jurisdiction
7
in those territories . These issues are addressed in Chapter 8.
6
Ibid., p. 60, para. 179.
7
Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory,
Advisory Opinion, I.C.J. Reports 2004, p. 193, para. 136.
91.13 The fourth and final preliminary point concerns the temporal aspect of
Georgia’s claims. As set forth in this Memorial, Russia’s participation and
support for ethnic cleansing and other discri minatory acts in South Ossetia and
Abkhazia extends back to the early 1990s . Nonetheless, Ge orgia is seeking
relief from the Court only with respect to acts occurring after -- or with
continuing effect from -- the date when Georgia itself became a State party to the
1965 Convention, 2 June 1999. The evidence demonstrates that in the decade
between 1999 and the submission of this Memorial, ethnic Georgians have been
subjected to flagrant and large-scale di scriminatory acts in both South Ossetia
and Abkhazia for which Russia bears respons ibility. This includes the plight of
over 200,000 persons who were forcibly displaced prior to 1999 in regard to
whom Russia’s persistent denial of the right of return constitutes a continuing
violation of the 1965 Convention to this day.
Section II. Structure of the Memorial
1.14 This Memorial consists of 11 Chapters presen ted in five Parts, followed
by Georgia’s Submissions. Part A , which consists of Chapters 1 and 2,
presents introductory material, incl uding the factual and legal framework
necessary to a full understanding of this dispute.
1.15 Chapter 2 of Part A follows immediately after this Introduction and
presents the Court with material essential for putting this case in proper historical
and legal perspective. Section I desc ribes the emergence of the independent
State of Georgia, from its 1918 decl aration of independence through the
establishment of Soviet rule and the reacquisition of its sovereignty in 1991.
This Chapter also sets forth the legal status of both South Ossetia and Abkhazia
as an integral part of Georgia’s terr itory, from the Soviet Constitution through
10Georgia’s independence and admission to the United Nations the following year.
Section II provides a brief overvie w of the 1965 Convention, including its
history and main provisions, and demons trates that the current dispute is
squarely and exclusively related to the interpretation and application of the 1965
Convention.
1.16 Chapter 3 introduces Part B and describes Russia’s direct participation
in the ethnic cleansing of South Ossetia that began in August 2008. As Georgia
establishes in that Chapter, neither the ethnic cleansing of Georgians nor
Russia’s participation therei n can seriously be dispute d. The facts have been
exhaustively reported by numerous impa rtial observers from the United Nations
and other international organisations, including the OSCE, as well as the world’s
most reputable human rights organisa tions. The evidence overwhelmingly
establishes that Russian military forces participated directly in violent acts of
discrimination against ethnic Georgians, including killings, beatings, destruction
of homes and property, arbitrary detent ions and forced expulsion from South
Ossetia to other parts of Georgia.
1.17 Chapter 3 also demonstrates that the 2008 ethnic cleansing of South
Ossetia is juridically distinct from and cannot be conflated with the brief armed
conflict between the Russian Federation and Georgia, which had already ended
by the time the policy of ethnic cleansing proceeded in earnest. Hostilities
between the two States in South Os setia ended on 10 August 2008, by which
time all Georgian military forces or security personnel had left the region. The
violent expulsion of ethnic Georgians t ook place thereafter, at a time when no
Georgian troops were anywhere within the confines of South Ossetia.
111.18 In Chapter 4, Georgia describes the basis upon which it asserts that even
without Russia’s direct participatio n in the 2008 ethnic cleansing in South
Ossetia, which is well-documented in the previous Chapter, the respondent State
is still internationally responsible fo r those events. By August 2008, Russia’s
effective control over -- indeed total domination of -- South Ossetia, including its
de facto governmental institutions and armed forces was long-established. The
Chapter provides a detailed account of the history of South Ossetia within
Georgia from the dissolution of the fo rmer Soviet Union in 1991 until Russia’s
invasion in 2008, establishing that by the early years of the current decade
Russia had established full dominion ove r South Ossetia so that in 2004,
Moscow’s hand-picked de facto “President”, Eduard Kokoity, could
acknowledge that “South Osse tia is already Russia, notwithstanding likes and
dislikes of anyone” 8.
1.19 By 2008, Russia had direct command and control over South Ossetian
military and paramilitary forces. In 2008, South Ossetia’s de facto Minister of
Defence, Secretary of the Security Counc il, Minister of Internal Affairs, and
Chairman of the Committee of State Security (KGB), among others, were all
senior active-duty members of the Russian military or intelligence forces who
were seconded to the South Ossetian “government” to direct military and
intelligence activities in that territory 9. As a consequence, the Russian
Federation is fully responsible for the acts committed by South Ossetian forces
serving under the direct command and control of Russia’s own officials.
8
“South Ossetia – it is already Russia”, Nezavisymaia Gazeta (17 September 2004), Memorial of
the Republic of Georgia (hereinafter “GM”), Vol. IV, Annex 199.
9
See infra, Chapter 4, paras. 4.45-4.58.
121.20 Part C consists of Chapters 5 and 6 , which address Russia’s
discrimination against ethni c Georgians displaced by et hnic cleansing in South
Ossetia and Abkhazia by preventing them fr om exercising their right of return
because of their ethnic origin. Chapter 5 details Russia’s direct actions as well as
its support and implementation of discriminatory policies adopted by the de facto
regime in South Ossetia to deny the righ t of return of ethni c Georgian IDPs.
Over 10,000 ethnic Georgians were forcibly and permanently displaced from
South Ossetia during the et hnically-targeted violence of 1991 and 1992, and in
excess of 20,000 were expell ed as part of the ethni c cleansing carried out in
August 2008 and thereafter. Chapter 5 describes the ongoing efforts of both
Russian and South Ossetian authorities to deny all ethnic Georgian IDPs the
right to return, including by means of violent discriminatory attacks.
1.21 Chapter 6 demonstrates Russia’s responsibility for denying over
200,000 ethnic Georgian IDPs from Abkhazia the right to return to their homes
following their mass-expulsion in the 1990s and the forcible displacement of the
ethnic Georgian population of the Kodori Gorge in 2008. This Chapter begins
with a brief review of the ethnic clea nsing campaigns of 1993-94 and 1998 that
gave rise to the continuing displacement of this population. The Chapter then
proceeds to a description of the close collaboration between senior Russian
officials and Abkhaz de facto authorities to ensure that the ethnic demography
created by the mass-expulsion of ethnic Georgians became permanent, by
denying their right of return through the use of both ethnically-targeted violence
and discriminatory legislation, including, for example, citizenship laws that
effectively prevent ethnic Georgians from returning by denying them their
fundamental civil and political rights.
131.22 Part D addresses Russia’s ongoing di scrimination against ethnic
Georgians in violation of the Court’s Order on Provisional Measures dated 15
October 2008, and consists of Chapter 7 . Since October 2008, Russia has
increased its political, military and ec onomic control over South Ossetia and
Abkhazia and their respective de facto authorities. At the same time, violent
discrimination against the remaining ethnic Georgians in those areas has
continued unabated through killings, beat ings, threats, the burning of homes,
looting of property and other grave abuses.
1.23 The Chapter also addresses Russia’s responsibility for the continued
denial of ethnic Georgians’ right of retu rn to their homes, even after the Court’s
Order indicating provisional measures. As a result of Russia’s actions, hundreds
of thousands of ethnic Georgians remain unable to return. In contrast, nearly all
ethnic Ossetians displaced by the events of Augus t 2008 have long since
returned to their homes, and the de facto authorities in Abkhazia have offered
citizenship and residency to thousands of ethnic Abkhaz living abroad who, like
their parents and grandparents before them, have never lived in Abkhazia. The
final part of Chapter 7 demonstrates Russia’s obstruction of access to
international humanitarian assistance and human rights monitoring organisations
within South Ossetia and Abkhazia, also in violation of the Court’s Order on
Provisional Measures.
1.24 Part E of the Memorial addresses the law and appl ies it to the facts.
Chapter 8 addresses the Court’s jurisdicti on based on Article 36(1) of the
Statute of the Court and Article 22 of the 1965 Convention.
1.25 The Court’s jurisdiction is manifest. The current dispute relates to the
interpretation and application of the 1965 Convention, and has obviously not
14been settled by negotiation or by the pro cedures expressly provided for in the
1965 Convention. As Chapter 8 shows in detail, the Parties have been
negotiating over the su bject-matter in dispute wit hout success since the mass-
expulsion of ethnic Georgians in the 1990s. All requirements of Article 22 have
been satisfied.
1.26 Chapter 8 also addresses the geog raphic aspects of jurisdiction and
demonstrates that the mere fact that the acts in question took place outside the
territorial confines of the Russian Fe deration is no barrier to a finding of
international responsibility. The territori al scope of the key provisions of the
1965 Convention is not limited, and Russi a exercised effective control over
South Ossetia and Abkhazia at all rele vant times by virtue of its military
presence in those territories and its control over the de facto authorities.
1.27 Chapter 9 sets forth the key provisi ons of the 1965 Convention and
describes Russia’s violations of those obligations in the period from 2 June 1999,
when Georgia became a party to the Convention, until August 2008 and
subsequently. The Chapter begins w ith a short introduction to the 1965
Convention and the broad defini tion of racial discriminati on at its core. It then
examines the substantive obligations in Articles 2, 3 and 5 and the particular
basis for attribution that applies to each. The overwhelming evidence presented
in Parts B, C and D of the Memorial plainly establishes Russia’s violations of its
obligations not to engage in acts of r acial discrimination (A rt. 2(1)(a)); not to
sponsor racial discrimination by others (A rt. 2(1)(b)); to prohibit and end racial
discrimination perpetrated by others (Art . 2(1)(d)); to prevent and eradicate
racial segregation in terri tory under its jurisdiction (A rt. 3); and to guarantee
everyone equality before the law in the enjoyment of human rights (Art. 5).
151.28 Chapter 10 demonstrates that Russia also bears international
responsibility for its failure to comply with the Court’s 15 October 2008 Order
on Provisional Measures as discussed in Chapter 7. The Court has made clear its
view that its provisional measures orders have binding effect, and that failure to
comply therewith constitutes an independent source of liability.
1.29 Chapter 11 sets forth the relief sought by Georgia. It begins with a brief
introduction to the principles govern ing remedies before discussing the
appropriateness of each of the specific re medies that Georgia seeks. For the
reasons shown, Georgia seeks an order of the Court declari ng that Russia has
violated its obligations under the 1965 Convention; that it should cease those
violations and not repeat th em; that it has an obliga tion to make reparation, as
well as restitution in kind; that it must compensate Georgia for its violations of
the 1965 Convention; and that it must allow and facilitate the return of IDPs to
their homes of origin in South Ossetia and Abkhazia in conditions of security
and dignity.
1.30 Finally, this Memorial concludes with Georgia’s Submissions.
1.31 Also included with Georgia’s Memorial are four additional volumes of
Annexes. The annexed materials are a rranged in the following order: (i) United
Nations documents, (ii) inter-governmental and multi-lateral organisation
documents, (iii) government documents , (iv) non-governmental organisation
reports (v) books and academic articles, (vi) news articles, (vii) correspondence
and communications, (viii) witness statements, (ix) images and (x) additional
documents.
16 CHAPTER II.
GEOGRAPHICAL, HISTORICAL AND LEGAL BACKGROUND2.1 This Chapter sets forth the background to the dispute. Section I describes
the geographical and historical context. It provides a brief description of
Georgia and its history from its first declaration of independence in 1918 through
the onset of the conflicts in South Osse tia and Abkhazia in th e early 1990s that
resulted in the first wave s of violent discriminatio n and forced expulsion of
ethnic Georgians from those territories. It is against this hi storical background
that the ethnic cleansing of ethnic Georgians from the 1990s until 2008
(recounted in Chapters 3 and 4 in the case of South Ossetia, and in Chapter 6 in
the case of Abkhazia) was carried out, a nd continues to be carried out, against
those few who remain.
2.2 Section II provides a brief overview of the 1965 Convention, including a
description of its purposes and key provisions, and shows how Russia’s
discriminatory conduct falls squarely within the ambit of the 1965 Convention.
Section I. The Geographical and Historical Context
A. G EOGRAPHY
2
2.3 Georgia has a territory of approximately 69,700 km and has a population
10
of some 4.4 million people . It is located along the Caucasus Mountains on the
isthmus between the Black and Caspian Seas. As shown in Figure 2.1, Georgia
is bounded to the north and east by Russia, to the south by Turkey, Armenia and
Azerbaijan, and to the west by the Black Sea.
10
Parliament of Georgia, Country Data, available at
http://www.parliament.ge/index.php?lang_id=ENG&sec_id=327(last visited 17 August 2009).
192.4 As shown in the map at Figure 2.1, South Ossetia, formerly an
autonomous district within S oviet Georgia, is situated in north-central Georgia.
The regional capital, Tskhinvali, is locat ed some 89 kilometres northwest of
Georgia’s capital, Tbilisi. South Ossetia is bordered to the north by Russia,
largely by the Russian Republic of North Ossetia.
2.5 Abkhazia, an autonomous republic under the Constitution of Georgia, is
located in the north-west of the country and abuts the Black Sea. The regional
capital is Sukhumi, located in central Abkhazia on the coast, which lies at a
distance of 343 kilometres from Tbilisi. Abkhazia’s northern limits mark the
international frontier between Georgia and the Russian Federation.
2.6 South Ossetia and Abkhazia have long possessed diverse populations
consisting of Ossetians, Abkhazians and ethnic Georgians, as well as Armenians,
Russians, Jews and others. According to the last Soviet Union census conducted
in 1989, South Ossetia had a populati on of just under approximately 100,000,
11
consisting of 66% Ossetians, 29% ethnic Georgians and 4% others . According
to the same census, Abkhazia had a population of approximately 525,100, of
whom 45.7% were ethnic Georgians, 17.8% Abkhazians, 14.6% Armenians and
14.2% Russians . 12
11Letter from Ministry of Economic Development of Georgia, Department of Statistics, to
Deputy Head of the Department of Public International Law, Ministry of Justice of Georgia (11
August 2009) (hereinafter “Letter from Ministry of Economic Development of Georgia,
Department of Statistics (11 August 2009)). GM, Vol. V, Annex 318.
12Ibid. See also Catherine Dale, The Dynamics and Challenges of Ethnic Cleansing: The
Georgia-Abkhazia Case, Refugee Survey Quarterly, Vol. 16, No. 3 (1997) (hereinafter Dale, The
Dynamics and Challenges of Ethnic Cleansing: The Georgia-Abkhazia Case (1997)), p. 78. GM,
Vol. III, Annex 171.
20 B. H ISTORY
2.7 By virtue of its location at the intersection of Asia and Europe, and at the
crossroads of the Islamic and Eastern Orthodox Christian civilisations, Georgia
has a rich history and diverse cultural he ritage. Georgian history can be traced
th
back to the earliest Georgian kingdoms of the 6 century B.C.E.
th
2.8 During the 19 century, a previously inde pendent Georgia was annexed
by Tsarist Russia. After the Tsar wa s deposed in 1917, Georgia declared its
renewed independence in May 1918.
1. The Soviet Era
2.9 Georgia’s independence was short-li ved. In February 1921, the Russian
Red Army invaded the te rritory and by 1922 Georgia had been forcibly
incorporated into the newly establishe d Union of Soviet Socialist Republics
(“USSR”). Between 1922 and 1936, Geor gia, Armenia and Azerbaijan were
jointly constituted as the Transcaucasian Socialist Federative Soviet Republic
13
(“TSFSR”) . In 1936, the TSFSR was dissolved and Georgia was reconstituted
as a separate Soviet Socialist Republic (“SSR”), the highest level political
14
subdivision in the Soviet Union .
13
Svetlana Chervonnaya, Conflict in the Caucusus (1994) (hereinafter Chervonnaya, Conflict in
the Caucusus (1994)), p. 27. GM, Vol. III, Annex 168.
14Chervonnaya, Conflict in the Caucuses (1994), op. cit., p. 27. GM, Vol. III, Annex 168; Spryos
Demetriou, Politics from the Barrel of a Gun: Small Arms Proliferation and Conflict in the
Republic of Georgia (1989-2001) , Small Arms Survey, Occasio nal Paper No. 6 (November
2002) (hereinafter Demetriou, Politics from the Barrel of a Gun (2002)), p. 3. GM, Vol. III,
Annex 172.
212.10 During the Soviet era, both South O ssetia and Abkhazia were recognised
as wholly incorporated into Georgia. South Ossetia was an Autonomous District
15
within Georgia for the whole of the Soviet period . From 1922 to 1927,
16
Abkhazia was associated by treaty with Georgia and the rest of the TSFSR . In
1931, its status was changed to that of an Autonomous Soviet Socialist Republic
within the Georgian SSR, a status it maintained until the dissolution of the Soviet
17
Union in 1991 .
2.11 Due to its long Black Sea coastline (of which the Abkhaz coast makes up
roughly two-thirds), and its proximity to Europe and the Middle East, Georgia
had special importance during the Soviet period. Throughout the Cold War,
18
Moscow maintained a significant military presence in the Georgian SSR .
Estimates indicate that at the height of the Cold War approximately 100,000
Soviet troops were stationed in Georgia. With its strategic connection to the
Black Sea, Abkhazia hosted a number of important Soviet military installations.
2. Moscow’s Support for Ethnic Separatists
2.12 In the 1980s, the Georgian independence movement gained momentum . 19
Soviet officials viewed the movement with alarm and activ ely opposed it. The
15
The Soviet system included a complex hierarchy of “Autonomous Regions”, “Autonomous
Oblasts”, “Autonomous Soviet Socialist Republics”, and “Soviet Socialist Republics”.
Demetriou, Politics from the Barrel of a Gun(2002), op. cit., p. 3.
16Catherine Dale, “The Case of Abkhazia (Georgia)”, Peacekeeping and the Role of Russia in
Eurasia (1996), pp. 121-122. GM, Vol. III, Annex 170.
17
Ibid., p. 122.
18
Demetriou, Politics from the Barrel of a Gun(2002), op. cit., p. 3. GM, Vol. III, Annex 172.
19Ibid., p. 4.
22Kremlin’s determination to quell the independence movement was evidenced
most dramatically in the Soviet army’s violent suppression of a pro-
independence demonstration in Tbilisi on 9 April 1989, resulting in the deaths of
twenty Georgian civilians and the injury of hundreds 2.
2.13 At the time the Georgian inde pendence movement was gaining
momentum, so too was a push for grea ter autonomy within Georgia among
ethnic Ossetians and Abkhazians who prefer red to remain part of the Soviet
Union 2. The substantial ethnic Georgian populations in both regions, who
overwhelmingly supported Georgian independence, constituted an obvious
obstacle to the realisation of that goal. In Abkhazia, where ethnic Georgians
made up nearly half th e population and outnumbe red ethnic Abkhazians by
almost three-to-one, the situation was particularly tense.
2.14 In light of the evident alignment of interests between Moscow and
Ossetians and Abkhazians, Soviet officials began supporting the ethnic separatist
movements in South Ossetia and Abkhazia, which resisted incorporation into an
22
independent Georgia . By 1989, Soviet encouragement and backing had given
rise to strong separatist movements in both regions. In November 1989, South
Ossetian separatists requested that the region be rec ognised as an “Autonomous
20
Jonathan Aves, “The Rise and Fall of the Georgian Nationalist Movement, 1987-1991”The
Road to Post-Communism – Independent Political Movements in the Soviet Union 1985 – 1991
(1992) (hereinafter Aves, “The Rise and Fall of the Georgian Nationalist Movement” (1992)),
pp. 160-161. GM, Vol. III, Annex 166; Chervonnaya, Conflict in the Caucuses (1994), op. cit.,
p. 61. GM, Vol. III, Annex 168.
21See, e.g., Chervonnaya, Conflict in the Caucasus (1994), op. cit., pp. 56-58. GM, Vol. III,
Annex 168.
22Ibid., pp. 124-129.
23 23
Republic” within the Georgian SSR . When the Georgian Supreme Soviet
24
denied this request, violent clashes ensued . In response, the Soviet Union
25
deployed Interior Ministry troops to South Ossetia in January 1990 .
2.15 On 20 September 1990, South Ossetian se paratists unilaterally declared
secession from Georgia and established what they called the “South Ossetian
Soviet Republic” as a fully sovereign entity within the USSR 26. On 9 December
1990, Tskhinvali officials held “parliamentary” elections that were boycotted by
the entire ethnic Georgian population of South Ossetia . As will be discussed in
detail in Chapter 4, following this deve lopment, violent ethnic conflict resumed
in January 1991.
2.16 As in South Ossetia, Soviet offi cials supported Abkhaz separatism
against Georgia. A key figure in th e implementation of Moscow’s Abkhazia
policies was Vladislav Ardzinba, who later became Abkhazia’s first de facto
President. Before returning to Abkhazi a, Mr. Ardzinba had worked in Moscow
for nearly 20 years, ma ny of them under Yevgeny Primakov, later head of
28
Russia’s Foreign Intelligence Service . In Moscow, Mr. Ardzinba maintained
23International Crisis Group, Georgia: Avoiding War in South Ossetia , Europe Report No. 159
(26 November 2004) (hereinafter ICG, Georgia: Avoiding War in South Ossetia (2004)), p. 3.
GM, Vol. III, Annex 160.
24
Ibid.
25Pavel Baev, “Georgia”, Conflicts in the OSCE Area, International Peace Research Institute (15
July 2004) (hereinafter Baev, “Georgia” (2004)). GM, Vol. III, Annex 173.
26ICG, Georgia: Avoiding War in South Ossetia (2004), op. cit., p. 3. GM, Vol. III, Annex 160.
27
Ibid.
28Chervonnaya, Conflict in the Caucasus (1994), op. cit., p. 208. GM, Vol. III, Annex 168.
24close ties with Soviet intelligence circ les as well as with the political group
29
“Soyuz”, whose members included prominent Russian nationalists .
2.17 Soviet officials sponsored several Abkhaz separatist groups, the most
notable of which was “ Aidgylara” (or “Unity”). The very first draft of
Aidgylara’s platform declared that Abkhazia should become a constituent part of
an indivisible Soviet Union 30. Moscow’s support for the Abkhaz separatists was
noted by a Russian journalist who commented on the sudden appearance in 1990
“as if by magic” of funding for the separatist newspaper, also called Aidgylara,
printed in Russian and Abkhazian, and h eadquartered (along with the political
group Aidgylara) in the Abkhaz Supreme Soviet building 31. According to the
journalist: “The complicity between the Abkhazian separatists and the old
communist elite could not have been made clearer” 32. Aidgylara routinely
published “information” to denounce pr oponents of Georgian independence as
“extremist”, “antipopular” and “selfish” . 33
2.18 By the late 1980s, tensions between the Soviet-backed separatists and
Georgians were high. Vi olence broke out on 15 Ju ly 1989 when Abkhazians
29Ibid., pp. 83-84.
30Ibid., pp. 58-59. See also Aves, “The Rise and Fall of the Georgian Nationalist Movement”
(1992), op. cit., p. 160. GM, Vol. III, Annex 166.
31
Chervonnaya, Conflict in the Caucasus (1994), op. cit., p. 58. GM, Vol. III, Annex 168.
32 Ibid. Aidgylara regularly published inflammatory stories about Georgian policy,
characterizing Georgians as “extremist”, “against the political frame of mind of the Abkhazian
population”, “anti-Soviet” and claiming that more than “a hundred thousand people (Georgians)
had been resettled on the best lands of land-starved Abkhazia”. Ibid., pp. 59, 78.
33
Ibid., p. 59 (“The extremist elements, using the great gains of perestroika, glasnost and
democracy, in their antipopular and selfish interests are seeking to direct this process into the
channel of anti-sovietism, separation, aggressive nationalism and chauvinism”, quoting
Aidgylara, 1990, N4, p. 2).
25protested the efforts of Geor gian students to register at the Sukhumi branch of
Tbilisi University. The violence quickly spread, and Soviet troops were ordered
34
into Abkhazia two days later .
2.19 On 25 August 1990, the Supreme Council of the Autonomous Republic
of Abkhazia issued a declaration reque sting that Moscow grant the region
35
independence from Georgia while re maining within the Soviet Union . The
36
Georgian Supreme Soviet promptly annulled the declaration . After a period of
relative calm, ethnic conf lict erupted anew in A ugust 1992, this time with
devastating consequences for the ethnic Georgian population of Abkhazia, over
200,000 of whom were forcibly displaced to other parts of Georgia by the
violence directed against them.
3. Georgia’s Resumption of Independence and National Boundaries
2.20 Despite Moscow’s opposition, the Georgian independence movement
continued to strengthen as the Soviet Union weakened. On 20 November 1989,
the Georgian Supreme Soviet proclaimed that Georgia’s incorporation into the
Soviet Union in 1921 had occurred by force and was illegitimate and unlawful . 37
34
Aves, “The Rise and Fall of the Georgian Nationalist Movement” (1992), op. cit., p. 160. GM,
Vol. III, Annex 166.
35Declaration on the State Sovere ignty of Abkhaz Soviet Socialist Republic (25 August 1990).
GM, Vol. III, Annex 93.
36Decree Issued by the Presidium of the Supreme Council of the Georgian SSR on the Decision
Taken by the Supreme Council of the Abkhaz ASSR on 25 August 1990 (26 August 1990),
Bulletin of the Supreme Council of the Georgian SSR, 1990, #8, pp. 15-16. GM, Vol. III, Annex
94.
37“Clamor in the East; Georgian Legislatur e Asserts Right to Leave Soviet Union”, New York
Times (20 November 1989). GM, Vol. IV, Annex 185.
26Georgia also declared that it had the right to secede from the Soviet Union and to
38
nullify laws and decrees issued by Moscow authorities .
2.21 In March 1991, Georgia boycotted the USSR-wide referendum on
39
maintaining the Soviet Union . Instead, on 31 March 1991, it held a referendum
on the restoration of Georgia’s 1918 Declaration of Independence. The vote was
40
overwhelmingly in favour of independence . On 9 April 1991, Georgia
officially declared independence.
2.22 Following the formal dissolution of the Soviet Union in December 1991,
Georgia was admitted as a Member Stat e of the United Nations on 6 July 1992
41
within the same boundaries it had wh en it was a Soviet Socialist Republic .
Both South Ossetia and Abkhazia were, as they are to this day, within the
internationally recognised boundaries of Georgia.
2.23 These facts form the geographical and historical context in which ethnic
cleansing and other forms of ethnic disc rimination were carried out against
Georgians living in South Ossetia and A bkhazia between 1999 and the present.
They have led Georgia to invoke the International Convention on the Elimination
of All Forms of Racial Discriminati on against the Russian Federation (“1965
Convention”).
38Ibid.
39
Human Rights Watch/Helsinki, Human Rights Watch Arms Project, Georgia/Abkhazia:
Violations of the Laws of War and Russia’s Role in the Conflict , Vol. 7, No. 7 (March 1995), p.
16. GM, Vol. III, Annex 146.
40Baev, “Georgia” (2004), op. cit. GM, Vol. III, Annex 173.
41Ibid.
27 Section II. The 1965 Convention
2.24 The obligation to eliminate racial discrimination under the 1965
Convention gives effect to one of the fundamental principles of the United
Nations Charter. In particular, Article 1( 3) of the Charter states that one of the
purposes of the United Nations is to achieve internatio nal cooperation in
“promoting and encouraging respect fo r human rights and for fundamental
freedoms for all without distinction as to race, sex, language, or religion” . 42
2.25 The centrality of the principle of non-discrimination was reaffirmed in
the 1948 Universal Declaration of Human Rights, Article 2 of which proclaims
that:
Everyone is entitled to all the rights and freedoms set forth in this
Declaration, without distinction of any kind, such as race, colour,
sex, language, religion, political or other opin43n, national or
social origin, property, birth or other status .
Article 7 further affirms that:
All are equal before the law and are entitled without any
discrimination to equal protection of the law. All are entitled to
equal protection against any discrimination in violation of this 44
Declaration and against any incitement to such discrimination .
2.26 This fundamental principle of inte rnational law gained even greater
prominence during the 1960s in response to increasing awareness of the
42U.N. Charter, Art. 1(3).
43Universal Declaration of Human Rights, G.A. Re s. 217A (III), U.N. Doc A/810 at 71 (1948),
Art. 2.
44
Ibid., Art. 7.
28persistence of racial discrimination throughout the world. At its 1961 session,
the U.N. Sub-Commission on Prevention of Discrimination and Protection of
Minorities proposed that the General Assembly prepare an international
convention obligating the parties to prevent, prohibit and eradicate racial, ethnic,
45
national and other forms of hatred . In December 1965, the International
Convention on the Elimination of All Forms of Racial Discrimination was
opened for signature. It entered into force just over thre e years later on 4
January 1969. The Soviet Union became a party on 4 February 1969.
2.27 The unusually strong international consensus around the principle of non-
discrimination is reflected in the fact that the 1965 Convention was actually the
first universal human rights treaty adopted by the United Nations. It was opened
for signature a year before the 1966 C ovenants on Civil and Political Rights and
Economic, Social and Cultural Rights, re spectively, and came into force more
than a decade before they did. The prohi bition of racial discrimination has now
46
become a peremptory norm of general international law .
2.28 The 1965 Convention is divided into thr ee parts. Part I sets forth the
definition of “racial discrimination” and the substantive obligations imposed
upon States Parties; Part II establishes the Committee on the Elimination of
Racial Discrimination (“the CERD Committee”); and Part III contains
miscellaneous final provisions, includi ng Article 22, which confers jurisdiction
45U.N. Economic and Social Council, Report of the 13th session of the Sub-Commission on
Prevention of Discrimination and Protection of Minorities (1961), U.N. Doc. E/CN.4/815 (9
February 1961), paras. 176, 185. GM, Vol. II, Annex 1.
46See, e.g., Barcelona Traction, Light and Power Company Limited, Judgment, I.C.J. Reports
1970, p. 32, para. 34; United States Restatement (Third) of the Foreign Relations Law, § 702, n.
11 (1986).
29on this Court for disputes between the States Parties relating to the interpretation
or application of the 1965 Convention.
2.29 Article 1(1) of the 1965 Convention defines racial di scrimination in
broad terms. It states:
[T]he term ‘racial discrimination’ shall mean any distinction,
exclusion, restriction or preference based on race, colour, descent,
or national or ethnic origin which has the purpose or effect of
nullifying or impairing the recognition, enjoyment or exercise, on
an equal footing, of human right s and fundamental freedoms in
the political, economic, social, cultural or any other field of public
life.
2.30 The text of the 1965 Convention evid ences a particular concern with
racial discrimination in the constructi on of the State itself. This concern
manifests itself most obviously in the references to “apartheid” 47, “segregation”,
and “separation” in both the preambl e and the operative provisions of the
Convention. The Preamble, for instance, states that the States Parties are
“alarmed by manifestations of racial discrimination still in evidence in some
areas of the world and by governmental pol icies based on raci al superiority or
hatred, such as policies of apartheid, se gregation or separati on”. In a similar
vein, Article 3 provides: “S tates Parties particularly condemn racial segregation
and apartheid and undertake to prevent, pr ohibit and eradicat e all practices of
this nature in territories under their jurisdiction.”
47
Apartheid has been defined as the coercive suppr ession of a racial or ethnic group as such, or
their forced ejection as members of their so ciety on grounds of thei r race or ethnicity.
International Convention on the Suppression and Punishment of the Crime of Apartheid, New
York 1973, 1015 UNTS 243, in force 18 July 1976, Art. II.
302.31 The system of apartheid as such has thankfully disappeared. The
international community faces a modern analogue, however, in the form of
“ethnic cleansing” and other forms of di scrimination designed to (re)create
States as ethnically homogenous entities . As the CERD Committee aptly noted
in relation to the situation in Kosovo:
Any attempt to change or to uphold a changed demographic
composition of an area against the will of the original inhabitants,
by whatever means, is a v48lation of international human rights
and humanitarian law…
2.32 This case concerns exactly such an “attempt to change or to uphold a
changed demographic composition of an area against the will of the original
inhabitants”. As set forth in the follo wing Chapters, Russia, acting both directly
with its own military forces and also through South Ossetian and Abkhazian
separatist forces under its control, has engaged in a sustained course of
discriminatory conduct designed to do nothing less than remove the ethnic
Georgian population to other parts of Georgia and reconstitute South Ossetia and
Abkhazia as ethnically “pure” territories aligned with the Russian Federation.
On 26 August 2008, the President of the Russian Federation, Dmitri Medvedev,
delivered what was intended to be the coup de grâce when he announced
49
Russia’s “recognition” of South Ossetia and Abkhazia as “independent States” .
48U.N. General Assembly, Report of the Committee on the Elimination of Racial Discrimination,
Official Records, Fifty-third Session, Supplement No. 18, U.N. Doc. A/53/18 Supple.18 (10
September 1998), para. 203. GM, Vol. II, Annex 27.
49
As of the date of this Memorial, Russia has been joined by only one other State – Nicaragua –
in recognising Abkhazia and South Ossetia.
312.33 Russia and its agents have pursued their goal through the means that will
be discussed in the remaining Chapters of this Memorial. Each of these means is
itself a violation of the 1965 Convention.
2.34 As indicated in Chapter 1, Georgia’s factual presentation is organised
thematically. Part B of this Memorial (consisting of Chapters 3 and 4) addresses
Russia’s participation in the ethnic cl eansing of ethnic Georgians from South
Ossetia in August 2008 and afterwards. Chapter 3 presents the evidence
establishing Russia’s direct role, via its military forces in South Ossetia, in
ethnically-motivated violence against the ethnic Georgian population, which
resulted in their massive forced expulsi on from the territory to other parts of
Georgia. Chapter 4 provides the eviden ce of Russia’s control over the South
Ossetian military and paramilitary forces th at also participated in the violent
ethnic cleansing campaign against the ethnic Georgian population, often with the
collaboration of Russian military units , sometimes under their watchful and
tolerant protection, and at other times on their own, but always while under the
command and control of senior Russian military officers. Chapter 4 shows that
the events of August 2008 were the culmination of Russia’s creeping annexation
of South Ossetia, a process that bega n in 1991 when then-Soviet troops entered
South Ossetia, as described above, and grew steadily over the course of the next
17 years, and particularly after 1999, when Russia incr easingly assumed control
over the South Ossetian separatist enterpri se. As a result, the Respondent State
bears full international responsibility for the wholesale and violent cleansing of
ethnic Georgians from South Ossetia in 2008.
2.35 There can be no question that targeted ethnic violence and ethnic
cleansing constitute impermissible discri mination within the ambit of the 1965
Convention. Indeed, it is difficult to imagine a clearer example. As noted,
32unlawful discrimination includes “ any distinction, exclusion, restriction or
preference” based on ethnicity that has the effect of denying human rights and
fundamental freedoms. Under Article 5(b), “States Parties undertake… to
guarantee the right of everyone, without distinction as to race, colour, or national
or ethnic origin, to equality before the law” in their enjoyment of “[t]he right to
security of person and protection by th e State against violence or bodily harm,
whether inflicted by g overnment officials or by any individual group or
institution”.
2.36 Ethnic cleansing violat es Article 5(b) of the 1965 Convention and
virtually every other one of its substa ntive obligations. Other specifically
prohibited conduct includes the “practice of racial discrimination against
persons, groups of persons or institu tions” (Art. 2(1)(a )) and “sponsor[ing],
defend[ing] or support[ing] racial discrimination by any persons or
organizations” (Art. 2(1)(b)). States Pa rties also have affirmative duties to:
“prohibit and bring to an end… racial discrimination by any persons, group or
organization” (Art. 2(1)(d)); and “undertake to prevent, prohibit and eradicate all
practices of [racial segregation] in terri tories under their jurisdiction” (Art. 3),
among others. The dispute over ethnic cleansing in South Ossetia is self-
evidently a dispute over the interpretation or application of the 1965 Convention.
2.37 Part C of this Memorial addresses Russia’s discrimination against ethnic
Georgian IDPs by means of denying their ri ght to return to their homes in South
Ossetia and Abkhazia. As discussed in Chapter 5 (in the case of South Ossetia)
and Chapter 6 (in the case of Abkhazia), the aggregate cost of the ethnic conflicts
of the last two decades on ethnic Georgians has been staggeringly high. As of
the time of submission of this Memorial, well over 200,000 ethnic Georgians
from South Ossetia and Abkhazia remain displaced. Russia’s continuing actions
33have been intended to prevent these IDPs from exercising their right of return to
their homes of origin.
2.38 As with ethnic cleansing, there can be no doubt that denial of displaced
persons’ right to return based on thei r ethnicity is a violation of the 1965
Convention. Not only does it constitute a breach of each of the general
undertakings cited above in paragraph 2.36, it runs directly contrary to the
express terms of Article 5, paragraphs (d )(i) and (ii) of which provide that
everyone is equally entitled to enjoy the “right to freedom of movement and
residence within the border of the Stat e” and “the right to leave any country,
including one’s own, and to return to one’s country”.
2.39 In its General Recommendation No. 22, the CERD Committee has
expressly stated that IDPs have a right to return to their homes of origin and
States have an obligation to ensure the ex ercise of that right in the territories
under their control 50. Here again, this case presents a dispute over the
interpretation and application of the 1965 Convention.
2.40 Part D of the Memorial deals with Russia’s discrimination against ethnic
Georgians following the Court’s Order on Provisional Measures dated 15
October 2008. Russia’s continued discri minatory conduct in the face of the
Court’s Order constitutes independent grounds for a finding of international
responsibility. Russia’s c onduct also continues to violate the 1965 Convention.
Russia’s discriminatory actions since 15 October 2008 have taken the form of
continued ethnic violence and forced expulsions against the remaining ethnic
50U.N. Office of the High Commissioner for Human Rights, CERD,General Recommendation
No. 22: Art. 5 and refugees and displaced perso, Forty-ninth Session, U.N. Doc. A/51/18
(1996), para. 2(a)-(b). GM, Vol. II, Annex 21.
34Georgians in South Ossetia and Abkhazia, the persistent obs truction of ethnic
Georgians’ right of return, and the destruction of Georgian culture and identity
by discriminatory legislation and other m eans, as described in Chapter 7. The
ongoing ethnic cleansing and persistent fr ustration of IDPs’ right of return
violate the 1965 Convention for the reasons already set out above.
2.41 The destruction of culture and identity is equally impermissible and is
prohibited by Articles 2(1)(a), 2(1)(b) a nd 2(1)(d), among others. It is also
prohibited by Article 5. Although Article 5 does not specifically guarantee the
equal enjoyment of the right to culture or identity as such, that right is embraced
within a number of the other rights that are specifically mentioned, including:
the right to freedom of thought, conscience and religion (Art.
5(d)(vii));
the right to freedom of opinion and expression (Art. 5(d)(viii)); and
the right to equal participation in cultural activities (Art. 5(e)(vi)).
It bears mention too that th e list contained in Article 5 is not intended to be
51
exhaustive . Russia’s destruction of Georgian culture and identity therefore also
gives rise to a dispute over the inte rpretation and applic ation of the 1965
Convention.
2.42 Georgia has sought to engage Russia in meaningful discussions over the
subject-matter of this dispute for many years. Negotiations have taken place
bilaterally as well as in numerous fora, including: (i) the United Nations Geneva
Process, the Coordinating Council for Ge orgia and Abkhazia, and the Group of
Friends of Georgia; (ii) the Joint Cont rol Commission for the Georgian-Ossetian
51
U.N. Office of the High Commissioner for Human Rights, CERD, General Recommendation
No. 20: Non-discriminatory implementation of rights and freedoms (Art. 5): 15/03/96 , U.N. Doc.
A/51/18 (1996), para. 1. GM, Vol. II, Annex 20.
35Conflict Settlement; (iii) the Organisa tion for Security and Cooperation in
Europe; and (iv) the Council of the H eads of State of the Commonwealth of
Independent States. In negotiations before all these fora, the issue of the return
of ethnic Georgian IDPs has featured pr ominently on the agenda. Yet, after
more than 15 years of forced displacemen t, the IDPs have not been allowed to
return.
2.43 In Chapter 8, Georgia recounts the hist ory of these exchanges in detail.
For present purposes, a single example will suffice to illustrate the nature and
futility of the Parties’ dealings. Following the inauguration of Russian President
Medvedev in May 2008, Georgian Presiden t Mikheil Saakashvili wrote him a
letter dated 24 June 2008 in which he (again) raised the problem of the return of
IDPs to Abkhazia 52. President Medvedev’s 1 July 2008 response made clear
there was no discussion to be had. He wrote:
It is also apparently untimely to put the question of return of
refugees in such a categorical manner. Abkhazs perceive this as a
threat to their national survival in the current escalated situation and
we have to understand them 53.
2.44 Georgia’s Application in this case was filed just over one month later.
52Letter from President Mikheil Saakashvili to President Dmitry Medvedev (24 June 2008).
GM, Vol. V, Annex 308.
53Letter from President Dmitry Medvedev to President Mikheil Saakashvili (1 July 2008). GM,
Vol. V, Annex 311.
36 PART B.
DISCRIMINATION BY WAY OF ETHNIC CLEANSING
AGAINST GEORGIANS IN SOUTH OSSETIA CHAPTER III.
DIRECT PARTICIPATION BY RUSSIA IN ETHNIC CLEANSING3.1 In this Chapter, Georgia demonstrates Russia’s direct involvement in
discrimination against ethnic Georgians aimed at expelling them from South
Ossetia. The evidence establishes that th ere was direct participation by Russia,
through State organs of the Russian Federation, in violent ethnic cleansing
activities against ethnic Geor gian residents of South Ossetia. The evidence
includes the published repor ts of international or ganisations, including
specialised agencies of the United Nations, the Organisation for Security and
Cooperation in Europe (“OSCE”) and the Council of Europe. It also includes
on-the-ground reporting by respected inte rnational human rights organisations,
such as Amnesty International (“AI”) and Human Rights Watch (“HRW”). The
findings of these independent expert sources are corroborated by: public
statements by senior Russian and South Ossetian officials; satellite imagery
produced by the United Nations; electronic intercepts of conversations between
Russian and separatist military and paramilitary personnel; contemporaneous
official documents; eyew itness accounts by independe nt observers, including
respected academics and journalists; and testimony by nu merous Georgian
victims of Russia’s ethnic cleansing activities.
3.2 In Section I, it is shown that Ru ssia’s discrimination against ethnic
Georgians took the form of ethnic cleansing, which Russia accomplished by
burning and looting the ethnic Georgi an villages that came under Russian
military occupation and threatening to kill the few, mostly elderly and sick, who
either would not or could not leave South Ossetia. In Section II, it is shown that
these violent and discriminatory abuses were committed directly by Russian
forces, based on evidence from a series of representative ethnic Georgian
villages in each of the administrative districts of South Ossetia inhabited by
ethnic Georgians and in a so-called “bu ffer zone” proclaimed and occupied by
Russia, located in another part of Georgia across the administrative boundary of
41South Ossetia. Finally, in Section III, it is shown that Russian troops, often
acting in concert with separatist fo rces, completed the ethnic cleansing by
engaging in further discriminatory conduct such as seizing those ethnic
Georgians who remained in their villag es and imprisoning them in the South
Ossetian de facto Interior Ministry. The last ethnic Georgians who managed to
avoid this fate were eventu ally deported by Russian troops to Gori, a Georgian
city outside South Ossetia that came under Russian occupation.
Section I. Russia’s Ethnic Cleansing of Georgians
A. RUSSIA ’S INCITEMENT OF ETHNIC H ATRED
3.3 Russia’s discriminatory acts commenced simultaneously with the
opening of large-scale hostilities on 7 August 2008 , when Russian officials and
Russia’s state-controlled media launched a propaganda campaign to incite ethnic
55
hatred of the local ethnic Georgian population . Russia repeatedly claimed that
56
Georgia committed “genocide” by killing 2,000 civilians in Tskhinvali . Its
Ambassador to the United Nations compared the situation to the massacres at
54
Georgian villages in and around South Ossetia were heavily shelled during the first week of
August 2008. In an effo rt to avoid full-scale war, Georgia d eclared a unilateral cease-fire on 7
August. Georgia appealed to Russia and the separatists to engage in immediate talks and offered
virtually unlimited autonomy and self-administra tion for South Ossetia. However, Georgia’s
overture was ignored, and the only response was intensified shelling and the advance of large
numbers of Russian armour into South Ossetia. Massive attacks on Georgian villages in South
Ossetia and adjacent districts, combined withe large-scale intervention of Russian military
units through the Roki tunnel, compelled Georgia to initiate a defensive operation around
midnight on 7 August.
55Brian Whitmore, “Scene At Russia-Georgia Border Hinted at Scripted AffairRadio Free
Europe/Radio Liberty (23 August 2008). GM, Vol. IV, Annex 256.
56
For example, Russia Today , the pro-Kremlin cable news channel, continuously ran the
headline “Ossetia genocide.” Sarah E. Mendelson, “An August War in the Caucasus”, Center for
Strategic and International Studies (11 August 2008) (hereinafter Mendelson, “An August War
in the Caucasus” (2008)). GM, Vol. III, Annex 177.
42Srebrenica . The Russian state news agency reported that 70 percent of
Tskhinvali’s buildings were destroyed or damaged 58. Pravda claimed that
“Georgian troops” had captured Ossetian refugees and “locked them in a house
59
and set the house on fire, burning all the people inside alive” . Prime Minister
Vladimir Putin himself declared that “i n one hour” Georgia “wiped ten Ossetian
villages from the face of the earth.” He also claimed that Georgia “used tanks to
60
knock down children and the elderly” and “burnt civilians alive” .
57Ibid.
58“Attacks Damaged or Destroyed 70% of Buildings -- Tskhinvali Mayor,” RIA: Novosti (12
August 2008) (hereinafter “Attacks Damaged or Destroyed 70% of Buildings” (2008)).
59“Georgian Troops Burn South Ossetian Refugees Alive,” Pravda (10 August 2008). GM, Vol.
IV, Annex 238.
60“Russia Launches Genocide Prob e Over S. Ossetia Events,” RIA: Novosti (14 August 2008).
GM, Vol. IV, Annex 246.
433.4 All of these statements were untrue, as attested by impartial observers . 61
Nevertheless, Russia used them to instigate and legitimise the ethnic cleansing
that followed. A Human Rights Watch obs erver in South Osse tia reported that
Ossetians in Tskhinvali would “nam e the figure published by Russian mass
media” and “speak about thousands killed and wounded” 62. These Ossetians
cited the reports of “Russian federal TV channels” about “thousands of civilian
61Russia later acknowledged that the number of casualties it had previously claimed was vastly
inflated. By 21 August 2008, Russian authorities admitted that only 133 civilians had died.
Amnesty International, Civilians in the Line of Fire: The Georgia-Russia Conflict (November
2008) (hereinafter Amnesty International, Civilians in the Line of Fire (2008)), p. 65. GM, Vol.
III, Annex 158. ( citing “Death Toll in South Ossetia a Tenth of Initial Russian Claims,” The
Australian (22 August 2008), GM, Vol. IV, Annex 117). Even that number is exaggerated. As
AI observed, the “133 civilian deaths reported by the Russian Prosecutor’s Office covers the
entirety of the conflict and may well include a number of private individuals who engaged in
military activity.” Ibid., p. 27 (emphasis added).
Investigations by HRW found no evidence to substantiate the alleged atrocities, Human
Rights Watch, Up in Flames: Humanitarian Law Violations and Civilian Victims in the Conflict
Over South Ossetia (January 2009) (hereinafter HRW, Up in Flames (2009)), pp. 71-73. GM,
Vol. III, Annex 156. Although Russia had claimed that 70 percent of Tskhinvali’s buildings had
been damaged, analysis of satellite imagery revealed that figure to have been inflated by 1400
percent. UNOSAT, Village Da mage Atlas Kekhvi to Tskhinvali, South Ossetia, Georgia -
Imagery Recorded on 19 August 2008 (29 August 2008) (hereinafter UNOSAT, Village Damage
Atlas Kekhvi to Tskhinvali, South Ossetia (19 August 2008)). GM, Vol. V, Annex 401.
(reporting only 5% of buildings affected by hostilities).
In fact, the few ethnic Ossetian villagesthat came under Georgian control were well-
treated. South Ossetian officials and civilians to ld AI that their villages suffered only limited
destruction during the fighting and were not pillaged or burned. Amnesty International, Civilians
in the Line of Fire (2008), op. cit., p. 25. GM, Vol. III, Annex 158. Even in Khetagurovo, where
heavy fighting occurred, a resident told AI that the “Georgian troops … didn’t enter the houses
and didn’t touch anything.” Ibid., p. 25. HRW independently interviewed 15 residents of
Khetagurovo and found that “[n]one … complained about cruel or degrading treatment by
Georgian servicemen.” Human Rights Watch, Georgia: International Groups Should Send
Missions (18 August 2008), p. 5. GM, Vol. III, Annex 150.
62International Crisis Group, Russia vs. Georgia: The Fallout , Europe Report No. 195 (22
August 2008), p. 9. GM, Vol. III, Annex 163. (quoting interview with Tatyana Lokshina,
director of Human Rights Watch Moscow office, in Caucasus Press, 14 August 2008).
44casualties” to “justif[y] the torching and looting of the ethnic Georgian enclave
villages” .3
3.5 As shown below, although the ac tive fighting in and around South
Ossetia ended quickly, the ethnic cleansing that commenced immediately after
the Russian invasion continued for months afterwards until nearly the entire
ethnic Georgian population of South Ossetia had been expelled and their homes
64
and villages were looted and destroyed . These ethnically targeted abuses were
committed behind Russian lines and often with the direct participation of
63HRW, Up in Flames (2009), op. cit., p. 74. GM, Vol. III, Annex 156.
64On 10 August, Georgia ordered its forces to withdraw and unilatera lly ceased-fire. Russia
agrees that military activities in almost all of South Ossetia had ended by 10 August and that all
hostilities had ceased by 12 August. See infra Figure 3.2. After mediation by the European
Union, led by French President Nicolas Sarkozy, Russia and Georgia agreed to a six point peace
plan, which was signed by Georgia on 15 August and by Russia the following day. Both sides
agreed to the following principles: no recourse to use violence between the protagonists; the
cessation of hostilities; the granting of access to humanitarian aid; the return of Georgian armed
forces to their usual quarters; Russian armed for ces to withdraw to the positions held before
hostilities began in South Ossetia; Russian peace keepers to implement additional security
measures until an international monitoring mechanism is in place; and the opening of
international discussions on the modalities of security and stability of South Ossetia and
Abkhazia. “Russia ‘ends Georgia operation,’” BBC News (12 August 2008). GM, Vol. IV,
Annex 244. However, the Russian military advance into Georgian territory continued and by 19
August it had become clear that Ru ssia did not intend to abide by the Plan’s requirement that it
withdraw to positions it held before hostilities bega n in South Ossetia. On that day, President
Medvedev informed President Sarkozy that Russian troops would remain in unilaterally declared
“buffer zones” around South Osse tia and Abkhazia. “Russian Troo ps to Stay in Georgia Buffer
Zone,” Radio Free Europe (20 August 2008). GM, Vol. IV, Annex 252. Russia later announced
that it was establishing 37 military posts in undisputed Georgian territory, 18 in areas adjacent to
South Ossetia and 19 in areas adjacent to Abkhazia. These military positions extended 20
kilometres south of the South Ossetia border, and 40 kilometres to the south and southeast of the
Abkhazian border. “Russian Forces Setting Up Occupation Zones in Georgia,” Eurasia Daily
Monitor, Vol. 5, Issue 162 (25 August 2008). GM, Vol. IV, Annex 258. After the intervention
and mediation of President Sarkozy, European Commission President Jose Manuel Barroso and
European Union Foreign Policy Chief Javier Solana, Russia ultimately withdrew from the buffer
zones on 10 October 2008 (though Russian forces remained in the Akhalgori District adjacent to
South Ossetia.) See e.g., “Russia says troops can stay in Akhalgori-Agencies,” Reuters (11
October 2008). GM, Vol. IV, Annex 266; Matt Siegel, “Russia, Georgia Disagree Over Troop
Pullback”, Associated Press (2009). GM, Vol. IV, Annex 280.
45Russian military personnel. The major ity of the targeted ethnic violence and
destruction of prope rty occurred long after hostilities had ended and Georgian
military forces had withdrawn.
B. O VERVIEW OF THE E THNIC C LEANSING
3.6 From the moment the Russian army entered Georgia through the Roki
tunnel, it engaged in act s of discrimination agains t the ethnic Georgian
population. In particular, Ru ssian troops marked ethnic Georgian villages for
destruction and sought to remove all et hnic Georgians from South Ossetia.
Russia employed a variety of methods. The most obvious was the use of its
military personnel, in conjunction with Ossetian forces, to burn ethnic Georgian
homes and entire villages, and threaten the inhabitants with death if they refused
to leave. This occurred wherever the Russian army occupied ethnic Georgian
villages. Hundreds of ethnic Georgian homes in dozens of villages in South
Ossetia and adjacent areas were reduced to ashes. After the homes were burnt
and their residents expelled, what littl e remained was razed with earth-moving
65
equipment .
3.7 Nearly every ethnic Georgian village in South Ossetia that came under
Russian occupation was systematically burnt to the ground in this manner,
65When the OSCE’s human rights fact-finding mission visited the destroyed ethnic Georgian
villages of South Ossetia it saw that “housapparently been razed by bulldozers or other
heavy tracked equipment”. OSCE, Office for Democratic Institutions and Human Rights,
Human Rights in the War-Affected Areas Following the Conflict in Georgia (27 November 2008)
(hereinafter OSCE, Human Rights in the War-Affected Areas (2008)), p. 43. GM, Vol. II, Annex
71. See also, e.g., Council of Europe, Parliamentary Assembly, The situation on the ground in
Russia and Georgia in the context of the war between those countries, Memorandum, Doc. 11720
Addendum II (29 September 2008) (hereinafter Council of Europe, The situation on the ground
in Russia and Georgia , Memorandum (2008)), para. 20 (stating “entire villages have been
bulldozed over and razed”). GM, Vol. II, Annex 56.
46starting immediately after th e arrival of Russian troops . In contrast, ethnic
Ossetian villages, and ethnic Ossetian ho mes in ethnically mixed villages, were
spared. This wave of destruction be gan in the enclave of ethnic Georgian
villages located to the nor th of Tskhinvali, as Russian military units entered
South Ossetia through the Roki tunnel and started their drive southward. During
this period, the ethnic Georgian villages of Kemerti, Kekhvi, Dzartsemi, Kurta,
Kvemo Achabeti, Zemo Achabeti, Tamarasheni, Sveri and Kheiti were
destroyed 66.
3.8 As the Russian army extended the geographical scope of its occupation of
South Ossetia, more ethnic Georgian villages were burned by the advancing
Russian army. To the east of Tskhinvali, the following villages were occupied
and destroyed by Russian troops, either on their own or in collaboration with
South Ossetian forces: Va nati, Satskheneti, Qsuisi, Disevi, Eredvi, Argvitsi,
Berula, Beloti, Atsriskhevi, Charebi, Z onkari and Frisi. Th e same pattern of
burning and looting occurred in the ethnic Georgian villages of Avnevi and Nuli,
67
located to the southwest of Tskhinvali.
3.9 When Russian troops entered adjacent districts of Geor gia lying to the
south of South Ossetia, the destruction followed there as well. Like the ethnic
Georgian villages in Sout h Ossetia, upon the arrival of the Russian army, the
homes of ethnic Georgians in Georgian te rritory to the south of South Ossetia
were looted and burnt. As AI observe d, “the looting and pillaging of ethnic
Georgian villages”, which had begun in S outh Ossetia, started to “progressively
extend[] to the adjacent ‘buffer zone’ under effective Russian control in the
66
See infra Figure 3.1.
67
Ibid.
47 68
weeks that followed” . For example, on 12 August, Human Rights Watch
reported that “at least three villages in Gori district [south of South Ossetia’s
administrative boundary] -- Koshki, Guguaantkari, Zariantkari” had been
69
“burned” . These were just a few of the villages in undis puted Georgian
territory that were destroyed over the fo llowing weeks. HRW observed that in
the Gori District the following villages were among those that were “particularly
hard hit by destruction and pillage”: Koshki, Ergneti, Nikozi, Megvrekisi,
Tirdznisi and Tkviavi. Destroyed Georgi an villages in Kareli District (also
outside South Ossetia) incl uded Dvani, Knolevi, Avlevi and Tseronisi. In all
cases, HRW determined that the lootin g and burning commenced “just after
Russian troops began” their occupation. Indeed, HRW observ ed that “Russian
forces maintained a checkpoint just outside these villages” 70.
3.10 The scale of the destruction is appare nt from the following maps. At the
top of Figure 3.1 is a map depicting villages in S outh Ossetia and the area
immediately to the south. Ethnic Georgian villages are shown with red circles;
ethnic Ossetian villages are shown with blue circles. At the bottom of Figure 3.1
is the same map, with white circles depictin g the villages that were destroyed.
71
As the Court will note, nearly every ethnic Georgian village was eliminated. In
72
total, an estimated 138,000 ethnic Georgians were displaced .
68Amnesty International, Civilians in the Line of Fire(2008), op. cit., p. 39. GM, Vol. III,
Annex 158.
69
Human Rights Watch, Safe Corridor Urgently Needed fo r Civilians in Gori District (12
August 2008). GM, Vol. III, Annex 148.
70 HRW, Up in Flames (2009), op. cit., p. 169. GM, Vol. III, Annex 156.
71The white circles on the map depicting villages that have been depopulated are based on
information provided by the Civil Registry Agency of the Ministry of Justice of the Government
of Georgia. In particular, they are based on information reported by IDPs who are required to
483.11 Analysis of satellite imagery by the UN agency UNOSAT demonstrates
that these ethnic Georgian villages we re destroyed by “intentional burning,” not
73
from combat . Specifically, UNOSAT determined that:
high resolution images of these villages show no impact craters
from incoming shelling or rocket fire, or aerial bombardment.
The exterior and interior masonry walls of most of the destroyed
homes are still standing, but the wood-framed roofs are collapsed,
74
indicating that the buildings were burned .
3.12 Further, the destruction of ethnic Georgian villages and expulsion of
ethnic Georgian civilians occurred after the end of hostilities. Experts in satellite
imagery analysis compared satellite phot ographs of ethnic Georgian villages in
South Ossetia that were taken on 10 Augus t (when hostilities ended) with those
taken on 19 August. They determined that the “destruction of houses and
property” occurred mainly “ in the aftermath of hosti lities and not as a direct
75
result of them” . Independent analysis by UNOSAT of different satellite images
register and to indicate the villages from which they have been expelled. Where there are a
sufficient number of IDPs registering from a particular village and indicating the circumstances
of their displacement, that village has been identified with a white circle.
72
Amnesty International, Civilians in the Aftermath of War, the Georgia-Russia Conflict One
Year On (August 2009), p. 9 (citing UNHCR, Displacement Figures and Estimates - August 2008
Conflict updated in May 2009). GM, Vol. III, Annex 159. Of the 138,000, approximately 30,000
remain displaced, the majority of whom formerly lived in South Ossetia but are barred by Russia
and the de facto authorities from returning. Ibid.
73Human Rights Watch, Georgia: Satellite Images Show Destruction, Ethnic Attacks (29 August
2008) (hereinafter HRW, Georgia: Satellite Images Show Destruction (2008)), p. 1. GM, Vol.
III, Annex 152.
74
Ibid., p. 2. The report found that “[o]nly along the main road through Tamarasheni are a
number of homes visible with collapsed exterior walls, which may have been caused by tank
fire”. This finding is consistent with reports by “[e]thnic Georgian witnesses from Tamarasheni”
who “told Human Rights Watch that they had witnessed Russian tanks systematically firing in
the homes on August 10”. Ibid., p. 2.
75Amnesty International, Civilians in the Line of Fire (2008), op. cit., p. 40 (emphasis added).
GM, Vol. III, Annex 158.
49confirmed that the “widespread” “torching” of villages occurred primarily after
76
the cessation of hostilities . Indeed, the UNOSAT satellite photography showed
“active fires in the ethnic Georgian villages” on 12, 13, 17, 19 and 22 August, all
77
“well after the active hostilities ended in the area on August 10” . Eye-witness
observations confirmed that the torching of ethnic Georgian homes and villages
continued long after military action had ended. For example, on 6 September,
HRW researchers in Vanati, a village in Go ri District, “found that practically all
78
the houses were burned”, including some that were “still burning” . An Ad Hoc
Committee of the Bureau of the Parliamentary Assembly of the Council of
Europe visited the conflict zone in late September and reported that the
79
“destruction of property” was “continuing unabated” .
3.13 The fact that the ethnic cleansing oc curred largely after the cessation of
combat is further corroborated by a map submitted by Russia at the oral hearings
on Georgia’s request for provisional measures, shown at Figure 3.2, which
depicts the areas of military hostilities in South Ossetia and adjacent areas in the
rest of Georgia to the south. The Agen t of Russia stated that the information
contained therein was based on official “logbooks” maintained by the Russian
76HRW, Georgia: Satellite Images Show Destruction (2008), op. cit., p. 1. GM, Vol. III, Annex
152.
77
Ibid.
78HRW, Up in Flames (2009), op. cit., p. 138. GM, Vol. III, Annex 156.
79OSCE, Human Rights in the War-Affected Areas (2008), op. cit., para. 18 (emphasis added).
GM, Vol. II, Annex 56. See also International Crisis Group, Georgia-Russia: Still Insecure and
Dangerous, Europe Briefing No. 53 (22 June 2009), p. 3. GM, Vol. III, Annex 165. (“Only one
damaged house was reported in the Georgian ‘buffer zone’ village of Ergneti on 10 August; nine
days later, satellite images showed 58 buildings had been destroyed or damaged. A visit by Crisis
Group on 14 April 2009 found that around 80 per cent of the village’s approximately 200 homes
were heavily damaged or destroyed, indicating many were targeted even after August 2008”.)
(internal citations omitted).
50 80
army . The map depicts the “Zone of milita ry hostilities” for two periods: 8-10
August 2008 and 10-12 August 2008. As the Court will see, the hostilities in
most of South Ossetia had ended by 10 A ugust, and the fighting in the rest of
Georgia had concluded by 12 A ugust. The Parties are thus in agreement that in
no case did military hostilities occur after 12 August, and that it had concluded in
almost all of South Ossetia by 10 August. As described in the preceding
paragraphs, and as further demonstrated below, much of the looting and burning
of ethnic Georgian homes occurred after those dates.
80CR 2008/27 (10 Sept. 2008), p. 40, para. 5 (Kolodkin).
513.14 The fate of Tamarasheni, an ethnic Georgian village in the Kurta
Municipality of South Ossetia, typifies the post-hostilities pattern of destruction.
Analysis of satellite imagery shows “no damage to the village” on 10 August, the
date when fighting in South Ossetia ende d. In contrast, an image taken nine
days later reveals “extensive destruction, with 152 damaged buildings” 81. Figure
3.3 provides a comparison of satellite images taken on 10 and 19 August.
3.15 Eye-witness accounts corroborate th at the burning of Tamarasheni
commenced on 10 August, when combat ended, and continued over the
following days. On 12 August, HRW res earchers witnessed “massive looting”
and “recently torched houses” in Tamarasheni 82. By the time AI visited
Tamarasheni at the end of August, the v illage was “virtually deserted and only a
very few buildings were still intact” 83. The OSCE fact-finding mission spoke
with a resident of Tamarasheni who said that the village “had so many burning
houses that it was impo ssible to count them” 8. When the OSCE fact-finding
mission visited Tamarasheni, it confirmed the village had been completely
destroyed . The destruction was carried out by the Russian army. One
eyewitness testified that when the “Russi an soldiers entered” Tamarasheni, she
81
Amnesty International, Civilians in the Line of Fire (2008), op. cit., pp. 40-41. GM, Vol. III,
Annex 158.
82HRW, Georgia: Satellite Images Show Destruction (2008), op. cit., p. 2. GM, Vol. III, Annex
152.
83
Amnesty International, Civilians in the Line of Fire (2008), op. cit., p. 41. GM, Vol. III,
Annex 158.
84
OSCE, Human Rights in the War-Affected (2008), op. cit., p. 42. GM, Vol. II, Annex 71.
85Ibid., p. 43.
52saw how they were “burning houses” and “taking valuables” 86. There was no
mistaking that these were Russian military forces because the “sign of
peacekeeping forces -- ‘MC’ (in Russian)” was “on their tanks and uniforms” 87.
3.16 To finalise and make permanent the destruction of Tamarasheni and other
ethnic Georgian villages, Russian forces and allied Ossetian militias razed the
ruins with heavy equipment. Photogr aph 3.1 shows an excavator levelling the
88
remains of ethnic Georgian homes in Tamarasheni .
86Declaration of Tinatin Gagnidze, Protocol of a Victim Testimonial (23 August 2008)
(hereinafter Declaration of Tinatin Gagnidze (23 Aug. 2008)), p. 2. GM, Vol. V, Annex 351.
87
Ibid. For examples of eye-witness accounts of the burning of Tamarash eni, see, e.g., the
statements of 69 year-old Tamar Khutinashvili. HRW, Up in Flames (2009), op. cit., p. 136.
GM, Vol. III, Annex 156. (“They put hay in the house and set it on fire and burned the house.
We had to watch it but could not do anything. They did not allow us to take anything from the
house, not even our identity documents”.) and of 76 year-old Rusudan Chrelidze. Ibid. (“I saw
that my house was burning. By the time I got there it was almost completely burned. I also saw
that my three children’s houses were burning”.)
88The Time Magazine journalist who took this photograph reported the excavator was being used
“to destroy the[] buildings” that “h ad belonged to ethnic Georgians.”
http://www.time.com/time/photogallery/0,29307,1834240_1753663,00.html. A former resident
of Tamarasheni testified that the photograph depicts the upper part of the village and was likely
taken around 20 August. Second Declaration of David Dzadzamia (7 August 2009). GM, Vol.
V, Annex 394.
53 Photograph 3.1 - Excavator destroying buildings belonging to ethnic Georgians in
Tamarasheni (late August 2008). (Yuri Kozyrev)
C. RUSSIA ’SR OLE IN THE ETHNIC CLEANSING
1. Russia’s Direct Participation
3.17 Russian military personnel were direc tly involved in ethnically-targeted
attacks on Georgian villages in Sout h Ossetia. Numerous independent
observers, including expert international organisations and human rights groups,
have documented Russia’s direct participa tion in, and responsibility for, violent
acts of discrimination, including large-scal e ethnic cleansing aimed at expelling
89
ethnic Georgians from South Ossetia . These discriminatory acts occurred
89France’s Foreign Minister, Bernard Kouchfor example, decried the “ethnic cleansing”
being perpetrated by “Russian troops” who were “pushing Georgians out” of the Akhalgori
District. “Kouchner claims ethnic cleansing in Georgia”, Euronews (27 August 2008). GM, Vol.
IV, Annex 260.
54largely after the end of hostilities and when th e Georgian military was no longer
in South Ossetia.
3.18 One such organisation that described the anti-Georgian discrimination is
the OSCE, which dispatched an investig ative team from its High Commissioner
on National Minorities and Office for Democratic Institutions and Human Rights
to conduct a fact-finding mission. After multiple visits to the area during which
it conducted 172 interviews of individuals from 55 diff erent locations, the 16-
member OSCE assessment team concluded that “many villages” which had been
“inhabited by ethnic Georgians” were “nea rly completely destroyed” when they
were “pillaged and then set afire” 90. It determined that no ethnic Georgians
were permitted to remain in South Osse tia. Many ethnic Ge orgians “fled from
the advancing Russian and Ossetian forces out of fear for their lives.” Those
who remained were “forced out violently or under threat of violence” and their
homes, like the homes of those who had fl ed before them, were “systematically
91
destroyed by arson” . The OSCE human rights assessment team further
concluded that ethnic Georgian villages behind Russian lines in areas of Georgia
south of South Ossetia had also been destroyed. It found that “many ethnic
Georgian villages” in Russia’s se lf-proclaimed “buffer zone” were
92
“systematically looted and burned” . Specifically:
Entire villages were emptied of people as military forces from
Russia and South Ossetia advanced into the ‘buffer zone’. Many
villagers were forced out under threat or fear of physical violence.
There were extensive cases of intimidation, looting and pillage in
the ‘buffer zone’, as well as detentions and some reported
90OSCE, Human Rights in the War-Affected Areas (2008), op. cit., p. 7. GM, Vol. II, Annex 71.
91Ibid., p. 33.
92
Ibid., p. 7.
55 killings, all of which sparked the exodus of the population. The
93
displaced persons… were overwhelmingly ethnic Georgians…
3.19 The OSCE fact-finding mission left no doubt as to the participation of the
Russian military in these violent acts of ethnic discrimination against ethnic
Georgians. According to its report, “[d]isplaced persons from village after
village recounted similar e xperiences of deliberate dest ruction of their villages”
94
following “the arrival of Russian armed forces” . These abuses had included
“direct threats to the popul ation, instructions to leave, looting and house
burning”; further, “many villagers repor ted killings, looting and other grave
95
human rights violations”, including by the “Russian armed forces” . The OSCE
fact-finding mission specifically “ident ified the perpetrators” as including
96
“Russian soldiers” . The OSCE investigative team was equally clear that these
discriminatory acts had been perpetrated after the end of hostilities, determining
that “[t]hese villages were pillaged and then set afire following the withdrawal of
97
Georgian forces” . When the team visited Russ ia’s so-called “buffer zone”,
they “counted approximately 140 destroye d houses that were recently burned,
98
none of which showed traces of combat activity” .
93
Ibid., p. 21.
94Ibid., p. 42.
95Ibid., pp. 25-26. The fact that the OSCE noted th at on a few occasions Russian soldiers were
reported to have acted humanely does not take away from the OSCE’s statement that “many
villagers” described “grave human rights violations ” by the arriving “Russian armed forces”.
Ibid.
96Ibid., p. 28.
97Ibid., p. 7 (emphasis added).
98
Ibid., p. 27 (emphasis added).
563.20 The same conclusions were reached by the Parliamentary Assembly of
99
the Council of Europe, which conducte d its own fact-finding investigation .
The investigation commission reported that it found evidence of “systematic acts
of ethnic cleansing of Georgian village s in South Ossetia” and that “entire
villages have been bulldozed over and razed” 100. Like the OSCE fact-finding
mission, the Council of Europe’s investig ation commission placed responsibility
for these abuses on Russia. In reporti ng its findings, the commission “stressed
that the Russian Federation, under interna tional law, bears full responsibility for
any crimes and human right s violations committed on the territories that are
101
under its effective control” .
3.21 The aftermath of the ethnic cleansi ng was also observed by a separate
Rapporteur of the Parliamentary Assembly of the Council of Europe, Ms. Corien
W.A. Jonker, who conducted her own assessment mission in March 2009. Her
report described how she “drove through and visited a number of villages
previously under the contro l of the Georgian author ities. These included
villages on the road from the North to wards Tskhinvali in the Didi Liakhvi
Valley, including Kekhvi, Kurta and Tamarasheni. Villages West of Tskhinvali
in the Prone Valley, including Avnevi a nd villages East of Tskhinvali in the
Patara Likhvi Valley, including Eredvi and Vanati” 10. According to the Council
99
Those carrying out this investigation included the co-rapporteurs of the Monitoring Committee
for Russia, the co-rapporteurs of the Monitoring Committee for Georgia, the Chairman of the
Political Affairs Committee, and the Chairman of the Committee on Migration, Population and
Refugees. Council of Europe, The situation on the ground in Russia and Georgia, Memorandum
(2008), op. cit., para. 1. GM, Vol. II, Annex 56.
100Ibid., para. 10.
101Ibid., para. 20.
102Council of Europe, Parliamentary Assembly, Committee on Migration, Refugees and
Population, Report, The humanitarian consequences of the war between Georgia and Russia:
follow-up given to resolution 1648 (2009), Doc. 11859 (9 April 2009) (hereinafter, Report: The
57of Europe’s Rapporteur: “ These villages no longer exist. There is only rubble
and no sign of any belongings left in the remnants of the houses” 103.
3.22 These observations compelled the Rapporteur to conclude:
the systematic destruction of every single house is a clear
indication that there has been an intention to ensure that no
Georgians have a property to return to in these villages. In the
view of your rapporteur, whether this was carried out following
instructions by the de facto authorities, or wh ether this was done
by individuals with the de facto authorities or the Russian
Federation armed forces taking no action, makes little or no
difference. The end result has b een to ensure that no Georgians
can return to these villages, and supports the accusation that these
villages have been ‘ethnically cleansed’ of Georgians 104.
3.23 The Representative of the UN Secretary-General on the Human Rights of
the Internally Displaced, Mr. Walter Kälin, conducted an official fact-finding
mission from 1-4 October 2008. He, too, co ndemned Russia’s participation and
responsibility for violent ethnic discrimination against Georgians. After visiting
the Russian-occupied buffer zone south of South Ossetia, the Representative of
the UN Secretary-General concluded that “the continuing lack of effective
protection of the population against viol ence committed by armed elements and
widespread looting of property in the buffer zone north of Gori” was
105
“unacceptable and should cease immediately” . Mr. Kälin specifically noted
humanitarian consequences of the war between Georgia and Russia: Follow-up given to
Resolution 1648 (2009)), para. 27. GM, Vol. II, Annex 62.
103Ibid., para. 28 (emphasis added).
104Ibid., para. 29 (emphasis added).
105United Nations Press Release, “Georgia: UN Expert on Internally Displaced Persons Says
Security is Key to Return” (4 October 2008), p. 1. GM, Vol. II, Annex 50.
58that he had “visited villages” -- nearly two months after the end of hostilities -- in
the buffer zone where “looting and acts of violence against the remaining
populations go on” 10. He described these acts of discrimination: “They burn
houses. They terrorize people who are tr ying to stop them”. These were, he
emphasised, “ongoing violations”, and included “ongoing” efforts to “burn
107
houses” and “terrorize people” .
3.24 The final report of the UN Secretary-Ge neral’s Representative to the UN
Human Rights Council emphasised that these abuses had occurred “ in tandem
with a failure by Russian forces to respond and carry out their duty to protect ,
particularly in the northernmost area adjacent to the de facto border with the
108
Tskhinvali region/South Ossetia” .
3.25 International human rights organisa tions independently witnessed the
ethnically-targeted violence; they also obs erved Russia’s direct participation in
these abuses. HRW extensively investig ated and reported on the situation, long
after combat had ended. The HRW inve stigation team conducted investigatory
trips in August, September, October and November 2008. During these
investigations, HRW resear chers conducted 460 in-depth interviews with both
victims and witnesses of ethnically-tar geted abuses in South Ossetia. HRW
reported that its “observations on the gr ound and dozens of inte rviews” led it to
106“Special envoy concerned about lack of prot ection for internally di splaced in Georgia”,
United Nations Radio (6 October 2008) (hereinafter “Sp ecial envoy concerned about lack of
protection for internally displaced” (2008)). GM, Vol. II, Annex 51.
107Ibid.
108U.N. General Assembly, Report of the Representative of the Secretary-General on the human
rights of Internally Displaced Persons, Walter Kälin, Addendum, Mission to Georgia, U.N. Doc.
A.HRC/10/13/Add.2 (13 February 2009), para. 44 (emphasis added). GM, Vol. II, Annex 53.
59conclude there was a coor dinated effort “to ethnically cleanse this set of
Georgian villages”. Specifically, HRW concluded that:
the destruction of the homes in these villages was deliberate,
systematic, and carried out on the basis of the ethnic and imputed
political affiliations of the resi dents of these villages, with the
express purpose of forcing thos e who remained109 leave and
ensuring that no former residents would return .
3.26 HRW’s first-hand observations led it to conclude that “Russian forces
played a role in the widespread looti ng of Georgian homes by Ossetian forces”,
finding that “Russian forces facilitated and participated in these war crimes” 110.
HRW also found that the Ossetian separa tist forces often carried out the burning
and looting of Georgian villages while Russian armed forces provided “cover”
111
for these activities . HRW’s fact-finding t eams described the close
coordination of Russian and separatist military forces in carrying out ethnic
cleansing activities, observing that:
in many cases the perpetrators be longed to South Ossetian forces
operating in close cooperation with Russian forces. The
perpetrators often arrived in villages together with or shortly after
Russian forces passed through them; the perpetrators sometimes
arrived on military vehicles; and the perpetrators seem to have
freely passed through checkpoint s manned by Russian or South
Ossetian forces 11.
3.27 On the basis of its extensive fact-f inding program, HRW concluded that
“Russian forces” were “involved in the l ooting and destruction, either as passive
109HRW, Up in Flames (2009), op. cit., p. 10. GM, Vol. III, Annex 156. See also ibid., p. 131.
110Ibid., p. 8.
111Ibid., p. 9. See also ibid., p. 130.
112Ibid., p. 128.
60bystanders, active participants, or by providing militias with transport into
113
villages” and that “Russian forces, together with Ossetian militias, used or
threatened violence against civilian s or looted and destroyed civilian
114
property” .
3.28 Amnesty International came to the same conclusion after conducting four
investigatory trips to the region. Res earchers from AI visited South Ossetia,
115
North Ossetia and the Georgian cities of Tbilisi and Gori , and interviewed
people who had been wounded and/or di splaced by the conflict as well as
representatives of other international humanitarian organisations that had
monitored events in South Ossetia. They also conducted interviews with
government officials, non-governmental or ganisations, journalists, and health
workers, and collected extensive photographic documentation of the damage
caused to ethnic Georgian villages. In its final report, AI stated that it had
116
“documented the extensive looting and arson of Georgian-majority villages” ,
as well as the threats made to the “elderly and infirm” who had been “ordered” to
“leave” in circumstances where “those w ho resisted these orders” risked being
117
“beaten and/or killed” .
113Ibid., p. 4.
114Ibid., p. 120.
115Amnesty International was not granted access to the “buffer zone” around South Ossetia. See
Amnesty International, Civilians in the Line of Fire (2008), op. cit., p. 44. GM, Vol. III, Annex
158.
116
Ibid., p. 40.
117Ibid., p. 39.
613.29 AI placed responsibility with Russia for these abuses against ethnic
Georgians, emphasising that there were “many reports of Russian forces looking
on while South Ossetian forces, militia groups and armed individuals looted and
destroyed Georgian villages and threaten ed and abused the residents remaining
there” 11. It found that although “Russia” wa s “responsible for the safety and
security in the areas over which they have control”, the “serious abuses that have
resulted in extensive destruction of homes and property, beatings and even
killings are a clear indication that th ey have failed to live up to this
119
obligation” . AI concluded that the “Russian armed forces failed to ensure and
protect the human rights of the ethnic Georgian populations” and that the
“Russian military forces did not uphold their obligation to maintain law and
order and prevent looting by South Ossetian militia groups in areas under their
control” 120.
3.30 The conclusions of these independent fact-finders regarding the direct
participation of the Russian military in discrimination against ethnic Georgians
in South Ossetia, either th rough an active role in perpetration of the abuses or a
collaborative one in knowingly allowing a llied Ossetian forces to “do the dirty
work” under their protection, is co rroborated by overwhelming evidence,
including testimony by eyewitn esses. For example, 73 year-old Ana Datashvili
reported that in Tamarasheni, an ethni c Georgian village in South Ossetia,
“Russian tanks with Russian soldiers” had “occupied [her] village” 121. She
118Ibid., p. 32.
119Ibid., p. 45.
120Ibid., pp. 60-61.
121Ana Datashvili, Protocol of a Victim Testimonial (26 August 2008). Observations of Georgia,
Interim Measures, Annex 27.
62recounted how soldiers “entered my house five times and stole everything,
122
includ[ing] the TV, refrigerator, goods, clothes, and many other small things” .
Then, on 14 August 2008, three armed men in military camouflage, including a
123
Russian soldier, entered her house . She testified that “[t]he Russian soldier
started yelling in a loud voi ce with me but I could not understand what he was
124
saying since I don’t speak Russian” . An Ossetian explained to her that:
the Russian soldier had ordered me to leave the house since they
were going to burn it down. I asked them why they were doing
this, since we were relatives. I explained that I was half Ossetian
and that my mother was Ossetian. Despite my explanation, they
told me that I was Georgian a nd had no place with them. They
said that Georgians will never live on this land anymore. The
Russian soldier forced me by physical abuse to leave the house. I
saw how an Ossetian soldier thre w an object resembling a bomb
125
on the first floor of my house, setting the house ablaze .
3.31 The Russian army committed similar abuses in the ethnic Georgian
village of Tseronisi. Russian soldiers looted and burned the village and expelled
its inhabitants. One witness testified th at the village was occupied by “Russian
military equipment” and “Russian soldiers” who were “wearing Russian military
uniforms” 126. The “flags of the Russian state” were “on their armor vehicles and
‘Ural’ trucks” 127. He further testified that “[ u]pon entering th e village”, the
Russian soldiers began “shooting from their machine guns” and “exploding
122
Ibid.
123Ibid.
124Ibid.
125
Ibid.
126
Declaration of Zaur Chighladze, Protocol of a Victim Testimonial (8 September 2008), p. 1.
GM, Vol. V, Annex 367.
127Ibid.
63bombs” to “frighten[]” th e inhabitants to make them “leave the village” 128.
These Russian soldiers, he observed, “wer e very aggressive against the local
population”, “torturing and beat ing whoever they captured” 12. The soldiers
looted and burnt the village’s houses, including his own 130. He testified:
When Russian military men came to the village, my wife and I
were still staying in the village, since we did not manage to
escape. When they came to our yard, we hid under the bed. The
soldiers came in -- they shot the walls, broke the windows and
went to the second floor. At this time, we sneaked from the
house, ran to the garden and hid there. At this time our house was
set on fire, which bec[a]me st ronger and soon th e entire house
was burning. Our two-storey hous e was completely burnt -- all
131
our property was destroyed .
3.32 Similar abuses were witnessed by another resident of Tseronisi who
testified that, while hiding in the cemetery, she witnessed how the “Russian
soldiers” “started looting, taking our belongings, loadi ng on their vehicles and
then burning the houses” 132. She observed how they “looted my house and then
burnt it down completely” 133. Another witness described how “Russian soldiers
entered the village with military equipmen t, tanks, armored vehicles and ‘Ural’
vehicles” 134. These soldiers, he testified, “were wearing Russian military
128
Ibid.
129Ibid.
130Ibid.
131
Ibid., pp. 1-2.
132Declaration of Eliko Arsenadze, Protocol of a Victim Testimonial (6 September 2008), p. 1.
GM, Vol. V, Annex 363.
133Ibid.
134
Declaration of Ioseb Jamerashvili, Protocol of a Victim Testimonial (22 October 2008), p. 1.
GM, Vol. V, Annex 370.
64 135
uniforms and speaking Russian”, with “Russian flags raised on their vehicles” .
Upon entering the village, the soldiers began “forcing the population to leave the
136
village” by shooting and causing explosions . As a result, the “village was
almost emptied”. He further testified that the “Russian soldiers robbed almost all
the houses in the village” and “burnt and completely de stroyed” many of
137
them . Three of these soldiers entered his house. When he offered them
something to drink, they pointed their “gun s to me and threaten ed to kill” him.
138
They then looted and shot up the house and “broke all the windows” .
3.33 Many other Georgian villages expe rienced similar treatment by the
Russian army. In Takhtisdz iri, a witness testified that the “Russian ground
troops” who “entered the village with thei r military equipment” pressured the
villagers “to leave our homes” 139. These military forces, he testified, “were
constantly looting” and “beating and torturing all Georgians, whoever they
captured” 140. Another witness, from the villag e of Argvitsi, testified that the
“Russian army and heavy armored vehicl es” entered the village, whereupon the
135
Ibid.
136
Ibid.
137Ibid.
138Ibid.
139
Declaration of Kakhaber Tkemaladze, Protocol of a Victim Testimonial (22 October 2008), p.
1. GM, Vol. V, Annex 371.
140Ibid.
65“Russian soldiers destroyed houses, gate s and fences with their heavy armored
trucks” and “looted houses and then burned them” 141.
3.34 Russian forces also perpetrated ab uses, including the burning of ethnic
Georgian homes, in the ethnic Georgian village of Meghvrekisi, where a witness
testified that he:
watched from the gardens as our houses were robbed. The so-
called Russian peacekeepers took everything they could, and what
they were not able to take was burned. I have spent whole nights
in the gardens, hiding and waiting that they would catch and kill
us. They were shouting in Russian to leave th142illages or they
would kill everybody they could catch...
2. Russia’s Failure to Stop Violent Discrimination by Separatist Forces
3.35 In addition to directly participatin g in abuses targeted against ethnic
Georgians, Russian troops also knowingly permitted separatist forces to engage
in violent discrimination against ethni c Georgians and their property. For
example, HRW observed that “Ossetian militias looted, destroyed, and burned
homes on a wide scale”, and that “Ru ssian forces were in many instances
involved in these actions” as “passi ve bystanders” or by “providing
transportation to militias into villages” 143. HRW found that Russia “allow[ed]
South Ossetian forces, including volunt eer militias, to engage in wanton and
widescale pillage and burning of Georgian homes and to kill, beat, rape, and
141Declaration of Gela Turashvili, Protocol of a Victim Testimonial (6 September 2008), p. 2.
GM, Vol. V, Annex 366.
142Declaration of Iason Nadiradze, Protocol of a Victim Testimonial (26 August 2008), p. 2.
GM, Vol. V, Annex 396.
143HRW, Up in Flames (2009), op. cit., p. 163. GM, Vol. III, Annex 156.
66 144
threaten civilians” . According to HRW, “Osse tian militias would in some
cases arrive in villages together with Russian forces, and the latter at the very
145
least provided cover for the bur ning and looting of homes” . AI’s eyewitness
reporting likewise observed “Russian forces looking on while South Ossetian
forces, militia groups and armed indivi duals looted and destroyed Georgian
146
villages and threatened and abused residents remaining there” .
3.36 There is abundant evidence that Russian forces failed to stop the abuse of
ethnic Georgians, even when it occurred in front of them. A few specific
examples illustrate this. For instance, on 12 August 2008, HRW observers in the
ethnic Georgian enclave nor th of Tskhinvali saw the Russian army occupying
villages as they were being burned. Th ey reported that the Ossetian forces who
were looting and burning houses were l iterally “next to Russian tanks and
147
armored personnel carriers” . AI reported a similar in cident in Marana, where
an ethnic Georgian was “warned by Russian soldiers to leave his village before
the arrival of South Ossetian paramilitaries, as they could not guarantee his
148
security” . Likewise, witnesses to the dest ruction of Vanati told the OSCE
mission that “once Russian tanks arrived in the village, Ossetians began to
144
Ibid., p. 3.
145Ibid., p. 120.
146Amnesty International, Civilians in the Line of Fire(2008), op. cit., p. 32. GM, Vol. III,
Annex 158.
147
HRW, Up in Flames (2009), op. cit., p. 132. GM, Vol. III, Annex 156. See also Human
Rights Watch, Georgian Villages in South Ossetia Burnt, Looted (13 August 2008) (hereinafter
HRW, Georgian Villages in South Ossetia Burnt, Looted (2008)). GM, Vol. III, Annex 147.
148Amnesty International, Civilians in the Line of Fire(2008), op. cit., p. 32. GM, Vol. III,
Annex 158.
67 149
pillage and the Russians ‘just let them’” . The OSCE mission further reported
that “Russian troops and tanks stood by while ‘Ossetians’ set fire to most houses
150
in the village” .
3.37 This discriminatory conduct occurred after combat had ceased and the
Georgian military had withdrawn from Sout h Ossetia. In that regard, for weeks
after hostilities ended, the destruction of ethnic Georgian villages proceeded
behind Russian lines in Russia’s self-proclaimed “buffer zone”, where thousands
of Russian combat troops exercised direct control. As a result of Russia’s refusal
to take any action to stop the campai gn of burning, looting and physical abuse
directed at ethnic Georgians, UNHCR was forced to contend with huge numbers
of displaced persons fleeing areas occ upied by the Russian army. Thus, on 26
August, over two weeks after hostilities ended, UNHCR reported “new forcible
displacement” of ethnic Georgians from the Russian-occupied “buffer zone” in
Gori District. They included 400 who had been “forced to flee their villages” 151.
UNHCR reported that “[t]he newly displaced said that some had been beaten,
harassed and robbed, and that three persons had reportedly been killed” 152. They
also told UNHCR that they had been forced to flee because of “massive
149
OSCE, Human Rights in the War-Affected Areas (2008), op. cit., p. 45. GM, Vol. II, Annex
71.
150
Ibid., p. 42.
151UNHCR, Reports of Lawlessness Creating New Forcible Displacement in Georgia (26
August 2008) (hereinafter UNHCR, Reports of Lawlessness Creating New Forcible
Displacement (2008)). GM, Vol. II, Annex 46. These new arrivals included many who “had fled
fighting in the region earlier this month and had just gone back to their farms and villages over
the weekend.” Ibid. They also included “elderly peopl e who had remained in their homes
throughout the conflict, but had now been forced to flee by armed groups.” Ibid.
152Ibid.
68harassment” over the “past two days” and that their attackers’ “brutality” had
153
“increased considerably” .
3.38 Confronted with this situation, UNHCR issued an urgent appeal for the
parties to “make their best efforts to contain further outbreaks of lawlessness
which could contribute to additional displacement” 15. Since the Russian
military occupied the area, and permitted no presence of Georgian security
personnel, there can be no doubt that this plea was addressed to Russia. Russia
ignored UNHCR’s appeal, however, and ethnic Georgians continued to be driven
from their homes. The next day, UNH CR reported that Georgians were now
155
fleeing from areas of Georgia even further removed from South Ossetia .
3.39 Russia refused to allow ethnic Georgians to return to their homes in this
part of Georgia, let alone in S outh Ossetia. UNHCR reported “a growing
number of persons whose attempts to retu rn to their villages in the Gori region
153UNHCR, Emergency Operation Daily Update, New Humanitarian Tragedy Unfolding in Gori
(26 August 2008), p. 1. GM, Vol. II, Annex 47. For example, UNHCR reported that “IDPs from
the village Megrekisi, which is about 6 kilomete rs from the South Ossetian boundary, reported
that there were only some 80 old people left in the village, as everybody else fled when the
conflict broke out two weeks ago. On Sunday and Monday militias repeatedly entered to the
village, looted the houses, tried to extort money and harassed the inhabitants, beating some of
them up severely. This is why another 65 villagers decided to flee. They walked towards Gori in
small groups and spent the night in the open.” Ibid.
154UNHCR, Reports of Lawlessness Creati ng New Forcible Displacement (2008), op. cit. GM,
Vol. II, Annex 46.
155
UNHCR reported: “Today the influx of IDPs to Gori continued from the villages situated
north of the city next to the border with South Ossetia. A group of 30 individuals arrived in Gori
today from the village of Kitsnisi, even furtherinto the Georgian territo ry than the places of
origin of yesterday’s arrivals”. These newly displaced “told UNHCR staff about the same kinds
of incidents as yesterday’s arrivals, saying that militias had entered the village, shooting in the
air, harassing the inhabitants and looting their property”. UNHCR, Emergency Operation Daily
Update, Situation North of Gori is Deteriorating (27 August 2008), p. 1. GM, Vol. II, Annex 48.
69have failed” because “they were stopped at Russian checkpoints” and “strongly
156
advised not to continue” .
3.40 The forced displacement of ethnic Ge orgians continued. On 28 August,
HRW researchers in Gori District docume nted a “disturbing pa ttern of violence
against civilians, including abductions , looting, and beatings” in Russian-
157
occupied areas . One day later, UNHCR reported that new arrivals in Gori had
been “forcibly displaced” from villages in the “buffer zone”, and that they “all
158
have stories of intimidation, including beatings” .
3.41 Russia’s refusal to stop the abuse of ethnic Georgians continued
throughout its occupation of the buffer z one, which ended on 10 October. The
Commissioner for Human Rights of the Council of Europe visited the area on
25-27 September, six weeks after the fi ghting had ended. He reported that
“[o]ne of the most serious remaining probl ems is the issue of ensuring safety for
people in all areas affected” by the occupation, and stressed that the northern part
of the Russian-occupied “buffer zone” was of “particular concern” 159. Similarly,
when the UN Secretary-General’s Repres entative on the Internally Displaced
visited the zone in early October, nearly two months after th e end of hostilities,
156Ibid. The Russian soldiers claimed that the villagers should not continue home because of the
prevalent lawlessness. However, as detailed above, it was the policy of the Russian army not to
impose order, and in fact, Russian forces themselves participated in the abuses.
157
Human Rights Watch, EU: Protect Civilians in Gori District (28 August 2008), p. 1. GM,
Vol. III, Annex 151.
158
UNHCR, Georgia: Buffer Zone Displaced Registered, Tell of Militia Intimidation (29 August
2008). GM, Vol. II, Annex 49.
159Council of Europe, Commissioner for Human Rights, Thomas Hammarberg, Special Follow-
Up Mission to Georgia Including South Ossetia, Summary of Findings, 25-27 September 2008 ,
CommDH(2008)33 (21 October 2008), para. 11. GM, Vol. II, Annex 57.
70he observed that efforts to “burn houses” and “terrorize people” were
160
“ongoing” .
Section II. Representative Villages
3.42 To assist the Court in comprehending the process by which Russia
carried out the violent discrimination desc ribed above, this section will describe
in greater detail the experiences of se lected villages from each of the three
administrative districts of South Ossetia that contained ethnic Georgian villages -
- Kurta Municipality, Eredvi Municipality and Tigva Mu nicipality -- and from
the Russian-occupied “buffer zone” to the south of South Ossetia. In each of
these areas the homes belonging to et hnic Georgians were systematically
destroyed, and the population expelled, while ethnic Ossetian villages and ethnic
Ossetian homes in ethnically-mixed villages were spared. These discriminatory
acts occurred long after hos tilities had ceased and the Georgian army had
withdrawn from the area. In each case, Russian military forces were directly
involved in the commission of the abuses targeted against ethnic Georgians, and
also took no action to prevent separa tist forces from committing the
discriminatory abuses themselves.
A. K URTA M UNICIPALITY
3.43 As explained in paragraph 4.12 below, following the cessation of
hostilities in 1992, Georgia maintained administrative control over Kurta
Municipality, a stretch of territory locat ed to the north of Tskhinvali. It
contained the following ethnic Georgian villages, which lie along the Didi
160“Special envoy concerned abou t lack of protection for in ternally displaced” (2008), op. cit.
GM, Vol. II, Annex 51.
71Liakhvi Valley: Sveri, Kemerti, Kekhvi , Dzartsemi, Kurta, Zemo Achabeti,
Kvemo Achabeti, Tamarasheni and Kheiti. All of these villages were
systematically burnt to the ground followi ng the August 2008 conf lict, either in
its immediate aftermath or during succeedi ng months. This is illustrated by the
experiences of the villages of Zemo Achabeti, Kvemo Achabeti and Kekhvi,
which are detailed below.
3.44 Satellite imagery demonstrates the vast scale of Russia’s campaign of
arson perpetrated against these ethnic Geor gian villages in Kurta Municipality.
Figure 3.4 is a satellite photograph taken on 19 August; it shows that by that date
every village in the ethnic Georgian enclave north of Tskhinvali had suffered
extensive damage. By that time, at least 627 houses had been burned. Analysis
by technical experts with the UN agency UNOSAT determined that 479 of these
buildings were completely destroyed while the other 148 had suffered severe
damage 161. In fact, because significant numb ers of ethnic Georgian homes were
burnt after 19 August, this determination subs tantially under-reports the scale of
the destruction.
3.45 The pace of Russia’s ethnic cleansing campaign accelerated following the
cessation of hostilities. On 11 August, that is, the day after military action ended
in South Ossetia, and by which time the Russian army was in full control of the
territory, the “attacks” against ethnic Ge orgians and their pr operty “intensified
161
UNOSAT, Satellite Damage Assessment for Kekhvi Area, South Ossetia, GeorgiaImagery
Recorded on 19 August 2008 (25 August 2008). GM, Vol. V, Annex 400. The UNOSAT
analysis categorized buildings as destroyed if th e structure had totally collapsed or when it was
standing but less than 50% of the roof was still intact. Severely damaged buildings were defined
as having visible structural damage to a portion of one wall, or where less than 50% of the roof
was damaged. UNOSAT , Village Damage Summary: Avnevi, South Ossetia, Georgia, Imagery
Recorded on 19 August 2008 (10 October 2008). GM, Vol. V, Annex 407.
72 162
and became widespread” . The next day, HRW reporte d that it continued to
witness the “burning” of “ethnic Georgian villages”, prompting the organisation
to issue an urgent alert that its resear chers were seeing “terrifying scenes of
destruction in four villages that used to be populat ed exclusivel y by ethnic
163
Georgians” . Specifically, HRW reported th at “[n]umerous houses” in the
villages of Kekhvi, Kvemo Achabeti, Zemo Achabeti and Tamarasheni “had
been burnt down over the last day” 164. As demonstrated below, the pace of
destruction quickened in the days that followed.
1. Zemo Achabeti and Kvemo Achabeti
3.46 The Russian armed forces entered th e villages soon after hostilities
began. Ossetian forces, and a substantial Russian contingent, remained while
165
the rest of the army continued their advance . It was then that ethnic Georgian
homes began to be looted and burned, a nd the inhabitants grossly abused, with
the participation and support of Russian military personnel. For example, Enver
Babutsidze, a 62 year-old resident of th e village and former Soviet artillery
officer, recounted seeing a “detachment from the Russian army coming down my
street” with Russian flags on their vehi cles. These Russian soldiers were
166
“accompanied by Ossetians wearing black and military green” . Mr.
Babutsidze witnessed a “very large green Russian tank stopped about 30 meters
162HRW, Up in Flames (2009), op. cit., p. 130. GM, Vol. III, Annex 156.
163HRW, Georgian Villages in South Ossetia Burnt, Looted (2008), op. cit., p. 1. GM, Vol. III,
Annex 147.
164
Ibid.
165HRW found that the Ossetian armed forces entered Kvemo Achabeti, “following Russian
tanks”. HRW, Up in Flames (2009), op. cit., p. 133. GM, Vol. III, Annex 156.
166Declaration of Enver Babutsidze (31 August 2008), p. 1. GM, Vol. V, Annex 357.
73from [his] house” and “sol diers from this tank [br oke] into a neighbor’s house
while other Russian soldiers remained outside” 167. Then, “the soldiers who had
run into the house return[ed] with a stereo and put it into the tank” 168. Mr.
Babutsidze testified that “[a]fter the Ru ssian soldiers finished looting the house
169
they set it on fire” . He specifically observed that “[t]he Russian soldiers were
led by an officer with the rank of seni or lieutenant who had three stars on his
shoulders” and that “[t]his Russian officer coordinated the soldiers in collecting
170
the stolen items and putting them into the tank” . This testimony is
corroborated by another witness, who testified to seeing “Russian soldiers” in an
171
“armoured personnel carrier” engaged in looting .
3.47 Similarly, 84-year-old Ilia Chulukhadze described how he was beaten in
172
the village by “Russian forces, acting alone” . He said that “three Russian
soldiers burst into [his] house” and began “beating” him “with the butts of their
173
automatics, particularly on the head” . Mr. Chulukhadze described how his
“entire head was swollen. One of them hit me on the chest so hard that I fell
174 175
down and I could hardly stand up again” . He eventually lost consciousness .
167
Ibid.
168Ibid.
169Ibid.
170
Ibid.
171Declaration of David Dzadzamia (16 July 2009), p. 1. GM, Vol. V, Annex 389.
172
HRW, Up in Flames (2009), op. cit., p. 120. GM, Vol. III, Annex 156.
173
Ibid.
174Ibid.
175
Ibid.
74Later, Mr. Chulukhadze was beaten by Ossetian soldiers, who looted and burned
176
his house, and seized him as a hostage . When they finished looting his home,
“they brought petrol, poured it everywhere in the r ooms and outside the house,
and then put it on fire”. He described how “[t]hey made me watch as my house
177
was fully burned” and “did not even allow me to get some clothes out and
178
change. I was begging them for it, but in vain” . Other houses in the village
met the same fate. Mr. Chulukhadze desc ribed seeing his a ttackers “torch my
179
neighbors’ houses” .
3.48 Many of those who refused to leave the village were killed. For
example, one resident testified:
Omar Babutsidze refused to leave our village. He told me that he
would be safe because he was going to ‘shake the hands of the
Russians and Ossetians’ and that they would not harm him. Later,
while fleeing to Gori, I came acro ss a neighbor who told me that
Omar had been killed. This ne ighbor had personally found his
body near the gate of his house. He told me that because he
didn’t have time to give Omar a proper burial he wrapped his
180
body in a blanket. Omar’s head had been cut off .
3.49 Another witness, a 76 year-old woman, explained how, after the
perpetrators had “looted everything they liked”, they “brought hay, put it in the
176Ibid.
177HRW, Georgia: Satellite Images Show Destruction (2008), op. cit., p. 2. GM, Vol. III, Annex
152.
178
HRW, Up in Flames (2009), op. cit., p. 133. GM, Vol. III, Annex 156.
179
Ibid.
180Declaration of Jimsher Babutsidze (30 August 2008). GM, Vol. V, Annex 354.
75 181
house and ignited it”. This happened, she said, “in front of my eyes” .
Similarly, an 80 year-old man told HRW that after Russian tanks entered the
village, they “were followed by Ossetians who were looting and then burning
houses” 182. He described how “[t]hey came several times to my house, taking
everything they liked”. After the looting was completed, they “poured petrol and
set the house on fire”, and did the same to his “neighbors’ houses” 183.
3.50 Another witness described how Osse tian soldiers who had entered the
village “divide[d] into gangs of 5 or 6 persons” and systematically burned the
village house-by-house with what appear to have been flame-throwers:
Each of these gangs had a man w ith a special w eapon that they
used to set fire to the houses. These machines were the size of a
rucksack and were worn on their backs. The people using them
stood in the garden about 2 to 3 meters away from a house. They
turned a knob and fire came out of the weapon through a tube.
Before the men with the spec ial weapon did this the other
members of the group broke into the house and looted it 184.
3.51 HRW witnessed these ethnically target ed human rights violations first-
hand on 12 August, that is, two days afte r the end of hostilities, when it visited
Kvemo Achabeti. While in the village, HRW observers themselves witnessed
looting by soldiers stealing “household items -- furniture, television sets, heaters,
suitcases, carpets, and blankets -- out of houses” and “loading them into their
181
HRW, Georgia: Satellite Images Show Destruction (2008), op. cit., p. 2. GM, Vol. III, Annex
152.
182HRW, Up in Flames (2009), op. cit., p. 134. GM, Vol. III, Annex 156.
183Ibid.
184Declaration of Jimsher Babutsidze (30 August 2008). GM, Vol. V, Annex 354.
76 185
trucks” . One of them told HRW: “Of course , they are entitled to take things
from Georgians now -- because they lo st their own property in Tskhinvali and
other places” 186.
3.52 Speaking with HRW researchers, an elderly resident “who was
desperately trying to resc ue his smoldering house”, desc ribed what happened to
his still-burning home. He said that:
members of the South Ossetia n militia came to his house on
August 11, and tried to take away some household items. When
he protested, they set the house on fire and left. The man said he
had no food or drinking water; his hands were burned and hair
was singed – apparently as he was unsuccessfully trying to
extinguish the fire – and he appeared to be in a state of shock. He
said that there were about five to ten elderly and sick people left
in the village, all in a similar desperate condition, and many of the
houses were burned 187.
3.53 Russian military forces were on the scene while Ossetian militias carried
out these abuses, which as noted above, occurred after the end of hostilities.
This is evident from the testimony of Ms. Klara Khetaguri. Like many among
the historically mixed population of S outh Ossetia, Ms. Khetaguri is an ethnic
Ossetian who married an ethnic Georgian 188. She testified: “My village was
occupied by the Russian army and the Ossetian militia for several days. The
Ossetians looted and burned the houses in the village, and the Russian army did
185
HRW, Georgian Villages in South Ossetia Burnt, Looted (2008), op. cit., p. 2. GM, Vol. III,
Annex 147.
186Ibid.
187HRW, Georgian Villages in South Ossetia Burnt, Looted (2008), op. cit., p. 1. GM, Vol. III,
Annex 147.
188Declaration of Klara Khetaguri. GM, Vol. V, Annex 319.
77 189
not try to stop them” . Ms. Khetaguri asked a Russian officer “why the
Russians were allowing the Ossetian militia to burn down the Georgians’
190
houses” . He responded that “they didn’ t have any right to stop the
191
Ossetians” . She further testified that the Russian military had her identify her
home as belonging to an Ossetian:
The Russian soldiers tied pieces of white cloth to the buildings
they were staying in. Because I was very afraid that my house
would be burned down, the officer told me to tie a white cloth on
my house to indicate to the O ssetians that my house, like the
buildings where the Russian soldiers were staying, should not be
burned. The officer told me that these buildings, including my
house, would not be burned as l ong as the Russians remained in
the village 192.
Ms. Khetaguri followed this instruction a nd testified that “all the houses in the
village except the houses where the Russi ans were staying and my house” were
193
burnt .
3.54 HRW’s reporting confirms the testimony of Ms. Khetaguri that the
Russian army remained in Kvemo Acha beti throughout the pe riod that ethnic
Georgian homes were being burned and its residents were being beaten and
expelled. As HRW found, the Ossetian soldiers “acted” “ under the cover of
Russian soldiers with tanks who remained in the village” 194. Indeed, Russian
189Ibid.
190
Ibid.
191
Ibid.
192Ibid.
193Ibid.
194HRW, Up in Flames (2009), op. cit., p. 133. GM, Vol. III, Annex 156.
78troops in Kvemo Achabeti were photogr aphed by journalists who visited the
village on 18 August, over a week after the end of hostilities. For example,
Photographs 3.2 and 3.3 show Russian army personnel interspersed among
burning buildings.
Photograph 3.2 - Russian soldiers near house set on fire in Kvemo Achabeti
(18 August 2008). (Reuters/Denis Sinyakov)
79 Photograph 3.3 - Russian soldier walks byhouse set on fire in Kvemo Achabeti
(18 August 2008). (Reuters/Denis Sinyakov)
3.55 Photograph 3.4 shows a Russian military APC next to a burning house.
Photograph 3.5 shows an elderly ethnic Ge orgian couple -- one of whom was
unable to walk -- trying to escape from thei r house that had just been set on fire.
This image was taken the same day as the photograph appearing at Figure 3.4
which shows the presence of the Russian army in their village.
80 Photograph 3.4 - Russian military vehicle, Kvemo Achabeti
(19 August 2008). (Reuters/Denis Sinyakov)
Photograph 3.5 - Elderly Georgian couple escapes from a house set
on fire in Kvemo Achabeti (19 August 2008). (Reuters/Denis Sinyakov)
813.56 After burning Kvemo Achabeti, the Ru ssian and separatist forces razed
what remained. Photograph 3.6, taken on 22 August, 12 days after hostilities
ended, shows heavy earth-moving equipment levelling a Georgian home.
Photograph 3.6 - Excavator tears down a destroyed house in Achabeti
(22 August 2008). (AP Photo/Dmitry Lovetsky)
3.57 The vast scale of the devastation wrought in Kvemo Achabeti is captured
in a satellite image from 19 August 2008 (shown at Figu re 3.5), that is, one day
after Photographs 3.2 and 3.3 were take n and over a week after the end of
fighting in South Ossetia. By that time , 121 houses, more than half of the total
in Kvemo Achabeti, had been damaged or destroyed 195. Of these, 88 had been
195
UNOSAT, Village Damage Atlas Kekhvi to Tskhinvali, South Ossetia (19 August 2008), op.
cit. GM, Vol. V, Annex 401.
82 196
completely destroyed . The purposeful action take n by the perpetrators to
identify and destroy houses may be seen in the imagery depicting the locations of
the destroyed households. Many were locat ed deep in the community, far from
197
the main roads .
3.58 The Georgian households in Zemo Achabeti, immediately to the north of
Kvemo Achabeti, were equally decima ted. When the UNOSAT satellite
imagery was taken on 19 August, houses could still be seen ablaze. Here, as in
Kvemo Achabeti, nearly half of all bui ldings were destroyed or severely
198
damaged . Approximately three-qu arters of the homes targeted were burnt to
the ground, having either to tally collapsed or lost most of their roofs 199. This is
shown at Figure 3.6.
3.59 The ethnic Georgian residents of Zemo Achabeti and Kvemo Achabeti
were forcibly expelled by the Russian arm y. One resident testified that he saw
“a huge column of tanks and Russian military forces arrive”. Several of these
Russian soldiers told him they were from Siberia. They warned he would be
killed if he did not leave, saying: “‘If you are Georgian and want to survive, run
away from here’” because Georgian s “would die if [they] didn’t leave” 20.
Similarly, 60 year-old Tina Nebieridze testified that the Russian and Ossetian
soldiers “shot machine guns in the air to frighten us” and “warned us, the
196Ibid.
197
Ibid.
198
Ibid.
199Ibid.
200Declaration of Jimsher Babutsidze (30 August 2008). GM, Vol. V, Annex 354.
83Georgian population, to leave our houses immediately and go away, or else they
201
would chop off our heads” . She described how she “begged” the Russian and
Ossetian soldiers “not to burn the houses , but they continued and said they will
202
do this to the whole village , to ensure that Georgian s will never come back” .
These soldiers, she recounted, “said they would not touch us if we left Liakhvi
203
gorge forever” . Another resident reported he was “warned” to “leave or they
204
would shoot me” .
2. Kekhvi
3.60 The same pattern of discriminatory violence occurred in Kekhvi, another
village in Kurta Municipal ity, again with the direct participation of Russian
troops and again long after the fighting had concluded. For example, 85 year-
old Liza Gogahvili testified that “Russian and Ossetian troops entered our village
and started robbing and burning Georgian hous es”. She said that she was “sure
they were Russian because they wore Russian uniforms and spoke fluent
Russian”. While fleeing, Ms. Gogahvili witnessed two of her neighbours’
houses being burnt 205. These acts were done in plain view of the “Russian
soldiers” who “watched the Ossetians burning down Georgian homes and did not
react” 206. The testimony of 61 year-old Zair a Khetagashvili contains a similar
201Tina Nebieridze, Protocol of a Victim Testimonial (21 August 2008). Observations of
Georgia, Interim Measures, Annex 38.
202
Ibid.
203Ibid.
204HRW, Up in Flames (2009), op. cit., p. 134. GM, Vol. III, Annex 156.
205Declaration of Liza Gogashvili, Protocol of a Victim Testimonial (21 August 2008)
(hereinafter Declaration of Liza Gogashvili (21 August 2008)). GM, Vol. V, Annex 395.
206
Ibid.
84account. She testified that her 90 year-o ld neighbor “was burned up inside” his
house because he “could not escape” 207. She further reports how the separatist
forces “forced the population out of our hous es and shouted to leave this place”
and “immediately started searching and robbing our houses and then burnt
them” 208. They said they would “exterminate the whole Georgian ethnicity and
kill everybody” 20. Similar events were witnessed by another resident of Kekhvi,
who testified that she “personally watched how they burned down the houses of
my neighbors, saying that they would root out Georgians from the area so that
we would never be able to come back again” 21. While this was happening, she
testified, the “Russian soldiers” present in the village “watched the situation and
did not prevent or suppress the raids against the Georgian population” . 211
3.61 One witness testified that when his father-in-law attempted to return to
Kekhvi after having been forced to flee ear lier, at the “entrance of the village,
Russian soldiers met him, beat him w ith the gun barrel an d physically abused
207Declaration of Zaira Khetagashvili, Protocol of a Victim Testimonial (21 August 2008)
(hereinafter Declaration of Zaira Khetagashvili ( 21 August 2008).). Observations of Georgia,
Interim Measures, Annex 32.
208Ibid.
209Ibid.
210
Declaration of Makvala Melanashvili, Protocol of a Victim Testimonial (21 August 2008)
(hereinafter Declaration of Makvala Melanashvili (21 August 2008).). Observations of Georgia,
Interim Measures, Annex 34.
211Ibid.
85him” 212. The soldiers, he testified, “forced him to leave Kekhvi and told him that
no Georgian would ever live there anymore” 213.
3.62 These written testimonies are corrob orated by eye-witness reporting by
HRW researchers who that saw “many hous es” had been “set on fire between
6:30 pm and 7:30 pm on August 12,” that is , two days after the end of hostilities
214
in South Ossetia . HRW observed that “[t]he houses were intact” when it
“drove by the village at 6:30 p.m.”, but were “on fire when we drove by again
215
one hour later” .
3.63 Another resident, 71 year-old Sherma din Nebieridze, described to HRW
how he had escaped to a nearby hill overl ooking the village, from where he saw
216
“at least a dozen houses on fire in Kekhvi, including his own” . The OSCE’s
human rights fact-finding mission observe d the familiar pattern of looting and
arson in Kekhvi, again with the participat ion and support of the Russian army.
One witness, for example, said that “[t]he Russians… we re protecting the
‘Ossetian’ looters” 217.
212Declaration of Darejan Bakhtadze. Protocol of a Victim Testimonial (2 September 2008).
GM, Vol. V, Annex 361.
213Ibid.
214
HRW, Georgian Villages in South Ossetia Burnt, Looted (2008), op. cit., p. 1. GM, Vol. III,
Annex 147.
215HRW, Up in Flames (2009), op. cit., p. 134, n. 367. GM, Vol. III, Annex 156.
216HRW, Up in Flames (2009), op. cit., p. 135. GM, Vol. III, Annex 156.
217
OSCE, Human Rights in the War-Affected Areas (2008), op. cit., p. 44. GM, Vol. II, Annex
71.
863.64 Satellite imagery of Kekhvi confirms human rights organisation reports
and eye-witness accounts of houses bei ng burned, showing that the destruction
began soon after the Russian army occupied the area and continued long after all
fighting had ended and the Georgian army had withdrawn. By 12 and 13
218
August, troops were looting and burning houses in and around Kekhvi , and by
19 August, the destruction had become far more extensive. According to
satellite imagery, shown at Figure 3.7, by 19 August a total of 153 buildings in
Kekhvi had been damaged, 109 of which were likely destroyed, while the
remaining 44 were severely damaged 21. Nearly half of all homes in the village
were destroyed 22.
3.65 The active fires seen in the satellite images were recorded in Photograph
3.7, taken by Reuters on 19 August, the same day as the satellite image. The
next day, 20 August (10 days after hostil ities had concluded in South Ossetia), a
senior Ossetian military officer was reco rded saying that “Kekhvi is already
being razed to the ground” 221.
218UNOSAT, Update 1: Active Fire Locations for Tskhinvali, South Ossetia, Georgia , Imagery
Recorded 7-20 August 2008 (20 August 2008) (hereinafter UNOSAT, Update 1: Active Fire
Locations for Tskhinvali, South Ossetia, Georgia(7-20 Aug. 2008)). GM, Vol. V, Annex 398.
219
UNOSAT, Satellite Damage Assessment for Kekhvi Area, South Ossetia, Georgia, Imagery
Recorded on 19 August 2008 (25 August 2008). GM, Vol. V, Annex 400.
220UNOSAT, Village Damage Atlas: Kekhvi to Tskhinvali, South Ossetia, Georgia, Imagery
Recorded on 19 August 2008 (29 August 2008). GM, Vol. V, Annex 401.
221Telephone intercept, Vilord to Merab Doguzov (20 August 2008). GM, Vol. V, Annex 315.
87 Photograph 3.7 - Burning homes in Kekhvi(19 August 2008). (Reuters/Vasily Fedosenko)
3.66 During the entire time that the houses were being set ablaze, the Russian
army maintained a strong presence in Kekhvi. Photograph 3.8 shows a Russian
tank emplacement in Kekhvi. The photograph was taken on 21 August.
88 Photograph 3.8 - Russian checkpoint, Kekhvi (21 August 2008). (Reuters/Vasily Fedosenko)
3.67 The occupying forces set the remaining homes in Kekhvi ablaze over the
following days. On 22 August, nearly two weeks after hostilities had ended,
two senior Ossetian military commanders were recorded discussing how all
remaining buildings in Kekhvi had to be destroyed. The Deputy Head of the 7 th
Battalion of the South Ossetian military forces told the Commander of the 9 th
Battalion (Ghromi) that “[t]hey order us to set on fire everything that was left in
Kekhvi” and that “now three vehicles of “KAMAZ” type [heavy Russian military
trucks] are cleaning Kekhvi” 222. The 9 Battalion’s commander confirmed that
the Russian army was also present in his location: “Russian entered this territory
222 th
Telephone ithercept, Commander of the 9 battalion (Ghromi), Toliv Goiaev and Deputy
Head of the 7 battalion of the Ministry of Defense of the Republic of South Ossetia, Arsen
Kvezerov, 22 August 2 008 (hereinafter Telephone intercep t, Toliv Goiaev and Arsen Kyezerov
(22 August 2008)). GM, Vol. V, Annex 316.
89 223
too, they are there and everything is okay” . The next day, the Associated
Press photographed houses on fire in Kekhvi , just as the two military officers
had discussed (Photograph 3.9).
Photograph 3.9 - Burning homes in Kekhvi(23 August 2008). (AP Photo/Dmitry Lovetsky)
3.68 By mid-September 2008, Kekhvi was obliterated. On 19 September, five
weeks after the conclusion of fighting in South Ossetia, a South Ossetian official
was recorded saying that the Russian army had razed Kekhvi and that “they are
223Ibid.
90going to build Russian something in Kekhvi”. “Kekhvi,” he said, “is razed to the
224
ground by excavators and now the construction is in process” .
3.69 The residents of Kekhvi were forcibly expelled or taken hostage. For
example, Ms. Zaira Khetagashvili was told she would be killed if she refused to
leave: “[T]hey told me to leave immedi ately or else they would kill me”. Her
attackers vowed to “exterminate the whole Georgian ethnicity and kill
everybody” and said that “Georgians should leave the area because it is Ossetian
territory” 22. 85 year-old Liza Gogahvili testified that the perpetrators “abused
Georgian people and demanded that they leave the area immediately” 226.
Similarly, 83 year-old Makvala Melanashvili testified that soldiers “burn[ed]
down the houses of the Georgian population” and they “did not care if the owner
of the house was there or not” 227. She “personally watched how they burned
down the houses of my neighbors, saying that they would root out Georgians
from the area so that we would ne ver be able to come back again” 228. Although
the abuses she described were committed by Ossetian forces, she testified that
the “Russian soldiers” “watched the situation and did not prevent or suppress the
raids against the Georgian population” 229. Another witness told the OSCE that
she “met a Russian/Ossetian military pa trol” who ordered her to “leave the
224
Telephone intercept, unidentified man to Serzhik Bestaev, 19 September 2008. GM, Vol. V,
Annex 317.
225Declaration of Zaira Khetagashvili (21 August 2008). Observations of Georgia, Interim
Measures, Annex 32.
226Declaration of Liza Gogashvili (21 August 2008),op. cit. GM, Vol. V, Annex 395.
227
Declaration of Makvala Melanashvili (21 August 2008). Observations of Georgia, Interim
Measures, Annex 34.
228Ibid.
229Ibid.
91 230
village” . When a resident returned to Kekhvi to try to save his cattle, Ossetian
231
soldiers seized him as they were “preparing to burn his neighbor’s house” .
They demanded: “Why are you here? . . . It’s not your house anymore. It’s ours.
232
Why don’t you understand this already?”
3.70 The ethnic Georgians who tried to re main in Kekhvi were detained by
Russian and separatist forces. This happened to 19 residents of the village. For
example, a 71 year-old resident was in his yard on 12 August, after his house had
been burned the day before, when “Osse tian forces armed with automatic
weapons and wearing camouflage uniforms with white armbands spotted him
233
and forced him into a neighbor’s yard at gunpoint” . He described how:
One of them loaded his weapon and pointed it at me. He said,
‘I’ll kill you, you motherfucker!’ I begged them, ‘Please don’t kill
me. I haven’t done anything. I am an elderly man.’ A second
fighter came and pushed the gun away and said, ‘Don’t kill him.’
The first then kicked me in the chest and I fell back on the
concrete. I must have hit my head because I lost consciousness.
When I woke up I struggled to get up. The second fighter kicked
me in the neck and I fell back 234 down. They picked me up and
walked [me] out of the yard .
230OSCE, Human Rights in the War-Affected Areas (2008), op. cit., p. 35. GM, Vol. II, Annex
71.
231HRW, Up in Flames (2009), op. cit., p. 135. GM, Vol. III, Annex 156.
232
Ibid., pp. 135-136.
233
Ibid., p. 173.
234Ibid., pp. 173-174.
92 3. Other Villages
3.71 The experiences of Kvemo Achabeti, Zemo Achabeti and Kekhvi were
not unique in Kurta Municipality. The other villages in the area underwent the
same violent discrimination at the hands of the Russian army and Ossetian
forces. The ethnic cleansing of Tamarasheni was described at paragraphs 3.14 to
3.16, above. Similar events happened throughout Kurta Municipality. For
example, a witness testified that the village of Kurta was “occupied by tanks”
and “Russian soldiers”, who shouted to the Georgian popula tion to “leave the
235
village”, saying “Georgians get out of here, to Georgia, or we will kill you!”
After escaping though the garden, the witness looked back and saw the houses in
236
the village on fire . The same thing happened in the village of Dzartsemi,
where a witness testified that “our vill age was attacked by Russian troops” who
entered with their “milita ry equipment” and “start ed destruction of the
237
population and their property” .
3.72 As shown in the satellite image f ound at Figure 3.4, above, all of the
238
ethnic Georgian villages located in Kurta Municipality were set on fire .
235Declaration of Nugzar Gogidze, Protocol of a Victim Testimonial (29 August 2008), p. 1.
GM, Vol. V, Annex 353.
236Ibid. Similarly, on 27 August, AI representatives traveling from Java in the north of South
Ossetia to Tskhinvali in the south “observed scen es of total destruction, with houses pillaged,
burnt and many in ruins”, including in Kurta where there was “ongoing looting”. Amnesty
International, Civilians in the Line of Fire (2008), op. cit., p. 42. GM, Vol. III, Annex 158. AI
interviewed an elderly woman in that village; she described how Russian-speaking “[m]en in
military uniform” who were armed with Kalashnikovs had “burnt about 15 houses in Kurta”.
Ibid., p. 41.
237Statement of Zhuzhuna Zhuzhaniashvili (19 August 2008), p. 2. GM, Vol. V, Annex 350.
238UNOSAT, Update 1: Active Fire Locations for Tskhinvali, South Ossetia, Georgia (7-20 Aug.
2008), op. cit. GM, Vol. V, Annex 398.
93Satellite images depicting the destructi on of the individual villages of Kurta
Muncipality may be found at Annexes 400 - 405.
B. E REDVI M UNICIPALITY
3.73 The Russian army, in cooperation with separatist forces, also carried out
ethnic cleansing against the ethnic Ge orgian population in the Eredvi
Municipality of South Ossetia, located north-east of Tskhinvali along the Patara
Liakhvi Valley. The ethnic Georgian vi llages in Eredvi M unicipality were:
Vanati, Satskheneti, Qsuisi, Disevi, Eredvi, Argvitsi, Berula, Beloti, Atsriskhevi,
Charebi, Zonkari and Frisi. Each of these villages was looted and burned. As in
Kurta Municipality, the Russian army played a central role in these operations,
much of which occurred long after the end of fighting in South Ossetia, as
exemplified by the abuses committed in Eredvi village that are detailed below.
1. Eredvi
3.74 Troops from the Russian army jointly looted and burnt the village of
Eredvi with Ossetian soldiers. One resident of the village testified that a
combined force of Russian soldiers “w earing uniforms with Russian flags” and
Ossetians entered the villag e and stopped in the centre 239. They then “divided
into groups and went all over the vill age” and “started robbing the houses” 24.
He testified that he could “clearly s ee how Russians and Ossetians were taking
furniture and other items and loading on the vehicles” and that the “Russians and
239Statement of Nodar Beruashvili (10 July 2009), p. 1. GM, Vol. V, Annex 388.
240
Ibid.
94 241
Ossetians were l ooting together” . Once a house had been fully looted, they
began “burning the house down” by employing a “special weapon” that they shot
242
at the house to set it on fire . The Russian and Ossetian soldiers also
sometimes used “kerosene that they had prepared in bottles”, which they poured
243
in the house and set on fire . In that regard, he witnessed his own house being
burned down by a group of seven or eight Russian soldiers and Ossetians who
“took everything out of the house” and then “poured th e kerosene on the first
244
floor and set fire to the house” .
3.75 The use of kerosene by Russian and se paratist forces is corroborated by
the following recorded conversation. In it, on 20 August, Merab Doguzov, the
Deputy Head of a South Ossetian military unit, planned the torching of Georgian
homes with Tolik Bibilov, the Deputy Co mmander of a Russian “peacekeeping”
unit – the North Ossetia-Alania Peacekeeping Battalion. In an interview after the
conflict, the Commander of this unit st ated that his “battalion is Russian” and
245
that its “fate is decided at the level of Russian government” . Bibilov, an
active duty Russian military officer, was subsequently appointed Minister of
246
Emergency Situations in the de facto South Ossetian government . They were
recorded saying:
Doguzov: Listp ere;par e bottles of kerosene.
241
Ibid.
242Ibid.
243Ibid.
244
Ibid.
245
Interview with Kazbek Friev, OS Radio (21 January 2009). GM, Vol. IV, Annex 284.
246“South Ossetian Cabinet Revamped”, Civil Tbilisi (1 November 2008). GM, Vol. IV, Annex
271.
95 Bibilov: Yes.
Doguzov: Otherwise it will take time for it to
work.
Bibilov: Okay 247.
3.76 The destruction of Eredvi was comp rehensive, and as indicated by the
date of the foregoing recorded conversa tion, largely occurred after the end of
hostilities. The OSCE’s human rights assessment team interviewed a witness
from Eredvi who described how “his wife’s elderly parents” were forced “out of
248
their house” and watched as it was burned down “before their eyes” . In
addition, “other displaced persons from the same village provided nearly
identical accounts of their own experiences and of the near total destruction of
249
the village” . For example, “[m]any witnesses described how the fires were
often started by putting a flammable red substance on the beds and then setting it
ablaze”. The “damage of the village from deliberate arson was so complete that
250
one displaced person commented that ‘now, there is no village called Eredvi’” .
3.77 These reports are corroborated by separatist officials. For example, on 13
August 2008, a senior officer of the se paratist Defence Force was recorded
reporting that Eredvi was “completely burnt down” 251. One week later, on 20
247Telephone intercept, Deputy Head of the 7thBattalion of the South Ossetian Defence Force,
Merab Doguzov, to Deputy Comma nder, North Ossetia-Alania P eacekeeping Battalion, Tolik
Bibilov (20 August 2008). GM, Vol. V, Annex 314.
248OSCE, Human Rights in the War-Affected Areas (2008), op. cit., p. 42. GM, Vol. II, Annex
71.
249Ibid.
250
Ibid.
251
Telephone intercept, Arsen Kyezerov and uniden tified woman (13 August 2008). GM, Vol.
V, Annex 313.
96August, that is, ten days after fighti ng in South Ossetia ended, an Ossetian
military officer was recorded discussing the destruction of what remained of
Eredvi:
Vilord: Listen, we need 10 persons. We
have to completely raze Eredvi to
the ground.
Doguzov: Now the guys came from above and
from below. We should go with
white bandages as it is necessary.
Do you have anybody?
Vilord: I’m in Dmenisi now and I will
return soon.
Doguzov: Yes, with 10 persons,
representatives of the Ministry of
Emergency Situations are coming
from below with necessary
technique [equipment] and we will
flatten it to the ground. Kekhvi is
already being razed to the ground.
Vilord: It means that everything left should
be set 252fire and flattened to the
ground .
Two days after this discussion, a senior Ossetian military officer was recorded
reporting that he had been ordered to “s et on fire everything that was left” in
253
“Eredvi” .
252
Telephone intercept, Vilord to Merab Doguzov (20 August 2008),op. cit. GM, Vol. V,
Annex 315. (emphasis added).
253
Telephone intercept, Tolik Goiaev and Arsen Kyezerov (22 August 2008), op. cit. GM, Vol.
V, Annex 316.
973.78 Further evidence of the participation of Russian forces in the destruction
of Eredvi is provided by AI, whose resear chers visited Eredvi four days later,
now two weeks after fighting had ende d. They witnessed ongoing looting and
burning, and observed that “Russian military equipment continued to pass
254
through Eredvi” . AI found that “Russian checkpoints controlled entry and exit
to the village”, but these soldiers did not search Ossetian “trucks or other large
vehicles”. That evening, AI represen tatives “encountered a group of men in
military uniform and was told by one of them, who appeared to be a Russian
army officer from North Ossetia, not to report having met them there”. When AI
“asked why they were not taking action to extinguish fires in the village, they
255
answered ‘that’s the policy’ (‘politika takaya’)” .
3.79 Satellite images confirm that houses in Eredvi continued to be set on fire
and destroyed after combat in South Ossetia had ended, on 19 August, and still
256
new fires continued to engulf homes on 22 August . The satellite imagery also
257
demonstrates the high level of destru ction in Eredvi and surrounding areas .
As shown in Figure 3.8, by 19 August, more than 290 buildings had been
258
affected, over three-quarters (222) of which were completely destroyed .
254
Amnesty International, Civilians in the Line of Fire (2008), op. cit., p. 43 (emphasis added).
GM, Vol. III, Annex 158.
255Ibid.
256UNOSAT, Update 2: Active Fire Locations for Tskhinvali, South Ossetia, Georgia - Active
Fire Locations Detected with MODIS, Imagery Recorded 7-24 August 2008 (24 August 2008).
GM, Vol. V, Annex 399.
257
UNOSAT, Village Damage Summary: Eredvi, Berula, and Argvitsi, South Ossetia, Georgia ,
Imagery Recorded on 10 and 19 August 2008 (16 October 2008) (hereinafter UNOSAT, Village
Damage Summary: Eredvi, Berula, and Argvitsi South Ossetia, Georgia (10, 19 Aug. 2008).)
GM, Vol. V, Annex 408.
258Ibid.
98While only 9 buildings had been destroyed in Eredvi and its surrounding area on
259
10 August, by 19 August, 147 more buildings were burned down . A second
study by technical experts commissione d by AI confirmed this increase in
260
destruction by comparing imagery from 10 August and 19 August . The
locations of the burned houses in the satellite photographs showed that the
261
arsonists had gone down every street in the village .
3.80 Ethnic Georgian homes continued to be burned and looted after these
satellite photographs were taken on 19 August. Photograph 3.10, taken by the
Associated Press on 28 August, shows a house on fire in Eredvi, 18 days after
the end of hostilities in South Ossetia.
259AAAS, High-Resolution Satellite Imagery and Conflict in South Ossetia (2008), op. cit., pp.
11-12. GM, Vol. V, Annex 406.
260
Ibid.
261UNOSAT, Village Damage Summary: Eredvi, Berula, and Argvitsi South Ossetia, Georgia
(10, 19 Aug. 2008), op. cit. GM, Vol. V, Annex 408.
99 Photograph 3.10 - House on fire in Eredvi (28 August 2008). (AP Photo/Dmitry Lovetsky)
3.81 When HRW visited Eredvi on 6 September, nearly a month after the
fighting had ended, it found more “active fi res” and that “every house in the
262
village had fire damage” . The OSCE fact-finding team also “visited Eredvi
and confirmed extensive damage to the village” 263.
3.82 As elsewhere, in Eredvi the Russian and separatist forces expelled the
inhabitants and threatened to kill thos e who refused to leave. The OSCE’s
262HRW, Up in Flames (2009), op. cit., pp. 137-138. GM, Vol. III, Annex 156.
263OSCE, Human Rights in the War-Affected Areas (2008), op. cit., p. 42. GM, Vol. II, Annex
71.
100human rights fact-finding mission reporte d that men in “military uniforms told
264
the inhabitants they had to leave” and “if you don’t leave, you will be killed” .
2. Other Villages
3.83 The ethnic cleansing in Eredvi village was repeated in ethnic Georgian
villages throughout Eredvi Municipal ity, including weeks after the end of
hostilities. For example, on 13 August a se nior officer of the separatist Defence
265
Force was recorded reporting that “ We set Disevi on fire” . Two women from
that village interviewed by AI described how the “Russian soldiers… just held
their positions at the checkpoints and looked on as the looting was taking
place” 266. HRW spoke by telephone with one of the last Georgian residents of
the village on 13 September, who said that “most of the village had been burned”
and that “eight or nine houses were bur ned in Disevi on September 12, and two
on September 13”, that is, over a month after combat had ceased 26. On 15
September, she was forced to flee when more houses in her neighbourhood were
burnt; another witness confirmed that “ houses were burning” in Disevi that
day 268.
264
Ibid., p. 47.
265Telephone intercept, Arsen Kvezerov to unidentified woman, 13 August 2008, op cit. GM,
Vol. V, Annex 313.
266Amnesty International, Civilians in the Line of Fir(2008), op. cit., p. 43. GM, Vol. III,
Annex 158.
267
HRW, Up in Flames (2009), op. cit., pp. 138-139. GM, Vol. III, Annex 156.
268Ibid., p. 139. When HRW researchers returned to Disevi on 25 November 2008, they found
that “the village appeared destroyed and completely deserted”Ibid. On 16 September, HRW
reported it had “documented numerous attacks and threats against civilians” over the previous 10
days, including in Disevi, where “the vast majority of houses in the village had been burned”.
1013.84 Only ethnic Georgians were targeted in Disevi. One witness interviewed
by AI said that “[i]t was just Georgian hous es that were destroyed”. In contrast,
“[t]hose houses where there were mixed ma rriages survived.” The “rest were
269
burnt” . The OSCE’s human rights fact-finding mission confirmed that only
ethnic Georgian houses in Disevi were de stroyed. It reported that “Disevi was
… almost totally destroyed by arson” a nd that even cultural monuments dating
th 270
from the 14 century and earlier were ruined . Of the approximately 300
houses in the village, “all bu t seven were burned”. The “several houses” that
271
were “spared” all “belonged to ethnic Ossetians” .
3.85 The same things happened in Vana ti, another village in Eredvi
Municipality. One resident testified th at “Russian troops entered the village”
272
and “closed the entrances of the village with tanks” . The Russian soldiers, he
testified, were “wearing Russian military uniforms” and had “Russian flags” on
273
their shoulders and chests . “After the Russians subjected the village to their
control”, they were joined by Ossetian military forces, who together with
Russian army personnel looted and burned houses in the village:
Russians and Ossetians were goin g in groups with cars. They
were approaching the houses with cars, taking everything they
HRW, Georgia: EU Mission Needs to Protect Civilians (2008), op. cit. GM, Vol. III, Annex
153.
269Amnesty International, Civilians in the Line of Fire (2008), op. cit., p. 43. GM, Vol. III,
Annex 158.
270OSCE, Human Rights in the War-Affected Areas (2008), op. cit., p. 42. GM, Vol. II, Annex
71.
271
Ibid.
272
Declaration of Valerian Makhniashvili (10 July 2009), p. 1. GM, Vol. V, Annex 382.
273Ibid., pp. 1-2.
102 liked out of the house. They were loading large things on the
trucks. Then they were setting fire to empty houses. There were
cases where they were pouring fuel around the house and setting
fire to it. They were also shooting the houses with the weapon
similar to the grenade launcher and it was immediately under
274
fire .
3.86 This testimony is corroborated by another resident of Vanati, who
testified that “Russian forces” “entered the village” travelling on “tanks and IFVs
[Infantry Fighting Vehicles]” that bore “Russian flags” 275. He observed that
“[o]ne group entered the village from the South, from the direction of the village
Eredvi” while the “other group came from the Java area” 276. The Russian
military “closed [the] two entrances to the village”, erecting “four block-posts,
two at each entrance” 277. It therefore “became impossible to enter or leave the
village without their permissi on, especially by large groups” 27. However, that
same day, “groups of armed Ossetians”, including some wearing the uniform of
the separatist Ministry of Interior, “s tarted entering the village on a massive
scale” travelling “through the Russian block-posts” and “moving around in the
village the whole day together with Russians” 279. These combined groups of
Russians and Ossetians then commen ced “robbing and burning the village” 280.
On the third day of this systematic pillag ing of Vanati, the witness, while hiding
in the forest near the village, observed:
274
Ibid., p. 2.
275
Declaration of Besik Sidamonidze (24 July 2009), p. 1. GM, Vol. V, Annex 391.
276Ibid., p. 2.
277Ibid.
278
Ibid.
279
Ibid.
280Ibid.
103 One of [the] Russian block-posts was at the entrance of the village
near Jojiaant Kari [a neighborhood in Vanati]. There were two
IFVs at the block-post. If we take into consideration that the crew
of the IFV consists of 11-12 so ldiers, there were around 20
soldiers at the block-post. It was around noon when 4 Russians
soldiers left the block-post. One of them had a small fuel
container in his hand. They entered the house near the block-post.
When they left the house, one of them was holding a blue wine
container instead of the fuel c ontainer. The house went up in
flames in a few seconds after they left. It burnt down totally. I
was observing everything with my binoculars and I saw it
perfectly. Anyway, one could see this without binoculars as well,
since I was not too far away. In the same way, Russian soldiers
burnt three other house s. These four houses belonged to ethnic
Georgians, Shota Jojishvili, Vikt or Jojishvili, Emzar Jojishvili,
Nodar and Gogia Jojishvili. The mentioned Russian soldiers were
first entering the houses and taking out the items. By the time
they were leaving the houses were already on fire 28.
3.87 As in Eredvi, the houses of ethnic O ssetians in Vanati were spared. One
witness testified that “[o]nly the houses of Ossetian families were not burnt in
282
the village” . Another resident confirmed th at “nearly the entire village was
fully burnt” with the only exceptions being “a few houses belonging to
Ossetians” that had “pieces of white cloth on the gates of these houses” 283.
Similarly, HRW found that in Vanati almost all the houses were burned; the only
281Ibid., pp. 2-3.
282Declaration of Valerian Makhniashvili, (10 July 2009),op. cit., p. 2. GM, Vol. V, Annex 382.
283Declaration of Besik Sidamonidze (24 July 2009), op. cit., p. 3. GM, Vol. V, GM, Vol. V,
Annex 391.
104 284
exceptions were “those that allegedly belonged to the few Ossetian villagers” .
285
These houses had “signs” that “identified their Ossetian ownership” .
3.88 Satellite images depicting the destru ction of other villages in Eredvi
Municipality may be found at Annex 408.
C. TIGVA M UNICIPALITY
3.89 Tigva Municipality is located to the southeast of Tskhinvali, and includes
the two ethnic Georgian villages of Avnevi and Nuli 286. Like ethnic Georgian
villages elsewhere in South Ossetia, they were looted and burned by Russian and
separatist military forces, and their ethnic Georgian inhabitants were expelled.
1. Avnevi
3.90 The burning of Avnevi l ong after the end of fighti ng in South Ossetia is
confirmed by numerous sources. For example, a witness in Avnevi observed
how “Russian soldiers accompanied” by “Ossetian separatists” were “burning
287
houses” and stealing “cattle and cars” . Similarly, another resident of Avnevi
testified that “Russian soldiers” who were “wearing Russian military uniforms”
and had “Russian flags” and the word “R ussia” on their shoulders, “entered the
284HRW, Up in Flames (2009), op. cit., p. 138. GM, Vol. III, Annex 156.
285
Ibid.
286
Avnevi and Nuli were formally part of Znauri District in the former South Ossetian
Autonomous District.
287Declaration of Ruslan Sikturashvili, Protocol of a Victim Testimonial (2 September 2008), p.
2. GM, Vol. V, Annex 360. The witness explained that he could distinguish between the Russian
soldiers and the separatists by their clothing. Ibid.
105 288
village” . These Russian soldiers told him that they had come “in order to burn
289
the houses of Georgians” . He described how, in the days that followed, the
ethnic Georgian homes were systematically looted and burnt:
The looting was carried out in the organized manner. The
Ossetians dressed in military uniforms were moving around the
village in groups (composed of 4-5 men). When they were
approaching a house, first, they were shooting in order to check
whether there were anyone inside. Then they were bringing
vehicles near the house and taki ng everything they liked. When
they were done with the house, they were shooting at the house
with incendiary weapon and it was burning. I witnessed
destruction of all houses in our neighborhood. Approximately 10
290
houses were burnt a day .
291
Ultimately, the witness’s own house was burnt down .
3.91 On 4 September, nearly a month after the Georgian military had
withdrawn from South Ossetia, 86 year-old Elena Zoziashvili told HRW that her
home in Avnevi had been burnt several days earlier 292. AI also interviewed
elderly and infirm Georgian men who remained in Avnevi after the other
residents had fled 293. They said that “[o]nly the old people stayed behind, those
who didn’t have relatives” 294. One of those who rema ined, a seriously ill 50
288Declaration of Dimitri Kvinikadze (4 August 2009). GM, Vol. V, Annex 392.
289
Ibid.
290
Ibid.
291Ibid.
292HRW, Up in Flames (2009), op. cit., p. 141. GM, Vol. III, Annex 156.
293
Amnesty International, Civilians in the Line of Fire(2008), op. cit., p. 40. GM, Vol. III,
Annex 158.
294Ibid.
106 295
year- old man, was “burnt … to death in his home” . Another man,
296
approximately the same age, was also killed . The perpetrators of these abuses
included men in uniform who “began setting fire to things from 11 o’clock in the
297
morning and again every night” . Photograph 3.11, taken by HRW on 4
September, nearly a month after the end of military hostilities, shows an ethnic
Georgian house on fire in Avnevi.
Photograph 3.11 - Burning house in Avnevi (4 September 2008). (Human Rights Watch)
Original image available at http://www.hrw.org/legacy/photos/2008/georgia_galleries.
3.92 In Avnevi, only ethnic Georgian houses were destroyed and their
inhabitants forcibly removed. One resi dent, for example, described how the
295Ibid.
296
Ibid.
297Ibid.
107Russian and Ossetian soldiers spared a neighbor’s house after they were told that
298
an “Ossetian lived there” .
3.93 AI visited the village and “observed a similar, if not so complete, state of
destruction” as it had witnessed elsewhere 299. The reason was easy to see.
“Painted on the gates and walls of some houses” were the words “ Iron”
(“Ossetians”) and “Zanyato” (“Occupied”)”. Unlike the homes owned by ethnic
Georgians, these specially marked h ouses were “not burnt or destroyed” 300. A
photographer with the Associated Press photographed one such sign in Avnevi,
which declared in large letters: “Ossetians live here”. As can be seen in
Photograph 3.12, this house was untouched. As one resident of Avnevi testified,
“no one burnt houses in the Ossetian neighborhood” 301.
298Declaration of Dimitri Kvinikadze (4 August 2009). GM, Vol. V, Annex 392.
299Amnesty International, Civilians in the Line of Fire(2008), op. cit., p. 43. GM, Vol. III,
Annex 158.
300
Ibid., pp. 40, 43. Amnesty International “established that some houses belonging to
Georgians had indeed been occupied by Ossetians.” Ibid.
301Declaration of Dimitri Kvinikadze (4 August 2009). GM, Vol. V, Annex 392.
108 Photograph 3.12 - “Ossetians Live Here.” Sign on home in Eredvi
(4 September 2008). (AP Photo/ Sergey Ponomarev)
3.94 HRW confirmed that the ethnic O ssetian population of Avnevi was
spared the depredations suffered by its ethnic Georgian residents. HRW
observed that Avnevi had previously ha d an ethnic Georgian population, which
was administered by Georgia, and an ethnic Ossetian population, which was
302
administered by the separatist de facto authorities . HRW found that
“[w]idespread looting and torching in the Tbilisi-administered part began around
August 12, and continued at a lesser scale at least until early September, causing
303
most villagers to flee” . When HRW “visited Avnevi on September 4, its
Tbilisi-administered part was almost fully destroyed by fire and looting” 30. An
302
HRW, Up in Flames (2009), op. cit., p. 141. GM, Vol. III, Annex 156.
303Ibid.
304Ibid.
109HRW observer “saw and photographed two active fires in this part of the
305
village” .
3.95 UNOSAT analysis of satellite imagery determined that, by 19 August, no
fewer than 153 buildings had been damaged in Avnevi, as shown in Figure 3.9.
The imagery reveals that fires were set to nearly every home in the Tbilisi-
administered sector -- only a handful of homes remained intact with their white
roofs indicating no signs of harm 306. Along the main road cutting through
Avnevi, the image appears to show that all but approximately seven homes were
likely destroyed 307. On 19 September, a commander of a separatist military unit
was recorded saying that “Avnevi” had been “razed to the ground” and that
“everything is burnt down” 308.
2. Nuli
3.96 The same type of ethnic cleansing o ccurred in Nuli. The OSCE human
rights assessment team reported that the village had been “systematically
burned”, and found evidence that “Russian troops were accompanying Ossetians
and helping them to set the fires” 309. In this village, the OSCE reported:
305
Ibid.
306
UNOSAT, Village Damage Summary: Avnevi, South Ossetia, Georgia , Imagery Recorded on
19 August 2008 (10 October 2008),op. cit. GM, Vol. V, Annex 407.
307Ibid.
308Telephone intercept, unidentified man to Serzhik Bestaev (19 September 2008), op. cit. GM,
Vol. V, Annex 317. Bastaev was also asked, “What about Dvani?” He replied: “Only old people
are left in Dvani, while in Dirbi and others almost nobody is left.” Ibid.
309
OSCE, Human Rights in the War-Affected Areas (2008), op. cit., p. 43. GM, Vol. II, Annex
71.
110“Russian armed forces and ‘Ossetians’ were looting together, sharing the plunder
from the houses” 310. The result was the complete destruction of the village. On
4 September 2008, HRW visited Nuli and “saw that most of its houses had been
burned and found the village deserted” 311. The OSCE saw the same thing when
it visited Nuli 312.
3.97 This pattern of ethnic cleansing is c onfirmed by eye-witness testimony.
For example, one resident of Nuli described how the Russian army both
protected Ossetian looters and arsonists, and actively participated in such abuses
themselves. He testified that a str ong contingent of th e “Russian army”,
including tanks and APCs, held “positions immediately next to our village” from
which they “control[ed] our village fully” 313. As a result, “nobody could enter
the village without their permission” 314. From this vantage point, he testified, the
Russian army “could see the houses burning in the village” but “did not react” 315.
To the contrary, the “Russian soldie rs were looting and burning the houses
together with Ossetians” 316. The witness specifically described how he saw “the
houses of my neighbors being burnt” 317.
310Ibid., p. 43
311HRW, Up in Flames (2009), op. cit., p. 142. GM, Vol. III, Annex 156.
312
OSCE, Human Rights in the War-Affected Areas (2008), op. cit., p. 43. GM, Vol. II, Annex
71.
313Declaration of Omar Chavchavadze (24 July 2009). GM, Vol. V, Annex 390.
314
Ibid.
315
Ibid.
316Ibid.
317
Ibid.
1113.98 Another eyewitness in Nuli descri bed the “massive and organized
destruction of the houses of Georgi ans” in the village during which
318
“approximately 10-15 houses were looted a day and then burnt” . He testified
that an Ossetian carrying a submachine gun and hand grenade came to him
319
together with a “Russian soldier wearing a Russian military uniform” .
320
Together, they “inspected my house” . He was told: “If you are still here
321
tomorrow, we shall kill you” .
3.99 Figure 3.10 is a satellite image of Nuli taken on 19 August. UNOSAT’s
analysis concluded that 94 buildings ha d likely been destroyed and another 25
322
were likely severely damaged .
D. T HE R USSIAN -O CCUPIED “B UFFER Z ONE ”
3.100 The direct participation of the Ru ssian military in ethnic cleansing in
Russia’s self-proclaimed and occupied “buffer zone” in areas of Georgia
adjacent to South Ossetia is illustrate d by the abuses committed against the
ethnic Georgian population in the village of Avlevi in Kareli District. A witness
from that village testif ied that the “Russian tr oops” occupying Avlevi “were
323
shooting peaceful villagers with all the weapons they had” , and together with
318
Declaration of Otar Tabatadze (4 August 2009). GM, Vol. V, Annex 393.
319Ibid.
320Ibid.
321Ibid.
322
UNOSAT, Village Damage Summary: Nuli, South Ossetia, Georgia, Imagery Recorded on 19
August 2008 (19 August 2008). GM, Vol. V, Annex 397.
323Declaration of Shota Gogichaishvili, Protocol of a Victim Testimonial (25 September 2008),
p. 1. GM, Vol. V, Annex 369.
112Ossetian soldiers, “looted the village” 324. He testified that when the “Russian
soldiers and Ossetian separatists entered my yard”, he escaped by jumping
through a window, and saw how these soldiers were “beating my neighbor” and
325
stealing a vehicle . The Russian soldiers, he re ported, “rushed into my house”
and upon seeing his sick mother, began “v erbally abusing and intimidating her,
326
threatening [her] with death if she did not leave the house” . The soldiers
shouted that “no Georgian would live th ere and if they stayed, they would be
327
killed” . He further testified that they “looted my hous e completely -- they
328
took anything they could, the rest was destroyed” .
3.101 Another resident of Avlevi described similar abuses committed by
Russian forces. He testified that “Russian military armored vehicles, tanks and
‘Ural’ cars” displaying “flags of the Ru ssian Federation” entered the village,
329
followed by “Russian military men” . These soldiers, he testified, began
330
“shooting” to “frighten the populati on and expel us from the village”. The
331
soldiers “beat and tortured whoever they captured” . He testified that the
“Russian soldiers capture d Zurab Tabutsadze and his son Dimitry” and “beat
324
Ibid., p. 2.
325Ibid., p. 1.
326
Ibid.
327
Ibid.
328Ibid.
329
Declaration of Tsiuri Megre lishvili, Protocol of a Victim Testimonial (6 September 2008)
(hereinafter Declaration of Tsiuri Megrelishvili (6 September 2008).), p. 1. GM, Vol. V, Annex
364.
330Ibid.
331
Ibid.
113them with gun barrels and shot the foot of Dimitry Tabutsadze and left them on
the road, half alive” 332. They also murdered Ilia Tkhlashidze, an elderly resident
of the village who had said to them: “I was fighting for you in Berlin, what do
you want from us?” 333.
3.102 This testimony is corroborated by ot her witnesses from Avlevi. One
described how Russian soldiers entered the village in their “military vehicles and
334
Ural cars” while “shooting and shouting: ‘Leave the village’ ‘Go away’” . The
“Russian soldiers,” he testified, “chas[ ed] the villagers” with “their armored
335
vehicles” while shooting in order to “frighten them” . The soldiers “rob[bed]
and burn[ed] the houses in the empty village” and “took anything they could and
burnt the rest” 336. This witness was captured by a Russian soldier who told him
to “leave this village, it is not your village anymore” 33. Similarly, another
villager from Avlevi testified that the Ru ssian soldiers in the village “said they
would kill anybody who would not leave the village” and that “Georgians should
not live in this village” 338. She further testified that “[w]hile Russian soldiers
were staying in the village, they were cursing us, beating and torturing whoever
they caught, robbing [us] and did not let us enter our houses” 339. The soldiers,
332
Ibid.
333Declaration of Gaioz Tkhlashidze (5 September 2008), p. 1. GM, Vol. V, Annex 362. See
also Declaration of Tsiuri Megrelishvili (6 September 2008), op. cit., p. 1. GM, Vol. V, Annex
364; Declaration of Maro Kokolashvili (27 October 2008), p. 1. GM, Vol. V, Annex 372.
334
Declaration of Gaioz Tkhlashadze (5 September 2008), op. cit., p. 1. GM, Vol. V, Annex 362.
335Ibid.
336Ibid., pp. 1-2.
337
Ibid., p. 1.
338Declaration of Maro Kokalashvili (27 October 2008), p. 1. GM, Vol. V, Annex 372.
114she testified, “were trying to expel us fr om our houses and for that reason, were
burning and robbing them” 340.
3.103 The experience of Avlevi was repeat ed throughout the Russian-occupied
“buffer zone”. For example, the ethni c Georgian village of Dvani in Kareli
District was also destroyed by Russian tr oops, and its inhabita nts were forcibly
removed. One witness testified that Russian armored vehicles entered the
village flying the Russian flag 341. Russian soldiers “looted and burned houses of
the Georgians and ordered them to leave the village” 342. He reported how the
soldiers “killed anyone w ho dared to argue with th em”, shooting two of the
villagers because they refused to leave the village 343. The Russian soldiers, he
344
testified, “looted and burnt down my house” . Another resident of Dvani
345
witnessed similar abuses by the Russian army . He testified that when the
Russian military entered the village Russian soldiers began “looting and setting
346
fire to the houses and forced the Ge orgian population to leave the village” .
The soldiers shot and killed two resident s who refused to leave, even killing one
339
Ibid.
340Ibid.
341
Declaration of Vazha Kopadze, Protocol of a Victim Testimonial (31 August 2008), p. 1.
GM, Vol. V, Annex 356.
342Ibid.
343Ibid.
344
Ibid.
345Declaration of Victor Bezhanishvili, Protocol of a Victim Testimonial (31 August 2008).
GM, Vol. V, Annex 355.
346
Ibid., p. 2.
115by putting a gun in his mouth and shooting 347. Another villager, he testified, had
his jaw broken by Russian soldiers who hit him with a gun barrel while ordering
him to “leave the village”, saying “thi s territory did not belong to Georgia
anymore” 348. Another resident described how the “Russian soldiers were
capturing the villagers who did not manage to leave, beating, torturing and
killing them” 349. She heard these Russian soldiers “shouting that they would kill
everybody and expel all Georgians” 350.
3.104 The same thing happened in the village of Tkviavi in Gori District, where
a witness reported that “Russian military troops entered the village on tanks and
351
armored vehicle[s],” followed by Ossetian forces . He testified the “Russian
soldiers were doing nothing to prevent th e Ossetians and the mercenaries from
attacking the Georgian popula tion. On the contrary, they assisted them in
breaking open the gates of houses by break ing into the locked yards with their
armored machines, in order to give the looters the opportunity to move vehicles
352
inside” . While hiding in the fields after fleeing, the witness “saw the whole
353 354
village in flames” . He later saw that his “household was burnt” .
347
Ibid.
348Ibid., p. 2.
349Declaration of Inga Ivanishvili, Protocol of a Victim Testimonial (6 September 2008), p. 1.
GM, Vol. V, Annex 365.
350
Ibid.
351Declaration of Teimuraz Jashashvili, Protocol of a Victim Testimonial (23 August 2008), p. 2,
Annex 352.
352
Ibid.
353
Ibid.
1163.105 Russian armed forces committed similar abuses against ethnic Georgians
in the village of Atotsi, in Kareli District. A resident testified:
Russian forces started entering the village and attacking and
killing peaceful population. They came with heavy armored
vehicles and were targeting the villagers. The villagers started
leaving their houses -- they were hiding in the gardens. Those
who did not manage to escape were captured, beaten, tortured and
gathered in the centre of the village. My son and I did not
manage to hide. We were captured by Russians as well. First, we
were abused in our own house. Th en we were forcibly taken to
the centre of the village where other captured people had been
collected together. Russian soldiers were shouting that Georgians
would be expelled and that no Geor gian would live there. There
were saying: ‘Go away, it is Russia’ 35.
Continuing, she testified:
There were around 80 of us gathered in the centre of the village --
mostly women, children and elderl y. They were telling us that
they would kill us. They were acting like Nazi -- beating and
verbally insulting us. They picked up three young men, tied their
hands and took towards Znauri. When they finished with looting
the village, they went away. Th ere were too many of us so they
did not take us with them. They told us, Georgians, to leave the
village and not to return or we w ould be killed. Russian soldiers
were saying: ‘It is Russia’ 35.
Section III. Hostage-Taking and Deportations
3.106 The violent discrimination that Russ ian and Ossetian forces directed at
ethnic Georgians was not confined to l ooting and burning their villages and
354Ibid.
355Declaration of Liana Kuchishvili, Protocol of a Victim Testimonial (19 September 2008), p. 1.
GM, Vol. V, Annex 368.
356
Ibid.
117expelling the inhabitants. Some Georgian s did not leave their villages in South
Ossetia, despite the threats from Russian and Ossetian military personnel. Most
of these Georgians were elderly or infirm, and unable or too frightened to uproot
themselves and traverse hostile countryside to a safe haven in other parts of
Georgia. Some others were caught trying to gather up family possessions before
leaving. Still others were stopped by Ru ssian and Ossetian forces even as they
tried to heed their instructions to flee. Many of these Georgians were detained
and imprisoned in Tskhinvali. The rest were physically deported by Russian
forces to Gori, a city under Russian occupation in the “buffer zone” beyond the
administrative boundary of South Ossetia.
A. D ETENTION OF E THNIC G EORGIANS
3.107 The discriminatory acts perpetrated by Russian and Ossetian forces
included searching out and detaining thos e ethnic Georgians who remained in
their villages. This happened to at le ast 159 Georgians who stayed in South
Ossetia or in villages along the administra tive border with the rest of Georgia.
According to HRW, at least 76 of these detainees were 60 years-old or older, and
at least 17 were 80 or older; th e youngest detainee was 8 years-old; 357and at
least 40 detainees were women 358. HRW interviewed many of the detainees after
357HRW, Up in Flames (2009), op. cit., p. 170. GM, Vol. III, Annex 156.
358Human Rights Watch, Russia/Georgia: Investigate Abuses of Detainees, Allegations of
Execution, Torture in South Ossetia (21 September 2008). GM, Vol. III, Annex 154. Most of
the detainees were seized from the ethnic Georgian enclave north of Tskhinvali; no fewer than 80
(approximately half of all detainees) were captured in just 4 villages: Kvemo Achabeti, Zemo
Achabeti, Tamarasheni and Kekhvi.
118their release and concluded that it was “very clear” they had been “unlawfully
detained on the basis of their ethnicity” 359.
3.108 Ethnic Georgians were rounded up a nd detained in the immediate
aftermath of the Russian invasion. For example, 48 year-old Manuna Gogidze
described how on the day the conflict started, “she and 15 others were forced out
360
of her neighbor’s cellar” a nd “lined up against a wall”. Theywerethen
“loaded into a truck and taken” to the de facto Interior Ministry’s detention
361
centre in Tskhinvali . The Russian military was directly involved in this
round-up of ethnic Georgians. Human Rights Watch found that “Russian forces
362
directly participated in the detention of ethnic Georgians” and that detainees
363
were captured by “Russian forces” . It concluded that “Ossetian forces, at
times together with Russian forces, detained some of the residents they found
remaining in these villages, particularly the ethnic Georgian villages of South
Ossetia; in most cases, detentions took place in the context of the campaign of
364
looting and destruction” . For example, HRW found evidence that Russian
soldiers cooperated with Ossetian forces to detain elderly residents in
365
Tamarasheni .
359
“Georgian Civilians Tell of Miserable Conditions as War Captives,” Washington Post (24
August 2008) (emphasis added). GM, Vol. IV, Annex 257.
360
Ibid.
361Ibid.
362
HRW, Up in Flames (2009), op. cit., p. 171. GM, Vol. III, Annex 156.
363
Ibid., p. 4.
364Ibid., p. 170.
365Ibid., p. 174.
1193.109 HRW’s conclusion regarding the participation of the Russian army in
detaining ethnic Georgian civilians is corroborated by other evidence. One
witness from the village of Avlevi te stified about how, while hiding in her
garden, she witnessed Russian soldiers “taking people as hostages” 366. The
soldiers spotted and tried to capture her, chasing her in an armored vehicle. She
was able to evade capture by hiding in the bushes 367. Another witness testified
that her mother was “captured by the Russian soldiers” working along with
separatist forces 368. Still another described his capture in the village of
Karaleti 369. He testified that he, along with several other ethnic Georgians, were
“approached” by a “Russian military vehi cle” carrying “a number of Russian
soldiers on it” 370. These soldiers were “accompanied” by an Ossetian soldier
who pointed a gun at the villagers and “ordered us to go towards Tskhinvali” 371.
The villagers complied with this order, and were followed by the “military
vehicle with the Russian soldiers” 372. Similarly, a resident of Zemo Khviti
testified that when Russian tanks ente red the village he, along with another
villager, was captured by Russian soldiers, as well as Chechens and Cossacks 373.
He testified that they commenced “hitting our heads upon the armored vehicles”,
causing them to bleed, and “tied our ha nds and feet and made us lie on the
366
Declaration of Eliko Arsenadze, Protocol of a Victim Testimonial (6 September 2008), p. 1.
GM, Vol. V, Annex 363.
367Ibid.
368Declaration of Tinatin Gagnidze (23 August 2008), op. cit., p. 2. GM, Vol. V, Annex 351.
369
Declaration of Giorgi Kharibegashvili (2 September 2008). GM, Vol. V, Annex 359.
370Ibid., p. 2
371Ibid.
372
Declaration of Giorgi Kharibegashvili (2 September 2008), p. 2. GM, Vol. V, Annex 359.
373
Ibid.
120 374
ground” . The soldiers called them “‘pigs’ in Russian”, and said “they would
375
destroy Georgians”. They were ultimately released after being interrogated by
376
a Russian colonel . Another witness described being “captured” by Ossetian
377
forces “in front of the Russian soldiers” .
3.110 The testimony of Enver Babutsidze of Kvemo Achabeti is particularly
revealing. He describes how he was being told by his uncle that “Russian
soldiers had seized” a neighbor named Vazha Vazagashvil, when:
a Russian soldier suddenly jabbed me in the back with the point
of his rifle and hit me with the butt. He ordered my uncle and I to
go with him. About ten more so ldiers, mostly Russian soldiers
with some Ossetians, came over and ordered my uncle to go
inside the house. They ordered me to follow them. The soldiers
took me to where Vazha was lying on the ground and ordered
Vazha to stand up. Speaking in Russian, they called us ‘Georgian
378
pigs’ and shouted ‘what are you doing here!’
Mr. Babutsidze was then taken to Tskhinva li “on foot in the custody of a group
of Russian and Ossetian soldiers” who were led by a “lieutenant in the Russian
army” 379.
3.111 Russia’s role in the detention of ethnic Georgians was not limited to
participating in their capture. In addition, Russian military personnel also
374Ibid., p. 2.
375Ibid.
376Ibid.
377
Declaration of Liza Gogashvili (21 August 2008), p. 2. GM, Vol. V, Annex 295.
378
Declaration of Enver Babutsidze (31 August 2008), p. 2. GM, Vol. V, Annex 357.
379Ibid.
121participated in their custody at the de facto Interior Ministry building in
Tskhinvali in conditions that HRW found were “inhuman and degrading” 38.
HRW found evidence that detainees were “interrogated by people who
introduced themselves as members of Russian forces” 381. Further, “[s]everal
detainees told Human Rights Watch that Russian Federation officials were
present at certain times at the Minist ry of Interior du ring their detention” 38.
This included one detainee who reported she was interrogated on 12 August by
383
someone who introduced himself as a Russian vice-colonel . Another detainee
described being interrogated on 19 or 20 August by men in uniforms with the
384
Russian Prosecutor-General insignia . Still another deta inee reported being
interrogated around 20 August by men who spoke only Russian, some of whom
385
wore military uniforms . Similarly, the OSCE human rights fact-finding
380HRW, Up in Flames (2009), op. cit., pp. 4, 10, 127, 171. GM, Vol. III, Annex 156. See also
“Georgian Civilians Tell of Miserable Conditions as War Captives,” Washington Post , (24
August 2008). GM, Vol. IV, Annex 257. There is overwhelming evidence of the abusive
conditions in which the ethnic Georgian detainees were confined. For instance, many of the
detainees were brutally beaten. Former detain ees interviewed by HRW said that: “many of the
men, particularly the young men, were beaten, and that some were beaten frequently. They
described consistently how men would be taken out of their cells and out of the basement, and
how, when they were returned, they showed clear signs of beatings.” Ibid., p. 176. One detainee
described these beatings: “We saw them being taken upstairs and we could hear their screams.
When they were brought back, they would bear clear signs of beating… I saw the bruises myself
as I was trying to help them. There was a young man from Tirdznisi who was beaten several
times. I saw large dark bruises mostly on his back …”. Ibid., p. 176.
The detainees were also subjected to anti- Georgian hate speech. For example, 60 year-
old Tina Bebieridze testified that “[t]hey abused us” and “called us “Georgian pigs.” HRW, Up
in Flames (2009), op. cit., p. 177. GM, Vol. III, Annex 156.
381Ibid., p. 171.
382
Ibid., p. 177.
383Ibid., p. 171.
384Ibid., p. 177 & n. 496.
385
Ibid.
122mission was told by a detainee that she sa w “‘Russians acting as supervisors’ of
386
the detention centre” .
3.112 Other detainees have testified that there were Russian soldiers in military
uniforms standing along th e steps leading to the de facto Interior Ministry
building 38, and that “Russian soldiers were located immediately outside the
prison” 388.
3.113 One detainee testified that “[t]here was a place in the prison where
Russians and Ossetians interrogated the hostages” and that his “interrogation was
mostly carried out by Russian officers” who “had stars on their uniforms” and
389
“‘Russia’ was written on their badges” . Another detainee described how the
“situation at the building of the South Osse tian Interior Ministry was completely
controlled by the Russian military”, and that he was “often beaten in the
390
presence of Russian military personnel, as were other Georgian hostages” . He
testified that “[a]lthough Russian soldie rs” had initially remained outside the
detention centre, “starting on 16 August Ru ssian officers appeared inside”, and
on 17 August he was “interrogated by Ru ssian officers wearing Russian military
uniforms”, including a “Russian milita ry officer with three stars on his
391
shoulders” . The interrogation was “conducted in Russian, and if a hostage did
386
OSCE, Human Rights in the War-Affected Areas (2008), op. cit., p. 38. GM, Vol. II, Annex
71.
387Declaration of Enver Babutsidze (31 August 2008), p. 2. GM, Vol. V, Annex 357.
388Ibid.
389
Ibid.
390Declaration of David Dzadzamia (16 July 2009), p. 2. GM, Vol. V, Annex 389.
391Ibid., p. 4.
123not know Russian, an Ossetian interpreted” 392. He testified that “[w]e were
made to sign forms three times”, a nd, “[p]eriodically, someone wearing a
Russian military uniform came to collect completed forms” 393.
3.114 The detainee further testified: “the Russian military officer with three
stars on his uniform ordered me to put on a Georgian military uniform and told
me to read a prepared text in front of a camera” in the presence of “another
394
Russian officer and Russian journalists” . The detainee was beaten and
threatened with death if he refused to read the statement, which he was
395
ultimately forced to do .
3.115 The presence of Russian troops at the detention centre is confirmed by
photographic evidence. Photograph 3.13 shows the de facto Interior Ministry
detention centre 396. A few meters away from the detention centre are temporary
barracks for Russian troops 397.
392Ibid.
393Ibid.
394
Ibid.
395Ibid. The witness testified that he was “made to say that I was a reservist and that 400
reservists had gathered at the Marjanishvili Square on 6 August and arrived in Tamarasheni on 7
August. After Tskhinvali had been destroyed by being bombed, on 8 August, we were ordered
to enter the city from the direction of Tamarash eni. When we entered the city we found the
bodies of dead children, women and elderly civilians. Because I felt badly, threw away my gun
and ran towards Tamarasheni, where I voluntarily surrendered.” Ibid. This statement was
“written in Russian on a sheet of paper” that was placed in front of him. Ibid.
396The photograph was taken by Jonathan Littel, a freelance photographer and was obtained by
Georgia through Amnesty International.
397
Declaration of Enver Babutsidze (31 August 2008). GM. Vol. V, Annex 357. (identifying
“temporary housing where Russian soldiers stayed”).
124 Photograph 3.13 - South Ossetian de facto Interior Ministry detention centre
with Russian troop barracks in background. (Jonathan Littel, obtained through AI)
125 B. D EPORTATIONS
3.116 In addition to seizing ethnic Georgian s and holding them as detainees,
Russian military personnel located and deported ethnic Georgians from South
Ossetia to Russian-occupied Gori, to the south of the South Ossetian
administrative boundary. The Telegraph of London included an eyewitness
account of one such transport of deporte d ethnic Georgians: “Russian military
trucks dumped weeping Georgian civi lians forcibly removed from their
devastated homes onto the tarmac” outside Gori 398. Another account was
supplied by The Financial Times , which reported that forces associated with
“Russia’s emergency situations ministry” removed Georgian villages from Kurta
399
and transported them to Gori . Time Magazine similarly reported that
“officials from the Russian Ministry of Emergency Services” had “cleared the
Georgian villages of old men and wome n who had stayed behind to protect
400
property and livestock” . Photograph 3.14 shows ethnic Georgians being
deported to Gori.
398
“LSO Conducted Valery Gergiev Leads Pro-Russia Concert in OssetiaThe Telegraph (21
August 2008). GM, Vol. IV, Annex 253.
399“Georgian Refugees Tell of Attacks and Looting”, The Financial Times (18 August 2008).
GM, Vol. IV, Annex 248.
400John Wendle, “Fanning Ethnic Flames in Georgia”, Time Magazine (20 August 2008). GM,
Vol. IV, Annex 251.
126 Photograph 3.14 - Ethnic Georgians from South Ossetia being taken by Russian
forces to Gori. (16 August 2008). (AP Photo/Dmitry Lovetsky)
3.117 The OSCE Chairman-in-Office, Mr. Alexander Stubb, himself witnessed
how, in his words, “Russian emergency troops brought in two lorries full” of
“elderly Georgians from southern Ossetia who had been torn away from their
401
homes” . He observed that the deportees, once deposited in Gori, were left
402
“sitting there on the street with all their belongings” . Mr. Stubb described the
Russian forces who had removed these ethnic Georgians as “clearly trying to
empty southern Ossetia of Georgians”, wh ich he said, does not “go[] by any of
403
the books that we deal with in international relations” .
401“S. Ossetia ‘emptied of Georgians’”, BBC News (25 August 2008). GM, Vol. IV, Annex 259.
402
Ibid.
403
Ibid.
127 * * *
3.118 In sum, the evidence shows that Russian military forces were full and
active participants in a violent campaign of racial discrimination that ethnically
cleansed ethnic Georgians from South O ssetia and adjacent areas. Further, in
addition to perpetrating these discriminatory acts directly, the Russian army both
aided and abetted Ossetian forces in acts of violence directed at the ethnic
Georgian population, and took no meaningf ul steps to stop them from carrying
out these abuses. By perpetrating thes e acts of racial discrimination, Russia
breached its obligations under the Conve ntion, including those under Articles 2,
3 and 5, as described in further detail in Chapter 9.
128 CHAPTER IV.
RUSSIA’S RESPONSIBILITY FOR ACTS OF DISCRIMINATION
COMMITTED BY SOUTH OSSETIAN FORCES4.1 In the preceding Chapter, Georgia desc ribed the direct participation of
Russian military forces in violent acts of discrimination against the ethnic
Georgian population of South Ossetia a nd adjacent areas. Not all the acts of
ethnic cleansing were committed, or aide d and abetted, by the Russian army,
however. The South Ossetian armed for ces also engaged in violent abuses
against ethnic Georgians. In this Ch apter, Georgia presents the evidence of
Russia’s command and control of the South Ossetian separatist administration
and military apparatus, and its corresponding responsibility for the acts of ethnic
discrimination committed against ethnic Ge orgian civilians by Ossetian military
elements, even when Russian troops were not physically present at the scene of
those acts.
4.2 The evidence shows that by the summer of 2008, Russia had achieved
complete domination of the separatist administration in South Ossetia. Section I
of this Chapter describes Russia’s relationship with the Ossetian separatist forces
during the ethnic conflic t of 1991-1992, when, with Russian support, the
Ossetian separatists succeeded in pe rmanently expelling over 10,000 ethnic
Georgians from their places of residence in South Ossetia 404. The remaining
Georgian population primarily lived in ethnic Georgian or majority-Georgian
villages clustered to the north, west and east of Tskhinvali. These villages were
administered and protected by Georgia from 1992 to 2008. By contrast, ethnic
Ossetian villages were administered by the de facto South Ossetian authorities
that were established with Russian suppor t. The most powerful force in South
404
U.N. Economic and Social Council, Commission on Human Rights, Report of the
Representative of the Secretary-General on the human rights of internally displaced persons,
Walter Kälin, Addendum, Mission to Georgia, U.N. Doc. E/CN.4/2006/71/Add.7 (24 March
2006), paras. 8-9. (hereinafter “ Report of the Representative of the Secretary-General on the
human rights of internally displaced persons , Walter Kälin, Addendum, Mission to Georgia ”
(2006)). GM, Vol. II, Annex 63.
131Ossetia during this period was the Russian troops which formally served as
“peacekeepers” and controlled South O ssetia’s administrative boundaries. The
evidence shows how Russia’ s control over South Osse tian territory and the de
facto South Ossetian administration steadily grew after 1992.
4.3 Section II describes how by 2008 Russia achieved complete control over
the de facto South Ossetian administration. The evidence demonstrates that this
was not done against the separatists’ wi ll; to the contrary, the South Ossetian
authorities made integration wit h, and subordination to, Russia their raison
d’être. Consequently, by 2008, Russia -- at the invi tation of the de facto
administration -- had come to domina te all aspects of South Ossetia’s
administration, finances, military and police.
4.4 Finally, Section III shows that by the time of the 2008 ethnic cleansing,
Russia had installed its own military and secu rity officials in all key positions of
the de facto South Ossetian administration, such that South Ossetia’s military
and paramilitary forces were effectiv ely under direct Russian command and
control. The evidence demonstrates that the positions of Minister of Defence,
Secretary of the Security Council, Minister of Internal Affair s, Chairman of the
Committee on State Security, Commande r of the State Border Guard, and
Chairman of the Committee on State Cont rol and Economic Security, were all
occupied by active duty General Officers of the Russian Federation’s military
and security services. Further, to augment the military forces under the
command and control of these Russian offi cers assigned to leadership posts in
the de facto South Ossetian administration, St ate military commissariats in
Russia recruited, organized and tran sported hundreds of Russians -- many
already serving in Russian military units -- to South Ossetia, where they were
integrated into the de facto South Ossetian defence forces. Thus, not only were
132the South Ossetian military units under the command and control of Russian
General Officers, those under their comma nd were largely Russians, including
Russian soldiers, as well.
Section I. Ethnic Cleansing, 1991-1992
4.5 In the Soviet Union, South Osse tia was an Autonomous District within
the Georgian Soviet Socialist Republic. According to the last Soviet census in
1989, the population of South Ossetia was approximately 99,000, roughly 65
percent of whom were ethnic Ossetians and 29 percent of whom were ethnic
405
Georgians . Although the two ethnic groups had traditionally enjoyed good
relations, with high levels of interaction and intermarriage, elements within
South Ossetia were not satisfied with autonomous status within Georgia,
advocating instead a complete separation from Georgia. Toward this end, the so-
called South Ossetian Popular Front wa s created in 1988; and on 20 September
1990 it declared the establishment of a new “South Ossetian Democratic
Republic” as a fully sovereign entity w ithin the USSR, having no connection to
Georgia 406. Georgia rejected this unilateral act of secession and threatened to
prevent it, by force if necessary. Becau se two-thirds of the population were
ethnic Ossetian, the separati sts enjoyed both numerical superiority and strategic
advantages vis-à-vis the minority ethnic Georgian community. To further their
goal of separation from Georgia, the O ssetian separatists organized and carried
out a violent campaign of ethnic cleansi ng directed at th e ethnic Georgian
405
Letter from Ministry of Economic Development of Georgia, Department of Statistics, to
Deputy Head of the Department of Public International Law, Ministry of Justice of Georgia (11
August 2009) (reporting 1989 Soviet census data). GM, Vol. V, Annex 353.
406
Declaration of State Soverei gnty of the Soviet Democratic Republic of South Ossetia (20
September 1990). GM, Vol. III, Annex 95.
133population, which as a minority the latter were powerless to stop. Military
conflict then ensued between the separatists and Georgian military and police
forces, whose objectives were to preven t the secession of South Ossetia from
Georgia, and to protect the ethnic Geor gians living in South Ossetia who were
under attack from the separatists. When the armed conflict came to an end in
June 1992, the separatists had gained c ontrol of most of South Ossetia, but
Georgian forces managed to maintain control over certain areas where there was
a majority ethnic Georgian population. A cease-fire froze these battle lines and
administrative arrangements into place 407. The demographic changes produced
by the ethnic violence were substantial. In the regions of South Ossetia that had
come under separatist contro l, nearly the en tire ethnic Georgian population had
been expelled. Over 10,000 ethnic Georgians were permanently forced from
408
their places of residence in this manner .
4.6 The ethnic cleansing campaign began early in January 1991 when large
numbers of ethnic Georgians were forced to flee the regional capital, Tskhinvali,
because of increasing anti-Georgian violence. According to a 1992 Human
Rights Watch report:
Ossetian bands, consisting mainly of armed young men in
civilian clothes, were reported to have repeatedly and
systematically threatened Georgians (who frequently were their
neighbors), beat them up, and looted their homes.
After the mass exodus of Georgian s, Ossetian ‘guerrillas’ robbed
their homes bare; moreover, an estimated sixty-two Georgian
407Agreement on Principles of the Settlement othe Georgian-Ossetian Conflict between the
Republic of Georgia and the Russian Federation (the “Sochi Agreement”) (24 June 1992)
(hereinafter “Sochi Agreement” (1992)). GM, Vol. III, Annex 102.
408Report of the Representative of the Secretary-General on the human rights of internally
displaced persons, Walter Kälin, Addendum, Mission to Georgi” (2006), op. cit., paras. 8-9.
GM, Vol. II, Annex 63.
134 homes were burned. Sometimes the burning of homes was
purely gratuitous. On other occas ions, the guerrillas targeted
those Georgians they suspected of fraternizing w ith or billeting
the Georgian militia 409.
4.7 Over the ensuing weeks and months, the ethnically-motivated violence
spread throughout South Ossetia. The resulting mass displacement of ethnic
Georgians has been recognized by the international comm unity as ethnic
cleansing. For example, the Sub-Comm ission on Prevention of Discrimination
and Protection of Minorities of the UN Commission on Human Rights described
how the conflict in South Ossetia caused “large-scale ethnic cleansing” 410.
4.8 In light of the international recogni tion of the ethnic cleansing to which
ethnic Georgians were subjected in 1991-1992, an exhaustive accounting of all
the specific areas affected is unnecessary. A few examples drawn from Znauri
District west of Tskhinvali, where the houses of ethnic Georgians were
systematically burned and destroyed and their inhabitants abused, will suffice to
illustrate the facts.
4.9 During 1991, 12 of the 14 predominantly ethnic Georgian villages of the
411
Znauri District came under separatist control . In these villages, approximately
409
Ibid.
410U.N. Commission on Human Rights, Sub-Commission on Prevention of Discrimination and
Protection of Minorities, Possible ways and means of facilitating the peaceful and constructive
solution of problems involving minorities, Report submitted by Mr. Asbjorn Eide , U.N. Doc.
E/CN.4/Sub.2/1993/34 (10 August 1993), para. 285. GM, Vol. II, Annex 9. See also UN
Commission on Human Rights, Sub-Commission on Prevention of Discrimination and Protection
of Minorities, Working Paper Containing Suggestions for a Comprehensive Programme of
Prevention of Discrimination and Protection of Minorities, UN Doc. E/CN.4/Sub.2/1994/36 (6
July 1994), para. 31 (same). GM, Vol. II, Annex 17.
411Declaration of Giorgi Kapanadze (10 July 2009). GM, Vol. V, Annex 381.
135400 ethnic Georgian houses were burned down, including some 100 houses in
412
Akhalsheni, 30 in Nedlati, 40 in Kale ti, and 20 in the town of Znauri . In the
villages of Khundisubani, Zemo and Kvemo Okona, Zvileti, Tkisubani and
Sunisi, nearly half of all ethni c Georgian houses were destroyed 413. Of the
roughly 3,000 ethnic Georgians who had lived in the 12 predominantly Georgian
villages of Znauri District before the conflict, all but 200 -- more than 90 percent
-- were ultimately forced to flee 414.
4.10 These ethnically-motivated attacks on Georgians unfolded at a time when
more than 500 Soviet (until December 1991) and Russian Federation (after
January 1992) troops were stationed in or sent to South Ossetia. 415 At all times,
they represented the predominant military force in the area. Yet they did nothing
to prevent the ethnic cleansing that was taking place or to protect the ethnic
Georgians who were its targets. To th e contrary, when the Soviet and later
Russian troops intervened in the conflict, it was consistently on the Ossetian
side. It was well-publicized Soviet and then Russian policy at the time to oppose
Georgia’s independence, and when this proved impossible, to weaken the
fledgling Georgian State. Accordi ngly, Soviet and then Russian troops
intervened as necessary to save the Osse tian separatists from defeat, and to help
them establish control over parts of S outh Ossetia. In the process, they
sometimes accompanied Ossetian forces carrying out ethnic cleansing against
412
Declaration of Malkhaz Meskhi (25 May 2009). GM, Vol. V, Annex 377. See also
Declaration of Vazha Tsiskadze (10 July 2009). GM, Vol. V, Annex 385.
413
Declaration of Malkhaz Meskhi (25 May 2009). GM, Vol. V, Annex 377.
414Ibid.
415Human Rights Watch, Bloodshed in the Caucuses: Violations of Humanitarian Law and
Human Rights in the Georgia-South Ossetia Conflict(March 1992), p. 13. GM, Vol. III, Annex
145.
136Georgians, and allowed it to take place. According to one Russian woman who
was married to a Georgian and whose home was attacked:
We asked the USSR MVD troops for help but they refused. But
they would help Ossetians. When we ask the soldiers to
accompany us they refused and would give us no guarantees.
When my house was robbed, the man on duty and the garrison
said, ‘You started this porridge, now eat it up!’ 416
4.11 A former local administrative official similarly testified that “when
houses of Georgians were being burnt in these villages, the Soviet troops were
deployed in Znauri district, but they did not react” 41.
4.12 By the middle of 1992, with large por tions of South Ossetia cleansed of
ethnic Georgians, the parties to the conflict agreed to the cessation of hostilities.
On 24 June 1992, the Agreement on the Principles of the Settlement of the
Georgian-Ossetian Conflict (the “Sochi Agreement”) was signed. Notably, the
parties to the Sochi Agreement were onl y Georgia and Russia . The separatists
were not signatories. After the Sochi Agreement, the de facto separatist regime
controlled Java District, substantial parts of Tskhinvali District, large portions of
Znauri District and the western part of Akhalgori District, while the Georgian
government remained in control of two municipalities to th e north and east of
Tskhinvali (Kurta and Ere dvi Municipalities, respec tively), two villages in
Znauri District that were subsequently incorporated into Tigva Municipality, and
the eastern portions of Akhalgori District . Figure 4.1 depicts the areas of South
Ossetia controlled by Tbilisi and the separatist de facto regime as of June 1992.
416
HRW, Bloodshed in the Caucasus (1992), op. cit., p. 23. GM, Vol. III, Annex 145.
417
Declaration of Vazha Tsiskadze (10 July 2009), op cit. GM, Vol. V, Annex 385.
1374.13 The Sochi Agreement established a Joint Control Commission (“JCC”),
comprised of Georgian, Russian, a nd North Ossetian and South Ossetian
representatives in addition to participation by the Organization for Security and
Cooperation in Europe (“OSCE”) 41. The JCC was charged with supervising
observance of the Sochi Agreement, drafting and implementing conflict
settlement measures and promoting dialogue. The Sochi Agreement also
provided for the return of refugees. In particular, Article 4 stated:
The Parties shall start immedi ately negotiations on economic
restoration of the regions located in the conflict zone and creation
of proper conditions for return of refugees.
The Parties deem it inadmissible to apply economic sanctions and
blockade, and any other impedi ments to free movement of
commodities, services and people and commit themselves to
provide humanitarian assistance to the affected population 419.
4.14 Russia’s violations of these commitments and its denial to ethnic
Georgians of the right to return, both under the Sochi Agreement and (especially)
the 1965 Convention, will be addressed in Chapter 5 of this Memorial.
4.15 The Sochi Agreement also established the Joint Peacekeeping Forces
group (“JPKF”) to monitor the ceasefire in South Ossetia 42. The JPKF was
ostensibly intended to provide a tri- partite peacekeeping force of Georgian,
Russian and North Ossetian contingents 421. In this manner, Russia’s military
presence in South Ossetia, legally a part of Georgia, was given legitimacy.
418Sochi Agreement (1992), op. cit., Art. 3. GM, Vol. III, Annex 102.
419Ibid., Art. 4.
420Ibid., Art. 3, para. 3.
421Ibid., Art. 10.
138Georgia was compelled to agree to it as a condition of the cease-fire enforced by
Russian troops, which stopped, at least temporarily, the ethnic cleansing of
Georgian civilians carrie d out by Ossetian militias 422. In fact, the JPKF was
dominated by the ostensibly neutral Russian peacekeepers and their North
Ossetian allies, whose ethnic kinship a nd sympathy for their South Ossetian
423
brethren rendered them anything but neutral as well . In all, Russian and North
Ossetian “peacekeepers” outnumbered their Georgian counterparts by two-to-
424
one .
Section II. Russia’s Domination of South Ossetia
4.16 It was after the signing of the Sochi Agreement that Russia began to
exercise increasing control over the de facto South Ossetian authorities,
sustaining them militarily and economica lly, and eventually appointing active-
duty Russian military and security officials as senior Ministers of the de facto
South Ossetian government, responsible fo r all military, police and intelligence
activities in South Ossetia, and directly responsible to their superiors in Moscow.
By August 2008, Russia had achieved complete control over the de facto
governmental authority in South Ossetia , including the “President”, Eduard
Kokoity, who was also chosen for his job by Moscow. Russia’s control over the
South Ossetian authorities and their de facto governmental organs was not
imposed against the will of the latter. To the contrary, it was welcomed by them.
422Eduard Shevardnadze, “Thoughts about Past and Future” (2006). GM, Vol. III, Annex 175.
423International Crisis Group, Georgia’s South Ossetia Conflict: Make Haste Slowly , Europe
Report No. 183 (7 June 2007). GM, Vol. III, Annex 162.
424Each party (Russian, North Ossetian and Georgian) was to provide a maximum of 500 troops
to the JPKF. Decision #1 of the Session of the Joint Control Commission (JCC) Vladikavkaz (4
July 1992). GM, Vol. III, Annex 103.
139As expressed on repeated occasions by Mr. Kokoity, South Ossetia aspired to be,
and considered itself, a part of Ru ssia, subject and subordinate to the
governmental authorities in Moscow. Thus, the South Ossetian “government”,
whose senior members were Russian officials or appointed by them, willingly
placed itself under Russian control.
4.17 Throughout the 1990s, beginning soon after the Sochi Agreement was
signed and the cease-fire was implemented, Russia abandoned its putative
neutrality by organizing, financing, training and arming South Ossetia’s de facto
security forces. According to Mr. Al an Parastaev, who was the Minister of
Internal Affairs in the de facto South Ossetian government at the time:
[t]he Ministry of Internal Affa irs which I led did not have any
kind of an armed unit. To solv e this issue, a letter was sent by
Ludwig Chibirov [then the President of the de facto South
Ossetian government] to the Pres ident of the Russian Federation,
[Boris] Yeltsin, so that Russia could assist us in equipping a
special police unit of the Ministry of Internal Affairs. The letter
was given a positive response and soon we received full
equipment for the special police force (“OMON”). It included
military uniforms as well as firearms, ammunition, means of
communication and other necessary equipment. Consequently,
we equipped a unit composed of 350 persons. With the help of
this unit, I could make the situation stable in the Republic and
accordingly, OMON became the main means of exercising
control over the Republic. Besides, we were getting425ans of
transportation from Russia in the form of vehicles .
4.18 In his testimony, Mr. Parastaev furt her explained how weapons from
Russia reached South Ossetia with the assistance of the Russian Federal Security
425Statement of Alan Parastaev (23 June 2009). GM, Vol. V, Annex 411.
140Service (“FSB”) and Russian Military Intelligence (“GRU”), all of which
ensured that the weapons bypassed Russian customs registration 426.
4.19 Russia also played a key role in creating and training South Ossetian
military forces. In 2000, for instance, two senior Russian officers arrived in
Tskhinvali to assemble a group of appr oximately 800 ethnic Ossetians, whom
427
they then took to Russia for intensive military training . Within a period of
three months, the Ossetians came back trained and armed, fully prepared for
428
service in separatist militia units . In other instances, South Ossetian military
th 429
groups were sent to North Ossetia for training with the Russian 58 Army .
4.20 Beginning in 2000, GRU officers arrive d in Tskhinvali and took charge
of forming Ossetian armed units, including the “Apalchenie” militia, which were
430
village-based armed groups that included civilians . The GRU provided
431
members of these units both arms and salaries . At least by 2003, South
Ossetian militia were receiving their salari es directly from Russia. Ordinary
432
soldiers were paid 4,000 rubles, while officers were paid 8,000 rubles . One
426Ibid. (“Weapons were brought to South Ossetia from Russia bypassing the post of Zaramag
(i.e. were not registered at the Russian customs). The agents of the Main Intelligence Unit of the
Ministry of Defense of Russia (GRU) and those of the Federal Security Service (FSB) were
involved in this process”).
427Interview with Akaki Tsotniashvili (20 May 2009). GM, Vol. V, Annex 376.
428Ibid.
429
Statement of Alan Parastaev (23 June 2009). GM, Vol. V, Annex 411. See also Interview
with Akaki Tsotniashvili (30 May 2009),op. cit. GM, Vol. V, Annex 376.
430Interview with Akaki Tsotniashvili (20 May 2009),op. cit. GM, Vol. V, Annex 376.
431Declaration of Malkhaz Meski (25 May 2009),op. cit. GM, Vol. V, Annex 377.
432
Ibid.
141witness testified that the “personally w itnessed” that “Russian officers were
433
creating and training these armed groups”. Another witness described how:
Russians were conducting trainings for Ossetians. They would
collect the local Ossetian males, including even school children of
the age of 14-15. They were inst alling targets and teaching them
to shoot, and then leaving them with weapons and ammunition.
The trainings were conducted by Russian officers, but these were
434
not peacekeepers .
4.21 This military assistance escalated in 2004, when Russia appointed a
Russian General Officer, Lieutenant Gene ral Anatoly Barankevich, to serve as
South Ossetia’s de facto Minister of Defence and Emergency Situations. As
Lieutenant General Barankevich himsel f explained, as Defence Minister of
South Ossetia he endeavoured “to add people, staff, create sub-units, conduct
435
trainings and make battle arrangements” . These activities were seen by a
witness who observed “Russian officers” who “were wearing Russian military
436
uniforms with Russian flags” conducting trainings of the Ossetian militia
4.22 Russia performed similar services for the de facto South Ossetian police
forces. In 2000, FSB officers arrived in Tskhinvali and promptly took control of
433Declaration of Lavrenti Gabatashvili (10 July 2009). GM, Vol. V, Annex 415.
434Declaration of Tsitsino Shaorshadze (10 July 2009). GM, Vol. V, Annex 383.
435
“There is no place for this President in South Ossetia”, (Interview with Anatoly Barankevich),
Kommersant (4 December 2008). GM, Vol. 4, Annex 277. See also “I am not going to hide that
Russia has armed it well here”, Vlast, No. 38 (641) (26 September 2005) (interview with Speaker
of the de facto South Ossetian Parliament, Znaur Gassiev, who described how South Ossetia had
been “armed” by “Russia”). GM, Vol. IV, Annex 215.
436Declaration of Lavrenti Gabatashvili (10 July 2009),op. cit. GM, Vol. V, Annex 415. See
also Declaration of Zurab Khutsishvili (July 10 2009). GM, Vol. V, Annex 413; Declaration of
Spartak Nefaridze (July 10 2009). GM, Vol, V, Annex 414.
142 437
all the law enforcement organs in South Ossetia . The work of establishing the
de facto South Ossetian security apparatus was divided between the FSB and the
GRU. The FSB controlled the fields of intelligence, security and police, while
the GRU was primarily responsible for the creation and training of Ossetian
438
armed militia and the delivery of the arms they would need to fight .
4.23 Russian control of South Ossetia wa s exercised through senior, active-
duty Russian military officers who were assigned to the most senior positions in
the de facto South Ossetian government, and gi ven direct responsibility for all
military, security and intelligence matters in that territory. As indicated, Russian
Lieutenant-General Anatoly Barankevich was assigned the role of Minister of
Defence and Emergency Situations of South Ossetia in 2004. He was succeeded
by another senior active duty Russian military officer, Major-General Andrei
Ivan Laptev, who served in the same capacity from December 2006 to March
2008 43. As Minister, Major General Lapt ev exercised direct command over all
de facto South Ossetian military and other security forces, and over all weapons,
vehicles and other equipment belonging to those forces. Prior to his appointment
as Minister of Defence, Major General Laptev served in the same de facto
440
Ministry as Head of General Headquarters .
437Interview with Akaki Tsotniashvili (20 May 2009),op. cit. GM, Vol. V, Annex 376.
438
Ibid.
439
Andrei Illarionov, “The Russian Leadership’s Preparation for War, 1999-2008”, The Guns of
August 2008: Russia’s War in Georgia , Svante E. Cornell & Frederick Starr eds., Central Asia-
Caucasus Institute (2009) (herei nafter Illarionov, “Russian Lead ership’s Preparation for War,
1999-2008” (2009)), p. 81. GM, Vol. III, Annex 178.
440Ministry of Internal Affairs, Government of the Republic of Georgia, Russian Officials in the
De Facto Administrations of South Ossetia and Abkhazia (undated) (hereinafter Russian Officials
1434.24 In June 2004, the Russian FSB appointed General Mairbeg Bichegkaev
to serve as Chairman of the de facto South Ossetian Committee of State Security
(“KGB”). Prior to his transfer, General Bichegkaev served as Deputy Head of
the North Ossetian Security Service. In January 2005, he was replaced by
another Russian General Officer, Major General Anatoly Yarovoy . Prior to
his assignment in South Ossetia, Major General Yarovoy headed the FSB branch
in the Republic of Mordovia in central Russia from 2001 to 2004 44. Before that,
he had worked at the FSB’s unit in Astrakhan District in the south-eastern part of
the Russian Federation 44. In February 2006, Major General Yaravoy was
succeeded as Chairman of the de facto South Ossetian KGB by Major General
Nikolai Vasili Dolgopolov . Before his appointment to the de facto South
Ossetian government, Major General Dolgopolov had a long career in Soviet and
then Russian counter-intelligence. From 1983 to 1999, he worked at the Soviet
443
and then Russian KGB, reconstituted as the FSB, Moscow Division . Between
1999 and 2005, Major General Dolgopolov served as Head of the FSB in the
444
Russian Republic of Mari-El .
4.25 Russia also controlled South Ossetia’s military and other security forces
through Major General Igor Sergey Grudnev , the Military Advisor to the de
in the De Facto Administrations of South Ossetia and Abkhazia (undated)). GM, Vol. V, Annex
409.
441Illarionov, “Russian Leadership’s Preparation for War, 1999-2008” (2009)op. cit., pp. 58,
81. GM, Vol. III, Annex 178.
442
Russian Officials in the De Facto Administrations of South Ossetia and Abkhaz(undated),
op. cit. GM, Vol. V, Annex 409.
443Illarionov, “Russian Leadership’s Preparation for War, 1999-2008” (2009)op. cit., pp. 58,
81. GM, Vol. III, Annex 178.
444Ibid.
144facto President of South Osse tia, Mr. Eduard Kokoity. Major General Grudnev
served in this capacity from 2005 to 2006. Prior to serving in South Ossetia, he
held numerous leadership positions in the Russian military command. In 1999,
he managed special operations in Chechnya, and was subsequently named
Deputy Military Commander in that region. From 2001 to 2003, he was the
Head of the Piatigorsk Operative Division of the Russian Internal Forces in
southern Russia. Still later, he was given the position of Deputy Commander of
Russian Internal Forces in Siberia. Af ter his service in South Ossetia, Major
General Grudnev was transferred back to the Russian Federation 44.
4.26 Russian control of South Osseti a extended beyond the military and
security apparatus, and included the ec onomic sphere as well. Indeed, the
majority of the South Ossetian economy was financed by direct budgetary
subsidies from the Russian Federation 446. According to South Ossetia’s former
Minister of the Interior, Mr. Parastaev, Russia’s “finan cial assistance was the
only source of income for us and the m eans with which we were attempting to
survive and work” 447.
4.27 The monies South Ossetia received from Russia were funnelled through
the North Ossetian budget 448. The Russians transferre d the money allocated for
South Ossetia to the account of the Nort h Ossetian Ministry of Finance where it
445Russian Officials in the De Facto Administrations of South Ossetia and Abkhazi(undated),
op. cit. GM, Vol. V, Annex 409.
446
Alexey Pleshkov, “South Ossetia: Fight fo r the financial hole” (1 September 2008)
(hereinafter Pleshkov, “South Ossetia: Fight for the financial hole” (2008). GM, Vol. IV, Annex
281; Statement of Alan Parastaev (23 June 2009). GM, Vol. V, Annex 411.
447Ibid.
448Ibid.
145 449
was re-classified as “assistance” before being sent to South Ossetia . South
450
Ossetian separatists received the money in cash .
4.28 The Russian Federation not on ly brought South Ossetia’s de facto
government and economy within its embrace, it is also took the South Ossetian
people under its roof by granting them Russian citizenship and giving them
Russian passports. The process of “pass portization” began in the late 1990s but
accelerated dramatically in October 2003 when the Russian government
amended its citizenship laws to simplify the procedure for South Ossetians to
451
acquire Russian passports .
4.29 The next month, in November 2003, Russia’s Security Council Secretary,
Igor Ivanov, met with the leaders of S outh Ossetia and agreed to expedite the
process of granting Russian citizenshi p to residents of the two separatist
territories452. Russian media sources reported that the Russian Ministry of
Foreign Affairs was preparing tens of thous ands of blank passports to be sent to
453
these territories . Having been granted Russian citizenship, South Ossetians
449Ibid.
450Ibid.
451“Putin corrected la w on citizenship”, Lenta.ru (24 September 2003). GM, Vol. IV, Annex
193.
452
Illarionov, “Russian Leadership’s Preparation for War, 1999-2008” (2009), p. 55. GM, Vol.
III, Annex 178.
453Ibid.
146who chose to accept Russian passports we re able to vote in the Russian
454
Federation’s Presidential elections on 14 March 2004 .
4.30 Other attributes of Russian citizen ship were also provided to South
Ossetians. In particular, the Russian Federation provided South Ossetians with
pensions substantially great er than the Georgian gove rnment could afford to
provide. For example, in 2004, Russian pe nsions paid in South Ossetia ranged
from the equivalent of US$100 to US $150 per month (compared to Georgian
455
pensions of US$9 per month) . In 2005, a separatist official responsible for the
South Ossetian pension fund explained that it was his intention to build a
“common legal space with Russia” and to “apply all the benefits existing in the
territory of Russian Federation to the population living in our republic” 456.
4.31 Russian financial support for South Ossetia and its people was intended
to foster the “integration, deepening of political, economic, cultural and other
ties with the Republic of North Ossetia” 45. Further to this end, by September
2005, it was reported that “a number of agre ements of industrial and agricultural
sectors were signed between South and North Ossetia” as well as “agreements
454“South Ossetia preparing for Presidential Elections in Russian Federation”, Regnum (29
January 2004). GM, Vol. IV, Annex 196.
455
Therese Freese, Fate of Conflict Zone Residents Hangs on a Thread in South Ossetia, Central
Asia-Caucasus Institute (28 July 2004). GM, Vol. III, Annex 174.
456
Interview with the Chairman of Pension Fund and Social Protection of South Ossetia, IA
Regnum (9 March 2005). GM, Vol. IV, Annex 210.
457“Presidents of North and South Ossetia discussed the process of fulfillment of Putin’s
instructions”, IA Regnum (21 July 2005). GM, Vol. IV, Annex 213.
147 458
between separate regions of Nort h Ossetia-Alania and South Ossetia” . These
agreements had been entered into in furtherance of the “enhancing and
459
expanding integration between the two republics” .
4.32 In March 2006, Mr. Kokoity, the South Ossetian de facto President,
declared that “North and South Ossetia must work as a single government” that
460
must “coordinate our affairs” . In fulfilment of that aspiration, on 22-24 March
2006, an extraordinary joint session of the South Ossetia and North Ossetia
parliaments was held in the North Ossetian city of Vladikavkaz. Issues
discussed included the “strengthening” of the “social, political and economic
situation” and the “implementation” of “integration pr ojects” involving
461
“economic, trade and cultural cooperation” . Genadi Bukaev, an Assistant to
the Russian Prime Minister, told the jo int session that they would soon be a
unified republic. He also stated that the “Russian leadership has already
considered this issue”, which was why those present “should facilitate to soonest
462
realisation of the taken decision” .
4.33 Two months later, in May 2006, Mr. Kokoity publicly expressed great
“satisfaction” with the “positive results” that had been “achieved in the field of
458
“Heads of North and South Ossetia signed a joint statement in Tskhinvali”,IA Regnum (18
September 2005) (hereinafter “Heads of N. and S. Ossetia signed joint statement” (2005)). GM,
Vol. IV, Annex 214.
459Ibid.
460“Kokoity: North and South Ossetia must work as a single government”, IA Regnum (28 March
2006) (hereinafter “Kokoity: North and South Ossetia must work as a single government”
(2006)). GM, Vol. IV, Annex 220.
461
Ibid.
462“Russian leadership took a principal decision on South Ossetia joining RF”IA Regnum (23
March 2006). GM, Vol. IV, Annex 218.
148 463
integration of the two Ossetias” . Urging even greater integration, Mr. Kokoity
declared there “should not be borders between unified Ossetia” and that “[a]ll of
us -- we are citizens of Russia and shall be strengthening the positions of Russia,
we have a big responsibility, and we have to perform our duty jointly and in full
464
cooperation” .
4.34 In light of his expressed desire to integrate South Ossetia into Russia, and
his commitment to “strengthening the posi tions of Russia”, it is not surprising
that Mr. Kokoity became President of South Ossetia’s de facto government, in
2001, with Russia’s full backing.
4.35 That year, members of the Research Institute of Humanitarian Affairs in
Moscow, working under the command of the Russian FSB, met with Mr. Alan
Parastaev, the de facto Minister of Internal Affairs, to inform him of their
“interest” in his poli tical career. According to Mr. Parastaev, he was told that
the Research Institute worked in the fi eld of “election technologies” and wanted
to help him win the presidential elections in South Ossetia if he decided to run 465.
Mr. Parastaev was asked about his visi on for the resolution of the conflict
between South Ossetia and Georgia. When he responded that it should be
resolved through negotiations, his inte rviewers reacted with disapproval 466.
463“Eduard Kokoity: We shall not stop in our achievements”, IA Regnum (19 May 2006)
(hereinafter “Eduard Kokoity: We shall not stop in our achievements” (2 006)). GM, Vol. IV,
Annex 222.
464
Ibid.
465Statement of Alan Parastaev (23 June 2009). GM, Vol. V, Annex 411.
466Ibid.
149 467
Although they met with him one more tim e, the FSB lost interest in him .
According to Mr. Parastaev:
I think I was not regarded to be a suitable candidate for Russians
because of my attitude toward Georgians and towards methods of
regulating the conflict and theref ore, they did not continue
working with me. Instead, they found Eduard Kokoity [South
Ossetia’s current “Pre sident”] that was under the control of
Russian special servic468 With their help, Kokoity managed to
become a president .
4.36 Mr. Parastaev’s testimony is corrobor ated in an account by Mr. Andrei
Illarionov, who served as the senior economic advisor to Russia’s President from
2000 to 2005. In a 2009 article, Mr. Illarionov described the so-called “Meeting
of Four” that took place in February 2001 469. During this meeting, an agent of
the FSB met with three men who were cons idered to be the most radical South
Ossetian leaders in order to “work out a strategy that would deny victory to the
incumbent, Ludvig Chibirov” of whom Russia no longer approved 470. The
invitees included the intellectual lead er of the South Ossetian national
movement, Alan Chochiev; former Sout h Ossetian “Prime Minister” Gerasim
Khugaev; and the Russian citizen and former South Ossetian trade representative
471
in Moscow, Eduard Kokoity . Ultimately, the Russians selected Mr. Kokoity
467Ibid.
468Ibid.
469
Illarionov, “Russian Leadership’s Preparation for War, 1999-2008” (2009), op. cit., p. 52.
GM, Vol. III, Annex 178.
470
Ibid.
471Ibid. See also “South Ossetia – it is already Russia”, Nezavisymaia Gazeta (17 September
2004) (Mr. Kokoity states in an interview that he has been a Russian citizen since 1992). GM,
Vol. IV, Annex 199.
150as their favoured candidate, precisely b ecause of his strong anti-Georgian views
472
and his desire for integration with Russia .
4.37 With Russia’s backing, Mr. Kokoity won election as the President of
South Ossetia on 6 December 2001. As one informed observer noted, Mr.
Kokoity “remained the only aspirant whom the Russian authorities were
prepared to support in the South Ossetian president elections scheduled for late
473
2001” .
4.38 Almost immediately after his electi on, Mr. Kokoity “revealed a plan to
gain legal independence for South Ossetia by launching a war against
Georgia” 474. The following month, Mr. Kokoity urged the de facto South
Ossetian Parliament to adopt a decree re questing Russian authorities to admit
South Ossetia to the Russian Federation 475. According to the then-economic
advisor to Russia’s President, th e Chairman of South Ossetia’s de facto
Parliament, Stanislav Kochiev, hand-deliv ered the request to Moscow in March
476
2002 . According to the same source, on 15 January 2003, Mr. Kokoity
repeated his request for unification with Russia in a meeting with President
477
Putin . The “Russian leadership re sponded on February 2, 2003, by sending
472
See Illarionov, “Russian Leadership’s Preparation for War, 1999-2008” (2009), op. cit., p. 52.
GM, Vol. III, Annex 178; Statement of Alan Parastaev (23 June 2009). GM, Vol. V, Annex 411.
473Illarionov, “Russian Leadership’s Preparation for War, 1999-2008” (2009), op. cit., p. 52.
GM, Vol. III, Annex 178.
474Ibid.
71
Ibid.
476
Ibid.
477Ibid.
151significant military equipment, including twelve T-55 tanks, via the Roki Tunnel
to South Ossetia” 478. It was one of numerous shipments of arms and military
equipment by Russia to South Ossetian sepa ratist forces in the build-up to the
armed conflict that began in August 2008. For Mr. Kokoity and the South
Ossetian leadership, it was another sign that South Ossetia was on the way to full
integration with Russia. By September 2004, when a journalist asked him about
the prospects of integration with the Russian Federation, Mr. Kokoity answered:
“South Ossetia is al ready Russia, notwithstanding lik es and dislikes of anyone.
479
98% of the population of our Republic are Russian citizens” .
4.39 Thus, as Mr. Kokoity himself had admitted, by September 2004, if not
earlier, the “Russification” of South Ossetia was, for all practical purposes, a fait
accompli. Russia’s control over South Ossetia, and its de facto political
authorities and governmental organs was firmly established. Moscow’s man had
been installed as President, Russian military and intelligence officials occupied
the most important posts in the de facto regime -- controlling the de facto South
Ossetian security forces and their arms and other equipment -- the economy was
entirely dependent on Russian aid and increasingly intert wined with North
Ossetia’s, and the vast majority of Ossetians had become passport-carrying
citizens of the Russian Federation. Equa lly significant, there was no Ossetian
resistance to Russian control. To th e contrary, integrat ion into Russia and
subordination to Moscow were precisely what the Ossetian separatists had
sought.
478
Ibid.
479
“South Ossetia – it is already RussiaNezavisymaia Gazeta (17 September 2004), op. cit.
GM, Vol. IV, Annex 199.
1524.40 Thereafter, Russian control and dominance in South Ossetia continued to
grow. In November 2005, the South O ssetian “Prime Minister” announced that
the “structure” of the de facto South Ossetian government would be “adapted
according to the Russian analogue” wher eby the existing system would be
“replaced by structures and agencies an alogous to those of Russian Federation”
and the “function of the ministries” of South Ossetia would be “adapted to the
480
Russian version as well” .
4.41 In 2007, Mr. Kokoity urged the resident s of South Osseti a to participate
in Russian elections to the State Duma, saying: “We will act in strict compliance
with the Russian Federation legislation, to create all necessary conditions for
normal voting of Russian Federation citizens on the territory of South
Ossetia” 481. Mr. Kokoity declared that “ev ery citizen of South Ossetia is
obligated to appear to polling station and vote” in the Russian elections 482.
4.42 By the beginning of 2008, South Ossetia’s integration into Russia was far
along. On 20 February, after meeting with the Chairman of the Russian State
Duma’s Committee on International Affair s, Mr. Kokoity announced that “new
plans have been elaborated” for South Ossetia that were “linked with the fact that
Russia already now has a moral right to more actively support interests of
480“Structural changes were made within government of South Ossetia”, IA Regnum (29
November 2005). GM, Vol. IV, Annex 216.
481“The Head of South Ossetia appealed to the people to actively participate in the State Duma
elections”, IA Regnum (26 November 2007) (hereinafter “Head of South Ossetia appealed to the
people to actively participate in State Duma elections” (2007)). GM, Vol. IV, Annex 226.
482Ibid.
153 483
Russian Federation citizens living” in South Ossetia . In that connection, Mr.
Kokoity emphasized that “[w]e are citizens of Russia” whose “struggle and will”
is to “integrate into Russia” 484. The plan, Mr. Kokoity made clear, was a
“Russian plan” that would be “implemented by Russian Federation” and its goal
was “maximum integration into Russia” 485.
4.43 The content of these Russian plans soon became apparent. On 21 March
2008, the Russian State Duma adopted a Resolution calling on the Government
to consider “the expediency of rec ognizing the independence” of South Ossetia
(and Abkhazia) and calling for greater s upport to “Russian citizens” in both
regions. In an address to the Duma on 2 April 2008, the Russian Foreign
Minister said that he would carefu lly consider its recommendations and
promised to provide support to the people of South Ossetia and Abkhazia, “most
of which are citizens of Russia”.
4.44 In sum, in the years following the initial bout of ethnic cleansing in 1991-
1992, Russia came to control the de facto South Ossetian administration. For all
practical purposes, by 2008 South Ossetia had become an appendage of Russia
itself.
483
“Eduard Kokoity: Recognition of South Ossetia’s independence is really possible already in
2008”, IA Regnum (20 February 2008) (hereinafter “Kokoity: Recognition of S. Ossetia’s
independence is possible” (2008)). GM, Vol. IV, Annex 227.
484Ibid.
485Ibid.
154 Section III. Russia’s Command and Control of South Ossetian Military
Forces, 2008
4.45 By the summer of 2008, when the et hnic Georgian villages of South
Ossetia were systematically destroye d and their inhabitants expelled, the
separatist authorities in South Ossetia had become completely controlled by
Russia -- politically, economically and militarily. Indeed, this was the concerted
choice of the de facto South Ossetian leadership, who openly invited integration
into Russia and subservience to Moscow.
4.46 In the immediately preceding Chapter, Georgia described how the
Russian army directly participated in ethnic cleansing when its personnel looted
and burned ethnic Georgian villages, vi olently abused the inhabitants and
threatened them with death if they re fused to leave. Sometimes the Russian
military engaged in these abuses alone or in collaboration with separatist forces;
other times, the Russian army was present when separatist forces engaged in
ethnic cleansing but failed to intervene. All of these acts and omissions engage
Russia’s responsibility. In addition, South Ossetian fo rces sometimes operated
outside the physical presence of Russian military units when they committed
abuses against ethnic Georgians. Howe ver, as described below, Russia is
responsible for their acts of ethnic cleansing, even wh en the Russian army was
not physically present.
4.47 Not only was South Ossetia completely controlled in all material respects
by Russia, as described above in Secti on II, but the separatist military forces
themselves were under the command and c ontrol of senior Russian military and
security officers, who had been installed in these positions by Russia, and who in
fact directed the South Ossetian military and paramilitary forces. Further, in the
days preceding the ethnic cleansing, Russia augmented the strength of the
155separatist military apparatus by using its State organs to recruit additional
manpower from Russia, many of whom were members of Russian military units.
These facts, singly and colle ctively, demonstrate Russia’s responsibility for acts
of discrimination committed by South Ossetian forces.
A. RUSSIAN OFFICERS IN THE SOUTH OSSETIAN ADMINISTRATION
4.48 During the ethnic cleansing carried out directly by Russian military
forces in South Ossetia in and afte r August 2008, and carried out by South
Ossetian forces operating in collaborat ion with or under the protection of
Russian forces, as described in Chapter 3, all top military and security positions
in the de facto South Ossetian administration were occupied by Russian State
officials. As detailed below, these included the highest-ranking de facto
positions relating to defence, intelligence, border security, finance and
governmental administration, including, inter alia, the Minister of Defence, the
Secretary of the Security Council, the Mini ster of Internal Affairs, the Chairman
of the KGB, the Commander of the State Border Guard, and the Chairman of the
Committee on State Control and Economic Security.
1. South Ossetia’s Russian Minister of Defence and Emergency Situations
4.49 General Vasili Lunev was appointed Minister of Defence and
Emergency Situations of South Osse tia in March 2008. He was the third
successive Russian General Officer to assume this position, dating back to
2004 48. Prior to his appointment as the Minister of Defence and Emergency
Situations, General Lunev had a succession of senior posts in the Russian army.
From 2003 to 2004, he was the First Depu ty of the Army Command of the
486
See supra Chapter 4, para. 4.23.
156Siberian Military District. From 2004 to 2007, he served in Syria as a Russian
military advisor. In 2007-2008, he was the Military Commissioner of the Perm
487
Region of Russia . As is clear from an interview he gave on 14 August 2008,
his appointment to serve in South Ossetia was not his personal choice.
Question: How did it happen that you, Russian
General that served in the Far East,
Siberia, Ural -- were appointed as the
Minister of Defense and Emergency
Situations of South Ossetia?
General Lunev: It happened because it was necessary.
Question: Could you give more details?
General Lunev: No details.
Question: You worked in Perm only for a couple
of months. Then you left. Did it
happen because you were needed in the
South?
General Lunev: Yes.
Question: So it was not your own initiative, was
it?
General Lunev: No, it was not 48.
4.50 General Lunev’s interview makes equally clear that his appointment was
a prelude to military action.
487
“Interview with Vasily Lunev”, Companion Magazine (14 August 2008) (hereinafter
“Interview with Vasily Lunev” (2008)). GM, Vol. IV, Annex 245. See also Illarionov, “Russian
Leadership’s Preparation for War, 1999-2008” (2009),op. cit. p. 82. GM, Vol. III, Annex 178.
488
“Interview with Vasily Lunev” (2008), op. cit. GM, Vol. IV, Annex 245.
157 Question: Did you understand that you
were going to the place
where you will have to
command the army in
action?
General Lunev: Yes, I did 48.
4.51 Reflecting the integration of the de facto separatist defence organs into
the Russian chain of command, on 9 A ugust (during the et hnic cleansing),
Russia transferred General Lunev from the de facto South Ossetian Defence
Ministry and appointed him Commander of the Russian 58 Army th 490, that is, the
same military unit that spearheaded Ru ssia’s invasion of Georgia. He was
replaced as Minister of Defence by yet another Russian General Officer, Major
General Yuri Tanaev.
2. South Ossetia’s Russian Secretary of the Security Council
4.52 The high-ranking position of Secretary of the Security Council of South
Ossetia’s de facto administration was also occupied by a Russian General Officer
during the ethnic cleansing of August 2008 and thereafter. Before his
appointment in South Ossetia, Lieutenant General Anatoly Barankevich was
an officer in the Russian army, where his assignments included such high-profile
positions as First Deputy Military Commissioner of Ch echnya and Deputy
491
Military Commissioner of Stravropol Krai . Lieutenant General Barankevich
was originally appointed South Osseti a’s Minister of Defence in 2004, and
489Ibid.
490Illarionov, “Russian Leadership’s Preparation for War, 1999-2008” (2009op. cit., p. 82.
GM, Vol. III, Annex 178.
491Ibid.
158became the Secretary of the de facto Security Council of South Ossetia in
December 2006 492.
4.53 Following the military hostilities of August 2008, Lieutenant General
Barankevich was transferred by the Russian government to the position of
Deputy to the Minister of Regional De velopment of the Russian Federation on
Restoration of South Ossetia. Lieutenant General Barankevich explained that the
Minister of Regional Development had to ld him that the “Department of South
Ossetia would be created and would work under my supervision, because I know
the situation in South Ossetia a b it better than others in Moscow” 493. The
transfer of Lieutenant General Brankevich and other Russian military officers
back and forth between direct employmen t by official organs of the Russian
Federation and service in senior posts in South Ossetia further confirms the
incorporation of the de facto South Ossetian administ ration into the Russian
chain of command, and Russia’s control over that administration.
3. South Ossetia’s Russian Minister of Internal Affairs
4.54 South Ossetia’s Minister of Internal Affairs during the ethnic cleansing of
2008 was General Mikhail Mindzaev, an active service officer in the Russian
police. In this capacity, he was present at, and responsible for, the detention of
ethnic Georgian civilians at the de facto Ministry of Internal Affairs building in
Tskhinvali, described above at paragraphs 3.108 and 3.111 to 3.115. General
Mindzaev was transferred to South Ossetia in May 2005. Prior to his arrival,
492
Russian Officials in the De Facto Administrations of South Ossetia and Abk(undated),
op. cit. GM, Vol. V, Annex 409.
493
“There is no place for this President in Sout h Ossetia” (Interview with Anatoly Barankevich),
Kommersant (4 December 2008), op. cit. GM, Vol. IV, Annex 277.
159General Mindzaev served in the Ministry of Internal Affairs of North Ossetia,
494
including as Deputy H ead of Headquarters . In 2004, he commanded Special
Task Force Alpha during the counter-terrorist operation in Beslan 495.
4. South Ossetia’s Russian Chairman of the Committee of State Security
4.55 In November 2006, Lieutenant General Boris Atoev became the
496
Chairman of the South Ossetian KGB . He was preceded in this position by
other Russian General Officers: Ge neral Mairbeg Bich egkaev (June 2004-
January 2005), Lieutenant General An atoli Yarovoy (January 2005-February
2006) and Major General Nikolai Dolgopolov (February-November 2006). Prior
to his arrival, Lieutenant General Atoev served in the Russian security service in
Kabardino-Balkaria, a constituent Republic of Russia and as a senior fellow at
the FSB central directorate in Moscow 497.
5. South Ossetia’s Russian Commander of the State Border Guard
4.56 Russian Colonel Oleg Chebotariov served as Commander of the de
facto South Ossetian administ ration’s State Border Gu ards during the ethnic
cleansing of 2008. Prior to assuming this command, he was employed by the
Federal Security Service of the Russian Federation, based in Tskhinvali. In
2005, he participated in the formation of the de facto Border Service of the
494
Russian Officials in the De Facto Administrations of South Ossetia and Abkha(undated),
op. cit. GM, Vol. V, Annex 409.
495Illarionov, “Russian Leadership’s Preparation for War, 1999-2008” (2009)op. cit., p. 81.
GM, Vol. III, Annex 178.
496Ibid.
497Ibid.
160Committee of State Security of S outh Ossetia; he later became its
Commander 498. He is still another senior Russian military officer who was
transferred back and forth betwee n Russian State organs and the de facto
administration in South Ossetia.
6. South Ossetia’s Russian Chairman of State Control and Economical
Security
4.57 On 29 March 2007, Russian Colonel Batraz Taimuraz Takazov
became the Chairman of the State Control and Economical Security Committee
of the de facto South Ossetian administration. Prior to coming to South Ossetia,
Colonel Takazov spent many years worki ng in the North Ossetian Ministry of
Internal Affairs and in North Ossetia’s investigative unit of the Main Tax
Inspection. From 1993 to 1999, Colonel Takazov served as Deputy Head of the
North Ossetian Unit of the Federal Servic e of Tax Police. He worked with the
tax police in Nalchik and Rostov. In 2004, Colonel Takazov was appointed
Deputy Head of the local Tax Service of Bataiskiy District of Rostov Region.
499
He holds the rank of Colonel of Economic Security in the Russian Federation .
* * *
4.58 Thus, senior Russian military and po lice officers occupied all top-level
military, security and intelligence positions in the de facto South Ossetian
administration at the time of the ethni c cleansing against Georgians in August
2008 and thereafter.
498
Russian Officials in the De Facto Administrations of South Ossetia and Abk(undated),
op. cit. GM, Vol. V, Annex 409.
499
Ibid.
161 B. RUSSIA ’SINTEGRATION OF RUSSIAN “V OLUNTEERS ”INTO S OUTH
O SSETIAN M ILITARY U NITS
4.59 Not only were all de facto South Ossetian military, security and police
units under the command and control of Russian officers, many of the troops
they commanded were also members of Russian military units in temporary
service in South Ossetia. In that rega rd, immediately prio r to and during the
ethnic cleansing of 2008, many so-called “volunteers” crossed the Russian
500
border into South Ossetia . These volunteers participated in discriminatory
abuses against ethnic Georgians, and lik e the Russian army units and separatist
military forces, they were subject to the command and control of the Russian
armed forces.
4.60 The arrival of the volunteers was i nduced by Russia. In the months
preceding the armed conflict, Russian offi cials declared that “each citizen of
Russia has the right to defend the citizens of Russia in Abkhazia and South
Ossetia” and forecast that “a great number of volunteers” would go to Georgia in
the case of a conflict0. On 2 August, Russian au thorities announced a general
mobilization of “volunteers”502and on the day the war began, Russian Prime
500
Tom Parfitt, “Armed Cossacks pour in to fight GeorThe Guardian (9 August 2008).
(hereinafter Parfitt, “Armed Cossacks pour in to fight Georgians (2008)). GM, Vol. IV, Annex
237.
501
Statement by the Councilor of the President of Russia General Aslakhanov, Aslakhanov: The
volunteers from Northern Caucasia will defend Abkhazia and South Ossetia(5 April 2008). GM,
Vol. IV, Annex 228.
50Interview with Andrey IllarionEcho of Moscow Radio (24 October 2008) (hereinafter
Interview with Andrey Illarionov (2008)). GM, Vol. IV, Annex 270.
162Minister Putin observed that “many volunt eers” were heading to South Ossetia
and warned it would be “very hard to maintain peace” 503.
4.61 In fact, these so-called “volunteers” we re agents of the Russian State.
Russian newspapers reported that they were registered and organized at
504
recruiting stations run by Russian military commissariats . One Russian
publication reported that “Cossack volunt eers from the Rostov district” were
being sent to “the City a nd District Military Commissariats, through which they
can find themselves either in the composition of Russian peacekeeping forces or
th 505
in the composition of 58 army” . Another reported that “[t]he lists of the
Cossack-volunteers will be sent to m ilitary commissariats according to their
places of residence. Those enlisted for military service will be sent to Cossack
506
motorized infantry regiment No. 429”. Still another reported that the “ataman
of Don Cossack Host, Victor Vodolatiski y made an appeal to all Cossacks to
507
come to military commissariats and regi ster as members of this regiment” .
Similarly, a representative of the Tere k Cossacks stated that volunteers were
503
Parfitt, “Armed Cossacks pour in to fight Georgians” (2008), op. cit. GM, Vol. IV, Annex
237.
504“7 Thousand Volunteers left North Ossetia for South Ossetia”, Caucasian Knot (9 August
2008) (hereinafter “7 Thousand Volunteers left North Ossetia” (2008)). GM, Vol. IV, Annex
236. See also Interview with Andrey Illarionov (2008),op. cit. GM, Vol. IV, Annex 270.
505
“Ossetians of Karachaevo-Cherkessia form volunteer units to help South Ossetia”, Caucasian
Knot (11 August 2008). GM, Vol. IV, Annex 241. See also “Atamans announced about march
of volunteers”, Vesti (11 August 2008) (reporting Cossack volunteers were referred to “military
commissariats according to their places of residence”). GM, Vol. IV, Annex 242.
506Maria Bondarenko, “Atamans announced about the march of volunteers: Age limit has been
increased for Don Cossack volunteers”, Nezavisymaya Gazeta (11 August 2008). GM, Vol. IV,
Annex 230.
507
“Cossacks are creating motorized infantry regiment to assist South Ossetia”, Lenta.ru (8
August 2008). GM, Vol. IV, Annex 234.
163“sent to South Ossetia through [the] North Ossetian military commissariat” 508.
Likewise, a leader of the Don Cossacks said that “subdivisions of volunteers will
be formed together with the regional military commissariats” 509.
4.62 The international media observed th at “hundreds of volunteer fighters”
had arrived at a recruitment center in North Ossetia that was “apparently
510
organized by Russian authorities” . Further illustrating Russian State
involvement in the recruitment of volunteers, government officials in
Khasavyurt, in the Russian Republic of Dagestan, hosted a rally in support of
511
South Ossetian separatis ts and signed up volunteers . A recruiting centre in
Vladikavkaz, in North Ossetia, likewise coordinated the formation of volunteer
512
units with “interested community or ganizations and state structures” . As late
as 19 August, after hostilities had ended but while the ethnic cleansing
continued, “volunteers from all over Ru ssia” were signing up for service at
513
regional recruitment units run by Russian military commissariats .
508
“7 Thousand Volunteers left North Ossetia” (2008),op. cit. GM, Vol. IV, Annex 236.
509Konstantine Kukharenko, “Military men nod to politicians”, Rossyskaia Gazeta (8 August
2008). GM, Vol. IV, Annex 233.
510“Russia’s Cossacks rush to join fighting with their ‘brothers’”, Trendz News (11 August
2008). GM, Vol. IV, Annex 239.
511
“Over thousand Dagestan volunteers ready to go to South Ossetia”, Caucasian Knot (8
August 2008) (hereinafter “Over thousand Dagestan volunteers ready to go (2008)). GM, Vol.
IV, Annex 235.
512“Volunteers are able not only to fight”,Main News No. 29 (18 August 2008) (hereinafter
“Volunteers are able not only to fight (2008)). GM, Vol. IV, Annex 249.
513
“From Murmansk to South Ossetia”, Murmansk Gazette (19 August 2008). GM, Vol. IV,
Annex 250.
1644.63 Not only were the volunteers recrui ted and organized by Russian State
organs, many were already members of Russian military units. For example, on
8 August, an official in Khasavyurt reported that hundreds of volunteers had
signed up to fight in South Ossetia and th at almost all of the volunteers were
514
members of the Home Guard . At the recruiting centre for volunteers in
Vladikavkaz, officials “establish[ed] th e place of military registration” for all
volunteers, many of whom were reported to be members of the “local home
515
guards” . The head of another recruitment post in North Ossetia reported that
the volunteers were men “who served in the Russian army or law-enforcement
516
bodies, with experience of military operations in hotspots” .
4.64 In addition, Russian State organs pr ovided the volunteers with supplies
and the transportation necessary to go to South Ossetia. For example, volunteers
reporting to a recruitment center in Vlad ikavkaz said they were given “assault
517
rifles and $400 (€266) to buy uniforms” . On 8 August 2008, one member of
an armed Cossack unit told reporters that units of Cossack fighters were being
bussed to Tskhinvali, and that “[t]hey give you a uniform on the way and you get
518
issued with weapons when you arrive” . The buses transporting volunteers had
to pass through the Roki tunnel, the onl y route linking North Ossetia and South
514
“Over thousand Dagestan volunteers ready to go” (2008), op. cit. GM, Vol. IV, Annex 235.
515“Volunteers are able not only to fight” (2008),op. cit. GM, Vol. IV, Annex 249.
516Daniel McLaughlin, “Breakaway regions backed by Caucasian neighbors”, The Irish Times
(12 August 2008). GM, Vol. IV, Annex 243.
517
Ibid.
518
Parfitt, “Armed Cossacks pour in to fight Georgians”, The Guardian (9 Aug. 2008), op. cit.
GM, Vol. IV, Annex 237. See also Witness Interview Protocol, Interview of Artur Oleg Kaloev
(14 May 2009) (volunteer testifies that he and others were taken by bus to Tskhinvali where they
were given “weapons and ammunition”). GM, Vol. V, Annex 375.
165Ossetia, which was under the exclusive control of the Russian military. The
military correspondent of one Russian ne wspaper who was travelling with a
convoy of volunteers reported: “On th e border to South Ossetia no one
controlled our convoy of 10 buses and 200 soldiers. We only had to hold up our
519
passports. ‘Through you go boys’ they said. ‘Fight for Russia!’”
4.65 Once in South Ossetia, the volunteers were trained and integrated into
South Ossetian military units. On 7 August, South Ossetia’s de facto President,
Eduard Kokoity, stated that “[w]e have an influx of volunteers coming into the
republic” and declared that “those who are arriving ar e being organized into
army units. These units will be under the command of our Defence Ministry” 52,
which, as shown above, was under the co mmand of a Russian General Officer,
General Lunev. The Secretary of the de facto Security Council of South
Ossetia, also a Russian General Officer, Anatoly Barankevich, declared prior to
the opening of hostilities that volunteers “will have the status of military
servicemen of South Ossetia and will be armed from the arsenals” of South
Ossetia 521. One of the volunteers in South Ossetia reported th at “[w]hen we
arrived in Tskhinval… we were armed by the officers of OMON [special unit of
522
the Ministry of Interior of South Osseti a] and then we were sent to a sweep” .
519“‘Local wars ahead’: An inte rview with former soldier and journalist Arkady Babchenko on
the Russian military action in South Ossetia an d Georgia” (18 September 2008). GM, Vol. IV,
Annex 265.
520“Georgia and South Ossetia exchange fire”, Russia Today (7 August 2008). GM, Vol. IV,
Annex 232.
521
Bondarenko, “Don Cossacks are getting ready to fight in South Ossetia” (2008), op. cit. GM,
Vol. IV, Annex 230.
522
Interview of Sergei Giorgi Karginov, Witness Interview Protocol (13 May 2009). GM, Vol.
V, Annex 374.
166As noted above, the de facto South Ossetian Interior Ministry was commanded
by yet another Russian officer, General Mikhail Mindzaev.
4.66 Just prior to the start of the et hnic cleansing, the Russian publication
Izvestia reported: “There is an inconspicuous fence in the outskirts of Tskhinvali.
Journalists are not let in. Only two flags at the gates -- Ossetian and Russian --
disclose that this is a military base” wh ere “volunteers that came from different
parts of Russia to defend South Osssetia, are being trained” 52. The training and
arming of these “volunteer” forces is corroborated by the Russian media, which
reported that the “military registration and enlistment office give uniforms to
volunteers” who then receive their “weapons and ammunition” from “the South
524
Ossetian authorities” .
4.67 Further demonstrating that these men served Russia, after the conflict
525
numerous volunteers received Russian State honours.
* * *
4.68 In sum, in the years following the ethnic cleansing of 1991-1992, Russia
assumed an ever-increasing level of cont rol over the separatist authorities, who
openly subordinated themselves to the Russian State. By 2008, all military,
523
Yuri Snegirev, “Volunteers have come even from Moscow”, Izvestia (6 August 2008). GM,
Vol. IV, Annex 231.
524“In North Ossetia, volunteers are trying to create official battalions to be sent to South
Ossetia, with the help of military registrati on and enlistment offices (military commissariat)”,
Echo of Moscow Radio (11 August 2008). GM, Vol. IV, Annex 240.
525“The Defenders of South Ossetia were honored in Vladikavkaz”, IA Regnum (15 January
2009). GM, Vol. IV, Annex 282.
167security and police units of South Osse tia were under the command of Russian
officers, and many of the individual fighters under their command were Russians
as well, having been recruited from Russian military units for service in South
Ossetia by Russian State organs. The ev idence shows that throughout the ethnic
cleansing in South Ossetia during August 2008 and ther eafter, Russia exercised
command and control not only over Russian military forces, but also over South
Ossetian military and paramilitary forces. Russia’s legal responsibility flowing
from the abuses that both Russian and Ossetian units perpetrated against ethnic
Georgians is discussed in Chapter 9.
168 PART C.
DISCRIMINATION THROUGH THE FRUSTRATION OF RIGHT OF
RETURN FOR ETHNIC GEORGIAN IDPS CHAPTER V.
RUSSIA’S DENIAL OF THE RIGHT OF RETURN
TO ETHNIC GEORGIANS FROM SOUTH OSSETIA5.1 As shown in Chapters 3 and 4, Russi a discriminated against the ethnic
Georgian population of South Ossetia by participating in and supporting efforts
to ethnically cleanse that territory of Georgians in 1991-1992 and again in 2008.
As a result of this discri minatory conduct, thousands of ethnic Georgians were
forcibly displaced. In this Chapter, Georgia shows that, with very few
exceptions, these displaced Georgians have been prevented from returning to
their homes by Russia and the separatist authorities opera ting under Russian
control.
5.2 The refusal by Russia to permit displaced ethnic Georgians to return to
their places of residence is unlawful discrimination that is prohibited by the 1965
Convention. In that regard, CE RD General Recommendation 22, which
interprets Article 5 of the 1965 Convention and addresses “refugees and
displaced persons”, takes account of the fact that “for eign military, non-military
and/or ethnic conflicts ha ve resulted in massive fl ows of refugees and the
displacement of persons on the basis of ethnic criteria…” 52. It expressly
provides that “[a]ll such refugees and disp laced persons have the right freely to
527
return to their homes of origin under conditions of safety” . Further, the
General Recommendation states that “[a] ll such refugees and displaced persons
have, after their return to their homes of origin, the right to have restored to them
property of which they were deprived in the course of the conflict and to be
compensated appropriately for any such property that cannot be restored to
526
U.N. Office of the High Commissioner for Human Rights, CERD, General Recommendation
No. 22: Art. 5 and refugees and displaced person, Forty-ninth Session, U.N. Doc. A/51/18
(1996). GM, Vol. II, Annex 21.
527
Ibid.
173them” 528. By refusing to permit displaced et hnic Georgians to return to South
Ossetia, Russia has violated these obligations under the 1965 Convention.
5.3 Almost the entire ethnic Georgian population had fled the separatist-
controlled areas of South Ossetia by the time the Sochi Agreement was signed in
1992. As shown below, the vast majority of these ethnic Ge orgians have been
prevented from returning to their homes. Similarly, the victims of the ethnic
cleansing of 2008 have also been prevented from returning.
Section I. IDPs from the Ethnic Cleansing, 1991-1992
5.4 Georgians were ethnically cleanse d from South Ossetia in 1991-1992.
The separatist authorities in South O ssetia, supported by Russia, instituted a
policy of preventing ethnic Georgian IDPs from returning. In the first round of
ethnic cleansing, more than 10,000 ethni c Georgians were forcibly and
permanently displaced from their places of residence. Many of the expelled
ethnic Georgians had lived in Tskhinvali, the South Ossetian capital. They have
never been permitted to return. Those who tried to reclaim their homes were re-
expelled at gunpoint and told that Georgians were not allowed to live in South
Ossetia 52. In one such case, an ethnic Georgian was told by the Mayor, Mr.
Kosta Phukhaev, that Georgians were not allowed to own property in Tskhinvali,
528
Ibid.
529
Shota Khaduri, “Have We Really Lost Samachablo?”, Asaval-Dasavali (5-11 October 1998).
GM, Vol. IV, Annex 191.
174when he sought assistance in recovering property that had been taken over by an
530
Ossetian .
5.5 Former residents of the Znauri District of South Ossetia have testified to
the widespread use of violence and intim idation to prevent the return of ethnic
Georgian IDPs 531. Kaleti village, for example, had approximately 80 families,
divided evenly between ethnic Georgians and Ossetians. Nearly the entire
532
Georgian population was expelled . The experience of Akaki Gogaladze is
533
representative . In July 1999, a UN re presentative told Mr. Gogaladze that the
United Nations would assist him in rese ttling in Kaleti. Upon returning, he
found his house had been destroyed. Th e day after his return, Mr. Gogaladze
disappeared. His son sought assistance from the Russian peacekeepers deployed
in the village, but his request was ignore d. Several days later, Mr. Gogaladze’s
corpse was found tortured and mutilated in a well in the village. Although Mr.
Gogaladze’s family filed a complaint with the Tskhinvali Prosecutor, no
investigation occurred. Similarly, when another former resident tried to return to
Kaleti, his house was bombed with a hand grenade shortly after he had repaired
530
Ibid.
531See e.g. , Declaration of Giorgi Kapanadze (10 July 2009). GM, Vol. V, Annex 381;
Declaration of Tsitsino Shaorshadze (10 July 2009). GM, Vol. V, Annex 383; Declaration of
Nanuli Gogaladze (10 July 2009). GM, Vol. V, Annex 386; Declaration of Malkhaz Meskhi (25
May 2009). GM, Vol. V, Annex 377; Declaration of Vazha Tsiskadze (10 July 2009). GM, Vol.
V, Annex 385.
532
Declaration of Nanuli Gogaladze (10 July 2009),op. cit. GM, Vol. V, Annex 386.
533
Ibid. Malkhaz Meskhi, Vazha Tsiskadze and Tsits ino Shaorshadze also discuss the attack
against Akaki Gogoladze upon his attempt to return to Kaleti.See GM, Vol. V, Annexes 377;
385; 383.
175 534
it with UN assistance . Not surprisingly, few other ethnic Georgians have
535
attempted to return to Kaleti .
5.6 Similar treatment was given to an ethnic Georgian who attempted to
return to the village of Tkisubani in 2000 in order to retrieve a car he left behind
when he fled several years earlier 53. Upon his arrival, members of a South
Ossetian special police unit as ked why he had returned. He responded that he
wanted to see the Head of the Criminal Investigation Department regarding his
car. The police officers started beating him and his friend with their guns. When
the men tried to escape, the officers shot his feet, then continued beating him,
and burned his friend’s head with fire . They then tied him up, placed him
against the wall and poured petrol on him. Hisinjuriesweresoseverehewas
unable to stand for over two months 537. Because of such attacks, few ethnic
Georgians have been able to return to their villages. Only two of 70 Georgian
families returned to Tkisubani 538. Even more typical is Zvileti, where no ethnic
Georgians returned 539.
5.7 As a member of the Joint Control Commission (“JCC”), established
pursuant to the Sochi Agreement, Russia committed itself from 1992 onwards to
534Declaration of Nanuli Gogaladze (10 July 2009),op. cit. GM, Vol. V, Annex 386.
535
Ibid. See also Declaration of Malkhaz Meskhi (25 May. 2009), op. cit. GM, Vol. V, Annex
377; Declaration of Vazha Tsiskadze (10 July 2009), op. cit . GM, Vol. V, Annex 385;
Declaration of Tsitsino Shaorshadze (10 July 2009), op. cit. GM, Vol. V, Annex 383.
536Declaration of Ilia Kobaladze (10 July 2009). GM, Vol. V, Annex 384. See also Declaration
of Malkhaz Meskhi (25 May 2009), op. cit. GM, Vol. V, Annex 377.
537Declaration of Ilia Kobaladze (10 July 2009). GM, Vol. V, Annex 384.
538
Declaration of Malkhaz Meskhi (25 May 2009),op. cit., p. 3. GM, Vol. V, Annex 377.
539Ibid.
176maintain security and respect the rights of ethnic Georgians to return to their
homes in South Ossetia. One of the ear ly decisions of the JCC was to specify
that the peacekeeping force (“JPKF”) that was envisaged by the Sochi
Agreement would be responsible for help ing to restore peace, support law and
order in the armed conflict zone, ensure compliance with the ceasefire, and take
active measures against the use of weapons by armed formations 540. The JCC
subsequently decided to subordinate the JPKF to a united military command,
which was headed by a Russian commander and comprised primarily of Russian
541
soldiers . On 13 February 1997, the JCC adopted the Procedure of Voluntary
Return of Refugees and IDPs, committing Russia and the other members, inter
alia, to respect “the right of voluntary retu rn of refugees and IDPs to places of
their previous permanent residence” a nd to protect “refugees and IDPs from
possible persecution or restriction of thei r right to freedom, as well as other
actions that infringe their safety and dignity after their return” 542.
5.8 Notwithstanding these commitments, the Russian peacekeepers in South
Ossetia enabled separatist security forces, who operated under the command and
control of the senior Russian militar y officers that ran South Ossetia’s de facto
Ministries of Defence and Internal Affair s, to violently obstruct the return of
Georgian IDPs; and they actively pa rticipated and assisted in these
540
Provision On Joint Peacekeeping Forces (J PKF) and Law and Order Keeping Forces
(LOKF) in the Zone of Conflict, Annex 1 of Protocol 3 of the JCC dated 12 July 1992 (12 July
1992), Art. 1. GM, Vol. III, Annex 104.
541
Regulation Concerning the Basic principles of Operation of the Military Contingents and of
the Groups of Military Observers Designated for the Normalization of the Situation In the Zone
of the Georgian-Ossetian Conflict, Annex #1 to the JCC Decree of 6 December 1994 (6
December 1994), Art. 2. GM, Vol. III, Annex 114.
542JCC Procedure of Voluntary Return of Refugees and IDPs as a Result of the Georgian-
Ossetian Conflict to the Places of their Permanent Residence, Annex 3 (13 February 1997). GM,
Vol. III, Annex 120.
177 543
discriminatory practices . As witnessed by Mr. Malkhaz Meskhi and Mr.
Vazha Tsiskadze, local Georgian official s in Tigva Municipality, attempts to
secure protection for Georgian IDPs returning to Kaleti were met with negative
responses from Russian peacekeepers “becau se the local Ossetians were against
544
it” . In December 2000, Mr. Meskhi me t with the Russian General Yevgenii
Churaev, Commander of Peacekeeping Forces, in order to request his assistance
in the return of Georgians to Kaleti. General Churaev informed him that it
would be impossible, because local Osse tians had compiled a lengthy list of
545
ethnic Georgians who were forbidden to return . The ostensible reasons for
denying their right of return include d having engaged in “‘anti-Ossetian
546
propaganda’” and being related to alleged fighters . The Russian peacekeepers
followed the Ossetians’ wishes. As Ka leti villagers testify, Russian forces
witnessed violent attacks by Ossetians against ethnic Georgi ans attempting to
return to their homes, and refused to respond or assist them 547.
Section II. IDPs from the Ethnic Cleansing, 2008
5.9 By the time most (but not all) of the violence against ethnic Georgians
had subsided, late in 2008, the total ethnic Georgian population of South Ossetia
had been reduced by over 20,000. The Georgians comprising this group of IDPs
543
See, e.g ., Declaration of Giorgi Kapanadze (10 July 2009). GM, Vol. V, Annex 381;
Declaration of Vazha Tsiskadze (10 July 2009), op. cit. GM, Vol. V, Annex 385.
544Declaration of Malkhaz Meskhi (25 May 2009), op. cit., p. 3. GM, Vol. V, Annex 377. See
also Declaration of Vazha Tsiskadze (10 July 2009), op. cit. GM, Vol. V, Annex 385.
545
Ibid.
546
Declaration of Malkhaz Meskhi (25 May 2009),op. cit., p. 3. GM, Vol. V, Annex 377.
547See, e.g., Declaration of Tsitsino Shaorshadze (10 July 2009), op. cit. GM, Vol. V, Annex
383; Declaration of Nanuli Gogaladze (10 July 2009), op. cit. GM, Vol. V, Annex 386.
178from South Ossetia have not been allowed back. This has been the deliberate
policy of the South Ossetian separatist regime, supported by Russia. By contrast,
ethnic Ossetians who fled South Ossetia at the outbreak of the armed conflict in
548
August 2008 have been welcomed back and successfully repatriated . Of
approximately 33,000 to 38,000 Ossetians who took refuge abroad (the vast
majority in North Ossetia), the overwhe lming majority -- approximately 31,800
549
to 36,800 -- returned to South Ossetia shortly after the cease-fire . Only ethnic
Ossetians, and not ethnic Georgians, have been allowed back.
5.10 Human Rights Watch (“HRW”) interviewed members of the South
Ossetian security forces who forcibly expelled ethnic Georgians from South
Ossetia in 2008, and burned down their houses. These South Ossetian military
personnel, who operate under Russian command 550, admitted that “the objective
was to ensure that ethnic Georgians woul d not have the houses to return to” 55.
HRW also interviewed a South Ossetian counterintelligence officer who said:
548
Council of Europe, Parliament Assembly, Committee on Migration, Refugees, and
Population, Report: The humanitarian consequences of the war between Georgia and Russia:
Follow-up given to Resolution 1648 (2009), Doc. 11859 (9 April 2009) (hereinafter Report: The
Humanitarian Consequences of the War between Georgia and Russia: Follow-Up given to
Resolution 1648 (2009) , Doc. 11859 (2009)), para. 34. GM, Vol. II, Annex 62; Council of
Europe, Commissioner for Human Rights, Thomas Hammarberg, Special Follow-Up Mission to
the Areas Affected by the South Ossetia Conflict: Implementation of the Commissioner's six
principles for urgent human rights and humanitarian protection CommDH92008)37 (16
December 2008) (hereinafter Hammarberg, Implementation of the Commissioner's six principles
for urgent human rights and humanitarian protection CommDH92008)37 (16 Dec. 2008)), p. 2.
GM, Vol. II, Annex 58.
549Report: The Humanitarian Consequences of the War between Georgia and Russia: Follow-
Up given to Resolution 1648 (2009) , Doc. 11859 (2009), op. cit., para. 34. GM, Vol. II, Annex
62; Ibid., p. 2.
550
See supra Chapter 4, paras. 4.45-4.58.
551
“Pictures ‘Show Georgia Torching’”, BBC News (29 August 2008). GM, Vol. IV, Annex
261.
179“We burned these houses. We want to make sure that they [the Georgians] can’t
come back, because if they do come back, this will be a Georgian enclave again
and this should not happen” 552.
5.11 During and since the 2008 ethnic viol ence, South Ossetian separatist
leaders have openly publici zed the fact that ethnic Georgian villages were
destroyed to make it impossible for Geor gians to return to or live in South
Ossetia. The Chairman of the de facto South Ossetian Parliament, Mr. Znaur
Gassiev, publicly declared that: “We did a bad thing, I know. But Georgians will
not return here anymore. We have burnt down all of their houses in the
enclaves. There was no other way of stopping the war and cutting the knot” 553.
5.12 Other South Ossetian separatist leaders were less apologetic. The de
facto President, Mr. Eduard Kokoity, was asked whether “Georgian civilians”
would “be allowed to return.” His response, on 15 August 2008, was
554
categorical: “We do not intend to let anybody in here anymore” . Mr. Kokoity
was asked to describe what was then happe ning in the ethnic Georgian enclaves
of South Ossetia. He responded: “Nothing, we have flattened everything there.
555
The boundaries of South Ossetia have been defined” .
552
Human Rights Watch, “Russia/Georgia: Investigate Civilian Deaths” (14 August 2008). GM,
Vol. III, Annex 149.
553
Dmitry Steshin, “South Ossetia has been won over. What to do with it in the future?”, Pravda
(22 August 2008). GM, Vol. IV, Annex 255.
554Republic of South Ossetia New Agency, Press conference conducted in the International Press
Centre of Tskhinvali (26 August 2008). Observations of Georgia, Interim Measures, Annex 40.
555Ibid.
1805.13 After Mr. Kokoity proclaimed that ethnic Georgians would not be “let…
in here anymore,” the Russian Ministry of Foreign Affairs characterised his
statement as “emotional” 556. However, the Foreign Ministry agreed with Mr.
Kokoity that ethnic Georgians would not be permitted to return to South Ossetia
for the indefinite future. The Foreign Mi nistry said, “the practical process of
refugee return” would have to “bear[] a protracted character”, and “much time”
would need to “pass before the wounds ar e healed and trust is restored. Only
after this will the conditions be created for discussing practical aspects connected
557
with the problem of refugees” . Until then, Russian military forces, who guard
South Ossetia’s administrative boundary with the rest of Georgia -- since April
2009 as the official State Bo rder Guards of South Osse tia, pursuant to a formal
agreement between Russia and the Sout h Ossetian separatist regime -- are
charged with continuing to enforce the ban on return of ethnic Georgian IDPs 558.
Section III. The Ongoing Prevention of Return to South Ossetia
5.14 The OSCE’s human rights fact-finding mission determined in late
November 2008: “Clearly, the de facto authorities in Sout h Ossetia… have not
created the conditions necessary to enab le and encourage displaced persons to
return to their former places of residence. Worse… the de facto authorities in
South Ossetia have made statements a nd taken steps that indicate they do not
intend to let displaced persons return”, in violation of “OSCE commitments” that
556Russian Ministry of Foreign Affairs Information and Press Department, “Commentary
Regarding a Statement of South Ossetian President Eduard Kokoity August 17, 2008” (17
August 2008). GM, Vol. IV, Annex 247.
557Ibid.
558See infra Chapter 7, para. 7.5.
181“prohibit mass expulsions and require States to facilitate the voluntary return of
559
displaces persons in dignity and safety” .
5.15 Indeed, senior officials of the de facto South Ossetian regime have
publicly and repeatedly proclaimed that it is their administration’s official policy
to prohibit the return of ethnic Georgian IDPs who were ethnically cleansed from
that territory. The de facto Minister of the Interior, a Russian General Officer,
Mikhail Mindzaev, announced that 4,000 et hnic Georgians would be prosecuted
if they attempted to return to South Ossetia; the remaining ethnic Georgians
“would only be allowed to return if they renounce their Georgian citizenship” 560.
South Ossetia’s de facto Deputy Prime Minister, whose superior, the de facto
Prime Minister, is a Russian governmental official 561, told the OSCE Mission:
“If a Georgian who decides to remain in South Ossetia does not meet our
expectations, they will be expelled… I don’t want Georgians to return… and
they won’t be able to” 562. Not surprisingly, Human Rights Watch reported that it
“is not aware of any steps taken by th e Ossetian authorities to enable the
displaced to return” 563.
559OSCE, Office for Democratic Institutions and Human Rights, Human Rights in the War-
Affected Areas Following the Conflict in Georgia (27 November 2008) (hereinafter OSCE,
Human Rights in the War Affected Areas (2008)), pp. 17-18. GM, Vol. II, Annex 71.
560
OSCE, Human Rights in the War Affected Areas (2008), op. cit., p. 48. GM, Vol. II, Annex
71.
561See infra Chapter 7, para. 7.7.
562OSCE, Human Rights in the War Affected Areas (2008), op. cit., p. 48. GM, Vol. II, Annex
71.
563
Human Rights Watch, Up in Flames: Humanitarian Law Violations and Civilian Victims in
the Conflict over South Ossetia (January 2009) (hereinafter HRW, Up in Flames (2009)), p. 153.
GM, Vol. III, Annex 156.
1825.16 After visiting South Ossetia in September 2008, the Commissioner for
Human Rights of the Council of Europe, Mr. Thomas Hammarberg, reported in
October 2008 that the “principle of the right of return… needs to be
564
implemented” . In his follow-up mission in mid-November 2008, Mr.
Hammarberg again criticised the de facto regime for failing to implement this
565
obligation . In mid-May 2009, he was compelle d to reiterate th at “[i]t is
deeply regrettable that most ethnic Geor gians who have fled South Ossetia have
566
not been in a position to return” .
5.17 The discriminatory nature of thes e policies is under scored by the
treatment given to ethnic Ossetian re fugees who, in contrast with ethnic
567
Georgians, have been allowed to return to South Ossetia unimpeded . By April
2009, more than 95% of those who fled to North Ossetia in August 2008 had
568
returned to their homes in South Ossetia . As confirmed by the Commissioner
for Human Rights of the Council of Europe , “The great majority of those who
564Council of Europe, Commissioner for Human Rights, Thomas Hammarberg, Special Follow-
Up Mission to Georgia Including South Ossetia , Summary of Findings from 25-27 September
2008, CommDH(2008)33 (21 Oct. 2008) (hereinafter Hammarberg, Special Follow-Up Mission
to Georgia Including South Ossetia (21 Oct. 2008)), para. 4. GM, Vol. II, Annex 57.
565Hammarberg, Implementation of the Commissioner’s six principles for urgent human rights
and humanitarian protection , CommDH92008)37 (16 Dec. 2008), op. cit., paras. 8-14. GM,
Vol. II, Annex 58.
566
Council of Europe, Commissioner for Human Rights, Thomas Hammarberg, Report on
Human Rights Issues Following the August 2008 Armed Conflict , CommDH(2009)22 (15 May
2009), para. 11. GM, Vol. II, Annex 66.
567Report: The Humanitarian Consequences of the War between Georgia and Russia: Follow-
Up given to Resolution 1648 (2009) , Doc. 11859 (2009), op. cit., para. 34. GM, Vol. II, Annex
62.
568
Ibid., para. 2.
183fled to Russia have returned”; in c ontrast, “[e]thnic Ge orgians who fled
569
southwards have not been able to move back” .
5.18 The OSCE’s human rights investiga tive mission likewise concluded that
“[t]he ethnic Georgians who fled have been prevented by the Russian and South
Ossetian forces from returning” 570. The OSCE team reported that there were
ethnic Georgians who “have not been able to return to their houses because
571
police stop people from entering that area” . As the OSCE report succinctly
put it: “It is clear that the de facto authorities in South Ossetia… including
Russian military authorities, have not ta ken steps to facilitate and ensure that
displaced persons can return voluntarily to their former places of residence in
572
safety and dignity, in line with obligations under international standards” .
5.19 Often, as reported by the Council of Europe and the OSCE, it is the
Russian troops guarding the administrative border of South Ossetia who prevent
ethnic Georgians from returning. Russi a’s Major General Marat Kulakhmetov
informed the Council of Europe’s Hu man Rights Commissioner that “Russian
troops” were responsible for “patrolling the administrative border of South
573
Ossetia” . The OSCE investigative mission fo und that “[t]he administrative
569
Hammarberg, Implementation of the Commissioner’s six principles for urgent human rights
and humanitarian protection CommDH92008)37 (16 Dec. 2008), op. cit., p. 2. GM, Vol. II,
Annex 58.
570OSCE, Human Rights in the War Affected Areas (2008), op. cit., p. 33. GM, Vol. II, Annex
71.
571
Ibid., p. 48.
572
Ibid., p. 6.
573Hammarberg, Special Follow-Up Mission to Georgia Including South Ossetia (21 Oct. 2008),
op. cit., para. 62. GM, Vol. II, Annex 57.
184 574
boundary is now guarded by Russian troops who strictly enforce the closure” .
One “displaced person from Disevi village”, for example, who “tried to return to
575
Disevi” was “prevented from doing so by Russian soldiers” . Another “was
turned back at a checkpoi nt after being told he should apply for a Russian
576
passport and citizenship if he wanted to return to the village” . For ethnic
577
Georgians “it is impossible to get through the Russian-Ossetian check points” .
This arrangement, under which the Russian army patrols the administrative
borders of South Ossetia, was formalized on 30 April 2009 by an agreement
between Russia and the de facto South Ossetian administration, whereby the
Russian military assumed responsibility fo r acting as the official State Border
Guards of South Ossetia. As Russia admitted in its report on compliance with
the Court’s indication of Provisional Measures, under that agreement Russia
enforces the de facto administration’s policies rega rding the refusal to admit
ethnic Georgian IDPs 578.
5.20 HRW found that ethnic Georgians were furt her discouraged from
returning to their homes in South Ossetia by the failure of the Russian and South
574OSCE, Human Rights in the War Affected Areas (2008), op. cit., p. 63. GM, Vol. II, Annex
71.
575
Ibid., p. 48.
576Ibid., pp. 48-49.
577Ibid., p. 48.
578Report of the Russian Federation on Compliance with the Provisional Measures Indicated by
the Order of the Court of 15 October 2008, Case Concerning Application of the International
Convention on the Elimination of All Forms of Racial Discrimination (8 July 2009), p. 20
(“[E]ven if the Abkhaz and South Ossetian authorities might have imposed some restrictions on
the crossing of their borders with Georgia, the Russian Federation is not in a position to interfere
with such decisions of the respective authorities. The Russian border guards in Abkhazia and
South Ossetia are obliged to act in accordance with the relevant Republic’s national
regulations.”).
185Ossetian de facto authorities to protect them against ongoing violence and
looting:
[N]o effective measures were taken to stop the looting.
Moreover, neither Ossetian nor Ru ssian authorities have taken
concrete measures to hold acc ountable those who intentionally
destroyed the Georgian villages in the republic. Finally, Human
Rights Watch is not aware of any steps taken by579e Ossetian
authorities to enable the displaced to return .
5.21 In its report of January 2009, the Pa rliamentary Assembly of the Council
of Europe likewise concluded that:
The return of IDPs to ethnic Ge orgian villages in South Ossetia
and Abkhazia is considerably more difficult, if not outright
impossible. Amidst continuing reports of acts of ethnic cleansing,
most IDPs fear for their safety if they return, especially in the
absence of independent internat ional monitors from the EU and
OSCE. In addition, mo st ethnic Georgian villages in South
Ossetia have been looted and razed.
The return of ethnic Georgian ID Ps to the break-away region of
South Ossetia is further complicated by the insistence of the de
facto authorities that IDPs retu rning to it accept the South
Ossetian ‘nationality’ and rescind the Georgian one… 580
5.22 In these circumstances, HRW issued an urgent call to Russia, which
“exercises effective control over South Ossetia”, that “[e]thnic Georgians
displaced from South Ossetia should be allowed to voluntarily return” 581. It
stated:
579
HRW, Up In Flames (2009), op. cit., p. 153. GM, Vol. III, Annex 156.
580Council of Europe, Parliament Assembly, The implementation of Resolution 1633 (2009) on
the consequences of the war between Georgia and Russia , Doc. 11800 (26 January 2009)
(hereinafter The implementation of Resolution 1633 (2009) on the consequences of the war, Doc.
11800 (2009)), paras. 59-60. GM, Vol. II, Annex 60.
581HRW, Up in Flames (Jan. 2009), op. cit., p. 5. GM, Vol. III, Annex 156.
186 The permanent forced displacement of thousands of people
cannot be countenanced. As it ex ercises effective control over
South Ossetia, Russia has an oblig ation to provide security to all
persons living there, regardless of ethnicity; this is especially
urgent in Akhalgori district. Ethnic Georgians displaced from
South Ossetia should be allowed to voluntarily return. Russia
should publicly promote and implem ent the right of all persons
displaced by the conflict, with out regard to their ethnic
background or imputed political aff iliations, to retur582nd live in
their homes in South Ossetia in safety and dignity .
5.23 Even in the Akhalgori District, wh ere not all ethnic Georgians were
expelled, a significant por tion of the pre-August 2008 Georgian population fled
in the face of ethnically-motivated abuses . The continued perp etration of such
discrimination by Russian military forces and the de facto authorities that serve
under Russian control, including physical violence, forced passportization and
efforts to eradicate Georgian cultural identity, has forced many to leave and
served as a powerful deterrent to retur n. The OSCE human rights investigative
mission found that “[s]ince the new South Ossetian de facto administration has
taken over in the Akhalgori area, many pe ople have left the region” and that
“[m]ore than 5,100 individuals had left Akhalgori by the end of October
[2008]” 58. The OSCE team had no doubt as to the reason for the mass exodus:
“Georgians are leaving Akhalgori because of the strong presence of Russian and
584
Ossetian forces…” For example, Human Rights Watch has reported that the
585
South Ossetian military forces are “attacking ethnic Georgians in Akhalgori” .
582Ibid.
583OSCE, Human Rights in the War Affected Areas (2008), op. cit., p. 50. GM, Vol. II, Annex
71.
584Ibid.
585Human Rights Watch, Russia: Protect Civilians in Occupied Georgia, Fear of Ethnic
Violence, Isolation in South Ossetian District (25 November 2008). GM, Vol. III, Annex 155.
187Similarly, the International Crisis Group observed the “Ossetian militia
harassment” of ethnic Georgians “in A khalgori while the area has been under
586
effective Russian control” . These discriminatory acts compelled the
Parliament of the Council of Europe in January 2009 to “condemn the ethnic
cleansing in the Akhalgori district by South Ossetian militia” as well as
“Russia’s unwillingness to stop this from happening or to bring its perpetrators
587
to justice” .
5.24 Further discouraging ethnic Georgians from returning to Akhalgori has
been the de facto authorities’ ultimatum that all residents must take South
Ossetian and Russian passports, and mu st correspondingly relinquish Georgian
588
citizenship . As one resident of Akhalgori testified, “I was asked by Ossetians
who were standing nearby whether I would agree to get Russian citizenship. I
answered that I did not know. Then they told me: ‘if you do not want [Russian
589
citizenship], you should leave this place…’” The policy was articulated by the
South Ossetian de facto Chairwoman of the Information and Press Committee,
who stated: “the South Ossetian government has said that any Georgian citizen
who wants to live in the Leningori [the new name for Akhalgori] region must
obtain either Russian citizenship or S outh Ossetian citizenship. Anyone who
590
doesn’t want to do so is free to leave” . This discriminatory policy prompted
586
International Crisis Group, Georgia: The Risks of Winter (26 November 2008), p. 5. GM,
Vol. III, Annex 164.
587The implementation of Resolution 1633 (2009) on the consequences of the war, Doc. 11800
(2009), op. cit., para. 63. GM, Vol. II, Annex 60.
588OSCE, Human Rights in the War Affected Areas (2008), op. cit., p. 48. GM, Vol. II, Annex
71.
589
Declaration of Mzia Midelashvili. Observations of Georgia, Interim Measures, Annex 35.
590“Russian Passports for Akhalgori Residents”, Georgia Times (16 January 2009). GM, Vol.
IV, Annex 283.
188the OSCE’s High Commissioner on National Minorities to decry the “statements
by those exercising jurisdiction over population and territory that the inhabitants
have to acquire South Ossetian/Russian passports or leave their homes”, which
he warned, “could lead to fu rther deterioration of the situation in the region and
another wave of IDPs” 591.
* * *
5.25 In sum, the ethnic Georgian population of South Ossetia has undergone
two rounds of ethnic cleansing, the first in 1991-1992 and the second in 2008. In
both cases, Russian military forces operated to prevent the victims of these
ethnically-targeted expulsions from returning home. Russia did so directly,
through its army that has patrolled the administrative borders of South Ossetia
and barred entry to ethnic Georgian IDPs attempting to return. It also did so
indirectly, through the discriminatory acts and policies of the de facto
administrative authorities that are under Russian State control, which Russian
military forces have implemented. As explained in Chapter 9, by engaging in,
and supporting, these acts of racial discrimination, Russia has breached Articles
2, 3 and 5 of the 1965 Convention.
591
Letter from the OSCE High Commissioner on National Minorities, Knut Vollebaek, to the
OSCE Chairman, Minister Alexander Stubb (27 November 2008), p. 2. GM, Vol. V, Annex 312.
189 CHAPTER VI.
RUSSIA’S DENIAL OF THE RIGHT OF RETURN
TO ETHNIC GEORGIANS FROM ABKHAZIA6.1 In this Chapter, Georgia demonstrates Russia’s discrimination against the
ethnic Georgian population of Abkh azia by preventing more than 200,000
victims of ethnic cleansing from returning to their homes.
6.2 The Chapter is divided into four Sec tions. In Section I, Georgia shows
how these ethnic Georgians came to be fo rcibly displaced by Russia and allied
Abkhazian separatist forces. In that regard, Georgia shows that from 1992-1994,
more than 200,000 ethnic Georgians were expelled from the region as a result of
widespread acts of targeted violence. Georgia also shows that this initial episode
of ethnic cleansing was made possible only by Russia’s active collaboration with
and control over Abkhaz militants.
6.3 In Section II, Georgia sh ows that Russia, in cooperation with Abkhazian
forces, sought to prevent th e return of ethnic Georgian s to the Gali District by
participating in another bout of ethnic cleansing in 1998, directed against those
ethnic Georgians who had spontaneously retu rned to the District. In a period of
just weeks in May and June 1998, Abkh az separatists, again supported and
directed by Russian troops , attacked and killed dozen s of ethnic Georgians,
burned hundreds of homes and drove thousa nds of ethnic Georgians out of Gali,
forcing them to seek refuge in other parts of Georgia.
6.4 In Section III, Georgia describes how Russia and the Abkhazian de facto
authorities prevented the ethnic Georgi an victims of ethnic cleansing from
returning to their homes in Abkhazia. Russia did so directly, by patrolling the
administrative borders of Abkhazia with its military forces. It also did so
indirectly, by supporting, defending and im plementing the official policy of the
Abkhazian administration of refusing to pe rmit ethnic Georgian s to return. In
short, Russia gave effect to the position of the de facto Prime Minister,
193Alexander Ankvab, that “the Abkhazi an nation opposes the return of
refugees” 592.
6.5 Finally, in Section IV, Georgia describes the expulsion from Abkhazia in
August 2008 of those few ethnic Georgian s who remained in the Kodori Gorge
of Abkhazia, and how these victims of ethnic cleansing -- like those who had
been previously expelled from elsewh ere in Abkhazia -- were prevented by
Russia from returning.
Section I. The Ethnic Cleansing of Abkhazia, 1992-1994
6.6 In this section, Georgia describes th e background to Russia’s refusal to
permit ethnic Georgians to exercise thei r right of return by showing how more
than 200,000 ethnic Georgians were forc ibly evicted from their homes in
Abkhazia and expelled to other parts of Georgia in the period from 1992 to 1994.
6.7 For most of Soviet history, Abkhazia was an autonomous republic within
the Georgian Soviet Socialist Republic. According to the last Soviet census in
1989, the total population was then approximately 525,100 and consisted of the
following ethnic groups: 45.7% Geor gians, 17.8% Abkhazians, 14.6%
Armenians, 14.3% Russians, and 7.7% others 593.
592German Pronin, “Abkhazia will provide Georgians with Autonomy”, Utro.ru (18 April 2005)
(hereinafter Pronin, “Abkhazia will provide Geor gians with Autonomy” (2005)). GM, Vol. IV,
Annex 211.
593
Letter from Ministry of Economic Development of Georgia, Department of Statistics, to
Deputy Head of the Department of Public International Law, Ministry of Justice of Georgia (11
August 2009) (providing 1989 Soviet census data). GM, Vol. V, Annex 318; Catherine Dale,
The Dynamics and Challenges of Ethnic Cleansing: The Georgia-Abkhazia Case , Refugee
1946.8 Ethnic tensions began to flare in Abkhazia as the Soviet Union began to
disintegrate in the early 1990s. Ethnic Abkhazians generally favoured remaining
part of the Soviet Union, while ethnic Georgians strongly favoured Georgian
independence 594. Once Georgia’s independ ence was established, the
demographics dictated that Abkhazia would be part of the Georgian State. The
only way to alter this outcome was to change the demographics. That is
precisely what the Abkhazian separatists set out to do; that is, create an Abkhaz-
majority territorial entity that would be linked to Russia rather than Georgia by
expelling the ethnic Georgian population. Through a violent campaign of ethnic
cleansing largely carried out betwee n 1992 and 1994, they succeeded. By the
time the opening round of the conflic t ended, very few ethnic Georgians
remained in that territory. In subse quent years, to ensure that Abkhazia
remained emptied of ethnic Georgians, Russia and the de facto authorities have
acted to prevent ethnic Georgians from returning.
6.9 The wholesale cleansing of ethni c Georgians from Abkhazia has
repeatedly been acknowledged by the international comm unity, including by
Russia. For instance in August 1993, the Sub-Commission on Prevention of
Discrimination and Protection of the UN Commission on Human Rights
595
described the “large-scale ethnic cleansing” that had occurred in Abkhazia . In
October 1993, the UN Security Council, in Resolution 876, expressed its deep
Survey Quarterly, Vol. 16, No. 3 (1997), p. 78 (hereinafter Dale, The Dynamics and Challenges
of Ethnic Cleansing: The Georgia-Abkhazia Case (1997)). GM, Vol. III, Annex 171.
594International Crisis Group, Abkhazia Today, Europe Report No. 176 (15 September 2006), p.
5. GM, Vol. III, Annex 161.
595U.N. Commission on Human Rights, Sub-Commission on Prevention of Discrimination and
Protection of Minorities, Possible ways and means of facilitating the peaceful and constructive
solution of problems involving minorities, Report submitted by Mr. Asbjorn Eide , U.N. Doc.
E/CN.4/Sub.2/1993/34 (10 August 1993), para. 285. GM, Vol. II, Annex 9.
195 596
concern regarding the “reports of ‘ethnic cleansing’” in Abkhazia . In voting
in favour of the Resolution, the Representative of Russia acknowledged that
597
“massive ‘ethnic cleansing’” had b een committed by “the Abkhazian side” .
That acknowledgement was consistent w ith an official Declaration by the
Russian Federation on 2 October that accu sed the “leadership of Abkhazia” of
598
having committed “genocide” and “rude violation of Human Rights” .
6.10 The Organization for Security and C ooperation in Europe (“OSCE”) has
likewise repeatedly recognized the violent anti-Ge orgian discrimination in
Abkhazia as ethnic cleansing. For instance, the 1994 OSCE Budapest Document
expressed “deep concern over ‘ethnic cleansing’, the massive expulsion of
people, predominantly Georgian, from thei r living areas and the deaths of large
numbers of innocent civilians” 599. Similarly, the 1996 OSCE Lisbon Document:
condemn[s] the ‘ethnic cleansing’ resulting in mass destruction
and forcible expulsion of predom inantly Georgian population in
Abkhazia. Destructive acts of separatists, including obstruction of
600
the return of refugees and displaced persons…
6.11 Russia reiterated its su pport for the position adopted in the Lisbon
Document when, in March 1997, it signe d a Decision Taken by the Council of
596
U.N. Security Council, Res. 876, U.N. Doc. S/RES/876 (19 October 1993). GM, Vol. II,
Annex 11.
597U.N. Security Council, Provisional Verbatim Record of the 3295th Meeting , U.N. Doc.
S/PV/3295 (19 Oct. 1993), p. 7 (Mr. Vorontsov of Russian Federation speaking). GM, Vol. II,
Annex 12.
598Declaration of the Government of the Russian Federation, signed at Moscow (2 October
1993). GM, Vol. III, Annex 107.
599
CSCE, Budapest Document 1994: Towards a Genuine Partnership in a New Era (6 December
1994), Statement on Georgia, para. 2. GM, Vol. II, Annex 68.
600OSCE, Lisbon Summit, Lisbon Document (1996), para. 20 of the Summit Declaration. GM,
Vol. II, Annex 69.
196the Heads of States of the Commonwea lth of Independent States, which took
“note of the Declaration of [the] Lisbon Summit… condemning the ‘ethnic
cleansing’ resulting in mass destruction and forcible expulsion of predominantly
Georgian population in Abkhazia”, as well as the “obstruction of the return of
refugees and displaced persons” 601.
6.12 In 1999, the OSCE again reiterated its “strong condemnation… of the
‘ethnic cleansing’ resulting in mass destruction and forcible expulsion of
predominantly Georgian population in Abkhazia, Georgia, and of the violent acts
602
in May 1998 in the Gali region” .
6.13 In light of the established histor ical fact (accepted not only by the UN
and the OSCE, but also by Russia itself) that ethnic Georgians were ethnically
cleansed from Abkhazia in 1992-1994, Georgia will not detain the Court by
describing these events in great detail. Thus, in the paragraphs that follow,
Georgia provides only a summary of th e salient features of the ethnic
603
cleansing .
6.14 One of the first areas to fall vic tim to ethnic cleansing was the Gagra
District in northwest Abkhazia in Octobe r 1992. One ethnic Georgian survivor
confirmed that few others had escaped:
601Decision taken by the Council of the Heads of States of the Commonwealth of Independent
States on Implementation of the Measures for Conflict Settlement in Abkhazia, Georgia. Signed
at Moscow (28 March 1997). GM, Vol. III, Annex 122.
602OSCE, Istanbul Summit, Istanbul Document (1999), p. 49, para. 17. GM, Vol. II, Annex 70.
603Should Russia now choose to contest the incontrovertible fact that ethnic cleansing took place
in Abkhazia, Georgia remains prepared to supplement its evidentiary submissions.
197 [W]hile I was in Gagra I myself saw the mercenaries and people
of different origin who were brought to Abkhazia committing
atrocities against local Georgi ans. They would detain young
Georgian boys, brought them together at the stadium of Gagra and
shoot them en masse. Georgians were brutally tortured at the
Gagra sea-side too. First they would behead Georgians and then
played football with their heads. They also took blood and drank
the Georgian blood as promised. It was horrific to see the
murdered babies along with thei r mothers who were pitched on
the streets of Gagra. After the seizure of Gagra the corpses of
Georgians were taken in garbage trucks and dumped in one big
604
hole and burnt .
6.15 After Gagra, the cleansing campaign sp read to other regions, including
Sukhumi District. One survivor describe d the atmosphere of ethnic hatred in
Sukhumi as follows:
During our stay in Sukhumi, th e radio was broadcasting in
Russian for Russians, Abkhazians and Armenians, stating that we,
Georgians were their enemies, we re living on their land, that the
land does not belong to Georgians a nd that they should unite into
one force and chase the Georgians out of Abkhazian territory.
The same kinds of appeals we re published in the newspaper
‘Sovetskaia Abkhazia’ 60.
6.16 Another survivor of Sukhumi described the horrors of what she saw:
While leaving Sukhumi I saw them tossing peaceful people from
the windows, executing them at the main entrances of the
apartment blocks, in the yards. I don’t remember the name of the
604
Declaration of Shaliko Chaladze, Victim Interrogation Protocol (October 1993). GM, Vol. V,
Annex 320.
605
Declaration of Nunu Benidze, Victim Interrogation Protocol (23 December 1993). GM, Vol.
V, Annex 322.
198 street but I witnessed them killing a young lady who was running
606
away with a child in her hands .
6.17 The brutality of the violence provoked the exodus of virtually the entire
ethnic Georgian population from Sukhumi and surrounding areas. According to
a 1995 Human Rights Watch (“HRW”) Report:
The Abkhaz attacks triggered a mass flight of Georgian civilians
that international relief organizations ‘roughly estimated at
230,000 to 250,000 people.’ Some 50,000 of those fleeing came
from Sukhumi. Those who fled along the main highway… had to
contend with continuing fighting.... A second road out of
Sukhumi led across the mountains behind Sukhumi, the 10,000
foot passes of the Caucasus, thr ough the Kodori valley to the
peaks of Svanetia and the Russian border beyond. This route --
described by one journalist as a ‘caravan of trauma’ -- spelled
tragedy for thousands… Journalists described scenes of ‘refugees
who had been stranded for weeks, lashed by rain and snow,
sleeping fifty to a house or campi ng out in rickety Soviet-era
cars.’ A blizzard in early Octo ber claimed many; their bodies
607
remained by the sides of trails in the mountain passes .
6.18 Not content simply to drive the ethnic Georgians from Sukhumi, the
separatists killed many of those atte mpting to flee. According to Russian
correspondents in Sukhumi at the time, ethnic Georgians who tried to leave by
road faced fatal passport checks: “Abkhazs check the passports on the road and
are killing everyone with the Georgian nationality…. The Georgians who are
left in the city (according to informa tion, several hundreds of them are hiding in
606
Declaration of Manuchar Nakopia, Victim Interrogation Protocol (15 October 1993). GM,
Vol. V, Annex 323.
607
Human Rights Watch/Helsinki, Human Rights Watch Arms Project, Georgia/Abkhazia:
Violations of the Laws of War and Russia’s Role in the Confl, Vol. 7, No. 7 (March 1995)
(hereinafter HRW, Violations of the Laws of War (1995)), p. 43 (internal citation omitted). GM,
Vol. III, Annex 146.
199the surrounding forests and sanatoriums of the Ministry of Defence) can soon fill
the list of the victims of genocide” 608.
6.19 Those who attempted to flee by sea fare d no better. A Russian journalist
reported on the refugees’ attempt to escap e by sea: “Heavily loaded boats with
people are shot by Abkhaz boats and the last time a fighter jet with Russian signs
609
threw several bombs on Sukhumi” .
6.20 The few ethnic Georgians that remain ed in Sukhumi af ter the assault
faced continued risk of expulsion or wors e. According to a Russian journalist:
“Many of the remaining Georgians in city are expelled from their houses, or
610
sometimes they are just murdered” .
6.21 Russian forces participated in the ethnic cleansing in Sukhumi. Russian
volunteers and mercenaries, many of whom were, according to HRW, paid and
dispatched by Russia 611, began arriving in Sukhumi as early as August 1992 61.
608
Aleksei Chelnokov, “Sukhumi in the Hands of Marauders”, Izvestie (7 October 1993). GM,
Vol. IV, Annex 189.
609Dmitri Kholodov, “The city is leaving by sea”, Moskovski Komsomolec (22 September 1993).
GM, Vol. IV, Annex 188.
610Igor Rotar, “Green kerchief on the door—Abkhazians live here”, Nezavisimaya Gazeta (18
October 1993). GM, Vol. IV, Annex 190.
611
HRW, Violations of the Laws of War (1995), op. cit., p.50. GM, Vol. III, Annex 146.
612Ibid., p. 20. Russia supplied the separatists with troops in the form of irregulars drawn from
various locations in Russia. The Russian Legion recruited irregulars out of St. Petersburg.
Declaration of Mikhail Georgievich Demianov, Protocol of Suspect Interrogation (29 November
1993) (hereinafter Declaration of Mikhail Georgievich Demianov (29 Nov. 1993)), p. 4. GM,
Vol. V, Annex 324. Russian Major General Igor Linev recruited boeviks (militants) to serve in
Abkhazia. Ibid. In late 1992, Georgia lodged a protest in the UN Security Council over the
influx of organized armed groups from Russia and under Russian control. U.N. Sec. Council,
Letter dated 2 October 1992 from the Vice Chairman of the State Council of Georgia addressed
200The allied Abkhaz and Russian forces jointly besieged S ukhumi beginning in
January 1993. Early in that year, separa tist forces unsuccessfully attempted to
attack Sukhumi by sea, an attempt that , according to one informed observer,
revealed the “high-level complicity” between the Russians and Abkhaz since
Abkhaz forces lacked military ships, and they “could have gotten them only from
the Russian navy, which moors in Sochi, immediately over the Abkhaz
613
border” .
to the Secretary-General and Appeal of the State Council of the Republic of Georgia to the
Committee of Senior Officials of the Conference on Security and Cooperation in Europe , U.N.
Doc. S/24626 (7 October 1992). GM, Vol. II, Annex 5.
The Abkhaz separatist forces were augmented by Russian irregulars from the
Confederation of Mountain Peoples (“CMP”), a militarized political organization composed of
fighters from the North Caucasian republics of the Russian Federation, including North Ossetia,
Ingushetia, Karachayevo-Cherkessia, Dagestan and Kabardino-Balkaria. Svetlana Chervonnaya,
Conflict in the Caucuses (1994) (hereinafter Chervonnaya, Conflict in the Caucasus (1994)) pp.
74, 86. GM, Vol. III, Annex 168. In August 1992, the Chairman of the CMP Parliament Iysuph
Soslanbekov announced that the Confederation “m ust ensure the transfer of volunteers to the
territory of Abkhazia”, and that “all the armed fo rmations of the Confederation must engage any
forces offering resistance and fight their way onto the territory of Abkhazia by any method”. In
addition the CMP directive ordered “[a]ll person s of Georgian nationality on the territory of
Confederation [including Abkhazia] [are] to be declared hostages”. Directive of the President of
the Confederation of the Mountain Peoples of the Caucasus Musa Shanibov and the Chairman of
the CMPC Parliament Yusup Soslambekov, 22 August 1992 (reprinted in Svetlana Chervonnaya,
Conflict in the Caucuses (1994), p. 131)). In an interview in the Russian newspaper Epicentr in
August 1992, an irregular boasted that “more than enough” Russians had joined the separatists.
He described their relationship with the Russian army as:
“Brotherhood. We have full understanding with combatant officers,
commanders of subdivision. The majority of them are supporting us,
meaning that they stand for national interests of Russia. . . . I would
say that Russian army officers support us morally. And this is not a
small support. We can at any moment obtain an expert advice from
them. There is nothing to hide, one can also receive solid, completely
elaborated plan of military operations.”
“For the Right Affair?” Epicentr (18 Aug. 1992). GM, Vol. IV, Annex 186.
613Erika Dailey, Human Rights and the Russian Armed Forces in the ‘Near Abroad’ , Helsinki
Monitor, No. 2 (1994) (hereinafter Dailey, Human Rights and the Russian Armed Forces (1994)),
p. 14. GM, Vol. III, Annex 169.
2016.22 Around the same time, the Russian Defence Ministry dispatched a SU-25
614
fighter-bomber to attack Sukhumi . By March 1993, Russia had intensified its
aerial assault of Sukhumi. On 19 Marc h, Georgia shot down a Russian SU-27
615
over the city .
6.23 Russian participation in hostilities in Sukhumi was not limited to aerial
bombardment. As noted in a 1995 HRW report:
The air attacks over Sukhumi were the most verifiable case of
Russian forces aiding the Abkhaz. But there were other instances
in which the evidence is persuasive that Russian forces were
involved in logistics and supply at th is point in the conflict. It is
very likely, for example, that Russian forces supplied extensive
614
An American journalist who witnessed the attack stated that the airplane dropped a 500-pound
bomb that “pulverized a two-story residence and [tore] off the back halves of four surrounding
houses”. Thomas Goltz, Letter from Eurasia: The Hidden Russian Hand, Foreign Policy, No. 92
(Autumn 1993) (hereinafter Goltz, Letter from Eurasia (1993)), p. 106. GM, Vol. III, Annex
167. Afterwards, the airplane returned and its “wing cannon and machine guns raked a street
about 200 meters away from the bombing site, catching people outdoors who had emerged from
the relative safety of their homes to help neighbours buried under the rubble”. Ibid., p.106.
After denying the raid and then blaming it on Georgia, Russian Defence Minister Pavel Grachev
admitted the Russian attack but claimed it “had ta ken place in revenge for Georgian shelling of
areas close to Eshera, a Russian defense research center and military base not far north of the
Gumista River”. Ibid., p. 107.
615HRW, Violations of the Laws of War (1995), op. cit., p. 53. GM, Vol. III, Annex 146. See
also Zhirokhnov Mikhail Alexandrovich, “Air Forc es in Abkhazia, Patr iotic War of Abkhaz,
Aviation in Abkhaz-Georgian War 1992-93”, No. 3 (2001), p. 3 (hereinafter Zhiroknov, “Air
Forces in Abkhazia, Patriotic War of Abkhaz, Aviation in Abkhaz-Georgian War 1992-93”
(2001).) GM, Vol. III, Annex 179; U.N. General Assembly, Annex, Report on the question of the
use of mercenaries as a means of violating human rights and impeding the exercise of the right of
peoples to self-determination, submitted by the Special Rapporteur of the Commission on Human
Rights, U.N. Doc. A/48/385 (23 September 1993), para. 48. GM, Vol. II, Annex 10. A UN
Military Observer noted that “both the downed aircraft and the dead pilot confirmed that it was
the advanced aircraft the Georgians claimed it was and that the pilot’s papers identified him as a
major in the Russian air force”. HRW, Violations of the Laws of War (1995), op. cit., p. 38.
GM, Vol. III, Annex 146. See also Krasnaia Zvezda, (23 March 1993), p. 1 (cited in Dailey,
Human Rights and the Russian Armed Forces (1994), op. cit., pp. 14-15); Goltz, Letter from
Eurasia (1993), op. cit., pp. 103-110. GM, Vol. III, Annex 167. Georgia lodged a formal, but
futile, protest with Moscow about the bombings of Georgian civilian areas, including Sukhumi,
by Russian aircraft. Communication from K. Khge nti, Tbilisi to Ministry of Foreign Affairs of
Russian Federation (16 March 1993). GM, Vol. IV, Annex 303.
202 military assistance to the Abkhaz fighters during sea-borne
landings in attempts to retake Sukhumi.... [Furthermore] at least
some hea616weapons, transport and fuel were supplied by Russian
forces” .
In addition, the Russian ar my in Abkhazia was used as a conduit through which
to deliver to the separatist military for ces critical aerial photographs of areas of
military activity via special couriers from Moscow 617.
6.24 Russia’s support for the attack on Sukhumi was publicly confirmed at the
time S. P. Dbar, then leading Abkhazia’s mobilization. When questioned about
the legitimacy of the attack, he stated : “You can assume that our actions are
sanctioned; Moscow has approved it” 618. Similarly, Russia’s then Vice-
President, Aleksandr Rutskoi, info rmed Mr. Vladislav Ardzinba, the de facto
Abkhaz President, that the Sukhumi at tack was sanctioned and no one would
interfere with the separatists’ actions 619.
6.25 By the time the ethnic cleansing of Sukhumi was completed, virtually the
entire ethnic Georgian population had been expelled.
616
HRW, Violations of the Laws of War (1995), op. cit., p. 38. GM, Vol. III, Annex 146.
617
Declaration of Mikhail Georgievich Demianov (29 Nov. 1993), op. cit. GM, Vol. V, Annex
324. By early July 1993, the situation on the ground on Sukhumi was so dire that Georgian
President Eduard Shevardnadze informed the President of the UN Security Council that the city
was under siege by large-calibre mortars, howitzers and Grad rocket launchers with wide-area
shells, all directed by Russian SU-25 aircraft. U.N. Security Council,Letter dated 2 July 1993
from the head of state of the Republic of Georgia addressed to the President of the Security
Council, U.N. Doc. S/26031 (2 July 1993). GM, Vol. II, Annex 8. In a ddition, assault forces
comprised of Russian “volunteers” had landed in coastal areas that were controlled by Russian
troops. Ibid. GM, Vol. II, Annex 8.
618
Declaration of Mikhail Georgievich Demianov (29 Nov. 1993), op. cit., p.6. GM,Vol.V,
Annex 324.
619Ibid., p. 5.
2036.26 The ethnic cleansing that next took place in Ochamchire District in
September 1993, lying to the southeast of Sukhumi, was much the same.
6.27 According to one eyewitness to the 15 September 1993 attack on
Akhaldaba village, in Ochamchire District:
Abkhazs, Cossacks, Chechens and Russians, along with the armed
Abkhaz women, raided the village. All of them were armed with
grenade launchers, mortar guns, au tomatic rifles backed by tanks
and armored vehicles. They scre amed at us saying that they
would not leave the area until they would have drunk the blood of
the last Georgian survivor. Even the slightest resistance would
have caused immediate death. The girls were forcefully driven by
Abkhaz women into isolated rooms. I was with my baby and with
my mothers and sisters. They th reatened us that the Abkhaz men
would rape us one by one. Then armed Abkhaz, Russians,
Cossacks and Chechen men entered and searched us putting their
hands into our breasts looking for jewelry. The men made threats
to pull out our eyes with their fingers. Then the Abkhaz and their
associates started to beat the women. The girls older than 10
years were taken way in the adjoining room and raped. We heard
horrific shrieks from the girls. Our men were held nearby in the
iron cells. That took place at th e Abkhazian school of the Atara
village. Our men’s ears were ri pped off and clothes ripped while
their faces were bruised harshl y. The Abkhazs and Chechens
were bullying us to drive all of us to a single place and make a
soap of us. They cried that th ey would fight until there was a not
620
single Georgian left in Abkhazia .
6.28 Next after Ochamchire was the Gali District in the far southeast of
Abkhazia bordering the rest of Georgia. Th e location of Gali District relative to
Abkhazia and the rest of Georgia is indicated in Figure 6.1 appearing below.
620Declaration of Nana Arjevanidze, Victim Interrogation Protocol (12 October . GM,
Vol. V, Annex 321.
2046.29 Starting in late September 1993 a nd continuing through October,
Abkhazian forces began carrying the cam paign to expel the ethnic Georgian
621
population to Gali, causing thousands of the District’s inhabitants to flee . One
victim in Gali recounted how on the second day of the Abkhazian occupation of
the Gali region, extremist forces entered Tagiloni village and “started genocide
of [the] Georgian population…. [O]n October 4, 1993 Abkhazian extremists
killed 69 year old Uolia Ablotia and 64 y ear old Valram Ablotia. [The s]ame
day they tossed 43 year old woman Luchiko Shubladze into the well… and
621
HRW, Violations of the Laws of War (1995), op. cit., pp. 41-43. GM, Vol. III, Annex
146.GM, Vol. III, Annex 156.
205 622
riddled her from the machine guns” . The victim detailed how similar “illicit
activities”, including violent killings , continued after Russian peacekeepers
entered the region: “[A]fter this Gvaramia Tariel was violently killed. He had
623
about 30 injuries, his nails were ri pped off and joints were crashed” .
According to the victim, this incident was carried out by organized Abkhazian
624
“criminal” groups, led by the “head of [the] Gudauta hippodrome” .
6.30 When ethnic Georgians began attempting to return after the wave of
violence had subsided, the Abkhazian forces renewed the ethnic cleansing. In
early February 1994, Abkhaz fighters attacked Gali and proceeded to
systematically kill and expel the ethnic Georgian population. Over the following
ten days, buildings in the villages of Okumi, Mukhumi , Tsarche, Pirveli, Gali,
625
Rechkhi, Tskhiri, Gumprish, Constitutsia and Kohora were burnt down .
6.31 As in Gagra, Sukhumi and Ochamchire , the attackers left no doubt as to
the ethnic motivation behind their violence. According to one forcibly displaced
resident of Gali, Abkhaz forces killed her husband and her parents “just because
622Declaration of Anatoli Jologua, Victim Interrogation Protocol (5 October 1995). GM, Vol. V,
Annex 325.
623Ibid.
624Ibid.
625
U.N. Economic and Social Council, Commission on Human Rights, Letter dated 23 February
1994 from the Permanent Representative of Ge orgia to the United Nations addressed to the
Chairman of the fiftieth session of the Commission on Human Rights , U.N. Doc.
E/CN.4/1994/123 (hereinafter Letter dated 23 February 1994 , U.N. Doc. E/CN.4/1994/123 (1
Mar. 1994)), p. 4. GM, Vol. II, Annex 14.
206they were Georgian” 626. Another survivor of the Gali violence recalled how his
neighbour was burned by Abkhaz once they heard his Georgian surname 627.
6.32 According to the UN Secretary-Genera l, the fighting in and around Gali
resulted in the displacement of 3,000 pe ople, the deaths of 500 and the burning
628
of 800 homes . Other reports placed the deat h toll of ethnic Georgians and
629
other non-Abkhaz as high as 800 and the burning of homes at 4,200 . The
scale of the destruction is illustrated by the village of Okumi, where 610 of the
710 Georgian buildings were “ruined” and 65 people killed, 20 of whom were
630
elderly women .
6.33 Observers confirmed that the ethnic cleansing in Gali occurred in the
presence of Russian peacekeepers. A ccording to a contemporaneous report on
human rights published by the United States Department of State: “[I]n Abkhazia
and the cease-fire zone around Gali, Abkhaz committed egregious human rights
626Dale, Dynamics and Challenges of Ethnic Cleansing (1997), op. cit., pp. 77-89 (quoting from
author interviews with IDPs in Gali District). GM, Vol. III, Annex 171.
627
Ibid.
628U.N. Security Council, Report of the Secretary-General Concerning the Situation in
Abkhazia, Georgia, U.N. Doc. S/1994/253 (3 March 1994), para. 17. GM, Vol. II, Annex 15.
629U.S. Department of State, Country Report on Human Rights Practices 1994, Georgia (30
January 1995) (“Abkhazian separatists reportedly executed as many as 800 Georgians and other
non-Abkhaz who remained in the Gali region of Abkhazia.”). GM, Vol. III, Annex 115;
Analytical group on Abkhazian issues of the Parliament of Georgia, Facts of Genocide and
Ethnic Cleansing of Georgians in Gali Region by the Abkhazian Separatists , Digital Caucasus
(21 January 2007), p. 1. GM, Vol. III, Annex 176. See also Letter dated 23 February 1994, U.N.
Doc. E/CN.4/1994/123, op. cit. GM, Vol. II, Annex 14.
630
U.N. General Assembly, Annex, Report on the policy of ethnic cleansing/genocide conducted
in the territory of Abkhazia, Georgia, and the necessity of bringing to justice the persons who
committed these crimes in accordance with in ternational principles of due process, U.N. Doc.
A/52/116 (16 April 1997), para. 154. GM, Vol. II, Annex 22.
207abuses against the remaining Georgian s despite the presence of Russian
631
peacekeepers” .
***
6.34 On 14 May 1994, with the cleansing of ethnic Georgians from Abkhazia
all but complete and the va st majority of the region’ s territory under separatist
control, the parties to the conflict -- Georgia, Russia and the Abkhaz separatists -
632
- signed an “Agreement on a Cease-fire and Separation of Forces” . The cease-
fire was to be overseen by CIS and UN forces. In addition, the CIS was charged
with the responsibility to “promote the safe return of refugees and displaced
persons, especially to the Gali region” 633. However, Russia did not honour its
commitment to promote the return of et hnic Georgian IDPs to their homes in
Abkhazia. As Georgia will describe in the next sections, Russia supported both
the Abkhaz separatists’ further efforts to expel ethnic Georgians from Gali in
1998 and their corresponding policy of de nying ethnic Georgians their right of
return.
Section II. Renewed Ethnic Cleansing in Gali, 1998
6.35 Between the 1994 cease-fire agreement and 1998, many ethnic Georgians
who had been displaced by the earlier vi olence spontaneously returned to their
631
U.S. Department of State, Country Report on Human Rights Practices 1994, Georgia (30
Jan.1995). GM, Vol. III, Annex 115.
632U.N. Security Council, Annex I, Agreement on a Cease-Fire and Separation of Forces, signed
in Moscow on 14 May 1994, U.N. Doc. S/1994/583 (14 May 1994) (hereinafter “Agreement on
Cease-Fire and Separation of Forces (May 1994)”). GM, Vol. II, Annex 16.
633Ibid., Art. 4.
208homes in the Gali District. For Russia and the de facto authorities, the return of
ethnic Georgians became an intolerable challenge to their objective of creating
an ethnically homogenous te rritorial entity. Thus, in the words of the UN
Secretary-General’s Representative , beginning on or around 19 May 1998,
Abkhaz separatist forces and their allies “swept through southern Gali on a path
of destruction” aimed at removing th e ethnic Georgian population from the
634
area . In little more than a week, Abkh az and allied forces burned to the
ground an estimated 1,400 ethnic Geor gian homes throughout the Gali
635
District . Many of the destroyed homes had been rebuilt after the 1994
violence with the aid of international humanitarian assistance. In his report to
the Security Council on 14 July 1998, the UN Secretary-General observed that:
the international community had to witness how its assistance and
efforts literally went up in fl ames, when houses that had been
634U.N. Economic and Social Council, Commission on Human Rights, Report of the
Representative of the Secretary General on intern ally displaced persons, Mr. Francis M. Deng,
submitted pursuant to Commission on Human Rights resolution 2000/53, Addendum: Profiles in
Displacement: Georgia, U.N. Doc. E/CN.4/2001/3/Add.4 (hereinafter U.N. ECOSOC, Report of
Mr. Francis Deng, pursuant to resolution 2000/53 , U.N. Doc. E/CN.4/2001/3/Add.4) (25 Jan.
2001), para. 17. GM, Vol. II, Annex 31. The level of anti-Georgian violence was of such a
magnitude that the UN Secretary General’s Sp ecial Representative on Internal Displaced
Persons, Mr. Francis Deng, called for an extraordinary session of the Coordinating Council of the
Georgian and Abkhazian sides that had been creat ed in 1997, for 22 May 1998. U.N. Security
Council, Report of the Secretary General Concerning the Situation in Abkhazia, Georgia , U.N.
Doc. S/1998/497 (10 June 1998), para. 3. GM, Vol. II, Annex 25. Nonetheless, the violence
intensified and on 24 May the UN determined th at separatist and allied forces had launched “a
large scale operation”. Ibid., para. 3.
635
U.N. Security Council, Report of the Secretary General Concerning the Situation in Abkhazia,
Georgia, U.N. Doc. S/1998/647 (14 July 1998), para.13, GM, Vol. II, Annex 26. (“UNHCR
estimates that the some 1,400 private homes were destroyed including houses recently rebuilt
with the assistance of the international community, at a cost of some $2 million.”). In addition to
the 1,400 homes, “16 schools that had been reconstructed with international support” were also
destroyed. U.N. ECOSOC, Report of Mr. Francis Deng, pursuant to resolution 2000/53 , U.N.
Doc. E/CN.4/2001/3/Add.4, para. 77, op. cit. GM, Vol. II, Annex 31.
209 constructed at a cost of more than $2 million out of UNHCR
funds were deliberately set on fire 636.
The Secretary-General continued: “I deplore such reprehensible acts, whose
637
motive appears to be to expel people from their home areas” .
6.36 By the time this round of ethni c cleansing had ended, many ethnic
Georgian civilians had been killed and over 40,000 ethnic Georgians had once
638
again been expelled from Gali .
6.37 The torching of Georgian homes was thorough and systematic. “Up to
ninety percent of the houses in some villages of the Gali district” were
636U.N. Security Council, Report of the Secretary General Concerning the Situation in Abkhazia,
Georgia, U.N. Doc. S/1998/647 (14 July 1998), para. 37,op. cit. GM. Vol. II, Annex 26.
637Ibid. See also Francis Deng, Representative of the Secretary General, U.N. ECOSOC, Report
of Mr. Francis Deng, pursuant to resolution 2000/53 , U.N. Doc. E/CN.4/2001/3/Add.4, op. cit.,
para. 17. GM. Vol. II, Annex 31; U.N. Security Council, Letter dated 26 May 1998 from the
Permanent Representative of Georgia to the United Nations addressed the President of the
Security Council, U.N. Doc. S/1998/432 (26 May 1998). GM, Vol. II, Annex 24.
The escalation of anti-Georgian violence in May 1998 was preceded by a broad
campaign of propaganda and intimidation campaign. Pamphlets were widely distributed with
messages such as:
Death to all Georgians!!! Take your things and go to your motherland,
‘Independent Georgia’ [until] May 26. Those who will not leave will
die. There is no place for you in Abkhazia.
Letter to Mr. A. Baluashvili, (5 July 1998). GM, Vol. IV, Annex 305. These pamphlets echoed
the warnings given to ethnic Georgians by Abkhaz police and separatists in the days leading up
to the outbreak of hostilities. A resident of th e Lekukhona village was told, for instance, “[Y]ou
are Georgians and you should leave the territory of Abkhazia… If you don’t leave, we will kill
you”. Declaration of Mamuka Chakaberia, Victim Interrogation Protocol (27 May 1998), p. 2.
(hereinafter “Declaration of Mamuka Chakaberia (27 May 1998)”). GM, Vol. X Annex 328.
638
U.N. ECOSOC, Report of Mr. Francis Deng, pursuant to resolution 2000/53, U.N. Doc.
E/CN.4/2001/3/Add.4 (25 Jan. 2001),op. cit., para. 17. GM, Vol. II, Annex 31.
210destroyed 639. In the Georgian village of Tagiloni, for example, 465 of the 475
homes were burned down 640. In interviews held shortly after the May 1998
violence, ethnic Georgian civilians from throughout the Gali District described
similar patterns of destruction in their vi llages. One resident of Zemo Berghebi
village reported that “Abkhaz boeviks [militants]… set fire to the whole village”
641
on 20 May 1998 . A resident of Kvemo Barghebi reported that “the whole
village” had been burned down, including his own two-story house and that of
642
his father . The ethnic Georgian village of Nabakevi suffered a similar fate. A
widow who had seen her home in Nabake vi reduced to ashes in 1994, witnessed
anti-Georgian forces “set fire to all remaining houses” in her village on 24 May
1998 643. Houses were also torched in the Georgian villages of Chuburkhinji 644,
Repi 645, Sida 646, Gagida 647, Pirveli Gali 64, and Dikhazurga 649, among others 650.
639
U.N. Security Council, Report of the Secretary General Concerning the Situation in Abkhazia,
Georgia, U.N. Doc. S/1998/497 (10 June 1998), para. 6. GM, Vol. II, Annex 25.
640Letter from A. Latsuzbaia, State Advisor of Justice, Prosecutor of the Abkhazian Autonomous
Republic and E. Topichiev Chief Advisor of Jus tice, Head of the Investigation Group, to J.
Babilashvili, Prosecutor-General of Georgia, (29 June 1998), p. 4. GM, Vol. V, Annex 304. The
Analytical Group on Abkhazian Issues of the Parliament of Georgia reported that, in total, 2100
houses and fourteen villages in the Gali District were “completely ruined and burnt”. The
Analytical Group on Abkhazian Issues of the Parliament of Georgia, Facts of Genocide and
Ethnic Cleansing of the Georgians in Gali Region by the Abkhazian Separatists from 20-26 of
May 1998 and Later (21 January 2007), p. 2. GM, Vol. III, Annex 176.
641
Declaration Patsiko Tsatsua, Victim Interrogation Protocol (4 June 1998). GM, Vol. V,
Annex 338.
642Declaration of Murtaz Chakaber ia, Witness Interrogation Protocol (1 June 1998). GM, Vol.
V, Annex 335; see alth Declaration of Avalion Kikalia, Witness Interrogation Protocol (3 July
1998), p. 2 (“On 30 of May, I moved to the village Kvemo Barghebi and saw my own brick
house burnt down along with other supplementary buildings, furniture and things”). GM, Vol. V,
Annex 347.
643Declaration of Toria Natela, Witness Interrogation Protocol (5 June 1998). GM, Vol. V,
Annex 339; see also Declaration of Jambuli Chekhuria, Witness Interrogation Protocol (25
August 1998) (resident of Nabakevi village, reporting “they burnt almost all the village… the
village hardly exists now”). GM, Vol. V, A nnex 348; Declaration of Chichiko Chargazia,
211Witness Interrogation Protocol (5 June 1998) (describing torching of his home in Nabakevi).
GM, Vol. V, Annex 340.
644
Declaration of Mamuka Chakaberia, Victim Interrogation Protocol (27 May 1998). GM, Vol.
V, Annex 328.
645
Declaration of Tamara Butbaia, Victim Interrogation Protocol (29 June 1998). GM, Vol. V,
Annex 345.
646Declaration of Vakhtang Kobalia, Victim Interrogation Protocol (28 May 1998). GM, Vol. V,
Annex 331; Declaration of Gogola Khasaia, Victim Interrogation Protocol (7 June 1998). GM,
Vol. V, Annex 341.
647Declaration of Nineli Kvashilava, Victim Interrogation Protocol (27 May 1998). GM, Vol. V,
Annex 329.
648
Declaration of Badri Kvatsabaia, Witness Interrogation Protocol (29 June 1998). GM, Vol. V,
Annex 346.
649Declaration of Roin Matkava, Witness Interrogation Protocol (26 May 1998). GM, Vol. V,
Annex 327.
650Before ethnic Georgians’ homes were burned, they were often looted. A resident of Zemo
Barghebi village reported that anti-Georgian for ces “entered the houses before setting fire to
them and took furniture, TV-sets and other thi ngs”. Declaration of Lasha Sondzia, Victim
Interrogation Protocol (28 May 1998). GM, Vol. V, Annex 332. Similarly, in Gagida village,
“heavily armed” fighters “enter[ed] the houses and look[ed] for money, jewelry and clothes”.
Declaration of Nineli Kvashilava (27 May 1998), op. cit. GM, Vol. V, Annex 329.
Arbitrary detentions of ethnic Georgians were also wide-spread during the May 1998
violence. Victims of the detentions “were held as hostages, and/or with a ransom demanded for
their release”. Amnesty International, Georgia: Summary of Amnesty International’s Concerns ,
(August 1998), p. 17. GM, Vol. III, Annex 157. For instance, a resident of Nabakevi village
reported that the anti-Georgian forces who raided his village during May 1998 took three
residents hostage. Declaration of Chichiko Chargazia, Witness Interrogation Protocol (5 June
1998), op. cit . GM, Vol. V, Annex 340; see also Declaration of Toria Natela, Witness
Interrogation Protocol (5 June 1998). GM, Vol. V, Annex 339. Similarly, a resident of Repi
village reported that three of her neighbors we re arbitrarily detained. Declaration of Tamara
Butbaia, Victim Interrogation Protocol (29 June 1998). GM, Vol. V, Annex 345. Reports
indicate that approximately 45 ethnic Georgian villagers were held hostage during May and June
1998. Letter from A. Latsuzbaia, State Adviso r of Justice, Prosecutor of the Abkhazian
Autonomous Republic and E. Topichiev Chief Advisor of Justice, Head of the Investigation
Group, to J. Babilashvili, Prosecutor-General of Georgia, Chief State Advisor of Justice (29 June
1998), p. 7. GM, Vol. V, Annex 304.
2126.38 More than 60 Georgian civilians were killed in the Gali District in May
651
and June 1998 alone . For example, a witness to the violence in her village
stated that:
[Separatist forces] were ruin ing and burning the houses and
kill[ing] the peaceful population. They killed four members of
the Arakhamia family in our village, one man in the Papava
family, one man in the Gvagvalia family and many others.
Separatists burned the families w ithout any threat and killed the
652
peaceful people .
6.39 Similarly, on 23 May 1998, separatist fo rces attacked another village
with machine guns, killing two residents 653. Witness Roin Matkava described
the scene as he fled:
I moved to Zugdidi with empty hands, as Abkhazians were
following us with automatic m achines shooting at us. After
leaving the village I could see from a distance that houses were on
fire there…. I left everything behind as I could not take them with
me because Abkhazians were running after us shooting at us from 654
automatic machine guns and we narrowly escaped death .
Many more instances of deliberate killi ngs of ethnic Georgi an civilians during
May 1998 are detailed in an August 1998 Amnesty International report and in
additional witness testimony 655.
651Ibid.
652Declaration of Mamuka Chakaberia, Victim Interrogation Protocol (27 May 1998), op. cit.
GM, Vol. V, Annex 328.
653
Declaration of Roin Matkava, Witness Interrogation Protocol (26 May 1998), op. cit. GM,
Vol. V, Annex 327.
654Ibid.
655Amnesty International, Georgia: Summary of Amnesty International’s Concerns , (August
1998), op. cit., p. 15. GM, Vol. III, Annex 157. In one incident, “six uniformed and armed
Abkhazians” attempted to kill a “55-year-old resident of Otobaia village” by throwing him into a
2136.40 During these ethnically-targeted human rights viol ations, Russian troops
at best acquiesced in the violence perpetra ted against ethnic Georgians in Gali.
Just as often, they took an active part in the atrocities by supplying and aiding
the Abkhaz militia, and sometimes even attacking ethnic Georgians directly. In
that regard, Russian troops frequently accompanied the Abkhaz militia as they
entered and attacked Georgian villages. When Abkhaz militia entered Kvemo
Barghebi village on 24 May 1998, for example, they were accompanied by
“Russian peacekeepers… with grenade launchers and heavy war equipment” 656.
The entire village was then burned to the ground 657. Similarly, in Zemo
Barghebi village, the “Abkhaz boeviks [militants]” that entered the village “were
preceded by the heavy war equipment of Russian peacekeepers, namely in tanks
or IFVs,” such that there Russian peacekeepers operated “alongside” the
“Abkhaz boeviks” 658. A resident of Tagiloni village reported that:
As for Russian peacekeepers, they were supporting the
Abkhazians as far as they were involved in same affairs against
us. When there were so called ‘clean-ups’ in our village, the
fire made with the villager’s own “linen, bed sheets, and bed.” Ibid., p. 15. In another
particularly heinous act, a group comprised of Abkhaz militia and Russian troops kidnapped
three Georgians in Pirveli Gali. Declarat ion of Badri Kvatsabaia, (29 June 1998), op. cit. GM,
Vol. V, Annex 346. Two of the hostages were ultimately released, but one -- Mr. Rulsan
Gogokhia -- was not. Mr. Gogokhia “was tortured, pierced with knives, beaten and then
murdered.” Ibid. In the same village, these anti-Georgi an forces also killed Mr. Napo Jejeia,
who was badly beaten before being shot to death, and then burned along with his home. Ibid.
656
Declaration of Murtaz Chakaberia, Witness Interrogation Protocol (1 June 1998), op. cit.
GM, Vol. V, Annex 335.
657Ibid.
658Declaration of Patulia Butbaia, Victim Interrogation Protocol (28 May 1998). GM, Vol. V,
Annex 330.
214 Russians would lead the Abkhazians, they were killing people, or
taking them as hostages who then would pay ransom 659.
6.41 In addition to accompanying and providing cover for the Abkhaz militia,
Russian “peacekeepers” also directly participated in attacks on the ethnic
660
Georgian population . Russian tanks, for instan ce, fired upon Zemo Barghebi
661
village on 20 May . Similarly, “on May 25, an Armored Personnel Carrier
(ACP) of the Russian Peacekeeping Forces, with the number 400, opened fire
662
on” residents in Achigvara village . In another incident, also on 25 May 1998,
Russian troops observing a struggle be tween Georgian villagers and Abkhaz
militia, opened fire on the villagers when they realized that the Abkhaz militia
663
was being overpowered .
6.42 Russian troops also participated in the systematic torching of homes
described above. One witness reported that she saw:
with [her] own eyes how the representatives of Russian
peacekeeping forces were burning the houses of peaceful people
in Chuburkhinji…. Representatives of Russian peacekeeping
forces not only assisted the A bkhaz separatists and the ones with
659
Declaration of Daviti Sharia, Witness Interrog ation Protocol (10 June 1998). GM, Vol. V,
Annex 342.
660Declaration of Akaki Dgebia, Witness Interroga tion Protocol (June 4, 1998). GM, Vol. V,
Annex 337.
661Declaration of Jeiran Dzandzava, Witness Interrogation Protocol (June 3, 1998). GM, Vol. V,
Annex 336.
662
Declaration of Dato Kiria, Witness Interrogation Protocol (June 22, 1998). GM, Vol. V,
Annex 343; see also Declaration of Gocha Buliskiria, Witness Interrogation Protocol (June 28,
1998) (describing the same incident). GM, Vol. V, Annex 344.
663Declaration of Giorgi Gulordava, Victim Interrogation Protocol (30 May 1998). GM, Vol. V,
Annex 334.
215 other nationalities, but also… they burnt the people’s houses
themselves 664.
Another witness similarly witnesse d Abkhaz separatists and Russian
peacekeepers set fire to his house in Sida village 665.
6.43 When they were not actively partic ipating in anti-Georgian violence
themselves, the Russian troops in the Ga li District stood by and did nothing to
stop the atrocities inflicted on the et hnic Georgian population. Some Russian
troops told Georgian residents that they “should protect themselves”, and that “if
Georgians pay us money as the Abkhazians do, then we will force the
Abkhazians away to the river Psou” 666. One witness who observed shootings,
kidnappings and looting in the village of Dikhazurga, reported that the “Russian
peacekeeping forces saw everything but they were silent and did not pay
attention to anything” 667. Another witness, who was taken hostage by the
Abkhaz militia, similarly reported:
[W]hen the Abkhaz boeviks captured us, representatives of the so-
called Russian Peacekeeping Forces did not interfere in their
actions. In general, the so-ca lled Russian peacekeepers do not
disturb Abkhaz boeviks. The Abkhazians can do whatever they
want to do in front of their eyes. Even at night, I saw with my
664Declaration of Mamuka Chakaberia (27 May 1998),op. cit. GM, Vol. V, Annex 328.
78The Russian troops in the Gali District also ssisted the Abkhaz fighte rs in kidnappings of
ethnic Georgians. In one instance on 24 May 1998, during the attack of Zemo Barghebi village
by Abkhaz militia, the village’s elderly population approached Russian soldiers for assistance.
Rather than providing protection for the elderly villagers, the Russian troops simply “handed
them to the Abkhaz separatists as hostages.” Declaration of Lasha Sondzia, Victim Interrogation
Protocol (28 May 1998). GM, Vol. V, Annex 332.
666
Declaration of Pridoni Odisharia, Victim Interrogation Protocol (27 May 1998). GM, Vol. V,
Annex 326.
667Declaration of Roin Matkava, Witness Interrogation Protocol (26 May 1998), op. cit. GM,
Vol. V, Annex 327.
216 eyes how the Abkhazians stayed at the Russian’s headquarters to
overnight there with the security considerations. The Abkhazians
were telling the Russian peacekeepers that ‘you do your things,
and I will do mine’. Besides, the Abkhazians divided the half of
the pieces of boiled meat ‘b rotherly’ with the Russian
peacekeeping forces 66.
6.44 The killing and intimidation of ethni c Georgians, combined with the
destruction of their villag es, resulted in a renewed exodus of Gali residents
across the Inguri River to the rest of Georgia. According to the UN
Representative on Internally Displace d Persons, Francis Deng, “[s]ome 40,000
669
people were displaced [from the Gali District] in a mere matter of days” . Mr.
Deng was clear that this “displacement appears to have been the very aim” of the
670
violence . The UN Secretary-General himself came to the same conclusion in
a July 1998 report in which he stated that the motive for the torching of Georgian
671
houses “appears to be to expel people from their home areas” .
668Declaration of Otar Minjoraia, Victim Interrogation Protocol (29 May 1998). GM, Vol. V,
Annex 333.
669
U.N. Economic and Social Council, Commission on Human Rights, Report of the
Representative of the Secretary-General on intern ally displaced persons, Mr. Francis M. Deng,
submitted pursuant to Commission on Human Rights resolution 2000/53, Addendum: Profiles in
Displacement: Georgia, U.N. Doc. E/CN.4/2001/3/Add.4 (25 January 2001) (hereinafter U.N.
ECOSOC, Report of Mr. Francis Deng, pursuant to resolution 2000/53 , U.N. Doc.
E/CN.4/2001/3/Add.4), para. 17. GM, Vol. II, Annex 31. See U.S. Department of State, Country
Reports on Human Rights Practices 1999, Georgia (23 Feb. 2000), p. 1. (“As a result of fighting
in May 1998, almost all of the 53,000 Georgian IDP’s who returned to the Gali region of
Abkhazia fled again.”) GM, Vol. III, Annex 130.
670
U.N. ECOSOC, Letter dated 23 February 1994 , U.N. Doc. E/CN.4/1994/123. GM, Vol. II,
Annex 14.
671
U.N. Security Council, Report of the Secretary-General Concerning the Situation in
Abkhazia, Georgia, U.N. Doc. S/1998/647 (14 July 1998), op cit., para. 37. GM, Vol. II, Annex
26.
2176.45 In the same report, the UN Secret ary-General noted the thoroughness of
the ethnic cleansing that had taken place. He stated: “The rich agricultural land
of the Gali district, which used to feed most of Abkhazia and provide products
for export, is not being worked, as the district is now virtually depopulated”.
6.46 As described in the following sections, Russia and the de facto authorities
implemented discriminatory policies designed to ensure that Abkhazia remained
depopulated of ethnic Georgians.
Section III. Ethnic Georgians Not Permitted to Return to Abkhazia
A. FORCIBLY DISPLACED E THNIC G EORGIAN IDP S
6.47 As a result of the ethnic cleansing that took place in Abkhazia in 1992-
1994 and again in 1998, more than 200,000 ethnic Georgians were forcibly
displaced from their homes 673. According to UNHCR, by 1999 the ethnic
Georgian population in Abkhazia had been reduced from 45 percent to less than
5 percent 67. Russia and the separatist authorities cemented this demographic
change by adopting the discriminatory practice of refusing to allow ethnic
Georgians to return to their homes. Only in Gali District, adjacent to the rest of
Georgia, where ethnic Georgians have always composed a large majority of the
672
Ibid., para. 33.
673
UNHCR, Background Paper on Refugees and Asylum Seekers from Georgia , (October 1999),
p. 15. GM, Vol. II, Annex 29; U.N. Economic and Social Council, Commission on Human
Rights, Report of the Representative of the Secretary-General on the human rights of internally
displaced persons, Walter Kälin, Addendum, Mission to Georgia , U.N. Doc.
E/CN.4/2006/71/Add.7 (24 March 2006) (hereinafteReport by Walter Kälin , Addendum,
Mission to Georgia, U.N. Doc. E/CN.4/2006/71/Add.7), para. 7. GM, Vol. II, Annex 40.
674UNHCR, Background Paper on Refugees and Asylum Seekers from Georgia (October 1999),
op. cit., p. 15. GM, Vol. II, Annex 29.
218local population, did some expelled ethnic Georgians manage to return, but even
there Russia and the separatist authorities subjected them to discriminatory
policies and treatment based on their et hnicity, and kept thousands of other
675
Georgian IDPs from returning to their homes.
6.48 In April 1994, after the first roun d of ethnic cleansing and forced
expulsions had subsided, Russia signe d the Quadripartite Agreement on
Voluntary Return of Refugees and Disp laced Persons to Abkhazia. The other
signatories were Georgia, UNHCR and theAbkhazian separatists. The Agreement
recognized “the right of all citizens to liv e in and to return to their country of
origin” 676. Russia and the other parties agreed that “[d]isplaced persons/refugees
have the right to re turn voluntarily to their pl ace of origin or residence
irrespective of their ethnic, social or political affiliation under conditions of
complete safety, freedom and dignity” 67. The parties committed themselves “to
create conditions for the voluntary, safe and dignified return of displaced persons
to their permanent places of residence in all regions of Abkhazia”, and undertook
to ensure, inter alia, that returnees would be protected from harassment, that they
would have their expired identity and residence documents extended, and that
678
their lost property would be restituted .
675See infra, para. 6.56.
676
Quadripartite Agreement on Voluntary Return of Refugees and Displaced Persons. GM, Vol.
III, Annex 110.
677
Ibid., Art. 3(a). The Agreement also ensured thatreturnees would have the right to return
peacefully without risk of arrest, detention or imprisonment, or legal proceedings, except for a
narrow group of persons for which there was serious evidence that they committed war crimes or
crimes against humanity, or any persons “who have previously taken part in the hostilities and
are currently serving in armed formations, preparing to fight in Abkhazia”. Ibid., Art. 3(c).
678Ibid., Preamble & Art. 3.
2196.49 Notwithstanding these commitments, Russia refused to permit ethnic
Georgians to return to Abkhazia. Russi a did so directly, through the Russian
“peacekeepers” that manned Abkhazia’s admi nistrative border with the rest of
Georgia, using these forces to keep the border closed to displaced ethnic
Georgians. Few exceptions were permitted. In one incident, in September 1994,
Russia’s Defence Minister, General Pavel Grachev, personally intervened to stop
the Russian peacekeepers from facilita ting the return of a group of ethnic
Georgians to Abkhazia 67.
6.50 Russia has also prevented ethnic Georgians from returning to Abkhazia
indirectly, through its open political support for the discriminatory policies
adopted by the separatist regime to keep displaced Georgians out of Abkhazia,
and its failure to act, if not overt colla boration, in the face of physical attacks by
Abkhazian security forces against ethnic Georgians attempting to return to their
homes. In fact, the refusal of the Russi an peacekeepers to act “in the face of
physical attacks against returning interna lly displaced persons”, was decried by
the UN Secretary-General’s Representative on Internally Displaced Persons, Mr.
Francis Deng, because it has deterred IDPs from returning, for fear of physical
violence 680.
6.51 The international community has rep eatedly condemned the closure of
Abkhazia to ethnic Georgians who wish to return. On an almost annual basis,
the UN Security Council has declared that ethnic Ge orgian IDPs have the
inalienable right to return to their ho mes in Abkhazia, and has insisted that
679
“Operation of the Russi an peacekeeping forces in Abkhazia, Georgia”, Infospace (18 June
2008). GM, Vol. IV, Annex 229.
680
U.N. ECOSOC, Report of Mr. Francis Deng, pursuant to resolution 2000/53 , U.N. Doc.
E/CN.4/2001/3/Add.4, Annex, op. cit., para. 85. GM, Vol. II, Annex 31.
220efforts to maintain the demographic changes resulting from the conflict in
681
Abkhazia are illegal and unacceptable . For example, in 1997, the Security
Council “reaffirm[ed] the right of all ref ugees and displaced persons affected by
the conflict to return to their homes in secure conditions in accordance with
international law and as set out in the Quadripartite Agreement of 4 April 1994
on voluntary return of refugees and displaced persons” 682. It therefore
“condemn[ed] the continued obstruction of that return, and stress[ed] the
unacceptability of any linkage of the retu rn of refugees and displaced persons
683
with the question of the political status of Abkhazia, Georgia” . Similarly, in
2003, the Security Council reaffirmed the “inalienable right of all refugees and
internally displaced persons affected by th e conflict to return to their homes in
secure and dignified conditions, in accord ance with international law and as set
out in the Quadripartite Agreement of 4 April 1994” and “recall[ed] that the
Abkhaz side bears a particul ar responsibility to prot ect the returnees and to
facilitate the return of the remaining displaced population” 684.
6.52 However, far from fulfilling their obligations to facilitate the return of
ethnic Georgian IDPs and to protect th em from violent and discriminatory
intimidation, theft and other harassment , Russia and the separatist authorities
have adopted a policy of obstructing the re turn of ethnic Georgians to Abkhazia.
Indeed, although UNHCR planned an in itial repatriation of 80,000 ethnic
681See, e.g., U.N. Security Council, Res. 1124, S/RES/1124 (31 July 1997). GM, Vol. II, Annex
23; U.N. Security Council, Res. 1462, S/RES/1462 (30 January 2003). GM, Vol. II, Annex 34;
U.N. Security Council, Res. 1524, S/RES/1524 (30 January 2004). GM, Vol. II, Annex 36.
682U.N. Security Council, Res. 1124, S/RES/1124 (31 July 1997), op. cit., para. 11. GM, Vol. II,
Annex 23.
683Ibid.
684Ibid., para. 14.
221Georgians by the end of October 1994, the Abkhazian authorities only permitted
311 to return before the program was abandoned altogether in November
685
1994 . Russia, despite its commitments under the Quadripartite Agreement,
allowed its Abkhazian allies to frustr ate the process. In 2000, UNHCR reported
that “[s]ome 225,000 displaced persons are still awai ting conditions allowing
686
them to return to their homes in Abkhazia” . In 2002, UNHCR again reported
that ethnic Georgian “IDPs were still not able to exercise their right to return to
687
Gali and other places of origin” . In 2007, UNHCR could still report that
“[w]ith regard to Abkhazia, spontaneous returns were hampered by the inability
of ethnic Georgians to return to areas beyond Gali (the southern part of the
688
Abkhazia region)” .
B. A BKHAZIA ’S O FFICIALP OLICY OF P REVENTING THE R ETURN OF ETHNIC
G EORGIAN IDP S
6.53 Preventing ethnic Georgians from returning to Abkhazia has been official
policy. In 2005, for example, de facto President Sergei Bagapsh stated that
ethnic Georgians could not return to areas other than Gali, stating that
“resolution of the issue [of ethnic Geor gian IDP return, out side of Gali] is
689
impossible” . The de facto Prime Minister Alexander Ankvab, confirmed that
685Council of Europe, Parliament Assembly, Humanitarian situation of the displaced persons in
Georgia, Doc 7629 (6 September 1996), para. 8. GM, Vol. II, Annex 55.
68UNHCR Global Report, 2000, p. 359. GM, Vol. II, Annex 30.
687
UNHCR Global Report, 2002, p. 398. GM, Vol. II, Annex 33.
688
UNHCR Global Report, 2007, p. 395. GM, Vol. II, Annex 42.
689Pronin, “Abkhazia will provide Georgians with Autonomy” (18 Apr. 2005), op. cit. GM, Vol.
IV, Annex 211.
222 690
“the Abkhazian nation opposes the return of refugees” . Mr. Bagapsh repeated
that this was official policy in July 2007, stating: “we are cat egorically against
people returning anywhere apart from Gali [region]. We do not want those
691
people, who fought with firearms against our nation, to return” .
6.54 To deter ethnic Georgians from attemp ting to return, the authorities laid
landmines along the border, a measure that could not have gone unnoticed by the
Russian military forces who patrolled Abkhazia’s administrative boundaries. In
2001, these actions compelled the UN Secr etary-General’s Representative on
Internally Displaced Persons to call upon the Abkhaz authorities to “cease the
laying of mines as a deterrent to return”. 692 In November 2005 two separate
landmine explosions resulted in the death of a farm worker and the injury of four
others, including a 12 year old boy 693. Subsequent investigation by UNOMIG
determined that the mines had been laid in order to prevent ethnic Georgians
from returning to live and work in Abkhazia 694.
690
Ibid.
691Alexander Shetinin and Yulia Shatova, “Interview with Sergey Bagapsh”, Official Site of
Sergey Bagapsh, President of Abkhazia (31 July 2007) (hereinafter Shetinin and Shatova,
“Interview with Sergey Bagapsh” (2007)), p. 4. GM, Vol. IV, Annex 224.
692
U.N. ECOSOC, Report of Mr. Francis Deng, pursuant to resolution 2000/53 , U.N. Doc.
E/CN.4/2001/3/Add.4, op. cit., para. xi. GM, Vol. II, Annex 31. See also ibid., para. 90 (“there
is a particularly high concentration of landmines along the Abkhazia bank of the Inguri river,
where new mines reportedly continue to be laid by Abkhaz forces to deter ethnic Georgians from
returning”).
693U.N. Security Council, Report of the Secretary-General on the situation in Abkhazia,
Georgia, U.N. Doc. S/2006/19 (13 January 2006), para. 16. GM, Vol. II, Annex 39.
694
Ibid.
2236.55 To further prevent ethnic Georgians from returning to Abkhazia, the
695
separatist authorities have enacted discriminatory citizenship laws . In October
2005, Abkhazian authorities adopted a “L aw of the Republic of Abkhazia on
Citizenship of the Republic of Abkhazia”, which allows dual Russian-Abkhazian
citizenship, but prohibits dual Georgian-Abkhazian citizenship 696. As explained
by the UN Secretary-General’s Special Re presentative on the human rights of
IDPs, Mr. Walter Kälin, this law contains provisions that discriminate against
ethnic Georgian returnees. In partic ular, it makes the grant of Abkhazian
citizenship conditional upon residence in the territory of Abkhazia during the
697
period after the hostilities of 1992-1994 had ceased . As a result, the more than
200,000 ethnic Georgians who were expelled during the ethnic cleansing of this
period, and not allowed back, were pr ecluded from becoming citizens of
Abkhazia, even if they so desired. Further, the law forces any Georgians who do
manage to return to Abkhazia to relinquish their Georgian passports in order to
be able to vote, receive social benefits or travel abroad .698
6.56 The de facto Abkhazian authorities also sought to prevent ethnic
Georgian IDPs from returning by dispo ssessing them of their homes and other
property. In his report to the Security Council, the UN Secretary-General
criticized a 15 May 2006 A bkhazian parliamentary d ecree that permitted the
695U.N. General Assembly, Note by the Secretary-General, Report of the Representative of the
Secretary-General on the human rights of the internally displace, U.N. Doc. A/61/276 (21
August 2006), para. 9. GM, Vol. II, Annex 41.
696
Report by Walter Kälin, Addendum, Mission to Georgia, U.N. Doc. E/CN.4/2006/71/Add.7,
op. cit., paras. 20, 41. GM, Vol. II, Annex 40.
697Ibid., para. 41 (citing Art. 5(b) of the law).
698U.S. Department of State, Country Report on Human Rights Practices 2005, Georgia (8
March 2006), p. 17. GM, Vol. III, Annex 141.
224courts to reject claims by ethnic Georgi an owners to repossess their illegally
occupied property, which served as a powerful deterrent to the return and
699
reintegration of IDPs .
6.57 In Gali, the only region in Abkhazia in which ethnic Georgian IDPs have
not been thoroughly prevented from returning, the security forces of the de facto
regime, which operate under Russian control, have subjected ethnic Georgians to
ethnic cleansing, forced labour, disposse ssion of property, and other forms of
700
discrimination and intimidation that deter them from returning to their homes .
As the UN Secretary-General’s Representa tive on Internally Displaced Persons
observed, “[e]ven in the Gali district… it is difficult under the circumstances that
have prevailed to date to consider durable return as a real possibility”, despite the
fact that “[s]pontaneous return to the Gali district nonetheless does occur” .
C. RUSSIA ’S RESPONSIBILITY FOR PREVENTING THE R ETURN OF E THNIC
G EORGIAN IDP S
6.58 Russia is responsible for preventing ethnic Georgian IDPs from returning
to their homes in Abkhazia. Not only did Russia enforce the prohibition directly,
by means of its military stationed along the administrative border with the rest of
699U.N. Security Council,Report of the Secretary General on the Situation in Abkhazia,
Georgia, U.N. Doc. S/2007/15 (11 Jan. 2007), para. 31. GM, Vol. II, Annex 44.
700For further discussion on how the prohibition of using Georgian language in schools, forced
labor, and violent intimidation obstructed the return of Georgian IDPs to Gali, see Report of Mr.
Francis Deng, pursuant to resolution 2000/53, U.N. Doc. E/CN.4/2001/3/Add.4 , op. cit., para.
80. GM, Vol. II, Annex 31; U.N. Security Council, Report of the Secretary-General Concerning
the Situation in Abkhazia, Georgia , U.N. Doc. S/2001/713, (19 July 2001). GM, Vol. II, Annex
32; U.S. Department of State, Country Report on Human Rights Practices 2005, Georgia (8 Mar.
2006), op. cit., p. 25. GM, Vol. III, Annex 141.
701U.N. ECOSOC, Report of Mr. Francis Deng, pursuant to resolution 2000/, U.N. Doc.
E/CN.4/2001/3/Add.4, op. cit., paras. 77-78. GM, Vol. II, Annex 31.
225Georgia, in the years following the ethnic cleansing of 1992-1994, Russia also
dominated the de facto Abkhazian administration that barred the return of ethnic
Georgian IDPs. Russia’s control of a nd dominance over the separatist forces
dates to their inception prior to the dissolution of the Soviet Union.
6.59 From their creation, the separatist authorities received vital support from,
and were controlled by, the Soviet and then Russian authorities. As shown in the
following paragraphs, Russia came to ex ert complete dominance over the de
facto administration. Even as the Soviet Union breathed its last breaths, Moscow
began extending substantial assistance to the Abkhaz separatists. On 27
December 1991, Soviet officers “plac[ed] the [former Soviet] military units
5482, 3697, located on the territo ry of the Republic, under the authority of the
Ministry of Internal Affairs of the Abkhazian Republic” 702. Two days later, units
5482 and 3697 were officially placed under the control of the local de facto
Abkhaz authorities 70. Together, the two units comp rised the separatist forces’
first regiment 704.
702Protocol on the re-subordination of military units 5482, 3697… USSR of the internal affairs
of the Abkhazian Republic (27 Decembe r 1991). GM, Vol. III, Annex 98. See also Resolution
of the Presidium of the Supreme Soviet of the Abkhazian Autonomous Soviet Socialist Republic
(ASSR), on creation of the first regiment of the internal forces of Abkhazia (undated). GM, Vol.
III, Annex 91.
703
Ruling of Presidium of the Supreme Soviet of the Abkhazia, V. Ardzinba, On location of
military units, border and internal forces, VFM forces and making changes to the order of their
functioning on the territory of Abkhazia (29 December 1991). GM, Vol. III, Annex 99.
704
Resolution of the Presidium of the Supreme Soviet of the Abkhazian Autonomous Soviet
Socialist Republic (ASSR), on creation of the firs t regiment of the intern al forces of Abkhazia
(undated) (placing those units under the authority of the council for coordinating military units
under the Presidium of the Supreme Soviet of Abkhazia and naming them the first regiment of
the internal forces of Abkhazia). GM, Vol. III, Annex 91.
2266.60 Abkhazia’s separatist leader at the time, Vladislav Ardzinba, was in
frequent contact with senior Soviet (and, as of January 1992, Russian) military
and political leaders. According to a coded ciphering book retrieved from Mr.
Ardzinba’s personal office, he was communicating with such officials on a near-
daily basis as early as 18 December 1991. These officials included:
Russian President Boris Yeltsin;
Vice-President Alexandr Rutskoi;
General-Colonel V.N. Samsonov, Head of the General Staff;
E.I. Shaposhnikov, Commander-in-Chief of the CIS Armed Forces;
G. Burbulis, Secretary of State, the first Vice-Premier of Russia;
General-Colonel V.P. Patrikeev, Commander-in-Chief of the Trans-
Caucasian Region’s Armed Forces;
I.A. Kolinchenko, Chairperson of the Central Naval Command of the
Armed Forces of the CIS;
V.V. Belousov, Head of the High Military Command and
Engineering School; and
M.N. Poltaranin, Minister of the Press and Mass Information 705.
As one Russian analyst observed: “Ardzi nba’s correspondence with top officials
from the former Ministry of Defence of the USSR is a striking illustration that he
was quite at home here” 706. In fact, Mr. Ar dzinba’s close ties with Moscow
authorities extended back decades. He had lived in the Soviet capital for nearly
20 years in the 1970s and 1980s and deve loped close ties with many of its
leading officials, including Yevgeniy Primakov, a former KGB operative who
later became Russia’s Foreign Minister and then its Prime Minister 707.
705Ciphering Book #6, Call log of V. Ardzinba (Started 18 December 1992). GM, Vol. V,
Annex 302.
706Chervonnaya, Conflict in the Caucasus (1994), op. cit., pp. 94-95. GM, Vol. III, Annex 168.
707Ibid., p. 208.
2276.61 Moscow’s arms shipments to the separatist forces are documented by,
among other things, Mr. Ardzinba’s and his deputies’ orders of arms and
ammunition on behalf of the “internal forces of the Republic of Abkhazia” 708 and
their pursuit of Russian military e quipment for use by Abkhazian forces 70.
Their efforts were highly successful 710.
6.62 According to one analyst, Russia’ s Bombora airport at the Gadauta
military base in Abkhazia was “the ma in source of armament” for the Abkhaz
711
separatists . This included aerial armament, such as the transfer of two mobile
708Order #64 of the Chairman of the Supreme Soviet of the Abkhazian Autonomous Soviet
Socialist Republic (ASSR), V.Ardzinba, to the Commanders of Military Units 74545, 10935,
62329, Col. Ignatov E.N., Col. Petrov, V.G., Vi ce-Col. Dolgopolov A.A. (13 June 1992). GM,
Vol. III, Annex 101.
709
Ruling of the Presidium of the Supreme Council of Abkhazia on location of military units,
border and internal forces, VFM forces and making changes to the order of their functioning on
the territory of Abkhazia (29 December 1991) (making property, equipment, arms, premises,
weapons, and other assets of the 5482 and 3697 the property of Abkhazia), op. cit. GM, Vol. III,
Annex 99. See also Resolution of the Presidium of the Supreme Soviet of the Abkhazian
Republic (April 1992) (declaring buildings, facilities, and other property located on the territory
of military unit 10935 to be the property of Abkhazia.). GM, Vol. III, Annex 100.
710
For example, in the spring of 1992, a former Admiral in the Soviet Navy facilitated the sale of
500 units of arms to Abkhazian separatists. Payment was arranged by Lieutenant Colonel L.P.
Aleksandrovich, a former Soviet officer who was then genera l of the Abkhazi an Guard.
Terekhov Nikolayevich, a former member of the Russian Ministry of Defense, carried out similar
transactions, including the delivery of aircraftfrom Russian military pl ants. Declaration of
Mikhail Georgievich Demianov (29 Nov. 1993), op. cit., pp. 3-4. GM, Vol. V, Annex 324.
711
Zhiroknov, “Air Forces in Abkhazia, Patrio tic War of Abkhaz, Aviation in Abkhaz-Georgian
War 1992-93” (2001), op. cit., p. 2. GM, Vol. III, Annex 179. Russian military aircraft had
ready access to Abkhazia via the former Soviet (then Russian) Bombora Airport at the Gudauta
military base. Bombora afforded the only runway on Abkhaz territory from which SU-25s,
MIG-21s and SU-27s could take off. Declaration of Zurab Mebonia (4 February 2009), p. 3.
GM, Vol. V, Annex 373. Russia’s use of this fac ility to assist Abhkazian forces is demonstrated
by numerous air assaults. Given the undisputed fact that Abkhazia had no aircraft of its own,
these attacks were only possible with Russian aircraft, pilots and crews. HRW, Violations of the
Laws of War (1995), op. cit., p. 53. GM, Vol. III, Annex 146. Russia’s aerial support of Abkhaz
forces is evidenced conclusively by the shooting down of Russian aircraft over Georgia. The
head of Georgia’s Ministry of Defense at the time estimated that his anti-aircraft division shot
down three Russian military airplanes and nine he licopters during the war. All of the pilots of
228 712
rocket air defence systems to Tkva rcheli in south- eastern Abkhazia . The
Russian military also supplied the separa tists with at least one Russian MI-8
helicopter and an L-39 “Albatross” aircraft 713. Russia’s use of Bombora to aid
the separatists was widely reported in the Russian media, leading journalist
Arkadi Popov to ask:
How does the Gudauta military ha ppen to be equipped with
modern weapons like fighter helicopters -- M-24 (famous
“crocodiles”), antiaircraft rocket s ‘Ossa’, and heavy tanks? Are
they bought at the market? From wh ere, if not from the airdrome
guarded by Russian units in Bombora near Gudauta (there are no
others nearby) 714.
6.63 A 1995 HRW Report noted that the co mbined increase of arms and
personnel from Russia in 1993 was the cause of violent abuses directed at ethnic
Georgians:
The role of Russian actors in the conflict became considerably
more pronounced during the first six months of 1993. This was
precisely at a time when human rights abuses and violations of the
laws of war attributable to heavy weapons obtained from Russian
sources were becoming more serious. The Russian military took
these aircraft served in the Russian militarOn one occasion, the Georgian defence forces
downed a Russian helicopter transporting Zurab Labakhua, commander of the Abkhaz Eastern
Front, who was carrying a large amount of Russian currency. Declaration of Zurab Mebonia (4
Feb. 2009), op. cit., p. 2. GM, Vol. V, Annex 373.
712
Zhiroknov, “Air Forces in Abkhazia, Patrio tic War of Abkhaz, Aviation in Abkhaz-Georgian
War 1992-93” (2001), op. cit., p. 2. GM, Vol. III, Annex 179.
713Ibid., p. 3.
714Arkadi Popov, “War in Abkhazia”, Grajdanskaia Misl (22 August 1993). GM, Vol. IV,
Annex 187.
229 a direct role in hostilities on se veral occasions, and appears to
have provided logistical support and supplies to the Abkhaz 715.
6.64 In the ensuing years, the conso lidation of Russia’s domination of
Abkhazia continued apace. Russia’s dominance of Abkhazia was reflected in the
senior Russian government officials who simultaneously served as leaders of the
de facto regime. Many key governmental posts were actually held not by
Abkhazians but by senior offi cials of the Russian State. Thus, for instance,
Colonel Sultan Sosnaliev -- a 30 year veteran of th e U.S.S.R.’s anti-aircraft
forces -- was appointed First Deput y Minister of Defence of the de facto regime
in 1992 and then Minister of Defence in 1993. Upon l eaving the Defence
Ministry in 1996, he returned to Russia. Sosnaliev resumed service in Abkhazia
715HRW, Violations of the Laws of War (1995), op. cit., GM, Vol. III, Annex 146. The sudden
sophistication of the separatists’ arms left little doubt about the fact that they came from Russia.
Ibid., p. 18 (“Abkhaz weapons sources prior to the co nflict are harder to identify, although there
is little doubt that whatever weapons there were came from Russian or Soviet sources.”), and p.
32 (Noting that the increased armament of the se paratists in 1992 indicates that Russia was the
“likely source” of military support). See also Dailey, Human Rights and the Russian Armed
Forces (1994).), op. cit., p.14. GM, Vol. III, Annex 169. (“It is highly unlikely that ethnic
Abkhaz, who number some 100,000 locally, and who have no formal army or weapons, could
maintain sustained military superiority over the Georgian forces, drawn from an ethnic
population of about 4 million, without military assistance from Russia.”); U.N. Security Council,
Annex, Summary of the report of the goodwill mission to Georgia, U.N. Doc. S/24633 (8 October
1992), p. 3. GM, Vol. II, Annex 6. (attributing worsening crisis in Abkhazia to presence there of
north Caucasian fighters as well as the “easy av ailability of weapons apparently obtained to a
large extent from elements of the Commonwealth of Independent States (CIS) forces stationed
there”). At the outbreak of hostilities in 1992, Abkhazians had none of the heavy weapons, such
as artillery, that later played a prominent role in their attacks on ethnic Georgians. Human Rights
Watch concluded that, “[m]ethods of fighting by the Abkhaz forces upon the immediate outbreak
of hostilities appear to bear out this claim forinitially few, if any, heavy weapons.” HRW,
Violations of the Laws of War (1995), op. cit., p.18. GM, Vol. III, Annex 146. Yet, by the time
Abkhaz forces attacked Gagra in October 1992, they had acquired tanks (including several T-72
tanks) and armored vehicles, as well as heavy and light artillery. Ibid., p. 26. While recognizing
the possibility that Abkhazian separatists obtained equipment through unofficial channels, HRW
concluded that there is little doubt, given thtype of weapons acquired by Abkhazia between
October and December 1992, that parties within the Russian forces armed the separatists. Ibid.,
p. 32.
230in 2005, when he once again became Minister of Defence, serving
simultaneously as the de facto Vice Premier of Abkhazia 716.
6.65 Lieutenant General Anatoly Zaytsev is another example. During his
long career in the Soviet and then Russian army, Li eutenant General Zaytsev
served as Chief Military Advisor in Syria and as Deputy Commander of the
Transbaikalia Military Command. In June 2004, he was transferred to Abkhazia,
where he became the de facto Deputy Minister of Defe nce. In March 2005, he
assumed the position of Chief of the General Staff of the Abkhazian armed
717
forces, as well .
6.66 Other senior Russian military offi cers who were installed in the de facto
Abkhazian administration included Colonel Alexander Pavlushko, who was the
Chief of Staff of the Russian peacekeep ing force in Abkhazia before becoming
the de facto Deputy Minister of Defence in April 2008 718.
6.67 The conspicuous hand Moscow played in orchestrating events in
Abkhazia is also typified by the events surrounding the regi on’s “Presidential”
elections in 2004. Senior Russian officials openly endorsed Raul Khajimba long
before the official election campai gn had even begun. Nicknamed the
“Abkhazian Putin”, Mr. Khajimba had serv ed a long career in the old Soviet
716Georgian Ministry of Foreign Relations, Russian Officials in the De Facto Administrations of
South Ossetia and Abkhazia (undated). GM, Vol. V, Annex 409.
717Ibid.
718Ibid.
231KGB before becoming de facto Prime Minister of Abkhazia, and was viewed as
719
a politician who would remain properly deferential to Moscow .
6.68 When the Abkhaz “Presidential” election took place on 3 October 2004,
the results were surprising. Eight days after the election, Abkhazia’s Central
Election Commission declared businessman Sergei Bagapsh the new de facto
President with 50.8 % of the vote 72.
6.69 What might have proved a demonstr ation of Abkhazia’s freedom from
Russian control proved the contrary, however. After Russia’s man, Mr.
Khadjimba, challenged the vote, the A bkhaz Supreme Court declared the poll
721
invalid . According to former President Putin’s senior economic advisor from
2000-2005: “Moscow promptly punished the whole province for Bagapsh’s
722
temerity” . On 1 November 2004, both Mr. Kh ajimba and Mr. Bagapsh were
summoned to Moscow for negotiations but these initial efforts to solve the
723
problem failed . On 23 November, the Governor of Russia’s Krasnodar
District (bordering Abkhazia) threaten ed to close the bor der if “the Abkhaz
719Ibid., p. 260. In August 2004, Russia’s then-President Putin warmly received Mr. Khadjimba
at his residence in Sochi. Andrei Illarionov“The Russian Leadership’s Preparation for War,
1999-2008”, The Guns of August 2008: Russia’s War in Georgia , Central Asia-Caucasus
Institute (2009) (hereinafter Illarionov, The Russian Leadership’s Pr eparation for War, 1999-
2008, (2009)), p. 57. GM, Vol. III, Annex 178.
720
“Rival Abkhaz Presidential Candidates Meet in Moscow”, Radio Free Europe (3 November
2004). GM, Vol. IV, Annex 200.
721Ibid.
722
Illarionov, The Russian Leadership’s Preparation for War, 1999-2008 , (2009), op. cit., p. 58.
GM, Vol. III, Annex 178.
723
“Rival Abkhaz Presidential Candidates Meet in Moscow”, Radio Free Europe (3 Nov. 2004),
op. cit. GM, Vol. IV, Annex 200.
232people do not change their mind and s till recognize Baga psh as President-
724 725
elect” . The same threat was repeated a week later .
6.70 In a similar vein, on 1 December 2004, the Assistant to the Russian Prime
Minister, Gennadi Bukaev, threatened to institute economic and military
sanctions against Abkhazia “in case of further unconstitutional actions by Sergey
726
Bagapsh” . The threatened measures included cutting off the railway
connection between Abkhazia and Russia; restricting cross-border passage for
Abkhaz residents into Russia; banning all Russian imports of Abkhazian citrus
fruits (the region’s main official s ource of revenue); and preparing for a
727
complete blockade .
6.71 By this time, Abkhazia was completely dependent on Russia
commercially and financially. Abkhazia’ s sole connection with the outside
world was with Russia. In December 2002, for instance, Russia opened the
Sochi-Sokhumi railway link between Russia and Abkhazia over Georgia’s
724“Russia sends mission to Abkhazia”, Civil Georgia (1 December 2004). GM, Vol. IV, Annex
205; Jean-Christophe Peuch, “Georgia: Russia steps up pressure on Abkhaz Opposition”, Radio
Free Europe (1 December 2004). GM, Vol. IV, Annex 204.
725
“Governor of Krasnodor Krai d eclared he would close the border s of the region in case the
situation is exacerbated in Abkhazia and Ukraine”, News.ru (30 November 2004). GM, Vol. IV,
Annex 201.
726“Russia Blockades Abkhazia”, Civil Tbilisi (1 December 2004). GM, Vol. IV, Annex 203;
Vladimir Socor, Russia Blockading Abkhazia to Overturn Presidential Election , Eurasia Daily
Monitor Vol. 1, No. 138 (1 D ecember 2004) (hereinafter Socor, Russia Blockading Abkhazia to
Overturn Presidential Election (1 Dec. 2004).) GM, Vol. IV, Annex 202.
727
Socor, Russia Blockading Abkhazia to Overturn Presidential Election (1Dec.2004). GM,
Vol. IV, Annex 202; Jean-Christophe Peuch, “Georgia: Abkhazia Presidential Rivals Strike
tentative Last-Minute Deal”, Radio Free Europe (6 December 2004) (hereinafter Peuch,
“Georgia: Abkhazia Presidential Rivals Strike tentative Last-Minute Deal” (6 Dec. 2004).) GM,
Vol. IV, Annex 208.
233protests 72. And in July 2004, a Russian army brigade began to rehabilitate and
repair the Vesioloe-Sokhumi railway line between Russia and Abkhazia, again
over Georgia’s protests 729. In September 2004, Russia began planning two
additional railway lines, a Sokhumi-Rostov connection, as well as the Sokhumi-
Moscow line 730. Russia also opened a new brid ge at the River Psoy on the
Russian-Abkhaz border in November 2003, and established a bus connection
731
between Sokhumi and Rostov in March 2004 . In August 2004, a sea
connection between the Black Sea ports of Akhali Atoni in Abkhazia and Sochi
732
in Russia was created . With these tightening li nks, Russian investment in
733
Abkhazia grew at a rapid pace.
6.72 On 2 December 2004, the day after issu ing its threats to decimate the
Abkhaz economy if Mr. Bagapsh continued to claim the de facto presidency,
Russia carried them out. It cut the railway connection between Moscow and
728
“Railway communication between Russian city of Sochi and the capital of Abkhazia Sukhum
has been restored”, Aspny Press (25 December 2002). GM, Vol. IV, Annex 192.
729“Trains from Abkhazia ar rive back to Russia”, Lenta.ru (7 September 2004) (hereinafter
“Trains from Abkhazia arrive back to Russia” (7 Sep. 2004).) GM, Vol. IV, Annex 198.
730
“Trains from Abkhazia arrive back to Russia” (7 Sept. 2004), op. cit. GM, Vol. IV, Annex
198.
731“A new bridge is brought into service on the Russian-Abkhaz border at River Psoy”, IA
Regnum (28 November 2003). GM, Vol. IV, Annex 194.
732“Saakashvili threatens tourists”, Nezavisimaya Gazeta (6 August 2004). GM, Vol. IV, Annex
197.
733
In 2005, Abkhazia received $ 40 million in Russian investment . Shetinin and Shatova,
“Interview with Sergey Bagapsh” (2007), op. cit . GM, Vol. IV, Annex 224. By 2006, the
number was $90 million. Ibid. By 2007, it was $200 million. “Oleg Bartsists: Increased
investment into Abkhazia’s economy are irreversible” (19 January 2007). GM, Vol. IV, Annex
223. "Russian investments to be of much significance for Abkhaz economy - President of
Abkhazia", Official Site of the President of the Republic of Abkhazia (8 November 2007). GM,
Vol. IV, Annex 225.
234 734 735
Sukhumi and banned the import of Abkhaz citrus fruits . As Mr. Bagapsh’s
inaugural day (6 December) neared, gas shortages emerged, food prices
736
skyrocketed, and the number of armed persons in Sukhumi multiplied .
6.73 On that date, Mr. Bagapsh capitulated to the Russian pressure. As a
result of “negotiations” orchestrated by Russian Deputy Prosecutor-General
Vladimir Kolesnikov, Mr. Bagapsh and Mr. Khadjimba agreed to a new election
in which they would run on a joint ticket, with Mr. Bagapsh as President and Mr.
737
Khadjimba as Vice-President . On 12 January 2005, Mr. Bagapsh was elected
de facto President and Mr. Khadjimba de facto Vice-President.
6.74 Abkhazia’s new de facto President, Mr. Bagapsh, had learned his lesson.
In the first year after his election, he visited Moscow no fewer than nine times 73.
In an interview in May 2005, just three months after Mr. Bagapsh had become
“President”, Abkhazia’s de facto Foreign Minister, Sergei Shamba, made the
regime’s unequivocal alignment with Russia clear:
Abkhazian policy has traditionally been directed towards Russia.
We think that Russia not only can’t lose the dominant influence in
this region, but it should not allow this to happen. The evidence
734
“Russia cut railway connections with Abkhazia” (2 December 2004). GM, Vol. IV, Annex
206; “Railway connection between Moscow and Sokhumi is cut”, RIA Novosti (2 December
2004). GM, Vol. IV, Annex 207.
735“Tangerine policy at Kremlin”, Novopol News (7 December 2004). GM, Vol. IV, Annex 209.
736Ibid.
737
Illarionov, “The Russian Leadership’s Preparation for War, 1999-2008” (2009), op. cit., p. 58.
GM, Vol. III, Annex 178; Peuch, “Georgia: Abkh azia Presidential Rivals Strike tentative Last-
Minute Deal” (6 Dec. 2004), op. cit. GM, Vol. IV, Annex 208.
738“President Sergey Bagapsh leaves for Moscow with working visit”, Apsny Press (17 April
2006). GM, Vol. IV, Annex 221.
235 of our position -- is the public attitudes in Abkhazia, 100% pro-
Russian. Russia is our neighbor; economic, military and cultural
links with it are our priorities, and no other interests can be above
739
this. Abkhazia will be with Russia .
6.75 In March 2006, Mr. Shamba more bluntly admitted Russia’s control over
Abkhazia and its de facto regime. He stated: “Abkhazia is a Russian
protectorate” 74.
6.76 Russia’s embrace of Abkhazia included the Abkhaz people as well as
their de facto government. The process of granting Russian citizenship and
issuing Russian passports to ethnic Abkhaz, which began in the 1990s,
accelerated significantly in October 2003 when the Russian government
amended its citizenship laws to make it even easier for Abkhazians to acquire
741 742
Russian passports . By 2005, 90 percent of all Abkhaz held dual citizenship .
6.77 In contrast to ethnic Abkhaz, ethn ic Georgians remaining in Abkhazia
could only acquire Russian citizenship by first becoming Abkhazian citizens;
and, under both Russian and Abkhazian citiz enship laws, they could not do so
739“Interview with Sergei Shamba”, Strategema.org (4 May 2005). GM, Vol. V, Annex 349.
740“Sergey Shamba: Abkhazia is de facto under Russian protectorate”, IA Regnum (24 March
2006). GM, Vol. IV, Annex 219. Mr. Shamba further said that “[t]his is the way to understand
statements of Vladimir Putin who said that Russi a would take care of its citizens in Abkhazia.”
Ibid.
741
“Putin corrected la w on citizenship”, Lenta.ru (24 September 2003). GM, Vol. IV, Annex
193.
742“Krasnodar Region has included Abkhaz population in budget”, Lenta.ru (7 June 2005). GM,
Vol. IV, Annex 212.
236 743
without first giving up th eir Georgian nationality . Those ethnic Georgians
who wished to remain Georgian nationa ls, therefore, were denied the full
benefits of citizenship on the basis of their nationality.
6.78 Not only has Russia exerted control over the separatist authorities, Russia
itself has chosen to defend, rather than stop, the adoption and implementation of
discriminatory policies and practices against ethnic Georgians, which are openly
intended to keep IDPs from returni ng. For example, on 29 May 2008, the UN
General Assembly adopted a resolution th at expressed deep concern over the
“demographic changes resulting from the conflict in Abkhazia, Georgia” and that
recognized “the right of return of all re fugees and internally displaced persons
and their descendants, regardless of ethnicity” 744. Russia voted against the
resolution on the purported ground that it adopted a “political approach to the
Georgian-Abkhaz conflict that the Russian Federation cannot support” 745.
6.79 Russia’s policy of defending the Abkhazi an separatists’ refusal to allow
the return of displaced ethnic Georgians is further reflected in an exchange of
letters between the Presidents of Ge orgia and Russia. On 23 June 2008, the
President of Georgia wrote to his Russi an counterpart proposing negotiations
over, among other things, the return of Georgian IDPs to Abkhazia. 746 Inhis
743Report by Walter Kälin , Addendum, Mission to Georgia , U.N. Doc. E/CN.4/2006/71/Add.7,
op. cit., paras. 20, 41. GM, Vol. II, Annex 40.
744Observations of Georgia, Interim Measures, Annex 8.
745
U.N. General Assembly, Statement of Mr . Rogachev, Representative of the Russian
Federation, 97th Plenary Meeting, Sixty-second Se ssion, U.N. Doc. A/62/Pv.97 (15 May 2008).
GM, Vol. II, Annex 45.
746Letter from President Mikheil Saakashvili to President Dmitry Medvedev (24 June 2008).
GM, Vol. V, Annex 308.
237response of 1 July 2008, Russian Presid ent Dmitry Medvedev rejected any such
return, declaring that it was “untimely to put the question of return of refugees in
such a categorical manner” since, he said, “Abkhazs perceive this as a threat to
their national security in the current escalated situation and we have to
747
understand them” .
6.80 This position was reiterated by the Ru ssian Minister of Foreign Affairs,
Mr. Sergey Lavrov, who declared on 17 Ju ly 2008 that the “[ s]igning” of an
agreement “on the return of Georgian re fugees to Abkhazia is unrealistic at the
given moment, since the return of re fugees first requires calming down the
situation, restoration of trust, and only afterwards the possibility arises to discuss
this issue”748. In these words, the Foreign Mi nister made Russia’s policy clear:
Georgian refugees will not be permitted to Abkhazia now, or in the foreseeable
future.
Section IV. Russia’s Refusal to Allow Ethnic Georgians Displaced in 2008
to Return
6.81 In August 2008, the ethnic Georgian s who remained in Abkhazia were
subjected to ethnic cleansing and othe r forms of ethnic discrimination. Of
course, by that time, very few ethnic Georgians were left in Abkhazia, given that
more than 200,000 were forcibly expelled in the 1990s. Those that remained
747Letter from President Dmitry Medvedev of the Russian Federation to President Mikheil
Saakashvili of Georgia (1 July 2008). GM, Vol. V, Annex 365.
748Ministry of Foreign Affairs of the Russian Federation, Information and Press Department,
Transcript of Remarks and Response to Media Questions by Minister of Foreign Affairs Sergey
Lavrov at Joint Press Conference with Serbian Minister of Foreign Affairs Vuk Jeremic,
Moscow, July 17, 2008, available at:
http://www.un.int/russia/new/MainRoot/docs/off_news/170708/newen1.htm(last visited 20
August 2009).
238were concentrated in two areas: the remo te Kodori Gorge (under the control of
the Georgian government) and the Gali District (beyond th e control of the
Georgian government). The ethnic Georgian populations of both areas
experienced ethnic discrimination, including forced displacements, at the hands
749
of the Russian military and Abkhaz separatist authorities .
6.82 When the Russian army i nvaded Abkhazia in August 2008,
750
approximately 2,500 ethnic Georgians resided in the Kodori Gorge . Virtually
the entire community was evicted when the area came under sustained attack
from the Russian military. For instance, a resident of the village of Azhara
testified that “Russian planes threw bomb s in our village as well as in other
751
villages of the Gorge,” and that as a result, “the population left the villages” .
She testified that in Azhara, “[t]hose who managed to enter for a limited period
752
of time say that the majority of houses are destroyed and robbed” . Other
former residents of Azhara similarly re port that “the village is looted and
753
abandoned and that there are Abkhazian and Russia forces in the village” .
749 The displacement of ethnic Georgians from Abkhazia in 2008 was confirmed by objective
international observers. For example, a map produced by the UN Office for the Coordination of
Humanitarian Affairs, which depicts patterns of displacement as of 25 August 2008, that is, two
weeks after the ethnic cleansing began, indicates the displacement of IDPs from the Kodori
Gorge as well as from Gali and adjacent areas of Georgia. Available at
http://www.reliefweb.int/rw/fullMaps_Sa.nsf/luFullMap/0CBA6DADE11185A3C…
B52D/$File/rw_CE_geo080826.pdf?OpenElement(last visited on 21 August 2009).
750OSCE, Office for Democratic Institutions and Human Rights,Human Rights in the War-
Affected Areas Following the Conflict in Georgia (27 November 2008), p. 62. GM, Vol. II,
Annex 71.
751Declaration of Violeta Chopliani (9 July 2009). GM, Vol. V, Annex 378.
752
Ibid.
753
Declaration of Dali Kvanchiani. GM, Vol. V, Annex 379. See also Declaration of Maia
Kordzaia (testifying that “the entire village is robbed” and that “Abkhazian and Russian soldiers
walk around”). GM, Vol. V, Annex 380.
239Indeed, the ethnic cleansing of the Kodori Gorge was so thorough that, as
described in paragraph 6.87, the separatist authorities went so far as to expel
754
even the monks residing in a Georgian monastery .
6.83 In Chapter 5, Georgia showed that Russia has discriminated against
ethnic Georgians by refusing to permit th e victims of ethnic cleansing in South
Ossetia in 2008 to return. The same is true with re gard to ethnic Georgians
expelled from Abkhazia in 2008. Russia and the de facto authorities continue to
pursue the same policies as in South Ossetia: to maintain the ethnic homogeneity
of the two regions by preventing displaced ethnic Georgians from returning to
their homes. In October 2008, the Foreign Minister of Abkhazia’s de facto
regime announced that Abkhazia would only accept the return of displaced
ethnic Georgians to the Gali District, stat ing that it was “impossible” to discuss
the return of Georgian refugees in other districts of Abkhazia 755. He reconfirmed
this position in February 2009, on the ground th at “the rest of the population of
Abkhazia is not yet ready for the return of refugees” 756. To the same end, in
754
Beginning in August 2008, the already prevalent discrimination against ethnic Georgians in
the Gali District intensified. One witness who was able to maintain contact with members of the
ethnic Georgian community in Gali testified that “Georgians in Gali” were “being forced to
accept Russian passports if they want to remain in Gali” and “threatened w ith expulsion if they
refuse to accept Russian passports.” Witness D eclaration of Zaza Gorozia, Observations of
Georgia, Interim Measures, Annex 30. Russia and the separatist authorities extended these abuses
to adjacent areas in Georgia proper as well. For example, a municipal official from the village of
Ganmukhuri testified that the village was “occupied by the Russian military and Abkahz
separatists” on 10 August. Victim Witness Protocol, Joni Mishvelia, Observations of Georgia,
Interim Measures, Annex 36. The local populatio n was then told: “Georgian passports were
useless and if they wanted to live in their villa ges, they should accept the passports of Russian
citizens.” Ibid. Those who refused “were forced to leave their families and hide in other
villages.” Ibid.
755
“MFA Abkhazia: Georgian refugees may return only to Gali District”, Rosbalt.ru (20 October
2008). GM, Vol. IV, Annex 267.
756“Shamba: refugees may return only in Gali district” (26 February 2009). GM, Vol. IV, Annex
286.
240June 2009, the Chair of the Human Rights Committee of the de facto Abkhazian
Parliament declared that the displaced ethnic Georgians “will never be able to
return” 75. Although some ethnic Georgians have managed to return to the Gali
District in southeast Abkhazia, directly across the admini strative boundary with
the rest of Georgia, the vast majority of the IDPs have been prevented from
doing so, or discouraged by the discri minatory policies implemented by the de
facto regime. Most significant among these policies is the requirement that IDPs
who wish to return to Abkhazia give up their Georgian nationality, and accept
Abkhazian and Russian citizenship and passports.
6.84 In contrast to the obstacles placed in the path of returning Georgian IDPs,
the de facto authorities in Abkhazia have energe tically promoted the return of
ethnic Abkhaz, including those who have never lived in Abkhazia but are
descendants of those who left the region decades ago and resettled in Turkey.
Under this program, the de facto regime offers citizenship, a year of free housing
758
and five years of financial aid upon resettlement .
6.85 These general policies of Russia and the Abkhazian de facto autorities are
applicable with equal fo rce to IDPs who were displaced from the Kodori
759
Gorge . They have been prevented from returning by the Russian military
757
“Abkhazia and the Perils of ‘Independence’”, Radio Free Europe (19 June 2009), p. 3. GM,
Vol. IV, Annex 296.
758
Ellen Barry, “Abkhazia Lures its Expatriates, Welcoming Them One by One”, New York
Times (8 May 2009). GM, Vol. IV, Annex 295.
759U.N. Security Council, Report of the Secretary-General on the Situation in Abkhazia,
Georgia, Pursuant to Security Council Resolution 1839 (2008) , UN Doc. S/2009/69 (3 February
2009) (hereinafter Report of the Secretary-General on the Situation in Abkhazia, Georgia,
Pursuant to Security Council Resolution 1839 (2008), UN Doc. S/2009/69), para. 41. GM, Vol.
II, Annex 52.
241forces that occupy and control this region. In May 2009, the UN Secretary-
General reported that:
The Russian Federation forces in the upper Kodori valley are
deployed mostly between Gentsvish village, where they maintain
their headquarters, and the Khida and Kalamri-Sukhi passes,
which provide access to the valley from the Georgian controlled
side. Reportedly, the Russian Federation forces maintain
checkpoints at the Khida and Kalamri-Sukhi passes alongside
760
Abkhaz posts .
6.86 Thus, the Rapporteur of the Council of Europe’s Parliamentary
Committee on Migration, Refugees, and P opulation has recommended that the
“return of the persons who fled should be a priority [and] pressure should be put
on the de facto Abkhaz authorities and the Russian authorities to ensure that this
761
return takes place in safety and in dignity” . The OSCE High Commissioner
on National Minorities agreed that it “is of the utmost importance to insist on the
762
right of return” of the ethnic Georgians displaced from Kodori . Nevertheless,
despite its international obligations, Russi an forces continue to implement the
policy of the de facto Abkhazian authorities in condi tioning the return of ethnic
760
U.N. Security Council, Report of the Secretary-General pursuant to Security Council
resolutions 1808 (2008), 1839 (2008) and 1866 (2009) , UN Doc. S/2009/254 (18 May 2009),
para. 39. GM, Vol. II, Annex 54.
761Council of Europe, Parliament Assembly, Committee on Migration, Refugees, and
Population, Report, The humanitarian consequences of the war between Georgia and Russia ,
Doc. 11789 (12 January 2009), paras. 24-25. GM, Vol. II, Annex 59.
762Letter from the OSCE High Commissioner on Minorities, Knut Vollebaek, to the OSCE
Chairman, Minister Alexander Stubb (27 November 2008), p. 2. GM, Vol. V, Annex 312.
242Georgians on their renunciation of Georgian nationality and citizenship, and their
obtaining an Abkhazian “passport” 763.
6.87 Russian and Abkhazian forces have not only prevented ethnic Georgians
from returning to the Kodori Gorge; th ey have actively so ught to remove all
vestiges of the ethnic Ge orgian presence from that region. In April 2009,
Georgian Orthodox monks and nuns were forcibly expelled from their church in
the Kodori Gorge. As explained by the de facto Defense Minister of Abkhazia,
“I took the decision to expel them. We ’ll kick out anyone who prevents the
population of Abkhazia from living calmly… They don’t recognise our
764
independent state or our Or thodox leader Fr. Vissarion” . Leaving little room
for misinterpretation, Abkhazia’s de facto Deputy Foreign Minister declared,
“We don’t have the Georgian Church in Abkhazia” 76. It is this policy of
deliberate exclusion of ethnic Georgians fr om Abkhazia, and denial of the right
of Georgian IDPs to return to their home s, that Russian military forces stationed
in Abkhazia continue to enforce.
* * *
6.88 In this Chapter, Georgia has demonstr ated Russia’s responsibility for the
wholesale denial of ethnic Georgian IDPs’ right to return to their homes of origin
in Abkhazia. More than 200,000 ethnic Georgians were expelled from their
763Report of the Secretary-General on the Situation in Abkhazia, Georgia, Pursuant to Security
Council Resolution 1839 (2008), UN Doc. S/2009/69, op. cit., para. 41. GM, Vol. II, Annex 52.
764Felix Corley, “Abkhazia: ‘We’ll kick ou t anyone,’” Forum 18 News (7 April 2009). GM,
Vol. IV, Annex 293.
765Ibid.
243homes in Abkhazia during the ethnic c onflicts of the early 1990s. Some who
spontaneously returned to the Gali District in the mid-1990s were again forced to
flee by renewed ethnically-targeted violence in 1998. As shown in the preceding
sections, these waves of ethnic cleans ing were made possi ble only by Russia’s
active collaboration with and control over Abkhaz militants.
6.89 In the years since, including in the period after August 2008, Russia and
the Abkhazian de facto authorities have worked together to prevent ethnic
Georgian victims of ethnic cleansing from returning to Abkhazia. The plight of
the ethnic Georgian IDPs has repeatedly been recognized by the international
community, as has their undeniable right to return to their homes of origin.
Nonetheless, the policies of Russia have made return impossible. Indeed, Russia
has literally had front-line responsibility for enforcing this exclusionary policy;
its military serves as Abkhazia’s de facto border guard and determines who is
and is not permitted to enter Abkhazian territory. For the reasons set forth in
Chapter 9 concerning the applicable law, Russia’s conduct as described above is
much more than sufficient to trigger its international responsibility under the
1965 Convention.
244 PART D.
DISCRIMINATION AFTER THE PROVISIONAL MEASURES ORDER CHAPTER VII.
RUSSIA’S ONGOING DISCRIMINATION AGAINST ETHNIC
GEORGIANS FOLLOWING THE ISSUANCE OF THE COURT’S
ORDER ON PROVISIONAL MEASURES7.1 This Chapter describes ethnic discrimination against Georgians who have
continued to live in or have sought to re turn to South Ossetia or Abkhazia since
15 October 2008, the date the Court issu ed its Order on Provisional Measures.
The evidence shows that the discrimina tion described in the preceding Chapters
of this Memorial – practiced by Russia and the entities and groups it controls
within South Ossetia and Abkhazia – has continued unabated since the issuance
of the Court’s Order.
7.2 In its Order of 15 October 2008, th e Court indicate d the following
provisional measures, in paragraph 149, sections A through D:
A. Both Parties, within South Osse tia and Abkhazia and adjacent areas
in Georgia, shall
(1) refrain from any act of racial discrimination against persons,
groups of persons or institutions;
(2) abstain from sponsoring, defending or supporting racial
discrimination by any persons or organizations;
(3) do all in their power, whenever and wherever possible, to
ensure, without distinction as to national or ethnic origin,
(i) security of persons;
(ii) the right of persons to freedom of movement and
residence within the border of the State;
(iii) the protection of the property of displaced persons
and of refugees;
(4) do all in their power to ensure that public authorities and
public institutions under their control or influence do not
engage in acts of racial discrimination against persons, groups
of persons or institutions;
B. Both Parties shall facilita te, and refrain from placing any
impediment to, humanitarian assist ance in support of the rights to
which the local population are en titled under the International
249 Convention on the Elimination of All Forms of Racial
Discrimination;
C. Each Party shall refrain from any action which might prejudice the
rights of the other Party in respect of whatever judgment the Court
may render in the case, or which might aggravate or extend the
dispute before the Court or make it more difficult to resolve;
D. Each Party shall inform the Court as to its compliance with the
above provisional measures 76.
Section I. Russia’s Continuing Control in South Ossetia and Abkhazia
7.3 Notwithstanding the provisions of the Court’s Order, Russia has
continued its practice of discrimination against ethnic Georgians still living in
South Ossetia and Abkhazia, and against those seeking to return to those
territories. Russia has carried out its discrimination against ethnic Georgians
both directly, and through the de facto administrative organs of South Ossetia
and Abkhazia over which it has continued to exercise control. If anything,
Russia’s control over these separatist en titles has increase d since 15 October
2008.
7.4 In particular, the Russian army has deepened and extended its military
control within South Ossetia and A bkhazia. On 19 November 2008, Russian
President Dmitri Medvedev announced that Russia would place bases in the
newly independent “states” of South O ssetia and Abkhazia a nd build relations
with the two countries 767. President Medvedev explai ned that “[w]e’re coming
766Application of the International Convention on the Elimination of All Forms of Racial
Discrimination (Georgia v. Russian Federation, Request for the Indication of Provisional
Measures, Order (15 October 2008), para. 149(A)-(D).
767
“Russia to put military bases in South Ossetia and AbkhazRussia Today (19 November
2008). GM, Vol. IV, Annex 274.
250from a point where these two countries are friendly, and we should admit, are
very dependent on us”, and that “[w]e w ill proceed from here, starting with the
establishment of diplomatic relations and finishing with the guarantee of their
768
safety and the placement of military bases” . The same day, the Chief of the
Russian General Staff, General Nikolai Makarov, stated that the “Russian
military bases” in Abkhazia and South O ssetia “already have full contingents of
3,700 personnel each”, and that Russ ian troops, deployed at the bases , would be
769
patrolling the entire territory of the two disputed regions . Later in November
2008, a senior Russian Defence Ministry o fficial reported that Russia plans to
spend 10-12 billion rubles (US$430 m illion) building and equipping military
770
bases in South Ossetia and Abkhazia . In February 2009, the Head of the Joint
Staff of the Armed Forces of the Russian Federation announced that the
improvement and equipping of Russian military bases in South Ossetia and
771
Abkhazia was well under way, and would be completed by the end of the year .
Independent sources, includi ng the UN Secretary-Genera l, have reported that:
“Heavy military equipment and military pe rsonnel have remained in the [United
772
Nations] Mission’s area of responsibility” .
768
Ibid.
769 “Russia fully staffs bases in Abkhazia, S. Ossetia”, RIA Novosti (19 November 2008). GM,
Vol. IV, Annex 275.
770“What the Russian papers say”, RIA Novosti (28 November 2008). GM, Vol. IV, Annex 276.
771“Equipment of Russian Military Bases in Abkhazia and South Ossetia will be finished by the
end of the year”, APSNY Online (2 February 2009). GM, Vol. IV, Annex 285.
772
UN Security Council, Report of the Secretary-General pursuant to Security Council
resolutions 1808 (2008), 1839 (2008) and 1866 (2009) , UN Doc. S/2009/254 (18 May 2009),
(hereinafter Report of the Secretary-General pursuant to Security Council resolutions 1808
(2008), 1839 (2008) and 1866 (2009) UN Doc. S/2009/254 (2009)), para. 62. GM, Vol.II,
Annex 54.
2517.5 In April 2009, Russia formally exte nded its military control in South
Ossetia and Abkhazia by signing agreements with the de facto authorities in both
regions to serve as the official St ate Border Guards, who patrol the
administrative boundaries of the two territo ries with the rest of Georgia, and
exercise direct control over all persons entering or exiting South Ossetia and
773
Abkhazia . As described by Russia in its Re port to the Cour t of 9 July 2009,
these agreements, dated 30 April 2009, “provide for the establishment, in each of
the Republics, of a Border Guard Dir ectorate operated by the Border Guard
Service of the Federal Security Serv ice of the Russian Federation. The
Directorates have now been deployed, staffed by approximately 900 servicemen
774
in Abkhazia and 700 in South Ossetia” . Consequently, Russian servicemen,
responsible to their senior officers in the Russian armed forces, determine
whether ethnic Georgians displaced fr om South Ossetia and Abkhazia in the
various waves of ethnic cleansing desc ribed in Chapters 3 through 6, may
exercise their right of return.
7.6 Russia has maintained its control in South Ossetia and Abkhazia,
especially through continuing its practi ce of appointing Russian civilian and
military officials, directly responsible to Moscow, to senior leadership positions
in the de facto separatist administrations. This means of exercising control, as
773Agreement between the Russian Federation and th e Republic of Abkhazia on joint efforts in
protection f the state border of the Republic of Abkhazia (30 April 2009). GM, Vol. III, Annex
144; Agreement between the Russian Federation and the Republic of South Ossetia on joint
efforts in protection of the state border of the Republic of South Ossetia (30 April 2009). GM,
Vol. III, Annex 143.
774Case Concerning Application of the International Convention on the Elimination of All Forms
of Racial Discrimination (Georgia v. Russian Federation), Report of the Russian Federation on
Compliance with the Provisional Measures Indicated by the Order of the Court of 15 October
2008 (8 July 2009), p. 12.
252employed between the early 1990s and August/September 2008, was described
in Chapters 4 and 6, at paragraphs 4.23 to 4.25, and 6.63 et seq.
7.7 Russia’s domination of S outh Ossetia’s political sphere continued with
the appointment of a Russian State official, Mr. Aslanbek Bulatsev, as the de
facto Prime Minister of South Ossetia in October 2008. Immediately prior to his
appointment, Mr. Bulatsev served as Head of the Russian Federal Tax Service in
North Ossetia; he had prev iously worked for the KGB 77. According to the
Russian newspaper Kommersant, his “main task” was to “control” the “huge
amounts of funds that Russia promised to allocate for the restoration of South
776
Ossetia” . Mr. Bulatsev was replaced as the de facto Prime Minister in August
2009 by yet another Russian with no pr ior connection to South Ossetia, Mr.
Vadim Brovtsev. From 1996 to 2006, Mr. Brovtsev served as a Deputy of the
State Council of Deputies of Ozersk in Russia’s Chelyabinsk District.
Kommersant was told by individuals in the “leadership of South Ossetia” that
Mr. Brovtsev is the “creation (protégé) of the Minister of Regional Development
of the Russian Federation”, which is th e Russian State agency responsible for
777
“supervising the restoration of South Ossetia” .
7.8 Another Russian official, Mr. Alexander Mikhail Bolshakov , was
appointed on 31 October 2008 as the Head of the Presidential Administration of
de facto President Kokoity. His most recent prior position was Deputy Head of
775“Russian tax inspector became the Chairman of South Ossetian Government”, Vremya
Novostey (23 October 2008). GM, Vol. IV, Annex 269.
776“The Prime Minister of Sout h Ossetia has been elected”, Kommersant, No. 192 (4009) (22
October 2008). GM, Vol. IV, Annex 268.
777“South Ossetia introduced the new Prime Minister: Vadim Brovtsev appointed as the Head of
the Government”, Kommersant, No. 142 (6 August 2009). GM, Vol. IV, Annex 298.
253 778
the Government of Russia’s Ulyanovsk Oblast . Mr. Bolshakov was assisted
by a “political technologist”, Mr. Lev Pavluchkov , who was transferred from
his prior position of Advisor to the G overnor of Ulyanovsk, to serve as Mr.
779
Bolshakov’s Deputy for mass media issues . The Finance Ministry was also
put in Russian hands. Mr. Aleksey Panteleev, who was appointed the new de
facto Finance Minister, formerly exercised similar responsibilities within the
Russian Government, managing the finances of the Ulyanovsk region. He was
later replaced as the de facto Finance Minister by another Russian official, Mr.
Inal Pukhaev , who had previously worked as the Deputy Head of the unit
responsible for monitoring the effectiv eness of budgetary e xpenditures in the
Ministry of Finance of North Ossetia 780.
7.9 Russian officers have also continue d to hold, and be appointed to, the
most senior defence, public security and intelligence positions in the separatist
administrations. In that regard, Russia’s control of South Ossetia’s armed forces
was perpetuated by the appointment of a Russian General Officer as the de facto
Minister of Defence, Major General Yuri Tanaev. Prior to coming to South
778
“The ‘soldier of the party’ has been sent to South OssetKommersant, No. 201 (4018) (6
November 2008).
779
“The Government of South Ossetia is mixed with SOK”, Kommersant, No. 207 (4024), 14
November 2008). GM, Vol. IV, Annex 273.
780Olga Allenova and Sergey Titov, “There are more and more Ex-es in South Ossetia: The
Minister of Finances worked in the Republic only for a week”, Kommersant, No. 222 (5
December 2008). GM, Vol. IV, Annex 278.
254Ossetia, General Tanaev served as the H ead of the Intelligence Service of the
781
Staff of the Urals Military Region .
7.10 In addition to its political and milita ry control, Russia also controls the
South Ossetian and Abkhazian de facto administrations through their complete
reliance on Russia’s financial support. On 17 March 2009, Russia signed an
agreement with the de facto South Ossetian and Abkhazian authorities, arranging
for Russia to provide over 5.1 billion rubles to the de facto administrations 782.
Russia’s Ministry of Finances announced that Russia’s economic assistance was
provided for “the socio-economic development and the balanced budget of the
Republics” 783. According to the Russian Ministry press release, part of this
financial support will pay for civil servan t salaries, child allowances, pensions,
scholarships, nutrition, medication, rest oring infrastructure and supporting de
facto governmental budget institutions 784. South Ossetia’s de facto Minister of
Finance, Mr. Pukhaev, confirmed: “These are budgetary sources, and they will
totally go to the budget. This money wi ll be directed in accordance with the
provisions of the budget towards the ministri es and institutions. It is expected
that salaries will be paid from these sources” 785. De facto Minister Pukhaev then
781
Andrei Illarionov, “The Russian Leadership’s Preparation for War, 1999-2008”, The Guns of
August 2008: Russia’s War in Georgia, Central Asia-Caucasus Institute (2009), p. 82. GM, Vol.
III, Annex 178.
782Ministry of Finances of the Russian Federation, Press Release, “On the Signing of
Agreements between the Ministry of Finances of the Russian Federation and the Ministry of
Finances of Abkhazia and the Ministry of Finances of South Ossetia on 17 March 2009” (16
March 2009). GM, Vol. III, Annex 142.
783
Ibid.
784
Ibid.
785“Tskhinval will report on the money allocated by Russia – Ministry of Finance of South
Ossetia”, South Ossetian Information Agency OSInform (17 March 2009). GM, Vol. IV, Annex
288.
255noted that, prior to Russia’ s support, the South Ossetian de facto administration
786
had been unable to pa y its government salaries . South Ossetia’s financial
dependence of Russia continues to grow . The Russian Deputy Minister of
Finances, Anton Sulianov, confirmed that the total amount of funds promised to
South Ossetia from Russia’s state budge t amounts to approximately 12.8 billion
rubles – nearly five times the amount already paid 787.
7.11 The extent of Russia’s economic contro l in Abkhazia is demonstrated by
Russia’s March 2009 financ ial agreement with the de facto Abkhaz
administration, by which the latter was able to secure 2.36 billion rubles for its
2009 budget 78. Abkhazia’s “state” budget reportedly amounts to 3.874 billion
789
rubles . Thus, according to these figures, the Abkhaz de facto government
currently depends on Russia for approxi mately two-thirds of its budget.
Abkhazia’s own de facto President Bagapsh confirmed the extent and
consequences of Russia’s financial control over Abkhazia, which he linked to the
de facto administration’s decision not to allow ethnic Georgian IDPs to return to
their homes. He declared that the time when “Abkhazians and Georgians” could
live together had “passed, seemingly, irrevocably”. Now, Mr. Bagapsh said,
786
Ibid.
787
“Putin: Spending of funds on restoration of South Ossetia is to be controRIA: Novosti
(16 September 2008). GM, Vol. IV, Annex 264.
788“In Abkhazia they hope that economic crisis w ill not effect financial support from Russia”,
Apsny Online(10 March 2009). GM, Vol. IV, Annex 287.
789Ibid.
256Abkazia was “under” the “wing of Mo scow” and that Russia was paying for
790
“half of the Abkhazian budget” .
7.12 While it has continued to expand and consolidate its control over South
Ossetia and Abkhazia subsequent to 15 October 2008, Russia has continued to
discriminate against ethnic Georgians in these territories, both directly and
through the abuses committed by sepa ratist forces under its command and
control, notwithstanding the Court’s Order on Provisional Measures. Sections II
and III of this Chapter describe Russia’s ongoing violations of the obligations set
forth in Paragraph 149(A) of the Order on Provisional Measures in South Ossetia
and Abkhazia, respectively. Section IV addresses Russia’s continued obstruction
of ethnic Georgians’ right of return to both regions, also in violation of
Paragraph 149(A) of the Court’s Order. Finally, Section V describes Russia’s
violation of Paragraphs 149(B) and 149( C) of the Order through its obstruction
of the provision of humanitarian assistan ce within the occupied territories, and
its denial of access to international monitors, throughout the occupied territories,
increasing ethnic Georgians’ vulnerability to continued discrimination in those
territories.
Section II. Ongoing Discrimination against Ethnic Georgians in South
Ossetia
7.13 Independent human rights and internat ional organisations have issued
reports detailing the discrimination perpetrated against ethnic Georgians in South
Ossetia since 15 October 2008, which incl udes killings, beatings, threats,
burning of homes, looting of property and other serious abuses. The same
790“Sergey Bagapsh: Russian money goes on the ar rangement of vocational places of Russians”,
Vesti (21 March 2009). GM, Vol. IV, Annex 290.
257organisations have attributed responsibility for these activities to Russia, as well
as to the South Ossetian de facto security forces that operate under Russia’s
control. In its November 2008 report, Amnesty International documented
“unlawful killings, beatings , threats, arson and looting perpetrated by armed
groups associated with the South Ossetia n side and acting with the apparent
791
acquiescence of Russian armed forces” . In January 2009, Human Rights
Watch also concluded that
as an occupying power in Georgi a, Russia failed overwhelmingly
in its duty under international humanitarian law to ensure, as far
as possible, public order and safe ty in areas unde r its effective
control, instead allowing Sout h Ossetian forces, including
volunteer militias, to engage in wanton and widescale pillage and
burning of792orgian homes and to kill, beat, rape, and threaten
civilians .
7.14 Numerous reports by representatives of the Council of Europe make the
same point. According to the Council’s Monitoring Body, in its April 2009
report: “[t]he villages of South Ossetia, previously under Georgian control, have
been razed to the ground with the ex ception of a handful of houses. The
793
intention to cleanse the area of ethnic Georgians is clear” . The Council’s
Rapporteur agreed that “the systematic destruction” was to “ensure that no
Georgians can return to these villages , and supports the accusation that these
791
Amnesty International, Civilians in the Line of Fire: The Georgia-Russia Conflict (November
2008), p. 39. GM, Vol. III, Annex 158.
792Human Rights Watch, Up in Flames: Humanitarian Law Violations and Civilian Victims in
the Conflict over South Ossetia (January 2009) (hereinafter HRW, Up in Flames (2009).), p. 3.
GM, Vol. III, Annex 156.
793Council of Europe, Parliamentary Assembly, Humanitarian Consequences of the War
between Georgia and Russia: Follow-Up Given to Resolution 1648 (2009) , Resolution 1664 (29
April 2009) (hereinafter Humanitarian Consequences of the War between Georgia and Russia:
Follow Up Given to Resolution 1648 (2009), Res. 1664 (2009)), para. 8. GM, Vol. II, Annex 65.
258 794
villages have been ‘ethnica lly cleansed’ of Georgians” . The Council’s
Rapporteur concluded: “this is not da mage caused mainly by the war, it is
damage after the war, and the de facto South Ossetian auth orities and Russian
authorities must take responsibility for this” 795. Thus, the Parliament of the
Council of Europe adopted a Resolution stating that it “calls upon Russia and the
de facto authorities of South Ossetia to en sure that there are no more acts of
ethnic cleansing and other human rights vi olations, which con tinue to occur in
South Ossetia, and bring the perp etrators promptly to justice” 796. Russia has
ignored this plea. The Council’s Parliamentary Assembly confirmed:
The Investigative Committee of the General Prosecutor’s Office
of Russia launched an investigation into genocide committed by
Georgian troops against Russian citizens (ethnic Ossetians) in
South Ossetia. In addition, it opened an investigation into crimes
committed by Georgia against the Russian military. It would
seem that there is no intention to investigate possible violations of
human rights and humanitarian law committed by Russian forces
and forces under the control of the de facto South Ossetian
authorities. Indeed, the special Investigation Committee
reportedly closed its investi gations on the ground in South
Ossetia in mid-September , at a time when credible reports
indicated that looting, pillaging, as well as acts of ethnic cleaning
794
Council of Europe, Parliamentary Assembly, Committee on Migration, Refugees and
Population, Report: The Humanitarian Consequences of the War between Georgia and Russia:
Follow-Up given to Resolution 1648 (2009), Doc. 11859 (9 April 2009) (hereinafter Report: The
Humanitarian Consequences of the War between Georgia and Russia: Follow-Up given to
Resolution 1648 (2009), Doc. 11859 (2009).), para. 29. GM, Vol. II, Annex 62.
795Council of Europe, Parliamentary Assembly, Press Release, “Corien Jonker: ‘Humanitarian
scars of South Ossetian conflict run deep’” (16 March 2009). GM, Vol. II, Annex 61.
796Council of Europe, Parliamentary Assembly, Implementation of Resolution 1633 (2008) on
the consequences of the war between Georgia and Russia , Res. 1647 (28 January 2009), para.
9.9.
259 were taking place on a daily basis in the areas under 797sian
control, including in the so-called “buffer zone” .
7.15 Since 15 October 2008, Russia’s discrimination against ethnic Georgians
in South Ossetia has taken place mainly in the Akhalgori District, which abuts
the rest of Georgia and is the only remaining location under Russian and South
Ossetian control that has a significant ethnic Georgi an population, which is
currently estimated at approximate ly 1,000, down from approximately 7,800 798.
Historically, Akhalgori ha s always had a majority-G eorgian population. After
the ethnic cleansing in 2008, the ethnic Georgian population of Akhalgori was
reduced to its present leve l. As documented by human rights and international
organizations, this population is subject to ongoing acts of ethnic discrimination,
including violent attacks against their persons, destruction of their property,
denial and restriction of their civil and political rights and other abuses.
7.16 As reported by Human Rights Watch, ba sed on its mission to Akhalgori
on 20-21 November 2008, over a month af ter the Court indicated Provisional
Measures: “South Ossetian militias are r unning wild attacking ethnic Georgians
in Akhalgori” 799. HRW observers personally wi tnessed the violence to which
ethnic Georgians are subjected, including an incident where “several armed men
797
Council of Europe, Parliamentary Assembly, The implementation of Resolution 1633 (2009)
on the consequences of the war between Georgia and Russia , Doc. 11800 (26 January 2009))
(hereinafter The implementation of Resolution 1633 (2009) on the consequences of the war
between Georgia and Russia, Doc. 11800 (2009)), para. 50. (emphasis added). GM, Vol. II,
Annex 60.
798Amnesty International, Civilians in the Aftermath of War: The Georgia-Russia Conflict One
Year On (August 2009), p. 18. GM, Vol. III, Annex 159.
799Human Rights Watch, Russia: Protect Civilians in Occupied Georgia, Fear of Ethnic
Violence, Isolation in South Ossetian District (25 November 2008) (hereinafter HRW, Russia:
Protect Civilians in Occupied Georgia (2008)). GM, Vol. III, Annex 155.
260in camouflage” brutally beat an elderly resident of Kanchaveti village who died
from his injuries, which included “multiple bruises, severe damage to his
genitals, and a fractured arm” 800. The militia returned the day after the assault
and threatened to shoot one of his re latives. While HRW researchers were
meeting with the victim’s relatives a nd neighbors on their way to his wake,
“armed militia members arrived in a military truck” and:
[t]hree men jumped out and ran towards the funeral procession.
One stood, with his submachine g un, between the relatives and
the Human Rights Watch researchers, while the others forced the
relatives to leave. The militias later threatened the Human Rights
Watch researchers, demanding to know whether the local
residents had told the researchers that [the dead man] had been
killed by Ossetians 80.
7.17 HRW’s 25 November 2008 report calle d upon the “Russian authorities”
to “take immediate steps to stop South Ossetian militias from attacking ethnic
Georgians in Akhalgori”. It declared: “[i]t is high time for Russia to step up to
802
its responsibilities as an occupying power in South Ossetia and rein them in” .
7.18 The International Crisis Group reporte d at the same time that: “Ossetian
militia harassment has continued in Akhalgori while the area has been under
effective Russian control and OSCE monitors denied access. Today five out of
every seven ethnic Georgians who lived in the district before the conflict have
fled” 80. The same findings were reported by the OSCE human rights
800
Ibid.
801Ibid.
802Ibid.
803International Crisis Group, Georgia: The Risks of Winter , Europe Briefing No. 51 (26
November 2008), p. 5. GM, Vol. III, Annex 164.
261investigators that visited Akhalgori in November 2008, who concluded: “[s]ince
the new South Ossetian de facto administration has taken over in the Akhalgori
area, many people have left the region. More than 5,100 indi viduals had left
804
Akhalgori by the end of October” . According to the OSCE: “the security
situation has deteriorated since the end of the conflict, as have economic and
social conditions. Ethnic Georgi ans continue to leave the area” 805. The OSCE
further reported that “the influx of increased militar y personnel and equipment
since October had left the population in a state of fear and apprehension. Local
residents complained that military personnel enter shops, cafés and farms and
require the proprietors to provide them with food and supplies without offering
compensation” 80.
7.19 Conditions did not improve. In Apri l 2009, the Council of Europe found
that there was:
extensive evidence that system atic looting, pillaging, hostage
taking and attacks on ethnic Georgians by South Ossetian militias
continue to take place in the Akha lgori district of South Ossetia
807
and that the Russian forces have done nothing to stop them .
7.20 The Council found further that “[a]s a result of the continuing attacks on
ethnic Georgians, many of them have fled the Akhalgori distri ct out of safety
concerns. In addition, many more have le ft due to fears that the administrative
804OSCE, Office for Democratic Institutions and Human Rights, Human Rights in the War-
Affected Areas Following the Conflict in Georgia (27 November 2008) (hereinafter OSCE,
Human Rights in the War-Affected Areas (2008)), p. 50. GM, Vol. II, Annex 71.
805
Ibid., p. 73.
806Ibid.
807The implementation of Resolution 1633 (2009) on the consequences of the war between
Georgia and Russia (2009), op. cit., para. 63. GM, Vol. II, Annex 60.
262border with Georgia will be closed or because they are obliged to accept the
808
South Ossetian nationality” . These findings led the Council to issue the
following statement:
We strongly condemn the ethni c cleansing in the Akhalgori
district by South Ossetian militia, as well as Russia’s
unwillingness to stop this from happening or to bring its
perpetrators to justice. We would like to reiterate that, under
international law, Russia bears full responsibility for violations of
human rights and humanitarian law committed in the areas under
its de facto control, including those809mmitted at the behest of the
de facto authorities in Tskhinvali .
7.21 To remain in Akhalgori, and to ex ercise their fundamental civil and
political rights, ethnic Georgians are now required to give up their Georgian
nationality and citizensh ip, and accept Ossetian nationality and Russian
citizenship. To this end, the de facto President of South Ossetia, Mr. Kokoity,
created a specialized group of deputy mi nisters and sent them to Akhalgori
(now renamed “Leningor” by the sepa ratist authorities) “to ensure
810
passportization” , and to stay in Leningor “until all residents are given
811
passports” . According to the Ossetian district leader, South Ossetian passports
would be given to all residents, and “[f]ollowing that, they will be also given
812
Russian citizenship” . Acceptance of South Osseti an and Russian citizenship
was made mandatory for anyone wishing to remain in Akhalgori (or elsewhere in
South Ossetia).
808
Ibid., para. 64.
809
Ibid., para. 63 (emphasis added).
810
“The population of Leningori District of South Ossetia is being passportized”, South Ossetian
Information Agency OSINFORM (7 April 2009). GM, Vol. IV, Annex 294.
811Ibid. (emphasis added).
812HRW, Up in Flames: (2009), op. cit., p. 150. GM, Vol. III, Annex 156.
2637.22 Both the OSCE and the Council of Europe expressed concern about this
policy, and its discriminatory impact on ethnic Georgians. The OSCE’s High
Commissioner on National Minorities stated that
[t]he situation in the District of Akhalgori is particularly worrying
in view of recent statements by those exercising jurisdiction over
population and territory that the inhabitants have to acquire South
Ossetian/Russian passports or leave their homes. This could lead
to further deterioration of the s ituation in the region and another
wave of IDPs 813.
The Council of Europe, through its Parliamentary Assembly, called on Russia to
ensure that the population is not for ced “to take South Ossetian passports” 81.
The Council identified this as one of many forms of discrimination against ethnic
Georgians which “unless addressed, will lead to a further exodus from this
815
region” .
7.23 South Ossetia’s policy, now enforced by the Russian military forces who
formally constitute the State Border Guards, of denying or restricting freedom of
movement across the administrative boundary between Akhalgori and the rest of
Georgia, has also caused hardship to et hnic Georgians and c ontributed to their
displacement from Akhalgori. Human Rights Watch has reported that ethnic
Georgians see the closing of the admini strative border as “t he end of us”,
because “[f]or the residents of Akhalgori, Tbilisi has always been a second
813Letter from the OSCE High Commissioner on Minorities, Knut Vollebaek, to the OSCE
Chairman, Minister Alexander Stubb (27 Nove mber 2008) (hereinaft er “Letter from Knut
Vollebaek to Minister Alexander Stubb” (2008)), p. 2. GM, Vol. V, Annex 312.
814The Humanitarian Consequences of the War between Georgia and Russia: Follow Up Given
to Resolution 1648 (2009), Res. 1664 (2009), op. cit., paras. 16.4.4 & 17.4. GM, Vol. II, Annex
65.
815Ibid., para. 10.
264 816
home. If we’re cut off from it we just cannot stay” . The OSCE has expressed
similar concern: “[i]f the de facto authorities proceed with plans to restrict access
to this area from the south, it may create significant human rights issues and
problems of a humanitarian nature incl uding the supply of basic necessities” 817.
In this regard, the OSCE found:
The population of the region has very strong links with Gori,
where many people work and study. Ethnic Georgians fear that
the decision to close the administrative boundary will isolate them
from family and others. Some pe ople may opt to leave the region
in order to preserve their culture and identity, as well as 818ir links
with their relatives across the administrative boundary .
Section III. Ongoing Discrimination against Ethnic Georgians in Abkhazia
7.24 Despite the massive ethnic cleansing against ethnic Georgians during the
1990s and again in 2008, a substantial ethni c Georgian population still lives in
the Gali District of Abkhazia, just across the administrative boundary with the
rest of Georgia. It is currently estimated that more than 40,000 Georgians live in
Gali. This is now the only ethnic Georgian community remaining in Abkhazia.
However, it remains subject to di scriminatory measures imposed and
implemented by Russian and Abkhaz authori ties, with the goal of forcing them
either to abandon their Georgian nationa lity and citizenship or leave Abkhazia
altogether.
7.25 As demonstrated previously, Russia exercises control in Abkhazia.
Particularly in Gali, there is an especial ly strong Russian military presence. In
816HRW, Russia: Protect Civilians in Occupied Georgia (2008), op. cit. GM, Vol. III, Annex
155.
817OSCE, Human Rights in the War-Affected Areas (2008), op. cit., p. 7. GM, Vol. II, Annex 71.
818Ibid., p. 50.
265December 2008, at least twenty-six Russi an tanks were deployed to the Gali
District. Twelve of these tanks were st ationed in low zone villages while the
819
other fourteen were deployed to high zone villages . Television news
programs showed images of the Russian tanks and reported that “the whole
perimeter of Enguri [village was] bloc ked, including the central bridge. Any
movement or travelling within the vi llage [was] limited even for peaceful
820
civilians” . As previously stated, as per th e 30 April 2009 agreement between
Russia and the de facto Abkhazian regime, Russian military forces became the
State Border Guards of Abkhazia, respons ible for patrolling the administrative
border with the rest of Georgia, and controlling the entr y and exit of all
821
persons .
7.26 The increased Russian military presence in Gali, and Russian control of
the administrative border with the rest of Georgia, have coincided with a period
of intense discrimination against ethnic Georgians. As the OSCE reported in
November 2008: “[t]he situation for ethnic Georgians in Abkhazia is
822
increasingly precarious” . The Director of the OS CE’s Office of Democratic
Institutions and Human Rights has found that the “[e]thnic Georgian
communities in the Gali region of Abkhazia do not enjoy all rights guaranteed to
823
them by OSCE commitments” . The OSCE High Commissioner on National
819“Russian occupants, separatist Abkhazians dispatch military equipment and live force on the
territory of Abkhazia”, 1 Channel (14 December 2008). GM, Vol. IV, Annex 279.
820Ibid.
821Agreement between the Russian Federation and th e Republic of Abkhazia on joint efforts in
protection of the state border of the Republic of Abkhazia (30 April 2009). GM, Vol. III, Annex
144.
822
OSCE, Human Rights in the War-Affected Areas (2008), op. cit., p. 7. GM, Vol. II, Annex 71.
823Letter from Amb. Janez Lenar i , Director, OSCE Office of Democratic Institutions and
Human Rights, to H.E. Alexander Stubb, OSCE Chairman-in-Office (27 November 2008)
266Minorities came to the same conclusion: for the “Georgian population in the Gali
District” life is “very difficult as they are deprived of seve ral of their basic
824
human rights” . The basic rights denied to ethn ic Georgians living in Gali are
succinctly stated in Resolution 1644, enacted by the Parliament of the Council of
Europe in April 2009:
The situation in Abkha zia also remains tense. The issues of
restricted crossings at the admini strative border south of the Gali
district; rights, in part icular the right to education in the mother
tongue, of ethnic Georgians living in a de facto minority situation
in the Gali district and the proc ess of forcing persons to take
Abkhaz passports, are particularly worrying 825.
7.27 The OSCE High Commissioner on Nati onalities observed that ethnic
Georgians’ “situation has been aggravated further when it comes to their security
826
and future prospects for preserving their identity, language and culture” .
While visiting Sukhumi in January 2009, the Commissioner conveyed his
concerns to the de facto Abkhaz authorities when he “noticed increasing pressure
being put on the Georgian population through the curtailing of their education
rights, compulsory ‘passportization’, forced conscription into the Abkhaz
827
military forces and restrictions on their freedom of movement” . He therefore
(hereinafter Letter from Amb. Lenar i (2008), as included in OSCE, Human Rights in the War-
Affected Areas (2008), op. cit., pp. 4-5. GM, Vol. II, Annex 71.
824Letter from Knut Vollebaek to Minister Alexander Stubb (2008), op. cit., p. 2. GM, Vol. V,
Annex 312.
825
The Humanitarian Consequences of the War between Georgia and Russia: Follow Up Given
to Resolution 1648 (2009), Res. 1664 (2009), op. cit., para. 12. GM, Vol. II, Annex 65.
826
Letter from Knut Vollebaek to Minister Alexander Stubb (2008), op. cit., p. 2. GM, Vol. V,
Annex 312.
827Statement of Knut Vollebaek, OSCE High Commissioner on National Minorities to the 765 th
Plenary Meeting of the OSCE Permanent Council (18 June 2009), p. 4. GM, Vol. II, Annex 73.
267“urged the de facto authorities to put an end to this pressurization” and expressed
his “concern that such coercive practices , which violate inte rnational law, may
further destabilize the already fragile inter-ethnic situation in the region and
828
force many Georgians to leave” . Unfortunately, since the de facto authorities
failed to respond to his concerns, the Co mmissioner had to reiterate them in a
public statement on 14 April 2009, where he again urged the “ de facto
authorities to put an e nd to the pressure being exercised on the Georgian
population in the Gali District through th e limitation of their education rights,
compulsory ‘passportization’, forced conscription into the Abkhaz military
829
forces and restrictions on their freedom of movement” .
7.28 Regarding limitations on educatio n rights, in early 2009, separatist
830
officials banned Georgian-language materials from schools . In a meeting with
the OSCE High Commissioner on Na tional Minorities, Abkhazia’s de facto
Prime Minister stated that the separatist authorities were “categorically against
allowing Georgian textbooks to be us ed for the education of Georgian
831
children” . Instead, Russian language schoolbooks, supplied by Russia, have
828
Ibid.
829
OSCE, Press Release, “OSCE High Commissi oner on National Minorities deeply concerned
by recent developments in Abkhazia” (14 April 2009) (hereinafter OSCE High Commissioner on
National Minorities deeply concerned by recent developments in Abkhazia (2009)). GM, Vol. II,
Annex 72. See also Report: The humanitarian consequences of the war between Georgia and
Russia: Follow-up given to Resolution 1648, Doc. 11859 (2009), op. cit., para. 84 (The Council
of Europe’s “rapporteur… considers that the main concerns raised in her earlier report, notably
restrictions on movement across the administrative, border rights protection, including education
rights for ethnic Georgians in the Gali region, and passport and citizenship issues, remain
relevant and in need of urgent attention”). GM, Vol. II, Annex 62.
830
“Russian Language ‘Pressed’ on Georgian Teachers in Abkhazia”, Radio Free Europe (24
March 2009). GM, Vol. IV, Annex 291.
831Council of Europe, Secretary-General, Report on the human rights situation in the areas
affected by the conflict in Georgia,First report, SG/Inf(2009)7 (16 April 2009) (hereinafter
268been distributed to schoolteachers in the Gali District. The OSCE High
Commissioner reacted by urging “the de facto authorities to respect the
education rights of Georgians residing th ere and to allow Georgian students in
832
the region to study in the Georgian language” . His plea went unheeded.
Meanwhile, Russian school books, many provided by the Mayor of Moscow, are
continuing to arrive in Georgian schools in Gali, where the Council of Europe’s
Commissioner for Human Rights reported that teachers are teaching in Georgian
833
“at their own risk” . In February 2009, the UN S ecretary-General registered
his concern regarding discrimination ag ainst Georgian education, noting that
“the number of academic hours allocated to studying Georgian language was
834
reduced for the 2008-2009 school year” .
7.29 Discriminatory restrictions on teac hing in the Georgian language are a
particularly harmful denial of a fundamental human right. As recognized by the
Council of Europe’s Commissioner for Hu man Rights: “In multiethnic societies
Report on the human rights situation in the areas affected by the conflict in Georgia, First report,
SG/Inf(2009)7 (2009)), Appendix. GM, Vol. II, Annex 63.
832
“OSCE High Commissioner on National Minorities deeply concerned by recent developments
in Abkhazia” (2009), op. cit. GM, Vol. II, Annex 72.
833Council of Europe, Commissioner for Human Rights, Thomas Hammarberg, Report on
Human Rights Issues Following the August 2008 Armed Conflict , CommDH(2009)22 (15 May
2009) (hereinafter Hammarberg, Report on Human Rights Issues Following the August 2008
Armed Conflict, CommDH(2009)22 (2009)), para. 68. GM, Vol. II, Annex 66.
834
UN Security Council, Report of the Secretary-General on the Situation in Abkhazia, Georgia,
Pursuant to Security Council Resolution 1839 (2008) , UN Doc. S/2009/69 (3 February 2009)
(hereinafter Report of the Secretary-General on the Situation in Abkhazia, Georgia, Pursuant to
Security Council Resolution 1839 (2008) , UN Doc. S/2009/69 (2009)), para. 25. GM, Vol. II,
Annex 52.
269with minority communities, language education plays a key role. It is one of the
835
ways for parents to pass on their culture to future generations” .
7.30 This, in fact, appears to be the point of the discriminatory restrictions of
the rights of ethnic Georgians in Abkhazi a: to prevent not only the Georgian
culture but all forms of Georgian identity from being passed along to future
generations. The OSCE found that “[i]n the Gali district, ethnic Georgians are
becoming increasingly concerned not only about their security, but also about
their future prospects for preserving thei r identity, language and culture, as well
as maintaining links with Tbilisi. In this regard, the question of passports and
citizenship is one of the current issues most troubling to them” 836.
7.31 The de facto Abkhaz Foreign Minister publicly announced that ethnic
Georgians in Gali had until 20 Marc h 2009 to renounce their Georgian
837
citizenship and receive new Abkhaz passports . On 20 March 2009, the de
facto President of Abkhazia announced that Georgians would be given one more
month to accept Abkhaz citizenship. If they did not accept the new nationality
they would be fined or imprisoned for three days; upon the second refusal, they
would be expelled by force from Abkhazia 838. Other penalties for not becoming
an Abkhaz citizen include the inability to vote in elections, to receive a salary or
835Hammarberg, Report on Human Rights Issues Following the August 2008 Armed Conflict ,
CommDH(2009)22 (2009),op. cit., para. 69. GM, Vol. II, Annex 66.
836
OSCE, Human Rights in the War-Affected Areas (2008), op. cit., p. 68. GM, Vol. II, Annex
71.
837
Eka Kevanishvili, “Eurasia In sight: Teachers In Abkhazia's Gali District Under Pressure to
Give Up Georgian Language”,Eurasia Insight (29 March 2009). GM, Vol. IV, Annex 292.
838“Bagapsh gave Georgians one more month to acquire Abkhaz passports”, Rosbalt Caucasus
(20 March 2009). GM, Vol. IV, Annex 289.
270 839
pension, and to buy or sell real estate . This policy motivated the OSCE High
Commissioner on National Minorities to warn that if the de facto authorities “go
forward with the so-called ‘passportization’ issue (imposing the
Abkhazian/Russian citizenship on Georgians)”, it could “lead to a situation when
840
Georgian citizens will be forced to leave Abkhazia” . In April 2009, the OSCE
Commissioner again urged “the de facto authorities to desist from all
841
intimidation and the imposition of Abkhazian ‘citizenship’” . This appeal was
ignored. Under new Abkhaz laws and agr eements with Russia, dual citizenship
is permitted between Russia and Abkhazi a, but it is not permitted between
Georgia and Abkhazia; thus, the sepa ratist authorities now force ethnic
Georgians in Gali to either keep their Georgian citizenship, thereby sacrificing
fundamental rights whose enjoyment has been conditioned on Abkhaz
citizenship, or renounce th eir Georgian identity 84. The OSCE described the
consequences that ethnic Georgians face if they refuse to renounce their
Georgian nationality:
[C]onditions are being created that will make it impossible for
many of the residents of Gali to live normally without an Abkhaz
passport. For example, according to two separate interlocutors,
beginning next year an Abkhaz pa ssport will be required for all
839
Council of Europe, Secretary-General, Report on the human rights situation in the areas
affected by the conflict in Georgia, Second report, April – June 2009 , SG/Inf(2009)9 (30 June
2009), paras. 51-52. GM, Vol. II, Annex 67; Report on the human rights situation in the areas
affected by the conflict in Georgia, First report, SG/Inf(2009)7 (2009), op. cit., para. 31. GM,
Vol. II, Annex 63.
840Letter from Knut Vollebaek to Minister Alexander Stubb (2008), op. cit., p. 2. GM, Vol. V,
Annex 312.
841“OSCE High Commissioner on National Minorities deeply concerned by recent developments
in Abkhazia” (2009), op. cit. GM, Vol. II, Annex 72.
842
Hammarberg, Report on Human Rights Issues Following the August 2008 Armed Conflict ,
CommDH(2009)22 (15 May 2009), op. cit., paras. 59-62. GM, Vol. II, Annex 66; Report on the
human rights situation in the areas affected by the conflict in Georgia , First report,
SG/Inf(2009)7 (2009), op. cit., para. 31. GM, Vol. II, Annex 63.
271 employees of the local admini stration, including doctors and
teachers; a passport will also be needed to transact business or for
other legal activities. Another NGO told the [Human Rights
Assessment Mission] that it feared that without Abkhaz passports,
ethnic Georgians will not be able to send their children to school,
effect a contract, or even draw up a will. A doctor in Gali said
she did not want to apply for an Abkhaz passport but ‘we have to
apply.’ Many members of the popul ation already feel they will
have no choice but to obtain A bkhaz citizenship or to leave
Gali843.
7.32 In its November 2008 report th e OSCE mission expressed “deep
concern” that “if conditions are created under which the residents of Gali cannot
make a living because of their legal status and if they are not granted freedom of
movement, this combination of circum stances could create a humanitarian
disaster”844. In fact, the right to freedom of movement has been denied them.
7.33 Russian and Abkhazian military forces have continued to restrict the
freedom of movement on which ethnic Ge orgian residents in Gali rely for the
daily survival of their families and the long-term survival of their culture. Ethnic
Georgians have been prohibited from cr ossing the administrative border. The
checkpoints along the border are guarded by Russian troops, who arrest or
sanction those who attempt to cross. In October and November 2008, Russian
and separatist military units took specifi c measures to prevent movement of
ethnic Georgians from across the admini strative border by destroying the only
railway and pedestrian bridges connecting Gali with the rest of Georgia. Worse,
843
OSCE, Human Rights in the War-Affected Areas (2008), op. cit., pp. 68-69. GM, Vol. II,
Annex 71.
844
Ibid.
272Russia placed landmines around the pedestri an river crossings used by the local
845
population .
7.34 As explained by the OSCE’s fact -finding mission, restrictions on
movement between the Gali District and th e rest of Georgia have had a serious
impact on the ethnic Georgians who live in Gali:
the closure of the administrative boundary has severely restricted
freedom of movement for resident s of the Gali district and is
causing serious social dislocations. Families with members on
each side of the administrative boundary, for example, can no
longer visit each other. Health workers are also blocked from
passage and residents of Gali can no longer visit medical facilities
in Zugdidi [across the administrative border]. A health worker in
Gali recounted how a man had died after he was refused
permission to cross the administrative boundary to seek medical
care in Zugdidi 846.
7.35 According to the OSCE High Co mmissioner on National Minorities:
“such coercive practices, which violate international law, may further destabilize
the already fragile inter-ethnic situati on in the region and force many Georgians
847
to leave” .
845
“Russians Mining Abkhaz Administrative Border”, Rustavi 2 (2 November 2008). GM, Vol.
IV, Annex 272.
846OSCE, Human Rights in the War-Affected Areas (2008), op. cit., p. 64. GM, Vol. II, Annex
71.
847“OSCE High Commissioner on National Minorities deeply concerned by recent developments
in Abkhazia” (2009), op. cit. GM, Vol. II, Annex 72.
273 Section IV. Ongoing Prevention of the Return of Displaced Ethnic
Georgians to South Ossetia and Abkhazia
7.36 Russia and the de facto regimes in South Ossetia and Abkhazia are
discriminating against ethnic Georgians by continuing to prevent IDPs from
returning to their homes in the two occupied territories. As described above, in
Chapter 5, paragraphs 5.4 to 5.8, and Ch apter 6, paragraphs 6.6 to 6.33, over
200,000 ethnic Georgians were ethnically cleansed from South Ossetia in 1991-
1992 and again in 2008, and from Abkh azia in 1992-1994 and again in 2008.
All but a small handful have been preven ted from returning, and continue to be
prevented from returning, by the comb ined efforts of Russia and the de facto
authorities. As reported by the Monito ring Body of the Parliament of the
Council of Europe on 14 April 2009, eight months after the issuance of the
Court’s Order on Provisional Measures, “Russia and the de facto authorities
continue severely to restrict the free dom of movement between the break-away
regions and the rest of Ge orgia, including with respec t to humanitarian aid and
848
the right to return of IDPs” .
7.37 Since the issuance of the Court’s Order on 15 October 2008, each de
facto regime has adopted and implemented policies expressly intended to prevent
displaced ethnic Georgians from returni ng. These discriminatory policies have
been enforced by Russian military forces, which formally serve as the official
State Border Guards of South Ossetia and Abkhazia. These Russian soldiers
police the administrative borders of both occupied territories , and physically
prevent ethnic Georgians from crossing into them. Russia admits this. In its
Report to the Court of 9 July 2009, Russia states that : “even if the Abkhaz and
848Council of Europe, Parliamentary Assembly,Follow-up given by Georgia and Russia to
Resolution 1647 (2009), Doc. 11876 (28 April 2009), para. 35. GM, Vol. II, Annex 64.
274South Ossetian authorities might have imposed some restrictions on the crossing
of their borders with Geor gia, the Russian Federation is not in a position to
interfere with such decisions of the respective authorities. The Russian border
guards in Abkhazia and South Ossetia are obliged to ac t in accordance with the
relevant Republic’s national regulations” 849.
7.38 Georgia takes a different view. It believes the Russian border guards in
South Ossetia and Abkhazia are obliged not to act in accordance with the
discriminatory policies of the de facto regimes, but in accordance with the Order
on Provisional Measures issued by the Cour t; and in view of the Court’s Order,
neither the Russian guards nor Russia itse lf can hide behind the discriminatory
“laws” passed by the de facto regimes that, in any event, Russia controls.
7.39 This is the view that has been adopt ed by the international organisations
that have sent missions to South Osse tia and Abkhazia in the period following
the issuance of the Court’s Order, and that have investigated the situation
regarding the return of ethni c Georgian IDPs to those te rritories. In particular,
the OSCE mission reached the following conclusions:
It is clear that the de facto authorities in South Ossetia and
Abkhazia, including Russian military authorities, have not taken
steps to facilitate and ensure that these persons can return
voluntarily to their former places of residence in safety and
dignity. On the contrary, their actions impede the return of
displaced persons, in contravention of OSCE commitments and
849
Case Concerning Application of the International Convention on the Elimination of All Forms
of Racial Discrimination (Georgia v. Russian Federation) , Report of the Russian Federation on
Compliance with the Provisional Measures Indicated by the Order of the Court of 15 October
2008 (8 July 2009), p. 20.
275 other international obligation850including the recent order of the
International Court of Justice .
7.40 Similarly, the OSCE’s High Co mmissioner on National Minorities
reported that Russia and the de facto authorities are acting:
contrary to international standards and obligations, as well as the
provisional measures ordered by the International Court of Justice
on 15 October this year, which requires the parties to ‘ do all in
their power, wherever and whenever possible, to ensure, without
distinction as to national or ethn ic origin … the right of persons
to freedom of movement and residence…’ 85.
A. THE PREVENTION OF R ETURN TO S OUTH O SSETIA
7.41 Senior officials of the de facto South Ossetian regime have publicly
proclaimed a policy prohibiting the retu rn of ethnic Georgian IDPs who were
ethnically cleansed from that territory. The de facto Minister of the Interior, a
Russian General Officer, Mikhail Mindzaev, announced that 4,000 ethnic
Georgians would be prosecuted if they atte mpted to return to South Ossetia; the
remaining ethnic Georgians “would only be allowed to return if they renounce
852
their Georgian citizenship” . South Ossetia’s de facto Deputy Prime Minister
told the OSCE fact-finding mission: “If a Georgian who decides to remain in
South Ossetia does not meet our expect ations, they will be expelled… I don’t
want Georgians to return… an d they won’t be able to” 853. Not surprisingly,
850
OSCE, Human Rights in the War-Affected Areas (2008), op. cit., p. 71. GM, Vol. II, Annex
71.
851Letter from Knut Vollebaek, to Minister Alexander Stubb (2008), op. cit., p. 2. (emphasis in
original). GM, Vol. V, Annex 312.
852OSCE, Human Rights in the War-Affected Areas Following the Conflict in Geo(2008),
op. cit., p. 48. GM, Vol. II, Annex 71.
853Ibid.
276Human Rights Watch reported that it “i s not aware of any steps taken by the
854
Ossetian authorities to enable the displaced to return” .
7.42 The discriminatory nature of thes e policies is under scored by the
treatment given to ethnic Ossetian re fugees who, in contrast with ethnic
Georgians, have been allowed to return to South Ossetia unimpeded 85. By April
2009, more than 95 percent of those who fled to North O ssetia in August 2008
had returned to their homes in South Ossetia 856. As confirmed by the
Commissioner for Human Rights of the Counc il of Europe, “The great majority
of those who fled to Russia have returned ”; in contrast, “[e]thnic Georgians who
fled southwards have not been able to move back” 857. The OSCE investigative
team likewise concluded that “[t]he ethnic Georgians who fled have been
prevented by the Russian and Sout h Ossetian forces from returning” 858. The
OSCE Mission reported that there were ethnic Georgians who “have not been
able to return to their house[s] because police stop people from entering that
area” 859. One “displaced person from Disevi village”, for example, who “tried to
854HRW, Up in Flames (2009), op. cit., p. 153. GM, Vol. III, Annex 156.
855Report: The humanitarian consequences of the war between Georgia and Russia: Follow-up
given to Resolution 1648, Doc. 11859 (2009), op. cit., para. 34. GM, Vol. II, Annex 62.
856
Ibid., para. 2.
857Council of Europe, Commissioner for Human Rights, Thomas Hammarberg, Special Follow-
Up Mission to the Areas Affected by the South Ossetia Conflict: Implementation of the
Commissioner's six principles for urgent human rights and humanitarian protection ,
CommDH92008)37 (16 December 2008), p. 2. GM, Vol. II, Annex 58..
858
OSCE, Human Rights in the War-Affected Areas (2008), op. cit., p. 33. GM, Vol. II, Annex
71.
859Ibid., p. 48.
277 860
return to Disevi” was “prevented from doing so by Russian soldiers” . Another
“was turned back at a checkpoint after being told he should apply for a Russian
passport and citizenship if he wanted to return to the village” 861. For ethnic
Georgians, the OSCE concluded, “it is impossible to get through the Russian-
Ossetian check points” 862.
7.43 Human Rights Watch found that et hnic Georgians were further
discouraged from returning to their home s in South Ossetia by the failure of the
Russian and Ossetian authorities to prot ect them against ongoing violence and
looting:
[N]o effective measures were taken to stop the looting.
Moreover, neither Ossetian nor Ru ssian authorities have taken
concrete measures to hold acc ountable those who int863ionally
destroyed the Georgian villages in the republic .
7.44 Similarly, in its report of January 2009, the Parliamentary Assembly of
the Council of Europe concluded that:
The return of IDPs to ethnic Ge orgian villages in South Ossetia
and Abkhazia is considerably more difficult, if not outright
impossible. Amidst continuing reports of acts of ethnic cleansing,
most IDPs fear for their safety if they return, especially in the
absence of independent internat ional monitors from the EU and
OSCE. In addition, mo st ethnic Georgian villages in South
Ossetia have been looted and razed.
The return of ethnic Georgian ID Ps to the break-away region of
South Ossetia is further complicated by the insistence of the de
860Ibid.
861Ibid., pp. 48-49.
862Ibid., p. 48.
863HRW, Up in Flames (2009), op. cit., p. 153. GM, Vol. III, Annex 156.
278 facto authorities that IDPs retu rning to it accept the South
Ossetian “nationality” and rescind the Georgian one 864.
7.45 In these circumstances, Human Rights Watch issued an urgent call to
Russia, which “exercises effective contro l over South Ossetia”, that “[e]thnic
Georgians displaced from South Ossetia should be allowed to voluntarily
return”:
The permanent forced displacement of thousands of people
cannot be countenanced. As it ex ercises effective control over
South Ossetia, Russia has an oblig ation to provide security to all
persons living there, regardless of ethnicity; this is especially
urgent in Akhalgori district. Ethnic Georgians displaced from
South Ossetia should be allowed to voluntarily return. Russia
should publicly promote and implem ent the right of all persons
displaced by the conflict, with out regard to their ethnic
background or imputed political aff iliations, to return and live in
their homes in South Ossetia in safety and dignity 865.
7.46 Human Rights Watch thus called upon Russia to do what it was already
obligated to do under Articles 2, 3 and 5 of the 1965 Convention and the Court’s
Order on Provisional Measures (Paragraph 149(A)(3)): to implement the right of
all displaced persons to return and liv e in their homes in South Ossetia (and
Abkhazia) in safety and dignity, without regard to their ethnic background. The
evidence shows that, rather than implement this right of return, Russia has
deliberately frustrated its ex ercise, and continues to do so as of the date of this
Memorial.
864
The implementation of Resolution 1633 (2009) on the consequences of the war between
Georgia and Russia, Doc. 11800 (2009), op. cit., paras. 59-60 (emphasis added). GM, Vol. II,
Annex 60.
865
HRW, Up in Flames (2009), op. cit., p. 5. GM, Vol. III, Annex 156.
279 B. THE PREVENTION OF R ETURN TO A BKHAZIA
7.47 The same is true with regard to Abkhazia. Russia and the de facto
authorities continue to pursue the same policies as in South Ossetia that prevent
displaced ethnic Georgians from returning to their homes. Public statements by
senior Abkhazian officials are simila r to those of their South Ossetian
counterparts. Following the issuance of the Court’s Order on Provisional
Measures, the Foreign Minister of Abkhazia’s de facto regime announced that
Abkhazia would only accept the return of displaced ethnic Georgians to the Gali
District, stating “discussion of the possibility of return of Georgian refugees to
other regions of Abkhazia is impossible” 866. He reconfirmed this position in
February 2009, on the ground that “the rest of the population of Abkhazia is not
867
yet ready for the return of refugees” . To the same end, in June 2009, the Chair
of the Human Rights Committee of the de facto Abkhazian Parliament declared
868
that the displaced ethnic Georgian s “will never be able to return” . Although
some ethnic Georgians have been allowed to return to the Gali District in south-
east Abkhazia, directly acr oss the administrative boundary with the rest of
Georgia, many of these IDPs have been prevented from doing so, or discouraged
by the discriminatory policies implemented by the de facto regime. Most
significant among these policies is the requirement that IDPs who wish to return
to Abkhazia give up their Georgian nationality, and accept Abkhazian and
Russian citizenship and passports. This policy was described in Chapter 5 and 6,
866“Minister of Foreign Affairs of Abkhazia: orgian refugees may return only to Gali
District”, Rosbalt.ru (20 October 2008). GM, Vol. IV, Annex 267.
867“Shamba: Refugees Can Return Only to Gali District”, IA Regnum (26 February 2009). GM,
Vol. IV, Annex 286.
868Brian Whitmore, “Abkhazia and th e Perils of ‘Independence’”, Radio Free Europe (19 June
2009). GM, Vol. IV, Annex 296.
280at paragraphs 5.15 to 5.24, 6.54, and 6.83 to 6.84. It has remained in force up to
the filing of this Memorial.
7.48 In contrast to the obstacles placed in the path of returning ethnic
Georgian IDPs, the de facto authorities in Abkhazia have energetically promoted
the return of ethnic Abkhaz, including t hose who have never lived in Abkhazia
but are descendants of those who left th e region decades ago and resettled in
Turkey. Under this program, the de facto regime offers citizenship, a year of
869
free housing and five years of financial aid upon resettlement .
7.49 Events in the Kodori Gorge, in north -east Abkhazia, illustrate both the
ongoing nature of the discriminatory denial of the right of return of ethnic
Georgian IDPs, and Russia’s responsibility . Nearly all of the approximately
2,500 ethnic Georgian residents of the ar ea were forcibly di splaced in August
870
2008, and have been prevented from returning home . They have been
prevented from doing so by the Russian military forces that occupy and control
this region. In May 2009, the UN Secretary-General reported that:
The Russian Federation forces in the upper Kodori valley are
deployed mostly between Gentsvish village, where they maintain
their headquarters, and the Khida and Kalamri-Sukhi passes,
which provide access to the valley from the Georgian controlled
side. Reportedly, the Russian Federation forces maintain
869Ellen Bary, “Abkhazia Lures its Expatr iates, Welcoming Them One by One”, N.Y. Times (8
May 2009). GM, Vol. IV, Annex 295.
870Report of the Secretary-General on the Situation in Abkhazia, Georgia, Pursuant to Security
Council Resolution 1839 (2008) , UN Doc. S/2009/69 (2009),op. cit., para. 41. GM, Vol. II,
Annex 52.
281 checkpoints at 871 Khida and Kalamri-Sukhi passes alongside
Abkhaz posts .
7.50 Thus, the Rapporteur of the Council of Europe’s Parliamentary
Committee on Migration, Refugees, and P opulation has recommended that the
“return of the persons who fled should be a priority... [and] pressure should be
put on the de facto Abkhaz authorities and the Russian authorities to ensure that
this return takes place in safety and in dignity” 872. The OSCE High
Commissioner on National Minorities agreed that it is of the “utmost importance
to insist on [the] right of return” of the ethnic Georgians displaced from the
873
Kodori Gorge. Nevertheless, despite Russia’s international obligations, its
military forces continue to implement the policy of the de facto Abkhazian
authorities in conditioning the return of ethnic Georgians on their renunciation of
Georgian nationality and citizenshi p, and their obtain ing an Abkhazian
“passport” 87.
7.51 Russian and Abkhazian forces have not only prevented ethnic Georgians
from returning to the Kodori Gorge in the period since the issuance of the
Court’s Order on Provisional Measures, th ey have actively sought to remove all
vestiges of the ethnic Georgian presence from the region. In April 2009,
871Report of the Secretary-General pursuant to Security Council resolutions 1808 (2008), 1839
(2008) and 1866 (2009), UN Doc. S/2009/254 (2009), op. cit., para. 39. GM, Vol. II, Annex 54.
872
Council of Europe, Parliament Assembly, Committee on Migration, Refugees and Population,
The humanitarian consequences of the war between Georgia and Russia, Doc. 11789 (12
January 2009), para. 25. GM, Vol. II, Annex 59.
873Letter from Knut Vollebaek to Minister Alexander Stubb (2008), op. cit., p. 2. GM, Vol. V,
Annex 312.
874Report of the Secretary-General on the Situation in Abkhazia, Georgia, Pursuant to Security
Council Resolution 1839 (2008) , UN Doc. S/2009/69 (2009), op. cit., para. 41. GM, Vol. II,
Annex 52.
282Georgian Orthodox monks and nuns were forcibly expelled from their church in
the Kodori Gorge. As explained by the de facto Defence Minister of Abkhazia,
“I took the decision to expel them. We ’ll kick out anyone who prevents the
population of Abkhazia from living calmly… They don’t recognise our
independent state or our Or thodox leader Fr. Vissarion” 875. Leaving little room
for misinterpretation, Abkhazia’s de facto Deputy Foreign Minister declared,
876
“We don’t have the Georgian Church in Abkhazia” .
Section V. Ongoing Obstruction of Access to Humanitarian Assistance
and International Monitoring
7.52 International and non-governmental organizations have reported that
Russia is obstructing the delivery of essential humanitarian aid to ethnic
Georgians in South Ossetia and Abkh azia. As the OSCE mission found:
“International and national humanitari an organizations face unreasonable
restrictions on their access to South Ossetia and Abkhazia” 877. The OSCE
especially criticized the “insistence by the de facto South Ossetian authorities
that international access to the territory must be through the Russian Federation”,
which “aggravates the situation of the local population and hampers the work of
878
humanitarian organizations” . The OSCE mission li kewise reported that
875
Felix Corley, “Abkhazia: ‘We'll kick out anyone’”, Forum 18 News Service (7 April 2009).
GM, Vol. IV, Annex 293.
876
Ibid.
877
OSCE, Human Rights in the War-Affected Areas (2008), op. cit., p. 8. GM, Vol. II, Annex 71.
878Ibid.
283several international humanitarian orga nizations have been prevented from
entering the Gali District of Abkhazia 87.
7.53 The OSCE expressed the view that Russia’s obstruction of humanitarian
assistance to ethnic Georgians in Gali a nd Akhalgori violates the Court’s Order
of 15 October 2008. It stated that the de facto authorities and the “Russian
military authorities” are “impeding international humanitarian organizations
from crossing administrative boundaries ”, which is “contrary to OSCE
commitments and other internationa l obligations” including the Court’s
provisional measure requiring “the pa rties to refrain from placing any
impediment to humanitarian assistance” 880.
7.54 Equally disturbing is Russia’s banish ment of international monitoring
organisations and agencies from Sout h Ossetia and Abkhazia. Acting in
collaboration with the de facto South Ossetian and Abkhazian authorities, Russia
has refused access to international monitors from the UN, the EU and the OSCE.
Under Paragraph 149(C) of the Court’s Order of 15 October 2008, the parties are
obligated to “refrain from any action wh ich might prejudice the rights of the
other Party in respect of whatever judgment the Court may render in the case, or
which might aggravate or extend the dis pute before the Court or make it more
difficult to resolve”. 881 In the view of the Parliamentary Assembly of the
Council of Europe, Russia’s restrictions on entry of international monitoring
organisations into the occupied territories, following the Provisional Measures
879Ibid., p. 64.
880Ibid., pp. 50, 72.
881Application of the International Convention on the Elimination of All Forms of Racial
Discrimination (Georgia v. Russian Federation) , Request for the Indication of Provisional
Measures, Order (15 October 2008), para. 149(C).
284Order, “has, inter alia, hindered the investigation of reports of violence along the
administrative borders, the improvement of the security situation in zones along
the administrative borders of these two regions, as well as the return of IDPs to
882
South Ossetia and Abkhazia” . Thus, Russia’s denial of access by international
monitoring agencies has exposed ethnic Georgians remaining in South Ossetia
and Abkhazia to further ethnic discrimi nation and abuses, and hampered the
ability of ethnic Georgian IDPs to retu rn to their homes in those territories,
contrary to the Court’s Order.
7.55 The OSCE is one of the internati onal monitoring organisations that
Russia no longer allows into the occupi ed territories. The OSCE had been
working in South Ossetia for 14 years. Its mandate in Georgia covered both
South Ossetia and Abkhazia, and broadl y included “promot[ ing] respect of
human rights and fundamental freedoms a nd assist[ing] in the development of
legal and democratic institutions and processes” 883. Russia eviscerated this
mandate on 13 May 2009, by vetoing the OSCE Chairman’s proposal to extend
the OSCE presence beyond its expiration da te of 30 June 2009. Since then, the
OSCE has not been able to carry out monitoring activities in either of the
occupied territories.
7.56 The European Union Monitoring Mission (“EUMM”) has suffered the
same fate. The EUMM was established to monitor the implementation of the 12
August ceasefire agreement. As explained by the EUMM itself, its work:
882
The implementation of Resolution 1633 (2009) on the consequences of the war between
Georgia and Russia, Doc. 11800 (2009), op. cit., para. 31. GM, Vol. II, Annex 60.
883
OSCE Mission to Georgia, Mandate, (Adopted: 13 December 1992 – Closed: 30 June 2009).
GM, Vol. II, Annex 74.
285 goes beyond the mere implementation of the peace agreements.
Its presence in Georgia is to help normalize and stabilize the
situation on the ground. EUMM reports on the human rights
situation, the resp ect of international human itarian law, rule of
law and security situation, as well as the return of internally
displaced persons and refugees 884.
Since the mission’s inception, Russia has directly preven ted the EUMM from
885
carrying out this mandate with in South Ossetia and Abkhazia . It is thus
limited to patrolling Georgian-controlle d territory along the administrative
border and ensuring the protection of ethnic Georgians living outside the
occupied territories.
7.57 With the departure of the OSCE and the EUMM, the only major
international monitoring presence left in the occupied territories was the UN
Mission in Georgia (“UNOMIG”). UNOMIG had been monitoring the area for
16 years. Its mandate included monito ring the safe and orderly return of
refugees and displaced persons. Soon after sending its military forces into South
Ossetia and Abkhazia in August 2008, Russia and the de facto authorities began
to restrict UNOMIG’s movements. By February 2009, the UN Secretary-
General confirmed that:
on a number of occasions, the Mi ssion’s freedom of movement
was restricted by Abkhaz personnel. There were also incidents of
shooting in the air by Abkhaz de facto law enforcement personnel
in the presence of United Nations patrols and of pointing weapons
at United Nations patrolling vehicl es, and a number of instances
884
European Union Monitoring of Mission in Georgia, Mandate, (11 August 2008). GM, Vol. II,
Annex 86.
885
“EU observers will not monitor Abkh azia, S. Ossetia: Russia’s Lavrov”Reuters (11
September 2008). GM, Vol. IV, Annex 263.
286 when Abkhaz personnel exhibited an aggressive attitude towards
the patrols 886.
On 4 March 2009, Russian forces denied a UN patrol access through a Russian
position in the security zone 887. A Russian liaison officer later informed the
Mission that the Russian Government would not allow UN patrols to use
segments of the roads that pass through the positions of Russian Federation
888
forces .
7.58 Russia ultimately decided to term inate UNOMIG’s presence in the
occupied territories altogether when it voted against UNOMIG’s continuation in
the UN Security Council on 15 June 2009. After 16 years of operation, the last
UNOMIG monitors exited their posts in Abkhazia on 15 July 2009, leaving both
occupied territories devoid of international monitoring 889. As reported by the
International Crisis Group, “[t]he demise of the UN mission may contribute to a
feeling of insecurity among the estimated 40,000 ethnic Georgians and
Megrelians living in the Gali region of Abkhazia and prompt many to flee to the
890
rest of Georgia, prompting another destabilizing IDP crisis” .
886
Report of the Secretary-General on the Situation in Abkhazia, Georgia, Pursuant to Security
Council Resolution 1839 (2008), UN Doc. S/2009/69 (3 Feb. 2009), op. cit., para. 16. GM, Vol.
II, Annex 52.
887Report of the Secretary-General pursuant to Security Council resolutions 1808 (2008), 1839
(2008) and 1866 (2009), UN Doc. S/2009/254 (2009), op. cit., para. 21. GM, Vol. II, Annex 54.
888Ibid.
889
Tom Esslemont, “UN Monitors to Leave Georgia”, BBC News (15 July 2009). GM, Vol. IV,
Annex 297.
890International Crisis Group, Georgia-Russia: Still Insecure and Dangerous , Europe Briefing
No. 53 (22 June 2009), p. 5. GM, Vol. III, Annex 165.
2877.59 In sum, Russia’s conduct has violated the Court’s Order of 15 October
2008 indicating Provisional Measures. The legal basis for that conclusion is
discussed in Chapter 10.
288PART E.
LAW CHAPTER VIII.
JURISDICTION AND PROCEDURAL REQUIREMENTS8.1 This Chapter sets out Georgia’s submissions on preliminary issues
relating to jurisdiction and the procedur al requirements for submitting a dispute
891
to the Court pursuant to Article 22 of the 1965 Convention . These issues were
addressed in a summary fashion, during the proceedings on Georgia’s Request
for Provisional Measures and in application of the standard applied by the Court
pursuant to Article 41 of the Statute of the International Court of Justice.
Section I. Jurisdiction
A. THE TITLE OF JURISDICTION
8.2 In its Application, Georgia invoked Article 22 of the 1965 Convention as
the basis of jurisdiction. Article 22 provides:
Any dispute between two or more States Parties with respect to
the interpretation or application of this Convention, which is not
settled by negotiation or by the procedures expressly provided for
in this Convention, shall, at the request of any of the parties to the
dispute, be referred to the Inte rnational Court of Justice for
decision, unless the disputants agree to another mode of
settlement.
8.3 Neither Georgia nor Russia maintains any reservation to Article 22 of the
1965 Convention.
891
International Convention on the Elimination of All Forms of Racial Discrimination, 660
UNTS 195 (21 December 1965), (entered into force 4 January 1969) (hereinafter “1965
Convention”), Art. 22. GM, Vol. II, Annex 3.
293 B. JURISDICTION O VER THE PARTIES
8.4 Georgia was admitted to the United Nations on 31 July 1992 and is a
party to the Statute of the Court. Ge orgia deposited an instrument of accession
to the 1965 Convention on 2 June 1999.
8.5 The Russian Federation is an original member of the United Nations by
virtue of its continuation of the State personality of the USSRnd it is a party
to the Statute of the Court. In 1991, the Russian Federation also affirmed that it
would continue the rights and respons ibilities of the USSR under all other
international treaties, including the 1 965 Convention, which was ratified by the
USSR on 6 March 1969.
C. JURISDICTION O VER THE SUBJECT M ATTER OF THE DISPUTE
8.6 Article 22 of the 1965 Convention defines the scope of this Court’s
jurisdiction ratione materiae as extending to “any disput e… with respect to the
interpretation or application of this Convention”.
8.7 The Court’s jurisdiction is thus stipul ated in broad terms. Article 22
refers to “any dispute” that concerns either the “interpretation or application” of
the Convention. This juxtaposition is sign ificant: it gives the Court jurisdiction
to pronounce on the scope of the rights a nd responsibilities set out in the 1965
Convention and also upon the consequences of a breach of those rights and
responsibilities. As the Permanent Cour t of International Justice confirmed in
the Case Concerning the Factory at Chorzów , a dispute concerning the
892
Letter of President of the Russian Federation to the United Nations Secretary-General of 24
December 1991, UN Doc. 1991/RUSSIA, 31 ILM 138, Appendix (24 December 1991).
294“application” of treaty obligations to a St ate party entails the adjudication of its
international responsibility for any breach of that treaty 89.
8.8 Each of Georgia’s claims is founded upon a breach of Russia’s
obligations in Articles 2, 3 and 5 of the 1965 Convention. Georgia’s claims give
rise to a “dispute . . . with respect to the interpretation or application” of the 1965
894
Convention . It is Georgia’s case that Russia, by the acts of its officials and by
the acts of the de facto governmental authorities and militias in South Ossetia
and Abkhazia, has violated Articles 2, 3 and 5 of the Convention by
systematically discriminating against ethnic Georgians in those regions of
Georgia, as well as those who were e xpelled from those regions and were
frustrated in exercising th eir right of return. The threshold for the Court to
confirm its jurisdiction ratione materiae is clearly satisfied in this case.
8.9 Each of Georgia’s claims set out in its submissions in Part F of this
Memorial relate to violations of the 1965 Convention that occurred after
Georgia’s accession to the Convention in June 1999. In respect of certain
claims, such as Russia’s frustration of the right of return of ethnic Georgian
IDPs, the events of the early 1990s, including the mass expulsion of ethnic
Georgians from South Ossetia and Abkhazia, are important, inter alia , for
establishing the continuing violation of the rights of the ethnic Georgian IDPs by
Russia.
893
Case Concerning the Factory at Chorzów, Jurisdiction, 1927, PCIJ Series A , No. 9, pp. 20-
21.
894
1965 Convention, op. cit., Art. 22.
295 D. T HE SPATIAL S COPE OF R USSIA’S OBLIGATIONS U NDER CERD
1. Introduction
8.10 The 1965 Convention does not contai n a general provision imposing a
spatial limitation upon the obligations it creates. In this respect the 1965
Convention may be contrasted with so me other international human rights
instruments negotiated within the United Nations system.
8.11 For example, the International Cove nant on Civil and Political Rights,
which was being drafted at the same time as the 1965 Convention and was
opened for signature only one year after it, provides in Article 2, paragraph 1
that: “Each State Party to the present Covenant undertakes to respect and to
ensure to all individuals within its territory and subject to its jurisdictithe
895
rights recognised in the present Covenant…” The United Nations Human
Rights Committee has interpreted this provision in its General Comment No. 31:
This means that a State party must respect and ensure the rights
laid down in the Covenant to anyone within the power or effective
control of that S896e Party, even if not situated within the territory
of the State Party .
8.12 The language in Article 2, paragraph 1 of the International Covenant on
Civil and Political Rights recalls that of Article 1 of the European Convention of
Human Rights and Fundamental Freedom s, which uses the formula “…to
895International Covenant on Civil and Political Rights, 999 UNTS 302 (1966) (entered into
force 23 March 1976), Art. 2 (emphasis added).
89U.N. Office of the High Commissioner for Human Rights, CERD, General Comment No. 31,
Nature of the General Legal Obligation Imposed on State Parties to the Covenant,
CCPR/C/21/Rev.1/Add.13 (26 May 2004). GM, Vol. II, Annex 37.
296everyone within their jurisdiction the rights and freedoms defined in Section I of
897
this Convention” .
8.13 By contrast with these internationa l human rights instruments, the 1965
Convention contains no general provision limiting the spatial scope of its
obligations. Rather, it defines the spatial scope of only two of the obligations set
out in the Convention: Articles 3 and 6. This approach has been adopted in other
human rights treaties 89.
8.14 Article 3 provides: “State Parties part icularly condemn racial segregation
and apartheid and undertake to prevent, prohib it and eradicate a ll practices of
this nature in terr itories under their jurisdiction” . This is a far-reaching
obligation to “eradicate all practices” of racial segregation and apartheid. The
Committee on the Elimination of R acial Discrimination (the “CERD
Committee”) has, by General Recommendati on No. 19 on Article 3, interpreted
this obligation to apply to the eradication of “the consequences of such practices
undertaken or tolerated by previous Governments in the State or imposed by
899
forces outside the State” . For a State Party to be in a position to meet the
burden of this obligation, it must have effective control ove r the territory in
which racial segregation or apartheid is or has been practised. The drafters were
897
Convention for the Protection of Human Rights and Fundamental Freedoms, 213 UNTS 221
(1950) (entered into force 3 September 1953).
898
See Inter-American Convention to Prevent and Punish Torture (1985), Arts. 6(1), 6(3), 8(1),
8(2), 12 and 14; Inter-American Convention on Forced Disappearance of Persons (1994), Arts. I,
IV and VI; International Convention for the Protection of All Persons from Enforced
Disappearance (2006), Arts. 9, 11, 31 and 34.
899U.N. Office of the High Commissioner for Human Rights, CERD, General Recommendation
No. 19, Prevention, Prohibition and Eradication of Racial Segregation and Apartheid , Forty-
seventh session, U.N. Doc. A/50/18 (1995). GM, Vol. II, Annex 18.
297careful to place a territor ial limitation upon the obligation to “eradicate all
practices” of apartheid in Article 3, otherw ise it might have been interpreted as
calling for positive intervention in South Africa.
8.15 A similar limitation is found in Articl e 6, which obliges States Parties to
provide effective remedies and protection against acts of racial discrimination to
everyone “within their jurisdiction”. Arti cle 6 refers specifi cally to competent
national tribunals for that purpose. Once again, it is not surprising that there is a
spatial limitation upon this obligation becau se its omission in Article 6 might be
interpreted as a legal basis for the a ssertion of universal jurisdiction by the
national tribunals of States Parties.
8.16 In contrast with Articles 3 and 6, th e other obligations in Part I of the
1965 Convention are not premised upon the St ate’s exercise of effective control
over the area where the alleged victims are present. For instance, Article 2(a)
provides: “Each State Party undertakes to engage in no act or practice of racial
discrimination against persons, groups of persons or institutions and to ensure
that all public authorities and public institutions, nati onal and local, shall act in
conformity with this obligation”. This obligation is capable of being applied by
the State in respect of a ny persons over which a State organ or agent exercises
power, whether or not the State has effective control over the area in which those
persons are present.
8.17 The spatial scope of Russia’s oblig ations under the 1965 Convention are
to be distinguished from questions concer ning attribution. Th e spatial scope of
the obligations in human rights treatie s depends upon the State’s relationship
towards the victims of human rights violations. The State must be in a position
to exercise power or control over such victims for the obligations in the 1965
298Convention to be engaged. The concepts of “jurisdiction” or “territory” are
employed by many human rights treaties to define the requisite degree of the
900
State’s power or control in this sense . Attribution depends upon the State’s
relationship to the perpetrators of human rights violations . Once again, this is
essentially a question of the State’s power or control over the organs or
individuals alleged to have committed the violations. Attribution is dealt with
separately in Chapter 9 of this Memorial.
2. The Practice of the CERD Committee
8.18 The practice of the CERD Committee c onfirms that the obligations in
Part I of the 1965 Convention apply to the conduct of the States Parties outside
their national territories.
8.19 The clearest expression of the CERD Committee’s interpretation of the
spatial scope of the 1965 Convention is in respect of Israel’s reports and the
901
Occupied Palestinian Territories .
8.20 It has been Israel’s consistent posit ion in submitting its reports pursuant
to Article 9 of the Convention that th e Convention obligations do not apply to
the Occupied Territories. Thus, according to Israel’s representative at the CERD
Committee’s meetings in 1991:
In the areas under military admini stration, where Israeli law did
not apply, the military administration complied strictly with the
rules of international humanitarian law, as applicable to armed
900
See, e.g., Convention for the Protection of Human Rights and Fundamental Freedoms, Arts. 1
& 62; International Covenant on Civil and Political Rights, Art. 2.
901
The Convention was signed by Israel on 7 March 1966 and ratified on 3 January 1979.
299 conflicts. Israel accepted the fourth Geneva Conven902n, but
claimed the right to do so de facto, not de jure .
8.21 In accordance with that position, Israel had declined to submit
information concerning its compliance with the Convention in the Occupied
Territories in its first six reports to the CERD Committee. The Committee
rejected this position. In its 1991 Report to th e General Assembly, the
Committee stated:
The Committee reiterated that th e Government of Israel had
implemented in the occupied territories neither the Geneva
Convention Relative to the Protection of Civilian Persons in Time
of War nor the International Convention on the Elimination of All
Forms of Racial Discrimination. The Committee expressed great
concern about the situation in the occupied territories.
The Committee urged the Government of Israel to answer, in its
seventh periodic report, all the questions asked and concerns
903
raised during the consideration of its sixth and earlier reports .
8.22 Following the killings of Palestinians at the Tomb of the Patriarchs in
Hebron on 25 February 1994, the Committee requested an urgent report from the
904
Government of Israel pursuant to Article 9(1) of the Convention . In its
concluding observations, the Committee reiterated its interpretation of the spatial
scope of Israel’s obligations under the Convention in respect of the Occupied
Territories:
902Report of the Committee on the Elimination of Racial Discrimination, General Assembly,
Official Records: Forty-Sixth Session, Supplement No. 18 (A/46/18) (1992), para. 378. GM,
Vol. II, Annex 4.
90Ibid., paras. 387-388.
904Report of the Committee on the Elimination of Racial Discrimination, General Assembly,
Forty-Ninth Session, Official Records, Supplement No. 18 (A/49/18) (1995), paras. 73-76. GM,
Vol. II, Annex 19.
300 The Committee reaffirms its position of principle that, since Israel
is a party to the International Convention on the Elimination of
All Forms of Racial Discrimination, the Committee is competent
to examine the manner in which Israel is fulfilling its obligations
under the Convention with respect to everyone falling under the
jurisdiction of Israel, including all persons living in the territories
occupied by Israel.
[…]
The Committee reaffirms that all persons, without distinction as
to race, or ethnic or national orig in, are entitled to security of
person and protection by the Stat e against violence or bodily
harm, whether inflicted by government officials or by any
individual, group or institution. Consequently, Israel is obliged to
protect fully the life and security of the Palestinian civilians in the
occupied territories905.
8.23 The CERD Committee has since take n forward this reasoning following
the Advisory Opinion in the Legal Consequences of the Construction of a Wall
in the Occupied Palestinian Territory. In its 2007 Report, the CERD Committee
adopted the reasoning of the Court with respect to the application of the
International Covenant on Civil and Polit ical Rights, the International Covenant
on Economic, Social and Cultural Right s and the Convention on the Rights of
the Child in the Occupied Territories in relation to the application of the 1965
Convention:
The Committee reiterates its conc ern at the position of the State
party to the effect that the C onvention does not apply in the
Occupied Palestinian Territories and the Golan Heights. Such a
position cannot be sustained under the letter and spirit of the
Convention, or under international law, as also affirmed by the
International Court of Justice. The Committee is concerned at the
State party’s assertion that it can legitimately distinguish between
Israelis and Palestinians in the Occupied Palestinian Territories on
90Ibid., paras. 83 & 86.
301 the basis of citizenship. It reiter ates that the Israeli settlements
are illegal under international law.
The Committee recommends that the State party review its
approach and interpre t its obligations unde r the Convention in
good faith, in accordance with the ordinary meaning to be given
to its terms in their context, a nd in the light of its object and
purpose. The Committee also r ecommends that the State party
ensures that Palestinians enj oy full rights under the Convention
without discrimination based on citizenship and national origin 906.
3. Conclusion
8.24 The spatial scope of the obligations in Articles 2 and 5 of the Convention
extends to Russia’s conduct in respect of ethnic Georgians in South Ossetia and
Abkhazia, as well as adjacent areas of Geor gia to the extent that such areas have
been under Russian control. It is submitte d that these areas are also “territories
under the jurisdiction” of Russia for the purposes of Article 3 of the Convention.
In that regard, Russia exercised contro l over South Ossetia and Abkhazia before
8 August 2008 through its control of the de facto authorities in those areas. This
had its genesis in Russia’s military intervention and support of the de facto
authorities during the period 1991-1994, an d subsequently grew to include
control of the de facto governmental administrations, finances and military and
police services, manifested most cons picuously by Russia’s installation of
Russian State officers in key de facto leadership positions. After 8 August 2008,
Russia additionally controlled South O ssetia and Abkhazia through its military
occupation by thousands of Russian soldiers, including those assigned
responsibility for serving as the offi cial State Border Guards of the de facto
authorities.
906Report of the Committee on the Elimination of Racial DiscriminatioGeneral Assembly,
Sixty-Second Session, Official Records, Supplement No. 18 (A/62/18) (2007), para. 225. GM,
Vol. II, Annex 43.
302 Section II. Procedural Requirements for the Submission of the Dispute to
the Court
A. THE T EST FOR COMPLIANCE WITH PROCEDURAL R EQUIREMENTS
8.25 Article 22 of the 1965 Convention reads:
Any dispute between two or more States Parties with respect to
the interpretation or applic ation of this Convention, which is not
settled by negotiation or by the procedures expressly provided for
in this Convention, shall, at the request of any of the parties to the
dispute, be referred to the Inte rnational Court of Justice for
decision, unless the disputants agree to another mode of
settlement.
8.26 For the Court to have jurisdiction, the Applicant State must show only
that the dispute in question has not been resolved, either by negotiations or the
procedures provided for in the Convention. Whether this condition is satisfied is
a simple question of fact: has the disput e been “settled by negotiation or by the
procedures expressly provided for in this Convention”? If the answer is “no”,
then the Court has jurisdiction. In his separate opinion in Military and
Paramilitary Activities in and against Nica ragua (Nicaragua v. United States of
America), Judge Sir Robert Jennings expres sed the point with characteristic
lucidity:
In the present case, the United St ates claims that Nicaragua has
made no attempt to settle the matters, the subject of the
application, by diplomacy. But the qualifying clause in question
merely requires that the disputbe one ‘not satisfactorily adjusted
by diplomacy’. Expressed thus, in a purely negative form, it is
not an exigent requirement. It seems indeed to be cogently
arguable that all that is required is , as the clause precisely States,
that the claims have not in f act already been ‘adjusted’ by
diplomacy. In short it appears to be intended to do no more than
303 to ensure that disputes that ha ve already been adequately dealt
907
with by diplomacy, should not be reopened before the Court .
8.27 Thus, under Article 22 of the 1965 C onvention, there is no affirmative
obligation for the Parties to have atte mpted to resolve the dispute through
negotiations (or through the procedures established by the Convention). All that
is required is that, as a matter of fact, the dispute has not been so resolved.
8.28 Article 22 of the Convention stands in contrast to clauses found in other
treaties that require a mandatory c ondition precedent as a jurisdictional
requirement. An example of this type of compromissory clause was addressed in
Questions of Interpretation and Application of the 1971 Montreal Convention
arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v. United
States of America) 908. In contrast to Article 22 of the 1965 Convention, Article
14(1) of the Montreal Convention cont ains a condition precedent requiring the
submission of the dispute to arbitration prior to resorting to the Court:
Any dispute between two or more Contracting States concerning
the interpretation or application of this Convention which cannot
be settled through negotiation, shall, at the request of one of them,
be submitted to arbitration. If within six months of the date of the
request for arbitration the Parties are unable to agree on the
organization of the arbitration, any one of those Parties may refer
the dispute to the International Court of Justice by request in
conformity with the Statute of the Court.
907
Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of
America), Jurisdiction and Admissibility Separate Opinion of Judge Sir Robert Jennings, I.C.J.
Reports 1984, pp. 533, 556.
908
Questions of Interpretation and Application of the 1971 Montreal Convention arising from the
Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v United States of America), Preliminary
Objections, Judgment, I.C.J. Reports 1998, p. 115.
3048.29 This provision envisages that if a dispute cannot be settled by negotiation
then it “ shall”, at the request of one of the Contracting States, be submitted to
arbitration. Under Article 14(1) of the Montreal Convention, the Court is merely
a default option if for any reason the parties cannot ag ree on arbitration within
six months. By contrast, under Articl e 22 of the 1965 Convention, the Court is
at all stages seen as the relevant jurisd ictional instance for unresolved disputes.
The only stipulation in this regard is that the dispute in fact remains unresolved.
8.30 In fact, even in the context of Arti cle 14(1) of the M ontreal Convention,
the Court held that its jurisdic tion was readily triggered. In Aerial Incident at
Lockerbie, the Court found on the facts of th is case that Libya had proposed
arbitration to the United States, but th at no response was forthcoming to this
proposal. Accordingly:
… the refusal of the Respondent to en ter into arbitration to resolve that
dispute absolved Libya from any obligation under Article 14, paragraph
1, of the Convention to observe a six-month period starting from the
request for arbitration, before seizing the Court9.
8.31 Because Article 22 of the 1965 Convention contains no language
analogous to Article 14(1) of the M ontreal Convention mandating what the
Parties “shall” do prior to referring the dispute to the Court, there is no
requirement that the Parties engage in negotiations or attempt to use the
procedures established by the 1965 Convention prior to submitting the dispute to
the Court.
909
Ibid. at p. 122, para. 20. The ICJ came to the same decision in the case submitted against the
United Kingdom: Questions of Interpretation and Application of the 1971 Montreal Convention
arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v. United Kingdom),
Preliminary Objections, Judgment, I.C.J. Reports 1998, p. 9, 17, para. 21.
305 B. EVIDENCE OF N EGOTIATIONS IN RESPECT OF THE PRESENT D ISPUTE
8.32 Although it is not necessary for Georgia to demonstrate that it engaged in
negotiations with Russia prior to submitting its Application to the Court, the
evidence establishes that there were, in fact, extensive negotiations between
Georgia and Russia concerning the subject matter of Georgia’s claims under the
1965 Convention.
8.33 Before this evidence is examined, it is useful to refer to the Court’s
guidance in Nicaragua as to the type of negotiations that conform to the common
requirement in compromissory clauses. The Court has adopted a sensible and
pragmatic position by not insisting upon refere nce to the particular treaty that
provides the title of jurisdiction for the submitted case:
In the view of the Court, it does not necessarily follow that,
because a State has not expressly referred in negotiations with
another State to a particular tr eaty as having been violated by
conduct of that other State, it is debarred from invoking a
compromissory clause in that tr eaty. The United States was well
aware that Nicaragua alleged that its conduct was a breach of
international obligations before the present case was instituted;
and it is now aware that specif ic articles of the 1956 Treaty are
alleged to have been violated. It would make no sense to require
Nicaragua now to institute fresh proceedings based on the Treaty,
which it would be fully entitled to do0.
8.34 In the present case, the negotiations involving delegations from Georgia
and Russia concerning the subject matter of the present dispute have progressed,
unsuccessfully, in numerous fora, including but not limited to: (i) the United
Nations Geneva Process and the C oordinating Council for Georgia and
910
Nicaragua v. United State, Jurisdiction and Admissibility, Judgment,p. 392, para. 83.
306Abkhazia, and the Group of Friends of Georgia; (ii) the Joint Control
Commission for the Georgian-Ossetian Conflict Settlement; (iii) the
Organisation for Security and Cooperation in Europe; and (iv) the Council of the
Heads of State of the Commonwealth of Independent States. The fundamental
issue of the return of the ethnic Georgian IDPs was prominent on the agenda for
negotiations in these fora. The right of return is guaranteed under Article 5 of
the Convention and the subject of a General Recommendation by the CERD
Committee 91. An account of the mandate of each of these institutions and their
activities is provided below, preceded by a chronological survey of the high level
bilateral negotiations between Georgia a nd Russia relating to various aspects of
the present dispute.
1. Chronology of Bilateral Negotiations
8.35 An account of the lengthy but unsucce ssful bilateral c onsultations and
negotiations between Russia and Georgia begins with the meeting between the
Chairman of the Supreme Council of the RSFSR, Boris Yeltsin, and the
Chairman of the Supreme Council of the Republic of Georgia, Zviad
Gamsakhurdia, on 23 March 1991, in relation to the conflict in South Ossetia.
912
According to the minutes of the meeting , Russia and Georgia, together with
representatives of South Ossetia, undertook to establish the conditions necessary
for the return of refugees to the places of their permanent residence. Shortly
afterwards, on 24 April 1991, representati ves of the “Inter-Parliamentary
Commission” from the Supreme Soviets of the USSR, the RSFSR and Georgia,
called upon each State to “institute legal proceedings against persons who were
911
See supra paras. 2.39 and 5.2 (citing CERD, General Recommendation No. 22).
912
Protocol of the Negotiations between the Chairman of the Supreme Council of the RSFSR and
the Chairman of the Suprem e Council of the Republic of Georgia, 23 March 1991,Vestnik
Gruziy, #42 (28 March 1991). GM, Vol. III, Annex 96.
307engaged in violence, robberies and ars ons, also those guilty of inflaming the
ethnic conflict” 913. An “Agreement on Principles of Settlement of the Georgian-
Ossetian Conflict” was then signed by President Boris Yeltsin and President
Eduard Shevardnadze on 10 June 1992 914.
8.36 In relation to the conflict in Abkh azia, the Presidents of Russia and
Georgia met on 3 September 1992 and agre ed to the “Final Document of the
Moscow Meeting” 915. A ceasefire was announced in respect of the military
confrontation between the Georgian arme d forces and the militias in Abkhazia.
The Final Document made clear referen ce to the protection of the rights of
minorities and was signed by the Heads of State of Russia and Georgia. Article 5
of the Agreement annexed to the Final Documents reads:
The conditions for the return of refugees to the places of their
permanent residence are being secured. They shall receive the
adequate assistance and aid.
8.37 This was supplemented with an explicit obligati on imposed upon the
parties by Article 8:
The Sides confirm the necessity of observing th e international
norms in the sphere of huma n rights and minority rights,
inadmissibility of discrimination of the rights of citizens with
regards to ethnicity, language or religion, and the securing of free
democratic elections.
913Protocol of the Inter-Parliamentary Commission established under the Resolution of the
USSR Supreme Soviet’s Council of Nationalities of 24 April 1991 “On proposals aimed at
normalization of the situation in the s outh Ossetia and its neighboring area”, Sakartvelo, special
edition 1995 (31 May 1991). GM, Vol. III, Annex 97.
914Agreement on Principles of Settlement of the Georgian-Ossetian Conflict, Sochi, 24 June
1992, Svobodnaya Gruzia, #82 (27 June 1992). GM, Vol. III, Annex 102.
915Final Document of the Moscow Meeting (3 September 1992). GM, Vol. III, Annex 106.
3088.38 Thus, as early as in 1991-1992, Georgia and Russia had recognized the
problem of ethnic discrimina tion as being at the heart of the conflicts in South
Ossetia and Abkhazia.
8.39 A “Protocol of Negotiations between the Governmental Delegations of
the Republic of Georgia and the Russian Federation” was then signed on 9 April
1993 in Sochi by the Russian Minister of Defence, Pavel Grachev and the
Georgian Prime Minister, Tengiz Sigua 916. A “Commission for Control and
Inspection in Abkhazia was established, inter alia, to “address the issues related
to the return and accommodation of refugees and internally displaced
persons” 91. The Protocol called for “measur es aimed at...the protection of
918
human rights of ethnic minorities…in full conformity with international law” .
8.40 The next step involved the wider in ternational community, reflected in
the conclusion of a “Memor andum of Understanding” between Georgia and the
Abkhaz de facto government, with the participation of Russia, the United
919
Nations and the CSCE on 1 December 1993 . This was the start of the
“Geneva negotiations”, in which Russia wa s described as a “facilitator”. This
agreement mandated the following action from the parties:
The parties consider it their duty to find an urgent solution to the
problem of the refugees and displaced persons. They undertake to
create conditions for the voluntar y, safe and speedy return of
916
Protocol of Negotiations between the Governmental Delegations of the Republic of Georgia
and the Russian Federation (9 April 1993). GM, Vol. III, Annex 105.
917Ibid., para. 3.
918Ibid., para. 7.
919Memorandum of Understanding between the Georgian and Abkhaz sides at the negotiations in
Geneva (1 December 1993). GM, Vol. III, Annex 108.
309 refugees to the places of their pe rmanent residence in all regions
of Abkhazia. The apartments, houses, plots of land and property
which they left shall be returned to all those refugees who
return 92.
8.41 The human tragedy underlying the presen t case before the Court is that
the right of return guaranteed by Article 5 of the Convention and endorsed in the
official documents signed by the Presidents of Russia and Georgia at the start of
negotiations some fifteen years ago has proven to be illusory, as a result of
Russia’s conduct throughout this time.
8.42 On 3 February 1994, the “Agreement between Georgia and the Russian
Federation on Friendship, Good Nei ghborhood and Cooperation”, known as the
“Framework Agreement”, was signed by both parties 921. It was seen as the legal
basis for any kind of relations, and alt hough some progress was made at various
stages and working commissions were esta blished, it was never ratified by the
Russian Federation.
8.43 The “Quadripartite Agreement on the Voluntary Return of Refugees and
Displaced Persons” was then concluded on 4 April 1994 in Moscow between
Georgia, Russia, representatives of Abkhazia and the UN High Commissioner
for Refugees 922. A “Commission” was established pursuant to the Agreement
“to formulate, discuss and approve plan s to implement programmes for the safe,
orderly and voluntary repatriation of th e refugees and displaced persons to
920Ibid., para. 4.
921Agreement between Georgia and the Russian Federation on Friendship, Good Neighborhood
and Cooperation (3 February 1994). GM, Vol. III, Annex 109.
922Quadripartite Agreement on the Voluntary Return of Refugees and Displaced Persons (4 April
1994). GM, Vol. III, Annex 110.
310Abkhazia from Georgia, the Russian Fede ration and within Abkhazia for their
923
successful reintegration” . The Commission met on 4 April 1994 and 27 April
924
1994 .
8.44 On 24 July 1995, the Parties to the Quadripartite Agreement signed a
protocol referring to the following steps for the return of IDPs:
The working group shall start its activities beginning from August
1995 and within two weeks, and in accordance with an action
plan adopted by the working group, the process of organized
return of refugees to places of their permanent residence, first of
all to the Gali region, shall commence 925.
8.45 A number of meetings were held at the Presidential level to discuss the
situations in Abkhazia a nd South Ossetia. On 6-7 March 2003, a meeting was
held in Sochi between President Vladimir Putin and President Eduard
926
Shevardnadze . According to the Respondent, the resulting “Sochi
Agreements” made the Geneva Process redundant, despite the latter involving
the wider international community. A solution to the plight of the IDPs was high
on the agenda for this meeting, where it was emphasised that the first priority
must be the return of ethnic Georgian IDPs to the Gali region of Abkhazia. A
working group was established to secure that objective. But when the working
923Ibid., paras. 4 & 5.
92See Declaration on the results of the First M eeting of the Quadripartite Commission on the
issues of voluntary return of refugees and displaced persons, Sochi, 9 April 19Svobodnaia
Gruzia, #57 (12 April 1994). GM, Vol. III, Annex 111; Declaration of the Second Meeting,
Sochi, 27 April 1994, Svobodnaia Gruzia, #71 (4 May 1994). GM, Vol. III, Annex 112.
925
Protocol on Georgian-Abkhaz conflict settlement (24 July 1995), para. 6. GM, Vol. III,
Annex 116.
926See Concluding Statement on the meetings between President of the Russian Federation, Mr.
Vladimir Putin, and President of Georgia, Mr. Eduard Shevardnadze, Svobodnaya Gruzia, #60
(12 March 2003). GM, Vol. III, Annex 136.
311group met on 16 June 2003 and 31 July 2003, the Russian side rejected the
Georgian proposal for a Jo int Provisional Administration under the auspices of
927
the United Nations in Gali to secure the dignified and safe return of the IDPs ;
Russia defended its rejection on the gr ound that Abkhaz representatives were
against such a JPA being established. The Russian side then insisted that the
return of the IDPs should only occur on the basis of the conditions presented by
the Abkhaz de facto government. The working group met again on 26-27 April
928
2004 at the Russian Ministry of Foreign Affairs . The UN Special
Representative in Georgia, Heidi Tagliavi ni, noted that they had elaborated the
929
main parameters for the return of IDPs together with the UNHCR . But, the
Abkhaz representatives had refused to sign the resultant “Intentions Document”.
930
Another meeting of the working group took place on 20 July 2004 . Once
again the “Intentions Document” was circulated calling for the return of IDPs to
the Gali region as a first step and in recognition of the fact that “fundamental
principles” relating to “the return of refugees and IDPs” require “the
establishment of security conditions and protection of human rights enshrined in
927
Information Paper prepared by the Ministry of Foreign Affairs of Georgia (16 June 2003),
referencing Meeting of the Group on the Return of IDPs established under the Sochi agreement,
note prepared by the Department for the relations with the Russian Federation (31 July 2003).
GM, Vol. III, Annex 137.
928Information Note of the Ministry of Foreign Affairs of Georgia, prepared by Advisor G.
Kajaia: Meeting of the Working Group on the Issu es of Return of Refugees to Gali district,
Moscow (26-27 April 2004). GM, Vol. III, Annex 139.
929
Ibid., p. 2.
930
Ministry of Foreign Affairs of Russian Federation Department of Information and Print “Final
Document”: Meeting of the Working Group on the Issues of Return of Refugees within the
framework of the Georgian-Abkhaz Conflict Resolution (21 July 2004). GM, Vol. III, Annex
140.
312[the] Universal Declaration of Human Rights of 1948, as well as in other major
931 932
Human Rights treaties” . The working group met again on 15-16 June 2005 .
8.46 The new President of Georgia, Mikhail Saakashvili, wrote to President
Putin on 26 July 2004 in order to draw attention to the lack of any real progress
in resolving the conflicts in South Ossetia and Abkhazia 933. President Putin
responded on 14 August 2004 934. In relation to South O ssetia, he expressed the
following assessment:
I would like to emphasize that the most important aspect of the
resolution of Georgian-Ossetian conflict should be the ensuring of
protection of rights and intere sts of the population of South
Ossetia the majority of which ar e Russian citizens. Taking into
consideration the above-mentioned we will continue purposeful
mediatory work for a peaceful settlement of the conflict 935.
8.47 In relation to Abkhazia, President Putin wrote:
To my belief the main line direction of the work for solving
problems with Abkhazia should be the practical and coherent
realization of Sochi agreements 936.
931Letter of intentions attached to the letter of State Minister of Georgia to Minister of Foreign
Affairs of Georgia, Gela Bejhuashvili (9 June 2006). GM, Vol. V, Annex 307.
932
Information Note of the Embassy of Georgia in Russian Federation concerning the activities
undertaken by the Embassy in 2005 (undated). GM, Vol. III, Annex 92.
933Letter of President Saakashvili of Georgia to President Putin of the Russian Federation (26
July 2004). GM, Vol. V, Annex 309.
934Letter of President Putin of the Russian Federation to President Saakashvili of Georgia (14
August 2004). GM, Vol. V, Annex 310.
935
Ibid., p. 2.
936Ibid.
3138.48 Once again, the President of Georgi a initiated corres pondence with the
new Russian President Dmitri Medvedev in June 2008 93. He raised the problem
of the return of IDPs to Abkhazia. President Medvedev’s response of 1 July
2008 was as follows: 938
It is also apparently untimely to put the question of return of
refugees in such a categorical manner. Abkhazs perceive this as a
threat to their national survival in the current escalated situation
and we have to understand them.
8.49 The Russian President’s characterisati on of the question of the return of
the IDPs to Abkhazia as “untimely and categorical” in July 2008 stands in
contrast to the Memorandum of Unde rstanding signed by Russia in December
1993, which committed the parties to finding an “urgent solution to the problem
of the refugees and displaced persons” 939. This makes clear that in 2008 the
parties were plainly in dispute on the issue of protections needed for ethnic
Georgians against discrimination and ex clusion. On 15 May 2008 Russia voted
against UN General Assembly resolution GA/10708 which focused on the right
of return of all refugees and IDPs to Abkhazia, and recognised that there had
been attempts to alter the pre-conflict demographic composition.
8.50 In sum, despite numerous bilateral meetings and discussions between
Georgia and Russia, and notwithstanding several agreements reached and
commitments made regarding non-discrimi nation against ethnic Georgians and
937Letter of President Mikheil Saakashvili of orgia to President Dmitry Medvedev of the
Russian Federation (24 June 2008). GM, Vol. V, Annex 308.
938Letter of President Dmitry Medvedev of the Russian Federation to President Mikheil
Saakashvili of Georgia (1 July 2008). GM, Vol. V, Annex 311.
939Memorandum of Understanding between the Georgian and Abkhaz sides at the negotiations in
Geneva (1 December 1993). GM, Vol. III, Annex 108.
314facilitation of the return of Georgian IDPs to South Ossetia and Abkhazia, the
situation in the two territories remained fundamentally unchanged for the ethnic
Georgians living there or seeking to return. The extensive negotiations that were
held over more than 15 years failed to resolve the dispute between the Parties.
2. The Joint Control Commission for the Georgian-Ossetian Conflict
Settlement
8.51 The Joint Control Commission (“JCC”) was created by the Dagomisi
(Sochi) Agreement of June 24, 1992 on Principles of Settlement of the Georgian-
940
Ossetian Conflict concluded between Georgia and the Russian Federation . Its
mandate was reviewed on 31 October 1994 in Moscow, where a Regulation was
941
drawn up to set out its obj ectives in clear terms . The overarching aim of the
JCC had been “to exercise control over the implementation of a cease-fire,
withdrawal of armed formations, disbandm ent of forces of self-defense and to
942
maintain the regime of security in the region” . The Regulation provided for
the JCC to become the permanent mech anism for coordination of the conflict
resolution process. It was quadripartite , consisting of repr esentatives of all
parties participating in the work of the Commission: Georgia, Russia, South
Ossetia and North Ossetia. The OSCE was also a participant. Meetings of the
940
Agreement on Principles of the Settlement of the Georgian-Ossetian Conflict between the
Republic of Georgia and the Russian Federation (the “Sochi Agreement”) (24 June 1992)
(hereinafter “Sochi Agreement (1992)”). GM, Vol. III, Annex 102.
941Regulation on the JCC for the settlement of the Georgian-Ossetian Conflict (31 October
1994). GM, Vol. III, Annex 113.
942“Sochi Agreement” (1992), op. cit., Art. 3.1. GM, Vol. III, Annex 102.
315JCC were generally chaired by a Deputy Minister of the Russian Federation.
Decisions were taken on a consensus basis 943.
8.52 Under Article 4 of the Sochi Agreem ent, the parties undertook to start
negotiations immediately on economic restor ation of the regions located in the
conflict zone and the return and settle ment of refugees and IDPs. The 1994
Regulations then assigned detailed specified tasks to the JCC, including, inter
alia:
(a) working out and implementa tion of measures for
creating conditions for the resolution of political,
military (peacekeeping), law enforcement, economic,
humanitarian, informational, and other problems;
(b) participation in elaborati ng and realizing complex
measures, affirmed by the parties, for the return,
reception, and reestablishment of refugees (forcibly
resettled persons) with the collaboration of the Office
of the UN High Commissioner for Refugees;
(c) organisation of supervision concerning the
observation of human rights and national minorities in
944
the zone of conflict .
8.53 In practice, the JCC’s work has te nded to be carried out through three
working groups: military and security matters, economic rehabilitation of the
conflict zone and establishing conditions for the return of refugees and IDPs.
8.54 Paragraph 9 of the Regulation also gave the JCC the task of coordinating
the activities of the Join t Peacekeeping Forces and de signated observers. Those
943
Regulation on the JCC for the settlement of the Georgian-Ossetian Conflict, op. cit., para. 16.
GM, Vol. III, Annex 113.
944
Ibid., para. 5.
316forces were similarly created by the Sochi agreement of 24 June 1992, and were
tripartite, consisting of peacekeeping batta lions from Georgia, Russia and North
Ossetia, all under Russian command. The JCC was to maintain a permanent link
945
with those forces and make decisi ons concerning their future use . It was to
appoint the commander of the joint forces on recommendation of the Ministry of
Defence of the Russian Federation.
946
8.55 Thirty-two meetings of the JCC took place between 1992 and 2007 .
8.56 Occasional informal meetings between certain of the parties were also
organised on the initiative of the JCC. One such meeting was on 5 November
2004 between representatives of Georgia and South Ossetia, mediated by the
Russian Federation. At various points, memoranda and protocols were issued by
the JCC. On 16 May 1996, the JCC agreed that: “The Parties shall undertake all
necessary measures aimed at prevention and cutting short any illegal actions that
947
may violate human rights on the ground of ethnic origin” .
945
Ibid., para. 9.
946The meetings took place on th e following dates: 6 July 1992, 1 November 1994, 6 December
1994, 19-20 July 1995, 30 October 1995, 23-24 July 1996, 27 August 1996, 13 - 14 February
1997, 4-5 March 1997, 25-27 September 1997, 20 June 1998, 23 July 1999, 21 April 2001, 3 July
2001, 2 August 2001, 16 May 2002, 3-4 October 2002, 2-29 October 2002, 23-26 June 2003, 16
April 2004, 14 May 2004, 14 July 2004, 12-18 August 2004, 19-20 November 2004, 23
December 2004, 24-25 October 2005, 15-16 No vember 2005, 27-28 December 2005, 27-29
March 2006, 11-13 May 2006, 17-18 August 2006 and 23-24 October 2007.
947
Memorandum on Necessary Measures to be undertaken in order to Ensure Security and
Strengthening of Mutual Trust Between the Par ties to the Georgian-Ossetian Conflict (16 May
1996), para. 2. GM, Vol. III, Annex 118.
3178.57 Agreements between Georgia and Russi a on the return of refugees were
signed on 23 July 1999 948 and 23 December 2000 949. At the meeting on 23-26
June 2003 in Moscow, a draft “Inter-Sta te Russian-Georgian Program on the
Return, Accommodation, Integration and Re integration of Refugees and IDPs”
was approved; 950 it was then elaborated upon on 16 April 2004 951.
8.58 A “Special Ad Hoc Committee on th e Facilitation of the Voluntary
Return of Refugees and IDPs to the Places of Former Residence” was
952
established by the JCC on 13 February 1997 following a preparatory meeting
on 6-7 February 1997. The OSCE a nd UNHCR also participated in the
Committee 953. The regulations for this Ad Hoc Committee were adopted on 26
September 1997 954. It was to organise and coordinate measures on practical
948Archive of the Staff of the State Minister of Georgia for Conflict Resolution Issues, Protocol
#10 of the Session of JCC for the Georgian-Ossetian Conflict Settlement, 23 July 1999,
Settlement of Tsinandali approving Decision of the JCC at Annex 3. GM, Vol. III, Annex 129.
949
Agreement between the Government of Georgia and the Government of the Russian
Federation on Cooperation in Restoration of Economy in the Georgian-Ossetian Conflict Zone
and Return of Refugees, Tbilisi (23 December 2000). GM, Vol. III, Annex 131.
950Protocol #28, Meetings of Co-Chairmen of the JCC for Georgian-Ossetian Conflict settlement
(23-26 June 2003).
951
Protocol #30, Meetings of Co-Chairmen of the JCC for Georgian-Ossetian Conflict
settlement, Tskhinvali (16 April 2004). GM, Vol. III, Annex 138.
952Protocol #7, Meeting of the JCC for the Georgian-Ossetian Conflict Settlement, Vladikavaz
(13 February 1997). GM, Vol. III, Annex 119.
953
Regulation on the JCC, Ad Hoc Committee for Facilitation of Voluntary Return of Refugees
and IDPs as a Result of the Georgian-Ossetian Conflict, Annex No.2, signed in Java (26
September 1997). GM, Vol. III, Annex 124.
954Decision of the JCC, for the Georgian-Ossetian Conflict Settlement, on the process of
implementation of the Procedure on Voluntary Return of Refugees and IDPs (26 September
1997). GM, Vol. III, Annex 123.
318 955
implementation, and to meet at least monthly . The Committee met thirteen
956
times between 1997 and 2002 .
3. The United Nations Geneva Process and the Group of Friends of
Georgia
8.59 A process for resolving the conflict in Abkhazia was launched in Geneva
on 17-19 November 1997 under the auspices of the UN Secr etary-General.
Russia was described as a “facilitator” in that process. Both the Organisation for
957
Security and Cooperation in Europe a nd the “Group of Friends of Georgia”
were observers. At the November 1997 meeting, representatives of the UNHCR
and the UN Department of Humanitarian Affairs also took part in discussing
958
issues of interest to them . The parties to the Geneva Process agreed to try to
achieve the speediest possible resolution of the conflict, with particular attention
959
given to the issue of return of refugees and displaced persons .
8.60 A programme of action and mechanism for its implementation was drawn
up. That mechanism was the “ Coordination Council of the Georgian and
Abkhazian Parties”, created to put into action any decisions made in the Geneva
Process. The Council was chaired by the Special Representative of the UN
955
Ibid., Art. 1. The same document established a secretariat to undertake all organisational
tasks.
956The meetings took place on 17 -18 April 1997, 21 October 1997 , 25 November 1997, 7 April
1998, 30 September 1998, 17 December 1998, 30 March 1999, 22 July 1999, 20-21 April 2001,
14-15 May 2002, 7 June 2002, 8-9 June 2002 and 18 October 2002.
957
Final statement on the outcome of the resumed meeting held between the Georgian and
Abkhaz parties held in Georgia (17-19 November 1997). GM, Vol. III, Annex 125.
958
Ibid., para. 2.
959Ibid., para. 12.
319Secretary-General for Georgia and consis ted of two representatives of Georgia
and Abkhazia, as well as representatives from Russia as facilitator, and the
OSCE and the Group of Friends.
8.61 The Group of Friends of Georgia was established in 1994 by the UN
Secretary-General. It consists of France, Germany, the United Kingdom, the
United States and the Russian Federation. They may participate in meetings and
make statements and proposals on various aspects of the process, but are not a
party to the Geneva Negotiations as suc h, and are not invited to sign documents
960
agreed upon during the negotiations by the parties .
8.62 Three working groups were establis hed within the framework of the
Coordination Council: the first on secu rity issues, the second on issues
surrounding the return of IDPs and the third on soci al-economic cooperation.
During the first meeting of the Coordi nation Council, a common investigation
group was also established, to study with the parties any crimes in the conflict
zone and any ethnic or political motive for such crimes 961.
8.63 The second meeting under the Geneva Process took place in Istanbul on
7-9 June 1999 962. The parties agreed:
To convene within one week Working Group II for the
consideration and agreement of urgent measures regarding the
960Ibid., para. 3.
961The Coordination Council functioned from 1997 to 2001, during which period twelve sessions
were held. The Council did not function thereafter, until its activities resumed in May 2006.
962Istanbul Statement of the Georgian and Abkhaz Sides on Confidence Building Measures (7-9
June 1999). GM, Vol. III, Annex 128.
320 issue of the return of refugees and displaced persons, and the
963
establishment of conditions for their safety .
8.64 At the third Meeting under the Gene va Process in Yalta on 15-16 March
964
2001, the issue of IDPs was raised once again . The Yalta Declaration obliged
the parties “to inte nsify efforts to create the necessary conditions for the
voluntary and safe return of refugees to their permanent residences in the first
965
phase to the Gali district within the old borders” .
8.65 The Group of Friends of Georgia met separately on 23 October 2002 966,
14 November 2002 967 and 18 December 2002 968 to facilitate agreement to the
“Boden Document” 969.
963Ibid. at para. 3.
964
Yalta Declaration of the Georgian and Abkhaz sides (15-16 March 2001). GM, Vol. III,
Annex 132.
965Ibid., para 2.
966
See Letter presented to the President of Georgia by Mr. Adamia, as copied to Minister of
Foreign Affairs, Mr. Mengarishvili (23 October 2002). GM, Vol. V, Annex 306.
967Minutes of the Meeting of the Deputy Minister of Foreign Affairs of Georgia, Mr. S.
Dogonadze and Ambassadors of the “Group of Fr iends” accredited in Georgia, recorded by Z.
Dvalishvili, annexed to letter from Deputy Mini ster M. Antadze to Ambassador of Georgia to
Russia, Mr. Abashidze (14 November 2002). GM, Vol. III, Annex 134.
968
Letter of Embassy of Georgia in Russian Federation sent to the Ministry of Foreign Affairs of
Georgia (23 December 2002). GM, Vol. III, Annex 135.
969So named after the Secretary-General’s Special Representative for Georgia, Dieter Boden,
who was primarily responsible for drafting the document in 2002. It was aimed at promoting
negotiations and peaceful resolution of the conflict. Its title when submitted to the United Nations
was “The Principles of Division of Competences between Tblisi and Sukhumi”. The document
expressly recognised the principle of the territorial integrity of Georgia. It was opposed by the
Abkhaz side. Russia purported early on to be pe rsuading them to accept it, but on 26 January
2006 ruled out reference to the document in the Security Council and rejected it as a basis for the
peace plan.
3218.66 The UN Under-Secretary-General fo r Peacekeeping chaired the fourth
970
meeting, which took place in Geneva on 19-20 February 2003 . At this
meeting, a working plan was drafted with a concrete set of proposals to resolve
the conflict, including the problem of the return of the Georgian IDPs.
8.67 On 7-8 April 2005, there was a high-level meeting of the Group of
971
Friends of Georgia to review the Georgian-Abkhaz peace process . The
UNHCR took part in the discussions and proposed strategies for resolving the
972
problem of the return of refugees and IDPs to Abkhazia .
8.68 The next high-level meeting of th e Group of Friends occurred on 2-3
February 2006 in Geneva. In the Chairman’s statement 973, it was recorded that:
The Abkhaz side should address seriously the issue of return, and
security and human rights concerns of returnees; publicly reassure
the local population, in particular in the Gali district, that their
residency rights and identity will be respected; and move without
further delay on implementing past commitments relating to UN
police advisers, human rights sub-office and the language of
974
instruction .
970
First Geneva Meeting of the Groups of Friends of the Secretary-General; see United Nations
Press Release, “UN Renews Efforts for Georgi an-Abkhaz Peace” (20 February 2003). GM, Vol.
II, Annex 35.
971Statement by the Chairman, High-Level Meeti ng of the Group of Friends of the Secretary-
General, Geneva (7-8 April 2005). GM, Vol. II, Annex 78.
972
Ibid., p.1.
973
Statement of the Chairman, High-Level Meeti ng of the Group of Friends of the Secretary-
General, Geneva (2-3 February 2006). GM, Vol. II, Annex 80.
974Ibid., p.2.
3228.69 The fate of the IDPs and the trea tment of ethnic minorities featured
prominently in the discussions at the next high-level meeting on 12-13 February
2007 in Geneva: 975
The Friends reaffirmed the right to return of IDPs and refugees to
Abkhazia, Georgia; and encouraged the sides to focus on practical
steps to improve conditions for re turns, in the first instance to
976
Gali .
8.70 Notwithstanding the efforts made by and through the Geneva Process and
the Group of Friends, no significan t amelioration was achieved in the
discrimination suffered by ethnic Georgians in or seeking to return to South
Ossetia or Abkhazia. The dispute ove r the ethnic discrimination imposed on
these populations remained unresolved.
4. The Organisation for Security and Cooperation in Europe
8.71 On several occasions Georgia has attempted to raise the subject matter of
this dispute with the Russian Federation and to make progress in resolving the
conflict within the forum of the OSCE Permanent Council. The OSCE itself has
977
been involved in monitoring the conflict zone since 1994 .
8.72 On 7 May 1998 Georgia alerted the OSCE to the ethnic cleansing “still in
progress” in the region. On 29 April 2001, Georgia then voiced its concerns as
to the introduction by the Russian Federa tion of border policies which could not
975See Statement of the Chairman, High-Level Meeting of the Group of Friends of the Secretary-
General, Geneva (12-13 February 2007). GM, Vol. II, Annex 82.
976Ibid., p.1.
977OSCE Mission to Georgia, Mandate, (Adopted: 13 December 1992- Closed: 30 June 2009).
GM, Vol. II, Annex 74.
323“be viewed otherwise than discriminato ry” and the “integration of separatist
regimes into the Russian Federation” 978. Statements were made in the Permanent
Council concerning refugees and IDPs, human rights violations and ethnic
discrimination on twelve separa te occasions between 2003 and 2008 97. On 24
April 2008, Georgia again expressed concerns as to the staffing of the “so-called
south Ossetian government…with Russian c itizens” and the granting of Russian
citizenship to the population 980. In a separate Special Meeting of 27 October
2005, Georgia presented its conflict resolu tion plan, which included the need to
“reinforce Ossetian cultural and ethnic heritage” 981.
8.73 On 22 January 2004, Georgia placed re sponsibility for certain rising
982
tensions and deaths “exclusivel y with the Russian Federation” . On 2 March
2006, Georgia reiterated in the Permanent Council its “readiness…to continue
constructive dialogue at all levels” and referred to detailed recent
978Statement by the Minister of Special Affairs of Georgia at the Permanent Council of the
OSCE, PC.DEL/207/01 (30 March 2001). GM, Vol. II, Annex 75.
979
Statements were made on the following dates: 6 February 2003, 1 April 2004, 21 October
2004, 16 June 2005, 13 October 2005, 9 February 2006, 6 April 2006, 18 May 2006, 19 October
2006, 27 October 2006, 14 December 2006 and 17 April 2008. Further statements were made by
Georgia to the Permanent Counc il on the need to resolve the conflict and on the progress and
setbacks occurring within the JCC on 24 October 2002, 23 January 2003 and 30 January 2003.
980
Statement by Minister of Foreign Affairs of Georgia, H.E. Bezh uashvili, U.N. Doc.
PC.DEL_0101_06 (9 February 2006). GM, Vol. II, Annex 81.
981Presentation, “South Ossetia Conflict Resolutio n Plan” by the Prime Minister of Georgia, H.
E. Zurab Nogaideli, 575th Special Meeting of the Permanent Council, PC.DEL/106005 (27
October 2005), slide 11. GM, Vol. II, Annex 85.
982
Statement by Deputy Head of Mission, PC.DEL/34/09 (23 January 2009). GM, Vol. II,
Annex 84. Further statements were made on conflict resolution on 17 March 2004, 6 August
2004, 18 August 2004, 3 February 2005, and 21 July 2005.
324 983
communications “initiated by the Georgian side” with Russia . A statement
was also made by Georgia on the situation in Tskhinvali on 12 July 2004 in a
984
Special Permanent Council meeting convened on that topic . That statement
included the expression of concern at the ineffectiveness of the JCC format and
the desire to “reinvigorate other existing negotiating mechanisms”.
8.74 The Russian Federation also made use of the OSCE forum and made over
thirty statements concerning the subject matter of the dispute 985.
8.75 The Ministers of the OSCE made stat ements on the situation in various
reports and meetings. On 21 July 2005, the EU members in the Permanent
Council welcomed “the initiative of th e Georgian government in hosting the
international conference in Batumi on 10 July 2005 to continue active
cooperation in the interest of political settlement of the Georgian-South Ossetian
986
conflict” . On 23 January 2003, the United States member expressed concern
at the “unilateral actions” of the Russi an Federation, including “activities that
983It continued to raise the issue on 27 March 2006, 13 July 2006, 27 July 2006, 16 November
2006, 24 April 2007, 14 June 2007, 17 July 2007, 6 September 2007, 30 October 2007, 30 April
2008 and 10 July 2008.
984Statement of the Georgian Delegation, Special Permanent Council, UN Doc. PC.DEL/654/04
(13 July 2004). GM, Vol. II, Annex 77.
985
Statements which concerned the subject matter of the present dispute were made on 2 January
2003, 27 October 2005, 23 March 2006 and 13 March 2008. Further statements were made on
the conflict and measures being taken to reach a resolution on 12 July 2004, 22 July 2004, 10
March 2005, 2 June 2005, 16 February 2006, 2 March 2006, 18 May 2006, 29 June 2006, 18 July
2006, 7 September 2006, 14 September 2006, 19 October 2006, 27 October 2006, 8 March 2007,
15 March 2007, 22 March 2007, 17 May 2007, 14 June 2007, 21 June 2007, 13 July 2007, 30
October 2007, 1 November 2007, 17 April 2008, 24 April 2008, 19 June 2008, 10 July 2008 and
14 July 2008.
986
EU Statement on Georgia and the Batumi Conference, UN Doc. PC.DEL/776/05 (21 July
2005). GM, Vol. II, Annex 79.
325 987
appear to enhance the sepa rate status of Abkhazia” . On 17 April 2008 the
United States representative reiterated the concern that Russia was openly siding
with the de facto regimes 98.
8.76 Despite these attempts, no significant progress was made or resolution
achieved in the OSCE forum.
5. Commonwealth of Independent States
8.77 On 17 October 1996, the Council of the Heads of States of the
Commonwealth of Independent States (CIS) resolved to establish the “conditions
for return of refugees and displaced pe rsons in the Gali region”. This decision
989
was affirmed by the Council on 28 March 1997 . The Council of the Inter-
Parliamentary Assembly of the Memb er States of the CIS decided on 28
February 1998:
To call upon the Parties to achieve substantive progress without
further delay towards a comprehensive settlement, first of all in
the organized and secure return of refugees and displaced persons
to their places of residence and the definition of the political
987
Statement of Response by the U.S. Mission to the OSCE, UN Doc. PC.DEL/49/03 (24
January 2003). GM, Vol. II, Annex 76.
988Statement of the U.S. Mission to the OSCE, UN Doc. PC.DEL/303/08 (17 April 2008). GM,
Vol. II, Annex 83.
989Decision taken by the Council of the Heads of States of the CIS on support to the
Peacekeeping Operations in the conflict Zone of Abkhazia, Georgia (28 March 1997). GM, Vol.
III, Annex 121.
326 status of Abkhazia, Georgia, with the facilitation of the Russian
Federation 99.
8.78 The Council of the Heads of States expressed their frustration over the
lack of any progress on the return of th e IDPs to Abkhazia in its decision of 2
April 1999 in strong terms by deciding:
To consider inadmissible the further procrastination of the
organized return of refugees an d displaced persons in the whole
territory of Abkhazia, Georgia, first of all in the Gali region
991
(within the old frontiers) in a safe condition .
8.79 The Council of the Heads of States adopted a further decision calling for
the “elaboration of additiona l security measures for the return of refugees and
IDPs to their dwellings” 99. The decision was signed by President Putin on 8
February 2002 and President Shevardnadze on 1 March 2002. In the same year,
the Council of the Heads of States requested that “the Council of Foreign
Ministers of the CIS shall submit its proposals on further steps for the
development of additional measures for the safe return of IDPs and refugees to
993
the places of their former residence” . The decision was signed by President
Putin on 2 October 2002 and President Shevardnadze on 26 July 2002.
990Decision taken by the Council of the Inter-Pa rliamentary Assembly of the Member-States of
the CIS on the situation of conf lict settlement in Abkhazia, Georgia (28 February 1998). GM,
Vol. III, Annex 126.
991
Decision taken by the Council of the Heads of States of the CIS on further steps towards the
settlement of the conflict on Abkhazia, Georgia (2 April 1999). GM, Vol. III, Annex 127.
992Decision of the Council of the CIS Head of States on the presence of Collective Peace
Keeping Forces in the Conflict Zone of Abkhazia, Georgia (signed by Georgia 1 March 2002,
signed by Russian Federation 8 February 2002). GM, Vol. III, Annex 117.
993
Decision of the Council of H eads of States of the CIS on prolongation of the peacekeeping
operation in the conflict zone in Abkhazia, Georgia (2 October 2002). GM, Vol. III, Annex 133.
3278.80 Despite these measures, the situation of the Georgian IDPs expelled from
South Ossetia and Abkhazia did not improve. They remained unable to exercise
their right of return to their former home s in these territories. The dispute over
their enjoyment of this right remains unresolved.
Section III. Conclusions
8.81 To summarise, the Court has jurisdiction ratione personae, ratione
materiae and ratione tempore in respect of each of Georgia’s claims as described
in its submissions in Part F of this Memorial. The procedural requirements in
Article 22 of the 1965 Convention are fully satisfied. In any event, negotiations
over the subject matter of the present dispute have been held and failed to
resolve it. There are no grounds for the Court to refrain from exercising its
jurisdiction over Georgia’s claims
328 CHAPTER IX.
RUSSIA’S RESPONSIBILITY FOR VIOLATIONS OF
THE 1965 CONVENTION9.1 In this Chapter, Russia’s responsib ility for its involvement in, and
support of, the ethnic cleansing of Georgian s, the consolidation of that ethnic
cleansing by the creation and recognitio n of ethnically homogenous enclaves
within Georgia’s national borders, the destruction of Georgian culture and
identity, and the frustration of the right of ethnic Georgian IDPs to return to their
homes in South Ossetia and Abkhazia, is assessed by reference to Russia’s
994
obligations under Articles 2, 3 and 5 of the 1965 Convention .
9.2 The Chapter begins with a short introduction to the 1965 Convention and
the concept of racial discrimination that it employs. The su bstantive law on the
obligations in Articles 2, 3 and 5 of the 1965 Convention is then examined
together with the particular test for at tribution that applies to each of these
obligations. In respect of each of Russia’s violations of Articles 2, 3 and 5 of the
1965 Convention, cross-references are ma de to the evidence supporting such
violations in Parts B, C and D of the Memorial.
Section I. Introduction to the 1965 Convention
9.3 The 1965 Convention is divided into th ree parts. Part I contains the
definition of “racial discrimination” a nd the substantive obl igations upon States
Parties to refrain from any practices of racial discrimination themselves and also
to take measures within their power to prevent, prohibit, eliminate and condemn
racial discrimination by others. Pa rt II establishes the Committee on the
Elimination of Racial Discrimination (the “CERD Committee”) and the various
responsibilities and working methods of that Committee. The principal function
of the CERD Committee is the consid eration of biannual reports by the
994International Convention on the Elimination of All Forms of Racial Discrimination, 660
UNTS 195 (21 December 1965). GM, Vol. II, Annex 3.
331individual States Parties on the legislative, judicial , administrative or other
measures adopted by them to give effect to the obligations in Part I of the 1965
Convention and to make recommendations to the General Assembly on the basis
of such reports. Part III contains miscellaneous final provisions on the
modalities for signature, ratificati on and coming into force of the 1965
Convention and reservations thereto, a nd includes Article 22 on the jurisdiction
of the Court in respect of disputes between the States Parties.
9.4 Against the background of events in South Africa 995, it is not surprising
that the particular consideration of apartheid was emphasized both in the
preamble and in the text of the 1965 Convention itself. Apartheid can be defined
as the coercive suppression of a r acial or ethnic group as such, and their forced
996
ejection as members of their societ y on grounds of thei r race or ethnicity . It
includes ethnically-motivated violence exercised by the State against a group
defined in terms of race or ethnicity a nd aimed at their suppression or virtual
expulsion. In the case of South Africa, that expulsi on eventually took the form
of the Bantustans -- ethnically constr ucted pseudo-States which the world
refused to recognise 99. Although the 1965 Convention is directed at eliminating
racial discrimination in “all its forms a nd manifestations”, a primary focus was
racial discrimination in the construction of the State itself, and of the territorial
community it represents.
995
The slaughter of sixty-nine peaceful protesters by the South African po lice in Sharpeville in
1960 gave urgency to combating the scourge of racial and ethnic discrimination.
996International Convention on the Suppression and Punishment of the Crime of Apartheid, 1015
UNTS 243, (18 July 1976), Art. II.
997See James Crawford, The Creation of States in International Law (2 ed., 2006), pp. 338 et
seq.
3329.5 The scourge of racist governance imposed by colonial rule has now given
way to the problem of ethnic violence between communities that has been
provoked by a resurgence of nationalism in central and eastern Europe, and
exacerbated by the collapse of communist rule in the USSR and its satellite
States. The new paradigm of violen t ethnic discriminati on sweeping across
Eastern Europe in the early 1990s was described with great perception by the
Chairman of the CERD Committee, Luis Valencia Rodriguez, in his letter of
transmittal enclosing the Committee’s 1993 Report to His Excellency Boutros
Boutros-Ghali, then Secretary -General of the United Nations, and is worthy of
extensive quotation:
The period 1992-1993 has been besmirched by new evidence of
horrific human rights abuses stimulated by racial and ethnic
hatred. These new abuses are further examples of racial
discrimination as this is de fined in article 1 of theInternational
Convention on the Elimination of All Forms of Racial
Discrimination. Yet they are a buses of a different kind from
those envisaged when the Convention was adopted in 1965. The
Committee believes it important to call attention to some of the
major changes it has observed, not least because some resolutions
adopted by United Nations bodies continue to employ phrases
that were appropriate in the resolutions of the 1960s and to use
the concepts of that era even when they are not the most relevant
for addressing the new circumstances.
The forms of racial discrimi nation which in the 1960s were
regarded as most abhorrent were those of discrimination by
whites against blacks. Racial discrimination was frequently
described as caused by the dissemination of doctrines of racial
superiority by the institutions of colonial rule and by the policies
of racist regimes. The intern ational community could counter
these abuses by political means and in this way racial
discrimination could be eliminated.
In 1993 we contemplate the succe ss of policies initiated in the
1960s. The struggle against colonial ru le and racist regimes has
been successful even if the consequences of apartheid will
continue to give trouble for a long time.
333 New challenges started to emerge at the end of the 1980s with the
disintegration of some of the larger political structures,
particularly in Eastern Europe, and the weakening of some
structures in other regions. It is worth recalling that in the last
census in the former Yugoslavia over 1 million persons did not
register their membership in any national minority but counted
themselves as simply Yugoslavs. Since that time, many of them
have been forced by considerations of personal security to align
themselves ethnically.
With the dissolution of the Sovi et Union and other structures,
some wider solidarities have been gravely weakened, exposing
ethnic minorities to pressure from narrow nationalistic campaigns.
Political movements have revived old claims to territory and
incited ethnic hatred agai nst persons of different origin. Rapid
population growth, coinciding with a recession in world trade and
the introduction of new technology, has changed the balance
between the supply of labour and the demand for it. Increased
competition for employment generates ethnic tensions in some
regions, while elsewhere the weakening of public order has had
comparable effects. As a result, racial or ethnic conflicts are
appearing in areas previously char acterized by tolerance. These
forms of discrimination spring not from any belief in racial
superiority but from a sense of difference. When a conflict
becomes acute it is only with members of their own ethnic group
that people feel secure.
Many of these998nfrontations have led to massive human rights
violations…
9.6 This description of the new para digm of ethnic discrimination is
especially relevant to the geneses of the present disp ute, which were the civil
conflicts in Georgia that followed the di ssolution of the USSR, specifically the
conflict of 1991-1992 in South Osseti a and the confli ct of 1993-1994 in
Abkhazia.
998Report of the Committee on the Elimination of Racial Discrimination, General Assembly,
Forty-Eighth Session , Official Records, Suppleent No. 18 (A/48/18) 1994, Letter of
Transmittal from Chairman of CERD to Secretary-General of UN. GM, Vol. II, Annex 13.
3349.7 The CERD Committee played an active role in relation to the ethnic
conflicts in the former Yugoslavia, and it did not balk from making strong
recommendations to the General Assembly in relation to States Parties that
instigated ethnic hatred and violence. For instance, the Committee made the
following comment and recommendation in relation to the report submitted by
the Federal Republic of Yugoslavia (Serbia and Montenegro) in 1993:
The Committee also noted with great concern that links existed
between the Federal Republic of Yugoslavia (Serbia and
Montenegro) and Serbian militias and paramilitary groups
responsible for massive, gross and systematic violations of human
rights in Bosnia and Herzegovina and in Croatian territories
999
controlled by Serbs .
[…]
The Committee urged the Federal Republic of Yugoslavia (Serbia
and Montenegro) to undertake all measures at its disposal with a
view to bringing to an end th e massive, gross and systematic
human rights violations currently occurring in those are1000f
Croatia and Bosnia and Herzegovina controlled by Serbs .
9.8 The Committee also took a strong stance against the violent acts of ethnic
discrimination occurring in areas of Bosnia and Herzegovina controlled by
Croats:
The Committee urged the Government of Croatia to undertake all
measures at its disposal with a view to bringing to an end the
massive, gross and systematic human rights violations occurring
in those areas of Bosnia and Herzegovina controlled by
Croats 1001.
999Report of the Committee on the Elimination of Racial Discrimination, General Assembly,
Forty-Eighth Session , Official Records, Supplement No. 18 (A/48/18) 1994, para. 537
(hereinafter CERD Report, 48 Session, Supp. No. 18). GM, Vol. V, Annex 412.
1000Ibid., para. 545.
1001Ibid., para. 506.
3359.9 To conclude, the 1965 Convention is particularly concerned with
collective discrimination against ethnic groups and with f undamental issues
relating to the composition of territorial communities, including the granting and
withholding of nationality. Where collective discrimination has been
accompanied with the use of force, the CERD Committee has been vigilant in
identifying the illegality of the means and the ends of campaigns involving
ethnically-motivated violence. As it expressed in relation to Kosovo:
The Committee is concerned that disproportionate use of force by
law enforcement agencies and th e military against the Albanian
population in the province of Kosovo and Metohija has resulted in
numerous violations of the right to life, destruc tion of property
and displacement.
[…]
Any attempt to change or to uphold a changed demographic
composition of an area against the will of the original inhabitants,
by whatever means, is a violation of international human rights
1002
and humanitarian law…
Section II. The Definition of Racial Discrimination in Article 1 of the 1965
Convention
9.10 The prohibition of racial discrimination has attained the status of a
1003
peremptory norm of international law . Racism, according to one
commentator, operates along at least “three axes”:
1002
Report of the Committee on the Elimination of Racial Discrimination, General Assembly,
Official Records, Fifty-Third Session, Supplement No. 18, U.N. Doc. A/53/18 Supple. 18 (10
September 1998), para. 203. GM, Vol. II, Annex 27.
1003
See e.g., Barcelona Traction, Light and Power Company, Limited, Judgment , ICJ Reports
1970, p. 3, 32, para. 34; US (Third) Restatement of the Foreign Relations Law, § 702, n. 11
(1986).
336 [F]irst, that of denigratory st ereotyping, hatred and violence;
secondly, that of a cycle of disadvantage; and thirdly, th1004gation
and even obliteration of culture, religion, or language .
9.11 Article 1(1) of the 1965 Convention de fines “racial discrimination” in
broad terms:
In this Convention, the term “raci al discrimination” shall mean
any distinction, exclusion, restriction or preference based on race,
colour, descent, or national or ethnic origin which has the purpose
or effect of nullifying or impair ing the recognition, enjoyment or
exercise, on an equal footing, of human rights and fundamental
freedoms in the political, economic, social, cultural or any other
field of public life.
9.12 The CERD Committee has elaborated upon this definition in its practice,
and in particular in two General Recommendations.
9.13 In General Recommendation No. 8, adopted in 1990, the CERD
Committee interpreted the 1965 Convention to clarify the means for identifying
whether or not individuals are members of a particular racial or ethnic group.
According to the Committee: “[S]uch identification shall, if no justification
exists to the contrary, be based upon self-identification by the individual
1005
concerned” . A group’s consciousness of its own separate identity on racial or
ethnic grounds is thus highl y significant for purposes of Article 1 of the 1965
Convention. In the present case, ther e can be no doubt that ethnic Georgians
living in South Ossetia and Abkhazia identify themselves as belonging to a
1004
Sandra Fredman, “Combating Racism with Human Rights: the Right to Equality”,
Discrimination and Human Rights: The Case of Racism(2001), p. 13.
1005
CERD, General Recommendation No. 8: Identification with a particular racial or ethnic
group (Art. 1, para. 1 & 4), A/45/18 (22 August 1990).
337distinct group on ethnic grounds. This sel f-identification accords with objective
characteristics of Georgian ethnicity (language, culture, descent).
9.14 In General Recommendation No. 14, adopted in 1993, the CERD
Committee affirmed that “Non-discriminati on, together with equality before the
law and equal protection of the law w ithout any discrimination, constitutes a
1006
basic principle in the pr otection of human rights” . Actions of a State Party
having either “the purpose or the effect of impairing particular rights and
1007
freedoms” is contrary to the 1965 Convention . According to the Committee:
In seeking to determine whether an action has an effect contrary
to the Convention, it will look to see whether that action has an
unjustifiable disparate impact upon a group distinguished by race,
1008
colour, descent, or national or ethnic origin .
9.15 The test for discriminatory impact upon a racial or ethnic group echoes
the seminal treatment of discrimination by Judge Tanaka in his Dissenting
Opinion in South West Africa . Judge Tanaka’s analysis of unlawful
discrimination in international law has had a profound influence on the doctrine
developed by international and domestic c ourts and tribunals. His conclusions
on the legality of South Africa’s installa tion of an apartheid regime in South
West Africa as the Mandatory for that region were as follows:
1. The principle of equality before the law requires that what are
equal are to be treated equally and what are different are to be
treated differently. The question arises: what is equal and what is
different.
1006CERD, General Recommendation No. 14: Definition of discrimination (Art. 1, para. 1),
A/48/18 (22 March 1993), para. 1. GM, Vol. II, Annex 7.
1007Ibid. (emphasis added).
1008
Ibid., para. 2.
3382. All human beings, notwithstan ding the differences in their
appearance and other minor points, are equal in their dignity as
persons. Accordingly, from the point of view of human rights and
fundamental freedoms, they must be treated equally.
3. The principle of equality does not mean absolute equality, but
recognizes relative equality, namely different treatment
proportionate to concrete indivi dual circumstances. Different
treatment must not be given arbitrarily; it requires reasonableness,
or must be in conformity with justice, as in the treatment of
minorities, different treatment of the sexes regarding public
conveniences, etc. In these cases, the differentiation is aimed at
the protection of those concerned, and it is not detrimental and
therefore not against their will.
4. Discrimination according to th e criterion of “race, colour,
national or tribal origin” in esta blishing the rights and duties of
the inhabitants of the territory is not considered reasonable and
just. Race, colour, etc., do not c onstitute in themselves factors
which can influence the rights and duties of the inhabitants as in
the case of sex, age, language, religion, etc. If differentiation be
required, it would be derived fr om the difference of language,
religion, custom, etc., not from the racial difference itself. In the
policy of apartheid the necessa ry logical and material link
between difference itself and di fferent treatment, which can
justify such treatment in the cas e of sex, minorities, etc., does not
exist.
We cannot imagine in what case the distinction between Natives
and Whites, namely racial distinction apart from linguistic,
cultural or other differences, may necessarily have an influence
on the establishment of the rights and duties of the inhabitants of
the territory.
5. Consequently, the practice of apartheid is fundamentally
unreasonable and unjust. The unrea sonableness and injustice do
not depend upon the intention or motive of the Mandatory,
namely its mala fides. Distinction on a racial basis is in itself
contrary to the principle of equality which is of the character of
natural law, and accordingly illegal.
The above-mentioned contention of the Respondent that the
policy of apartheid has a neutral ch aracter, as a tool to attain a
339 particular end, is not right. If the policy of apartheid is a means,
the axiom that the end cannot justify the means can be applied to
this policy 1009.
9.16 This analysis has been adopted in substance by the national courts of
several countries in the context of inte rpreting a constitutional prohibition of
unfair discrimination. For instance, the leading judgment of the Constitutional
1010
Court of South Africa on the righ t to equality before the law sets out the
following test:
(a) Does the provision differentiate between people or categories
of people? If so, does the differentiation bear a rational
connection to a legitimate government purpose? If it does not
then there is a violation of secti on 8(1). Even if it does bear a
rational connection, it might nevertheless amount to
discrimination.
1009South West Africa, Second Phase, Judgment, Dissenting Opinion of Judge Tanaka, ICJ
Reports 1966, pp. 313-314.
1010Section 9 of the Constitution of South Africa provides:
1. Everyone is equal before the law and has the right to equal protection and
benefit of the law.
2. Equality includes the full and equal enjoyment of all rights and freedoms. To
promote the achievement of equality, legislative and other measures designed to protect
or advance persons, or categories of persons, disadvantaged by unfair discrimination
may be taken.
3. The state may not unfairly discriminate directly or indirectly against anyone on
one or more grounds, including race, gender, sex, pregnancy, marital status, ethnic or
social origin, colour, sexual orientation, age, disability, religion, conscience, belief,
culture, language and birth.
4. No person may unfairly discriminate directly or indirectly against anyone on
one or more grounds in terms of subsection (3). National legislation must be enacted to
prevent or prohibit unfair discrimination.
5. Discrimination on one or more of the grounds listed in subsection (3) is unfair
unless it is established that the discrimination is fair.
340 (b) Does the differentiation amount to unfair discrimination? This
requires a two stage analysis:
(b)(i) Firstly, does the differentiation amount to
“discrimination”? If it is on a specified ground, then
discrimination will have been established. If it is not on a
specified ground, then whether or not there is discrimination will
depend upon whether, objectively, the ground is based on
attributes and characteristics whic h have the potential to impair
the fundamental human dignity of persons as human beings or to
affect them adversely in a comparably serious manner 1011.
(b)(ii) If the differentiation am ounts to “discrimination”, does it
amount to “unfair discrimination”? If it has been found to have
been on a specified ground, then unfairness will be presumed. If
on an unspecified ground, unfairnes s will have to be established
by the complainant. The test of unfairness focuses primarily on
the impact of the discrimination on the complainant and others in
his or her situation. If, at the end of this stage of the enquiry, the
differentiation is found not to be unfair, then th ere will be no
violation of section 8(2).
(c) If the discrimination is found to be unfair then a determination
will have to be made as to whether the provision can be justified
under the limitations clause... 1012
9.17 The present dispute centres upon the confrontation of various ethnic
groups within the national bor ders of Georgia. The de facto authorities and
militias in South Ossetia and Abkhazia, in concert with Russia, have succeeded,
over a period of approximately 15 years, in cleansing the territories under their
de facto control of the vast majority of ethnic Georgians. This has been the
avowed policy of the de facto authorities throughout that period, and it has been
1011
Harksen v. Lane NO 1998 (1) SA 300 (CC), para. 53. This case was decided on the basis of
section 8 of the Interim Constitution of South Africa (1993) but the analysis is equally applicable
to section 9 of the present Constitution of South Africa (1996).
1012
Ibid.
341devastating in its human effect and on e lives of a great nu mber of people.
There is no question that these acts amount to “racial discrimination” pursuant to
Article 1 of the 1965 Convention. The i ssue in the present case is a narrower
one, namely the extent of Russia’s respons ibility in respect of the construction,
maintenance and consolidation of ethnically homogenous enclaves in South
Ossetia and Abkhazia.
Section III. Russia’s Breach of Article 2(1)(A) and Article 5 of the 1965
Convention
A. THE L EGAL TEST FOR BREACH OF ARTICLE 2(1)(A)AND ARTICLE 5 OF THE
1965 CONVENTION AND ATTRIBUTION
9.18 Article 2(1)(a) of the 1965 Convention provides:
States Parties condemn racial discrimination and undertake to
pursue by all appropriate means and without delay a policy of
eliminating racial discrimination in all its forms and promoting
understanding among all races, and, to this end:
a. Each State Party undertakes to engage in no act or practice of
racial discrimination againstpersons, groups of persons or
institutions and to ensure thall public authorities and public
institutions, national and local, sha ll act in conformity with this
obligation[.]
9.19 Article 2(1)(a) of the 1965 Convention creates a core obligation for the
States Parties to refrain from all acts of racial discrimination as defined in Article
1. This implies direct responsibility for all relevant acts and omissions of organs
and agents, i.e., of persons whose conduct is attr ibutable to the State Party, in
contrast to the “accessory” form of responsibility under subsection 1(b) of
Article 2.
9.20 Article 5 of the 1965 Convention provides, in relevant part:
342In compliance with the fundament al obligations laid down in
article 2 of this Convention, Stat es Parties undertake to prohibit
and to eliminate racial discrimination in all its forms and to
guarantee the right of everyone, wi thout distinction as to race,
colour, or national or ethnic origin, to equality before the law,
notably in the enjoyment of the following rights:
(a) The right to equal treatment before the tribunals and all other
organs administering justice;
(b) The right to security of person and protection by the State
against violence or bodily harm, whether inflicted by government
officials or by any individual group or institution;
(c) Political rights, in particular the right to participate in elections
-- to vote and to stand for electi on -- on the basis of universal and
equal suffrage, to take part in the Government as well as in the
conduct of public affairs at any level and to have equal access to
public service;
(d) Other civil rights, in particular:
(i) The right to freedom of movement and residence
within the border of the State;
(ii) The right to leave any country, in cluding one’s own,
and to return to one’s country;
(iii) The right to nationality;
(iv) The right to marriage and choice of spouse;
(v) The right to own property alone as well as in
association with others;
(vi) The right to inherit;
(vii) The right to freedom of thought, conscience and
religion;
343 (viii) The right to freedom of opinion and expression;
(ix) The right to freedom of peaceful assembly and
association;
(e) Economic, social and cultural rights, in particular:
(i) The rights to work, to free choice of employment, to
just and favourable conditions of work, to protection
against unemployment, to equal pay for equal work, to
just and favourable remuneration;
(ii) The right to form and join trade unions;
(iii) The right to housing;
(iv) The right to public health, medical care, social
security and social services;
(v) The right to education and training;
(vi) The right to equal participation in cultural activities;
(f) The right of access to any place or service intended for use by
the general public, such as transpor t, hotels, restaurants, cafes,
theatres and parks.
9.21 The list of rights and freedoms referred to in Article 5 is not
1013
exhaustive . The CERD Committee has interpreted Article 5 as not creating
1013CERD, General Recommendation No. 20: Non-discriminatory implementation of rights and
freedoms (Art. 5), U.N. Doc. A/51/18 (1996) (hereinafter “General Recommendation No. 20”),
para. 1. GM, Vol. II, Annex 20. See also Commission on Human Rights, Report on the
Twentieth Session, Economic and Social Council, Official Records, Thirty-Seventh Session,
Supplement No. 8, E/3873, E/CN.4/874. (17 February – 18 March 1964). para. 200 (“It was
emphasized that many of the rights proclaimed in the Universal Declaration of Human Rights
had been left out but that the word ‘notably’ preceding the list of rights implied that there had
been a selection of the rightto which special attention should be accorded.”). GM, Vol. II,
Annex 2.
344the enumerated rights but instead imposi ng an obligation upon States Parties to
1014
prohibit and eliminate racial discrimina tion in the enjoyment of such rights .
In this respect it is important to note that the rights and freedoms invoked by
Georgia as parens patriae of its citizens are secured for the populations of South
Ossetia and Abkhazia by virtue of the a pplication of the European Convention
on Human Rights and the International Co venant on Civil and Political Rights,
both of which have been ratified by Russia and Georgia.
9.22 The CERD Committee has gi ven particular prominence to the rights and
freedoms of refugees and displaced pe rsons under Article 5 by its General
Recommendation No. 22 1015. The Recommendation commences with the
following preambular statement that is apposite for the present case:
Conscious of the fact that foreign military, non-military and/or
ethnic conflicts have resulted in massive flows of refugees and the
displacement of person1016 the basi s of ethnic criteria in many
parts of the world[.]
9.23 The Committee then “reiterates that the Convention obliges States parties
to prohibit and eliminate racial discrimination in the enjoyment of civil, political,
economic, social and cultural rights and freedoms” 1017. The specific obligations
upon States Parties under Articl e 5 in relation to refugees and displaced persons
are then enumerated by the Committee:
1014General Recommendation No. 20, op. cit., para. 1. GM, Vol. II, Annex 20.
1015
U.N. Office of the High Commissioner for Human Rights, CERD, General Recommendation
No. 22: Art. 5 and refugees and displaced persons, Forty-ninth Session, U.N. Doc. A/51/18
(1996). GM, Vol. II, Annex 21.
1016Ibid., preamble.
1017Ibid., para. 1.
345 1. All such refugees and displa ced persons have the right
freely to return to their ho mes of origin under conditions
of safety;
2. States parties are obliged to ensure that the return of such
refugees and displaced persons is voluntary and to observe
the principle of non-refoulement and non-expulsion of
refugees;
3. All such refugees and displaced persons have, after their
return to their homes of origi n, the right to have restored
to them property of which they were deprived in the
course of the conflict and to be compensated appropriately
for any such property that cannot be restored to them. Any
commitments or statements relating to such property made
under duress are null and void;
4. All such refugees and displaced persons have, after their
return to their homes of origin, the right to participate fully
and equally in public affairs at all levels and to have equal
access to public services a nd to receive rehabilitation
assistance 1018.
9.24 In its practice, the CERD Comm ittee has condemned large-scale
violations of Article 5 in Bosnia and He rzegovina and, in particular, the practice
of “ethnic cleansing”, massacres, forced population transfers, the blockading of
international humanitarian ai d, the detention of civilian s, torture and killing of
101Ibid., para. 2.
346prisoners and rape and other sexual a buses. The Committee adjudged these acts
to be clear breaches of both Ar ticles 3 and 5 of the Convention 101. In this
context, the CERD Committee commented on the dangers inherent in the
construction of ethnically homogenous territorial units:
The Committee was profoundly con cerned that the human rights
violations occurring in Bosnia and Herzegovina were being
committed on the basis of “ethnic identity” for the purpose of
attempting to create ethnically pure States. The Committee
emphasized that such attempts were completely contrary to the
spirit and the principles of the Convention. Furthermore, the
Committee was concerned that partition along ethnic lines in
Bosnia and Herzegovina could encourage groups elsewhere who
1020
were unwilling to respect the territorial integrity of States .
9.25 In addition to requesting Bosnia an d Herzegovina and all other parties
concerned to take immediate measures to bring an end to the “massive, gross and
systematic human rights violations”, the CERD Committee also recommended
that “effective action should be taken to ensure that refugees and other displaced
persons were allowed to return to their homes, all detainees were released
immediately into conditions of safety a nd adequate reparation was given to the
victims” 1021.
9.26 The CERD Committee has characterized other conduct by States Parties
as breaches of Articles 2 and 5, including: forced assimilation through measures
1019CERD Report, 48 Session, Supp. No. 18, op. cit., paras. 455, 460, 467. GM, Vol. V, Annex
412.
1020Ibid., para. 468. See also ibid., paras. 25, 219, 221.
1021Ibid., para. 470.
347 1022
in the field of employment, education and political life ; forcibly displacing
1023 1024
populations ; and the closure of schools teaching in minority languages .
The imposition of restrictions on the freedom of movement targeting a particular
national or ethnic group through the esta blishment of checkpoints, restricted
roads and a permit system was deemed by the Committee to contravene Articles
1025
2, 3 and 5 .
9.27 The obligations imposed on the States Parties by Articles 2, 3 and 5 of
the 1965 Convention carry with them a corresponding obligation not to
recognize as lawful a situation created by breaches of those Articles. In the
Namibia Advisory Opinion, the Court held that the illegality of South Africa’s
conduct “is opposable to all States in the sense of barring erga omnes the legality
of a situation which is maintained in violation of international law” 1026.
Similarly, Article 41(2) of the International Law Commission’s Articles on State
Responsibility provides in relevant part that: “No State shall recognize as lawful
a situation created by a serious breach [of peremptory norms of general
international law], nor render aid or assistance in maintaining that situation”. In
1022In relation to Turkmenistan’s policy of “Turkmenization”, see Report of the Committee on
the Elimination of Racial Discrimination, Genera l Assembly, Sixtieth Session, Official Records,
Supplement No. 18 (A/60/18) (2005), para. 318 (hereinafter CERD Report, 60 thSession, Supp.
No. 18). GM, Vol. II, Annex 38.
1023
In relation to Turkmenistan’s policy concerning ethnic Uzbeks, seeibid., para. 320.
1024
In relation to Turkmenistan’s policy concerning schools teaching in Uzbek, Russian, Kazakh
and Armenian, see ibid., para. 321.
1025In relation to Israel’s policy in the Occupied Palestinian Territories, see Report of the
Committee on the Elimination of Racial Discrimination, General Assembly, Sixty-Second
Session, Official Records, Supplement No. 18 (A/62/18) (2007), para. 227. GM, Vol. II, Annex
43.
1026
Legal Consequences for States of the Continued Presence of South Africa in Namibia (South
West Africa) Notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, ICJ
Reports 1971, p. 56, para. 126.
348the present case, Russia (and Georgia) ar e therefore under an obligation not to
recognize as lawful, for example, the tuation created by the discriminatory
forced displacement of ethnic Georgians and the denial of their right of return to
their homes in violation of Articles 2, 3 and 5 of the 1965 Convention.
9.28 In the present case, in order to establish a breach of Articles 2, 3 and 5 of
the Convention, Georgia must show that Russia, by its organs or agents, engaged
in acts or practices of discriminatiagainst ethnic Georgians. Georgia has
already made this showing in Chapters 3, 5, 6 and 7 in the form of overwhelming
evidence of Russia’s direct participaion in discrimination against ethnic
Georgians. In relation to the acts and practices of discrimination by the
separatist authorities and militias in South Ossetia and Abkhazia, Georgia has to
show, in addition, that the acts of such au thorities and militias are attributable to
Russia. Georgia has made this s howing, as well, by presenting abundant
evidence in Chapters 4, 5 6 and 7 of Russia’s command and control over the two
de facto regimes and their military and paramilitary forces. The remaining part
of this section addresses the legal standard for attribution. The section that then
follows briefly summarizes the evidence pr esented in the prior Chapters of this
Memorial, which plainly shows Russia’s respon sibility for breaches of Article
2(1)(a) and Article 5 of the Convention by its own organs and agents, and by acts
of separatist forces in South Ossetia and Abkhazia that are attributable to Russia.
B. T HE DE FACTOA UTHORITIES AND M ILITIAS ISOUTH O SSETIA AND
A BKHAZIA ARE DE FACTO O RGANS OF RUSSIA
9.29 The conduct of the separatist authorities and militias operating in South
Ossetia and Abkhazia is attributab le to Russia because they are de facto organs
of the Russian State. The rule of cust omary international law on attribution on
349the basis of the conduct of the organs of a State is, as the Court has ruled,
“reflected” in Article 4 of the ILC’s Articles on State Responsibility:
1. The conduct of any State organ shall be considered an act of
that State under international law, whether the organ exercises
legislative, executive, judicial or any other functions, whatever
position it holds in the organization of the State, and whatever its
character as an organ of the centr al government or of a territorial
unit of the State.
2. An organ includes any person or entity which h1027hat status in
accordance with the internal law of the State .
9.30 A person or entity can be an organ fo r the purposes of Article 4(1) of the
ILC’s Articles even if such person or ent ity is not considered to be an organ of
the State in accordance with the internal law of that State. The ILC explained
the position as follows:
[A] State cannot avoid responsib ility for the conduct of a body
which does in truth act as one of its organs merely by denying it
that status under its own law. This re1028 is achieved by the use of
the word ‘includes’ in paragraph 2 .
9.31 The circumstances in which a person or entity that does not have the
status of an organ under the internal law of the State but is nevertheless accorded
such status by customary international law were elaborated upon by the Court in
Application of the Convention on the Prevention and Punishment of the Crime of
Genocide (Bosnia and Herzegovina v. Serbia and Montenegro) . The Court
1027Application of the Convention on the Prevention and Punishment of the Crime of Genocide
(Bosnia and Herzegovina v. Serbia and Montenegro) , Judgment, ICJ Reports 2007, p. 138, para.
385.
1028International Law Commission, Articles on State Responsibility of State for Internationally
Wrongful Acts, Yearbook of the International Law Commission, with Commentaries, Vol. II, Part
Two (2001).
350endorsed the concept of de facto State organs in this context 102. After referring
to its previous judgment in Military and Paramilitary Activities in and against
Nicaragua (Nicaragua v. United States of America), the Court said:
[A]ccording to the Court’s jurisprudence, persons, groups of
persons or entities may, fo r purposes of international
responsibility, be equated with Stat e organs even if that status
does not follow from internal la w, provided that in fact the
persons, groups or entities act in “complete dependence” on the
State, of which they are ultimately merely the instrument. In such
a case, it is appropriate to look beyond legal status alone, in order
to grasp the reality of the rela tionship between the person taking
action, and the State to which he is so closely attached as to
appear to be nothing more than its agent: any other solution
would allow States to escape thei r international responsibility by
choosing to act thr ough persons or entit ies whose supposed
1030
independence would be purely fictitious .
9.32 The situation in the present case is different in several important respects
from that addressed by the Court in Nicaragua v. United States . The contras
were armed groups operating from ne ighbouring Honduras and Costa Rica
whose objective was the overthrow of the Sandinista Government in Nicaragua.
They were not exercising governmental au thority, or purporti ng to do so; their
objective was to exercise governmental aut hority in the future. Critical to the
Court’s decision that the contras were not an organ of the United States was its
finding that the United States had not created the contras:
Despite the large quantity of documentary evidence and testimony
which it has examined, the Court has not been able to satisfy itself
that the respondent State ‘ created’ the contra force in Nicaragua.
It seems certain that members of the former Somoza National
Guard, together with civilian opponents to the Sandinista régime,
1029
Bosnia and Herzegovina v. Serbia and Montenegro, Judgment, p. 142, para. 397.
1030
Ibid., pp. 140-141, para. 392.
351 withdrew from Nicaragua soon after that régime was installed in
Managua, and sought to continue thei r struggle against it, even if
in a disorganized way and with li mited and ineffectual resources,
before the Respondent took advant age of the existence of these
opponents and incorporated this fact into its policies vis-à-vis the
1031
régime of the Applicant .
9.33 Similarly, in Armed Activities on the Territory of the Congo (Democratic
1032
Republic of the Congo v. Uganda) , the fact that Uganda had not created the
Congo Liberation Movement ( Mouvement de libération du Congo , MLC), a
rebel group operating within the territory of the C ongo, was critical to the
Court’s finding that the acts of the MLC were not attributable to Uganda:
[T]here is no credible evidence to suggest that Uganda created the
MLC. Uganda had acknowledged giving training and military
support and there is evidence to th at effect. The Court has not
received probative evidence that Uganda controlled, or could
control, the manner in which Mr . Bemba put such assistance to
use. In the view of the Cour t, the conduct of the MLC was not
that of ‘an organ’ of Uganda (Article 4, International Law
Commission Draft Articles on Re sponsibility of States for
1033
international wrongful acts, 2001) […]
9.34 The separatist authorities in Sout h Ossetia and Abkhazia, are, in
contradistinction, entities that were originally created by the USSR as the South
Ossetian Autonomous District and the Au tonomous Soviet Socialist Republic of
Abkhazia within the Soviet Socialist Repub lic of Georgia, which in turn was a
constituent unit of the USSR . The separatist authori ties in South Ossetia and
103Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v. United States of
America), Judgment, ICJ Reports 1986, pp. 61-62, para. 108 (emphasis added).
103Case Concerning Armed Activities on the Territory of the Congo (Democratic Republic of the
Congo v. Uganda), Judgment, ICJ Reports 2005,p. 168.
1033
Ibid., p. 55-56, para. 160.
352Abkhazia are the de facto successors to organs exercising de jure governmental
authority within the federal structure of the USSR. When Georgia declared
independence from the USSR in 1991, its territory was internationally
recognised to include South Ossetia and A bkhazia. Georgia has never been in a
position to exercise effective control ove r South Ossetia and Abkhazia since its
independence due to Russia’s continua tion of the USSR’s control over the de
facto authorities in those territories. But for Russia’s exercise of control over the
de facto authorities through its essential fi nancial and military support, these
authorities could not maintain their de facto independence from Georgia.
9.35 In the present case, entities exercising governmental authority are
operating in areas that straddle the in ternational border between Georgia and
Russia. Those areas do not constitute territories of intern ationally recognised
States; instead they form part of the internationally recognised territory of
Georgia. Either those entit ies are organs of the Russian State or the Georgian
State, or such entities are unregulated by international law because their conduct
cannot be attributed to any State. Those entities exercising governmental
authority in South Ossetia and Abkhazi a were completely dependent upon the
central authorities in Moscow for several decades prior to the independence of
Georgia and then were in a position to assert and maintain de facto independence
from Georgia after its independence in ci rcumstances where there is compelling
evidence that Russia continued to support those entities by financial, military and
political means. Those entities are theref ore organs of the Russian State for the
purposes of attribution.
9.36 The closest analogy to the present case in the jurisprudence of
international courts and tribunals is the European Court of Human Rights’
353judgment in Ila cu v. Moldova and Russia 1034. The European Court found that
the conduct of the separatist governmen tal authorities of the “Moldavian
Republic of Transdniestria” (the MRT) was attributable to Russia. The region of
Transdniestria is within the internationally recognised borders of Moldova. The
European Court, like this Court in Nicaragua v. United States, focused particular
attention on whether Russia could be sa id to have “created” the separatist
governmental authorities of the MRT. This answer was in the affirmative:
[T]he Court considers that the Russian Federation’s responsibility
is engaged in respect of the unlawful acts committed by the
Transdniestrian separatists, regard being had to the military and
political support it gave them to help them set up the separatist
regime and the participation of its military personnel in the
fighting. In acting thus, the auth orities of the Russian Federation
contributed both militarily and politically to the creation of a
separatist regime in th e region of Transdniestria, which is part of
the territory of the Republic of Moldova.
The Court also notes that even after the ceasefire agreement of 21
July 1992 the Russian Federation continued to provide military,
political and economic support to the separatist regime… thus
enabling it to survive by streng thening itself and by acquiring a
certain amount of autonomy vis-à-vis Moldova.
[…]
All of the above proves that the “MRT”, set up in 1991-92 with
the support of the Russian Federation, vested with organs of
power and its own administration, remains under the effective
authority, or at the very least unde r the decisive influence, of the
Russian Federation, and in any event that it survives by virtue of
the military, economic, financial and political support given to it
1035
by the Russian Federation .
1034
Ilascu v. Moldova and Russia, no. 48787/99, Eur. Ct. H.R. (Dec. 2004).
1035
Ibid., paras. 382, 392.
3549.37 In Ila cu v. Moldova and Russia , four Moldovan nationals brought
applications for various violations of the European Convention on Human Rights
(the ECHR) against Moldova and Russia in re spect of acts committed by the
MRT, which proclaimed its independence in 1991 but has never been recognised
by the international community. Prior to its independence, Moldova was a
constituent unit of the USSR (the Moldavian Soviet Socialist Republic 1036) and
thus was subject to a high degree of centralised control from Moscow. Upon the
dissolution of the USSR, th e European Court found th at Russia’s control over
the governmental authorit ies in Transdniestria 1037continued by the following
means:
th
-- Russia maintained a military presence in Transdniestria (the 14
Army of the USSR) following Moldova’s independence. The
th
commanding officers of the 14 Army then became the commanding
officers of the armed forces of the separatist authorities in
1038 th
Transdniestria which were supplied with weapons from the 14
1039
Army’s ammunition stores located in Transdniestria .
1036
The Moldavian Soviet Socialist Republic (the MSSR) was formed in 1940 from two areas.
The first was a part of Bessarabia taken from Romania in 1940 following the Molotov-
Ribbentrop Pact between the USSR and Germany, where the majority of the population consisted
of Romanian speakers. The second was a strip of land on the left bank of the Dniester in
Ukraine, Transdniestria, which was transferred to it in 1940. Its linguistic composition in 1989
was 40% Moldavian, 28% Ukrainian, 24% Russian and 8% others. Russian became the MSSR’s
official language. Ibid., para. 28. This was to change to Moldavian in 1989. Ibid., para. 29. In
1990 the MSSR proclaimed its sovereignty and in 1991 it became the “R epublic of Moldova”.
Shortly after the proclamation of sovereignty by the MSSR, the MRT also proclaimed its
sovereignty and, in 1991, its independence from the Republic of Moldova. Ibid., para. 30.
1037The Court conducted an “on-the-spot” investigation of this issue by sending a delegation of
Judges, who interviewed forty-three witnesses. All the facts included in the following summary
of Russia’s actions in respect of the MRT were among the findings of the Court, which were
made according to the criminal standard of proof “beyond reasonable doubt”.
1038
On 1 April 1992, the Russian President placed the military formations of the USSthstationed
in Moldova (including in Transdniestria) under Russia’s jurisdiction so that the 14 Army
became the “Russian Operational Group in the Transdniestrian Region of Moldova”. Ibid., para.
355 -- Russia also intervened directly in clashes between the Moldovan
authorities and the Transdniestrian separatists during the critical years
after Moldova’s declaration of independence on the side of the
1040
separatists .
-- Russia actively encouraged and supported the recruitment of
Russian Cossacks to fight along side the Transdniestrian
separatists 1041.
70. In December 1991, Mr. Igor Smirnov wa s elected the “President of the MRT”. Ibid ., para.
47. He immediately decreed to place the units of the Soviet armed forces in the territory of
Transdniestria under the command of the head of the “National De fence and Security
Department of the Moldavian Republic of Transdniestra”. The head of that Department was
th
none other than the commander of the 14 Army of the USSR, Lieutenant-thneral Gennady I.
Iakovlev. Ibid., para. 48. Furthermore, the Court found that: “The 14 Army’s Parcani sapper
battalion, under the orders of General Butkevich, had gone over to the separatist side. That
information has been confirmed by the Russian Government.” Ibid., para. 59.
1039
It was one of the largest ammunition stores in Europe. Ibid., paras. 32-33. Lieutenant-
General Gennady I. Iakovlev was later arrested by the Moldovan authorities in Ukrainian
territory and charged with supplying the Transdni estrian separatists with weapons stocks from
the 14 Army. The Court found that authorities of the Russian Federation interceded with the
Moldovan authorities to obtain the release of Lieutenant-General Iakovlev. Ibid., para. 50. The
Court held: “[T]he Court considers it to have been established beyond a reasonable doubt that
Transdniestrian separatists were able to arm them selves with weapons taken from the stores of
the 14th Army stationed in Transdniestria. The 14th Army troops chose not to oppose the
separatists who had come to help themselves from the Army’s stores; on the contrary, in many
cases they helped the separatists equip themselves by handing over weapons and by opening up
the ammunition stores to them…” Ibid., para. 57.
1040
On 19 May 1991, following clashes between the Moldovan police and Transdniestrian
separathsts, it was reported that the USSR’s Minister of Defence had ordered the commander of
the 14 Army to prepare for combat in the following terms: “Given that Transdniestria is Russian
territory and that the situation there has deteriorated, we must defend it by all means possible”.
General Lebed, later the third placed candidate in the Russian Presidential elections in 1996,
established the Russo-Transdniestrian joint de fence headquarters to combat the Moldovan
“enemy”. Ibid., para. 61.
1041The Court found that large numbers of Russian Cossacks had marched to Transdniestria from
Russia with the support of the 14 Army to fight alongside the Transdniestrian separatists. Prior
to the conflict there had been no Cossacks on Mold ovan territory and today it is estimated that
10,000 are now living in Transdniestria. Ibid., para. 60.
356 -- High level Russian politicians publicly expressed their support for
the independence of Transdniestria 1042.
-- The economy of Transdniestria is completely dependent upon the
support of the Russian Government and prominent Russian State
monopolies 1043.
-- Senior officials of the separa tist governmental authorities in
1044
Transdniestria were granted Russian citizenship .
9.38 The evidence set forth in Chapters 4 and 6, and summarized below,
shows that all these modalities of cont rol by Russia are plainly established in
respect of the separatist regimes in South Ossetia and Abkhazia.
1042
On 5 April 1992, the Vice-President of the Ru ssian Federation, Alexander Rutskoy, went to
Tiraspol, the principal city in Transdniestria, and addressed a rally of 5,000 people together with
Mr. Smirnov. According to the Court: “Mr Rutskoy declared that Mr. Sn egur did not wish to
engage in dialogue and that the best solution would be a confederation in which Moldovans and
Russians would live together on an equal footing. Lastly, he said that the 14th Army should act
as a buffer between the combatants so that the Transdniestrian people could obtain their
independence and their sovereignty and work in peace.” Ibid., para. 75. The Court also referred
to other uncontested statements by the Vice-Presi dent and President of Russia. The former was
reported to have said that he recognized the “legitimacy of the entity created on the left bank of
the Dniester” and it was noted that President Boris Yeltsin had said that “Russia has lent, is
lending and will continue to lend its economic and political support to the Transdniestrian
region”. Ibid., para. 138.
1043One of the “pillars” of the Transdniestrian economy is the arms industry that has been
supported with funds and orders from Russian arms companies and the ROG. Ibid., paras. 150-
151. The Russian State gas monopoly, Gazprom, has direct contract for the supply of gas to
Transdniestria on more favourable terms than for supplies to the rest of Moldova. Ibid., para.
156. The Russian Government wrote off US$100 million of debt owed by the MRT to Gazprom.
Ibid., para. 128. Russian companies have participated extensively in privatizations in
Transdniestria. Ibid., para. 160.
1044
These included: the Pr esident, Mr. Smirnov (ibid., para. 149); the President of the Supreme
Soviet of the MRT, Mr. M r cu (ibid., para. 147); one of the senior MRT leaders, Mr. Caraman
(ibid., para. 148); and the commander of the military forces, Lieutenant-General Iakovlev ( ibid.,
para. 146).
3579.39 Another parallel can be drawn with the European Court’s judgment in
Loizidou v. Turkey . Following Turkey’s invasi on and occupation of northern
Cyprus in 1974, the Turkish Cypriots exer cised their alleged right of external
self-determination in 1983 by proclaimi ng the Turkish Republic of Northern
Cyprus (the TRNC). This purported secession was deplored by the UN Security
Council and no State other than Turk ey has recognised it. Unlike the contras in
Nicaragua v. United States , the TRNC was undoubtedly exercising
governmental authority within the territory proclaimed as the TRNC at the
relevant time. The European Court found in substance that the organs of the
TRNC were the de facto organs of Turkey for purposes of attribution:
It is not necessary to determine whether… Turkey actually
exercises detailed control over the policies and actions of the
authorities of the ‘TRNC’. It is obvious from the large number of
troops engaged in active duties in northern Cyprus… that her
army exercises effective overall control over that part of the
island. Such control… entails he r responsibility for the policies
and actions of the ‘TRNC’ 104.
9.40 In Loizidou v. Turkey, the European Court thus recognised that where a
State is in a position to control an area outside its own national territory, the acts
of organs exercising governmental authority in that area may be attributable to
the State:
[T]he responsibility of a Contrac ting Party could also arise when
as a consequence of military action — whether lawful or unlawful
— it exercises effective control of an area outside its national
territory. The obligation to secure, in such an area, the rights and
freedoms set out in the Convention, derives from the fact of such
104Loizidou v. Turkey, no. 15318/89, Eur. Ct. H.R. (Dec. 1996), para. 56.
358 control whether it be exercised di rectly through its armed forces,
or through a subordinate local administration… 1046
9.41 In summary, there are close parallels in respect of the attribution of the
acts of the separatist entities exercising governmental authority in South Ossetia
and Abkhazia as de facto organs of Russia to the situations in Ila cu v. Moldova
and Russia and Loizidou v. Turkey. These entities were created under the Soviet
regime and, upon Georgia’s independence, we re able to resist subordination to
the constitutional authority of Georgia’s central govern ment only by virtue of
Russia’s financial, military and political support. Moreover, the fact that such
entities have subsisted over time and pur port to exercise governmental authority
-- as a result of Russia’ s direct and ongoing support -- distinguishes them from
the contras in Nicaragua v. United States and the Congo Liberation Movement
in Democratic Republic of the Congo v. Uganda . These entities must be
adjudged to be de facto organs of the Russian State. A contrary finding would
have deleterious consequences for the la w of State responsibili ty. International
law would be taken to acknowledge the ex istence of an intermediate form of
State or “quasi-State”, which exhibits most of the usual features of an
internationally recognized State (per manent population, defined territory,
existence of effective government) but , owing to its dependence upon another
State and lack of recognition by the in ternational community, cannot be held
accountable in international law.
1. The Conduct of the De Facto Authorities and Militias as Conduct
Directed or Controlled by Russia
9.42 Even if the conduct of the separatist authorities and militias in South
Ossetia and Abkhazia were held not to be attributable to the Respondent on the
104Ibid., para. 52 (emphasis added).
359basis that they are its de facto organs, the conduct of those entities would be
attributable to the Respondent in so far as such conduct was carried out under its
direction or control.
9.43 The Court endorsed and relied upon Ar ticle 8 of the ILC’s Articles on
State Responsibility as the applicable rule in customary international law in
Application of the Convention on the Prevention and Punishment of the Crime of
Genocide (Bosnia and Herzegovina v. Serbia and Montenegro):
Article 8. Conduct directed or controlled by a State
The conduct of a person or group of persons shall be considered
an act of a State under internationa l law if the person or group of
persons is in fact acting on th e instructions of, or under the
direction or control of, that State in carrying out the conduct.
9.44 The distinction between the grounds for attribution reflected in Articles 4
and 8 of the ILC’s Articles on State Responsibility was also clarified. The Court
reasoned that the question of attribution on the basis of direction or control:
is different from the question whether the persons who committed
the acts of genocide had the status of organs of the Respondent
under its internal law; nor however, and despite some appearance
to the contrary, is it the same as the question whether those
persons should be equated with State organs de facto, even though
not enjoying that status under inte rnal law. The answer to the
latter question depends… on whether those persons were in a
relationship of such complete de pendence on the State that they
cannot be considered otherwise than as organs of the State, so that
all their actions performed in such capacity would be attributable
to the State for purposes of inte rnational responsibility. Having
answered that question in the negative, the Court now addresses a
completely separate issue: whether, in the specific circumstances
surrounding the events at Srebrenica the perpetrators of genocide
were acting on the Respondent’s instructions, or under its
direction or control. An affirmative answer to this question would
360 in no way imply that the perpetrato rs should be characterized as
organs of the FRY, or equated with such organs. It would merely
mean that the FRY’s interna tional responsibility would be
incurred owing to the conduct of those of its own organs which
gave the instructions or exerci sed the control resulting in the
commission of acts in breach of its international obligations. In
other words, it is no longer a que stion of ascertaining whether the
persons who directly committed the genocide were acting as
organs of the FRY, or could be equated with those organs this
question having already been answ ered in the negative. What
must be determined is whether FRY organs incontestably having
that status under the FRY’s internal law originated the genocide
by issuing instructions to the perp etrators or exercising direction
or control, and whether, as a resu lt, the conduct of organs of the
Respondent, having been the cause of the commission of acts in
breach of its inter1047onal obliga tions, constituted a violation of
those obligations .
9.45 Article 8 does not lay down a single test to determine the circumstances
in which a person or group is acting “under the direction or control of” a State.
To the contrary, in its commentary to Ar ticle 8, the ILC emphasizes that “it is a
matter for appreciation in each case whet her particular conduct was or was not
carried out under the control of a State, to such an extent that the conduct
controlled should be attributed to it” 104.
9.46 The requisite threshold for control in any particular case is thus fact-
sensitive and requires a careful analysis of the relationship between the persons
or groups and the State in question and the extent to which control was exercised
by virtue of that relationship with regard s to the conduct said to have breached
1047
Application of the Convention on the Prevention and Punishment of the Crime of Genocide
(Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, ICJ Reports 2007 , p. 142, para.
397.
1048
International Law Commission, Draft Articles on State Responsibility, p. 112.
361the State’s international obligations. Of particular importance in the present case
is the fact that the persons and groups in South Ossetia and Abkhazia who
committed violations of Article 2(1)(a) and Article 5 of the 1965 Convention are
organised as entities exercising governme ntal authority in those regions, and
operate under the direction and control of governmental ministers who are in fact
senior-level, active duty Russian Federation military and intelligence officials
who have been seconded to serve in leadership positions in the de facto regimes.
Moreover, the persons and groups who committed violations of the 1965
Convention in South Ossetia and Abkhazia receive critical financial and military
support from Russia, and consist of ma ny individuals who have been employed
in the Russian Government and armed forces and have been conferred Russian
citizenship. The evidence supporting these propositions is set out in Chapters 4
and 6, as summarized in the next section.
C. THE EVIDENCE SUPPORTING THE B REACH AND A TTRIBUTION
9.47 There is overwhelming evidence that Russia breached its obligations
under Article 2(1)(a) and Article 5 of the 1965 Convention not to “engage” in
any “act or practice of racial discrimination against persons, groups or persons or
institutions” and “to ensure that all public authorities and public institutions…
act in conformity with this obligation”, as well as its corollary obligation not to
recognize as lawful a situ ation created by the violation (i ncluding its own
violation) of those Articles. Ru ssia breached these obligations byinter alia,
using its State institutions, including its armed forces, to physically abuse and
expel tens of thousands of ethnic Georgian civilians from their homes; to detain
ethnic Georgians solely because of thei r ethnicity; to prevent ethnic Georgian
victims of ethnic cleansing from returning to their homes; and to recognize the
legality of entities created through ethnic cleansing and render aid and assistance
362to them in consolidation and perpetuation of their ongoing discriminatory
practices.
9.48 In particular, as was demonstrated in Chapter 3, the Russian army
directly participated in the ethnic cl eansing of ethnic Georgians from South
Ossetia and adjoining areas to the south 1049. Indeed, nearly every ethnic
Georgian village that came under Russian military occupation was
comprehensively looted and burned, largely after hostilities had ended and
behind Russian lines. As the OSCE ’s human rights fact-finding mission
concluded, the “advancing Russian and Ossetian forces” caused ethnic
Georgians to flee “out of fear for thei r lives”, and that the few who remained
were “forced out violently or under threat of violence” and their homes
“systematically destroyed by arson” 1050. The OSCE investigative team
specifically “identified the perpetrato rs” as including “Russian soldiers” 1051.
Similar conclusions were reached by ma ny other independent observers. For
instance, HRW extensively documented how “Russian forces played a role in the
widespread looting of Georgian homes by Ossetian forces”, determining that
1052
“Russian forces facilitated and participated in these crimes” .
9.49 These determinations that, in the wo rds of HRW, “Russian forces” were
“active participants” in the ethnic clean sing, are corroborated by independently
collected and mutually re-enforcing evidence. For example, numerous witnesses
testified that Russian soldiers directly participated in the looting and burning of
1049See supra, Chapter 3, para. 3.17-3.41.
1050See supra, Chapter 3, para. 3.18.
1051See supra, Chapter 3, para. 3.19.
1052See supra, Chapter 3, para. 3.26.
363ethnic Georgian homes in South Ossetia and adjacent areas, or looked on as it
1053
was happening . Such discriminatory acts by Russia’s armed forces are
illustrated by the abuses they perpetrated in representative villages in all areas of
South Ossetia that were populated by ethni c Georgians. For instance, in Kurta
Municipality, not only did many victims of ethnically -motivated abuses testify
about the active participation of Russian troops, but the Russian army was
photographed in these villages at the very times that ethnic Georgian homes were
plundered and set afire and their inhab itants murdered, physically abused and
expelled 1054. Similarly, in Eredvi Munici pality, eyewitne sses reported how
Russian soldiers poured kerosene on houses before setting them on fire, a fact
confirmed by a recording of a conversation betw een Russian and Ossetian
military officers discussing the need to “prepare bottles of kerosene” 105. When
Amnesty International visited Eredvi vill age, they encountered Russian soldiers
amidst the burning homes; asked why they were taking no action to stop the
1056
arson, a Russian army officer admitted: “that’s the policy” . In Tigva
Municipality, the OSCE reported that “R ussian armed forces and ‘Ossetians”
were looting together and that the vi llage of Nuli had been “systematically
burned” by “Russian troops” that were “accompanying Ossetians and helping
1057
them to set the fires” . Likewise, in many other villages, eyewitnesses
testified to seeing Russian army personnel, wearing military uniforms and
1053See, e.g., supra Chapter 3, paras. 3.15, 3.30-3.34, 3.46-3.47, 3.59-3.60, 3.63, 3.69, 3.71, 3.74,
3.83, 3.85-3.86, 3.90, 3.92, 3.97-3.98, 3.100-3.105.
1054
See supra, Chapter 3, para. 3.54, 3.55, 3.66.
1055
See supra, Chapter 3, para. 3.74-3.75.
1056See supra, Chapter 3, para. 3.78.
1057See supra, Chapter 3, para. 3.96.
364arriving on tanks and armoured vehicles that bore the Russian flag, looting and
burning ethnic Georgian homes 1058.
9.50 Russian troops also engaged in disc riminatory violence, in breach of
Article 2(1)(a) and Article 5, by searchi ng out and detaining the few, mainly
infirm and elderly, ethnic Georgians (i ncluding large numbers of women) who
either had not fled, or could not flee from the advancing Russian army. As with
the widespread campaign to loot and burn ethnic Georgian homes, there is ample
evidence that the Russian armed forces di rectly participated in both the capture
of these ethnic Georgians as well as their confinement at the de facto Interior
Ministry building in Tskhinvali. For example, HRW’s researchers determined
that “Russian forces directly participat ed in the detention of ethnic Georgians”
and that these detainees were often captured by “Russian forces” 1059. Similarly,
there is abundant evidence that Russian military forces were present at, and
supervised, the detention of these ethnic Georgians, including conducting their
interrogations. Further, Russian forces engaged in unlawful discrimination by
forcibly deporting ethnic Georgians fr om South Ossetia to Russian-occupied
Gori, to the south of the South O ssetian administrative boundary. As The
Telegraph of London reported, “Russian m ilitary trucks dumped weeping
Georgian civilians forcibly removed from their devastated homes onto the
tarmac” outside Gori 106.
1058See, e.g., supra Chapter 3, paras. 3.15, 3.31, 3.32, 3.46, 3.59, 3.60, 3.74, 3.85, 3.86, 3.90,
3.98, 3.101, 3.103, 3.104.
1059See supra, Chapter 3, para. 3.108.
1060See supra, Chapter 3, para. 3.116.
3659.51 To complete and consolidate this effort to render South Ossetia ethnically
homogenous, Russian troops guarded the ad ministrative borders of the region
and stopped ethnic Georgians attempting to return. Indeed, the Russian military
has been assigned this responsibility unde r agreements entered into between the
de facto authorities and Russia that make th e Russian army the official State
Border Guards of the de facto regimes 1061. As set forth in Chapters 5 and 6,
Russia has also prevented ethnic Georgi ans who were displaced from South
Ossetia in 1991-1992 and from Abkhazia in 1992-1994 from returning as well,
also in breach of its obligations under Article 2(1)(a) and Article 5.
9.52 To be sure, some acts of discrimination were perpetrated not by the
Russian army, but by the milita ry and police forces of the de facto regimes.
However, the evidence establishes Russi a’s international responsibility for the
acts of these individuals and groups as well, because their “complete
dependence” upon Russia renders them de facto organs of the Russian State.
Russia’s responsibility is similarly enga ged because the separatist regimes,
including their military and police forces, are directed and controlled by Russia.
In that regard, not only were the de facto authorities created by Russia, but they
are dependent upon the Responde nt State for nearly th eir entire budgets and
1062
military resources . Moreover, all key military, intelligence, security and
police leadership positions are occ upied by Russian General Officers,
answerable to their superiors in Russia. It is these Russian Generals, acting as
Ministers of State of Sout h Ossetia, who exercised di rect command and control
over the Ossetian military and paramilitary forces that perpetrated ethnically -
motivated abuses against th e ethnic Georgian populati on, often with the direct
1061
See supra Chapter 7, para. 7.5
1062
See supra Chapter 4, paras. 4.17-4.27, 6.60, 6.70-6.74.
366participation of Russian army units, some times in the presence of those Russian
units and under their protection, and other times in their absence – but always in
the chain-of-command headed by Russian military and intelligence officers.
9.53 Russia is therefore responsible not only for the acts of violent
discrimination perpetrated by the de facto authorities, it is also responsible for
the discriminatory policies and practices they have adopted concerning Georgian
culture and identity. In that regard, tde facto authorities have discriminated
against the few ethnic Georgians who remain in areas under Russian occupation,
mainly in Akhalgori and Gali, by pl acing them under intense pressure to
relinquish their Georgian citizenshipin favour of accepting passports from
1063
Russia and the separatist regimes . Further, as a means of attempting to
extinguish their cultural identity (a nd to induce them to leave) thde facto
authorities have prohibited Georgian education, which has been replaced by
education in Russian. Since the separatist authorities are, in fact, de facto organs
of Russia and their conduc t is otherwise directed and controlled by the
Respondent, Russia is responsible for these acts of discrimination as well.
Section IV. Russia’s Breach of Article 2(1)(b) of the 1965 Convention
A. THE L EGAL T EST FORB REACH OF A RTICLE 2(1)(B)OF THE 1965
CONVENTION AND A TTRIBUTION
9.54 Article 2(1)(b) of the 1965 Convention provides:
States Parties condemn racial discrimination and undertake to
pursue by all appropriate means and without delay a policy of
1063
See supra Chapter 7, paras. 7.15-7.23, 7.26-7.35.
367 eliminating racial discrimination in all its forms and promoting
understanding among all races, and, to this end:
b. Each State Party undertakes not to sponsor, defend or support
racial discrimination by any persons or organizations[.]
9.55 Article 2(1)(b) of the 1965 Conven tion creates a form of accessory
liability for a State Party’ s support of persons, groups or organizations that
engage in practices of racial discrimi nation. It is not the acts of racial
discrimination for which the responsibility of the State Party is engaged; it is
rather the support for those persons, groups or organizations that have committed
the acts of racial discrimination that gives rise to international responsibility.
9.56 A claim based upon Article 2(1)(b) of the 1965 Convention thus has the
following elements:
1. The State has “sponsored, defended or supported”
2. “racial discrimination” as de fined in Article 1 of the
Convention
3. “by any persons or organizations”.
9.57 Proof that the persons or organizations in question have committed acts
of racial discrimination as defined by Article 1 of the 1965 Convention is an
essential element of the cause of action. But it is not necessary that the acts of
racial discrimination committed by “ any persons or organizations” are
attributable to the State Party. To the contrary, the State Party’s responsibility
arises because its own organs and agents engage in the “sponsoring, defending or
supporting” of third-parties that have committed acts of racial discrimination. It
is for this reason that responsibility can be described as “accessory” in respect of
the acts of racial discrimination in ques tion. Responsibility for acts of racial
368discrimination committed by the organs or agents of a State Party is already
imposed by Article 2(1)(a):
Each State Party undertakes to engage in no act or practice of
racial discrimination against persons, groups of persons or
institutions and to ensure that all public authorities and public
institutions, national and local, sha ll act in conformity with this
obligation.
9.58 In relation to this obligation, it is e ssential that the “a ct or practice of
racial discrimination” be committed by an organ or agent of the State Party;
indeed the text of Article 2(1)(a) refe rs expressly to “public authorities and
public institutions”.
9.59 In contradistinction, for the purpos es of Article 2(1)(b) of the 1965
Convention, it must be demonstrated the acts of “sponsoring, defending or
supporting” the racial discrimination practiced by the third-parties are
attributable to the State Party. An an alogy can be made with the accessory
liability arising under the Genocide Convention. In Application of the
Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia
and Herzegovina v. Serbia and Montenegro) , the Court said that “it is clear that
acts of complicity in genocide can be attributed to a State to which no act of
genocide could be attributed under the rules of Stat e responsibility” 106. A
further analogy can be drawn with other cases decided by the Court in relation to
the use of force. In its judgment in Democratic Republic of Congo v. Uganda ,
the Court found that the conduct of th e Congo Liberation Movement was not
attributable to Uganda 1065. Uganda could not, theref ore, be responsible in
1064Application of the Convention on the Prevention and Punishment of the Crime of Genocide
(Bosnia and Herzegovina v. Serbia and Montenegro),p. 136, para. 381.
106Democratic Republic of the Congo v. Uganda, pp. 55-56, para. 160.
369international law for the breaches of hu manitarian and human rights law that
were alleged to have been committed by that organization. Uganda was
adjudged, however, to have breached the obligation of non-intervention by
providing training and military suppor t to the military wing of the Congo
Liberation Movement 106. This finding of liabilit y obviously was not premised
upon the attribution of th e conduct of the Congo Li beration Movement to
Uganda. The Court relied upon its previous judgment in Nicaragua v. United
States. In that case, the finding of the Court was similar: the conduct of the
1067
contras in Nicaragua was not attributable to the United States but the United
States was found to have breached the principle of non-intervention through its
support of the contras106.
9.60 In the present case, it is for Georgia to prove that Russia, by its organs or
agents, “sponsored, defended or supported” the acts of discrimination committed
by the separatist authorities and militias in South Ossetia and Abkhazia against
the ethnic Georgians in those regions. The evidence establishes that Russia has
so acted.
B. T HE EVIDENCE SUPPORTING THE BREACH AND A TTRIBUTION
9.61 The evidence establishes that Russia has breached its obligations “not to
sponsor, defend or support racial discrimination by any persons or
organizations”. In that regard, ther e is overwhelming evidence that military
forces associated with the de facto authorities have enga ged in discriminatory
106Ibid. at pp. 56-57, paras. 163-165.
106Nicaragua v. United States, pp. 62-65, paras. 109-115.
106Ibid. at pp. 108-110, paras. 206-209.
370conduct, including looting and burning ethni c Georgian villages, taking ethnic
Georgian civilians as hostages and preventing forcibly displaced ethnic
Georgians from returning to their homes. The evidence is equally
unimpeachable that Russia, including its armed forces, has “sponsor[ed],
defend[ed] or support[ed]” these discriminatory acts. In that regard, the Russian
army has provided essential support to military units of the de facto regimes that
were engaged in violent discrimination. Not only were these separatist military
forces funded, armed, supplied and comm anded by Russia and Russian General
Officers, they received essential support from Russian military units. For
example, HRW’s on-the-ground investigator s observed that “in many cases the
perpetrators belonged to South Ossetian forces operating in close coordination
1069
with Russian forces . The perpetrators often arri ved in villages together with
or shortly after Russian forces passed through them” and the “perpetrators seem
1070
to have freely passed through ch eckpoints manned by Russia… forces” .
HRW further found that the Russian army “provid[ed]” “militias” responsible for
looting and burning ethnic Georgian homes “with transport into villages” 107.
9.62 Russia has also sponsored, defended and supported impermissible ethnic
discrimination by, inter alia , using its armed forces to give effect to
discriminatory policies and practices adopted by the de facto authorities,
including by enforcing their prohibition on the retu rn of ethnic Georgians. In
that regard, the longstanding use of the Russian army in this manner was
formalized on 30 April 2008 when, pursuant to agreements with the de facto
regimes, Russia seconded its army to serv e as the State Border Guards of South
1069See supra Chapter 3, paras. 3.26
1070Ibid.
1071
See supra Chapter 3, paras. 3.27.
371 Ossetia and Abkhazia. As Russia explai ned in its report on compliance with the
Provisional Measures indicated by the C ourt, under these agreements, Russian
troops are obligated to enforce the separatists’ regulations regarding IDPs, which
forbid the return of ethnic Georgians. As the Abkhaz de facto Prime Minister,
Mr. Alexander Ankvab, declared: “the A bkhazian nation opposes the return of
refugees”1072. His counterpart in South O ssetia adopted the same position.
When Mr. Eduard Kokoity was asked wh ether “Georgian civilians” would “be
allowed to return”,he responded: “We do not intend to let anybody in here
1073
anymore” . That prohibition, the OSCE’s human rights fact-finding mission
found, was given effect by the Russian ar my: “[t]he administrative boundary is
1074
now guarded by Russian troops who strictly enforce the closure” .
Section V. Russia’s Breach of Article 2(1)(d) and Article 3 of the 1965
Convention
A. T HE TEST FOR BREACH OF A RTICLE 2(1)(D)AND ARTICLE 3 OF THE 1965
C ONVENTION AND ATTRIBUTION
9.63 Article 2(1)(d) of the 1965 Convention provides:
States Parties condemn racial discrimination and undertake to
pursue by all appropriate means and without delay a policy of
eliminating racial discrimination in all its forms and promoting
understanding among all races, and, to this end:
1072
German Pronin, “Abkhazia will provide Georgians with Autonomy”, Utro.ru (18 Apr. 2005).
GM, Vol. IV, Annex 211.
1073Republic of South Ossetia New Agency,ss conference conducted in the International
Press Centre of Tskhinvali (26 Aug. 2008). Observations of Georgia, Interim Measures, Annex
40.
107OSCE, Human Rights in the War Affected Areas (2008), op. cit., p. 63. GM, Vol. II, Annex
71.
372 d. Each State Party shall prohibi t and bring to an end, by all
appropriate means, including legislation as required by
circumstances, racial discrimination by any persons, group or
organization[.]
9.64 Article 2(1)(d) imposes an obligat ion of due diligence upon the State
Party to identify “racial discriminati on by any person, group or organization”
and to take “all appropriate means” to bring that racial discrimination “to an
end”. What constitutes “appropriate means” depends upon the circumstances of
the particular case.
9.65 An example of Article 2(1)(d) bei ng engaged was in respect of the
Government of the Federal Republic of Yugoslavia (Serbia and Montenegro)’s
failure to give effective protection, thr ough its police force, to violence directed
at minorities. The CERD Committee report ed that it was “particularly disturbed
over reports of complacency on the part of law enforcement officials regarding
campaigns of terror and intimidation directed against minorities by paramilitary
1075
groups” .
The Committee recommended that, in conformity with articles 2
and 4 of the Convention, the Government should prohibit racial
discrimination and should urgently take vigorous steps to ban
racist activities and propaganda. In that connection it was vital
that paramilitary groups be disbanded, reports of ethnically
motivated attacks, including alle gations of arbitrary arrests,
disappearance and torture, prom ptly investigated and those
responsible punished 1076.
1075 th
CERD Report, 48 Session, Supp. No. 18, op. cit., para. 520 (emphasis added). GM, Vol. V,
Annex 412.
1076
Ibid., para. 543.
3739.66 The test for attribution in respect of Article 2(1)(d) of the Convention is
in substance the same as for Article 2(1) (b). It is not the acts of racial
discrimination that must be attributed to the State Party but rather the failure of
the State Party’s organs or agents “to prohibit and bring to an end” racial
discrimination practiced by “any pers ons, group or organization”. The
relationship between the State Party’s organs or agents and the third parties
engaged in the practice of racial discrimination is nonetheless important to
determine what means should have been employed by the State Party to bring the
racial discrimination to an end. It is only if the State Party has failed to adopt
“appropriate means” that its responsibility aris es under Article 2( 1)(d). If the
State Party has no means at its disposal to influence the conduct of the “persons,
group or organization” in question, then it cannot be liable under Article 2(1)(d)
of the 1965 Convention. Such would be the case, for instance, if a State has lost
all control over an area of its national territory to a separatist group.
9.67 Thus, it is necessary to determin e what means are appropriate by
reference to the capacity of the State Party to cau se the persons, group or
organization to cease their practices of racial discrimination. Where the persons,
group or organization are located outside the national territory of the State Party,
the enactment of legislation is not an “appropriate means” for the elimination of
the practice of racial discrimination in question unless there is a proper basis for
prescriptive jurisdiction in international law. Such a basis would exist if the
persons or individuals comprising the “group” or “organization” are nationals of
the State Party.
9.68 In summary, a cause of action ba sed upon Article 2(1)(d) of the 1965
Convention has the following elements:
374 1. Racial discrimination by any persons, group or
organization as defined by Ar ticle 1 of the Convention,
where:
2. A State Party has the capacity to cause such persons,
group or organization to cease such discrimination by
adopting appropriate means,
3. But has failed to adopt such means.
9.69 In the present case, it is for Georgia to prove that Russia had appropriate
means available through its organs and ag ents to cause the se paratist authorities
and militias in South Ossetia and Abkhazia to cease their acts of discrimination
against the ethnic Georgians in those regi ons and that Russia failed to adopt
those means.
9.70 Article 3 of the Convention imposes the following obligation:
States Parties particularly condemn racial segregation and
apartheid and undertake to prevent, prohibit and eradicate all
practices of this nature in territories under their jurisdiction.
9.71 It is clear from the travaux préparatoires for the 1965 Convention that
the inclusion of Article 3 was primarily the result of the States Parties’ desire to
express their abhorrence of the apartheid regime in South Africa at the time.
Nonetheless, the broader term “racial segr egation” appears in the text of Article
3 and leaves no doubt that the obligati on contained therein extends beyond the
now historical example of this heinous fo rm of racial discrimination. By its
General Recommendation No. 19 on “Racial segregation and apartheid”, the
CERD Committee confirmed that: “The reference to apartheid may have been
375directed exclusively to South Africa, but the article as adopted prohibits all forms
of racial segregation in all countries” 1077.
9.72 The CERD Committee has thus found a violation of Article 3 in the
context of the ethnic conflicts in the Balkans. In its consideration of the report of
Bosnia and Herzegovina, the Committ ee condemned the practice of “ethnic
cleansing”, massacres, forced populatio n transfers, the blockading of
international humanitarian ai d, the detention of civilian s, torture and killing of
prisoners and rape and other sexual abuses as clear breaches of Articles 3 and 5
1078
of the Convention . In this context, the Committee commented on the dangers
inherent in the construction of ethnically homogenous territorial units:
The Committee was profoundly con cerned that the human rights
violations occurring in Bosnia and Herzegovina were being
committed on the basis of ‘ethnic identity’ for the purpose of
attempting to create ethnically pure States. The Committee
emphasized that such attempts were completely contrary to the
spirit and the principles of the Convention. Furthermore, the
Committee was concerned that partition along ethnic lines in
Bosnia and Herzegovina could encourage groups elsewhere who
were unwilling to respect the territorial integrity of States 107.
9.73 In particular, the Committee condemned restrictions on the freedom of
movement targeting a particular national or ethnic group through the
1077CERD, General Recommendation No. 19, Prevention, Prohibition and Eradication of Racial
Segregation and Apartheid, Forty-seventh session, U.N. Doc. A/50/18 (1995), para. 1. GM, Vol.
II, Annex 18.
1078CERD Report, 48th Session, Supplement No. 18 , op. cit., paras. 455, 460, 467. GM, Vol. V,
Annex 412.
1079Ibid., para. 468. See also Report of the Committee on the Elimination of Racial
Discrimination, General Assembly, Fiftieth Session, Official Records, Supplement No. 18
(A/50/18) 1998, paras. 25, 219, 221.
376establishment of checkpoints, restricted roads and a permit system as a breach of
Articles 2, 3 and 5 1080.
9.74 The obligation upon States Parties in Article 3 of the 1965 Convention is
onerous: States must “prevent, prohibit an d eradicate all practices” of the nature
of racial segregation. It is a form of accessory responsibility in the sense that the
acts and omissions that have resulted in a situation of racial segregation need not
have been committed by persons or groups whose conduct is attributable to the
State. Moreover, the res ponsibility of a State Part y under Article 3 can only
arise if a situation of racial segregation has actually occurred in a territory under
the jurisdiction of the State Party. This makes Article 3 of the Convention
similar in respect of the requirement of a predicate violation (racial segregation)
to Article 1 of the Genocide Convention, for which responsibility can only apply
1081
if genocide was actually committed . This does not mean that the duty to
prevent is only engaged once the predicate violation has been committed. As the
Court said in respect of Articl e 1 of the Genocide Convention in Application of
the Convention on the Prevention and Punishment of the Crime of Genocide
(Bosnia and Herzegovina v. Serbia and Montenegro):
[A] State’s obligation to preven t, and the corresponding duty to
act, arise at the instant that the State learns of, or should normally
have learned of, the existence of a serious risk that genocide will
be committed. From that moment onwards, if the State has
available to it means likely to have a deterrent effect on those
suspected of preparing genocide, or reasonably suspected of
1080In relation to Israel’s policy in the Occupied Palestinian Territories, Report of the
Committee on the Elimination of Racial Discrimination, General Assembly, Sixty-Second
Session, Official Records, Supplement No. 18 (A/62/18) (2007), para. 227. GM, Vol. II, Annex
43.
1081
Application of the Convention on the Prevention and Punishment of the Crime of Genocide
(Bosnia and Herzegovina v. Serbia and Montenegro), para. 431.
377 harbouring specific intent (dolus specialis), it is under a duty to
make such use of these means as the circumstances permit.
However, if neither genocide nor any of the other acts listed in
Article III of the C onvention are ultimately carried out, then a
State that omitted to act when it could have done so cannot be
held responsible a posteriori , since the event did not happen
which, under the rule set out above, must occur for there to be a
violation of the obligation to prevent.
9.75 This applies, mutatis mutandis, to the duty to prevent racial segregation
in Article 3 of the Convention. Articl e 3, however, goes much further than
Article 1 of the Genocide Convention by in corporating an obligation of result:
the State Party must take all necessary st eps to “eradicate” the practice of racial
segregation if found to exis t. In contradistinction, the obligation to “prevent”
genocide in Article 1 of the Genocide C onvention is limited to an obligation of
conduct or a “due diligence” obligation, as explained by the Court in Bosnia and
Herzegovina v. Serbia and Montenegro:
[I]t is clear that the obligation in question is one of conduct and
not one of result, in the sense that a State cannot be under an
obligation to succeed, whatever th e circumstances, in preventing
the commission of genocide: the obligation of States parties is
rather to employ all means reasonably available to them, so as to
prevent genocide so far as possible. A State does not incur
responsibility simply because the desired result is not achieved;
responsibility is however incurred if the State manifestly failed to
take all measures to prevent genocide which were within its
power, and which might have c ontributed to preventing the
genocide. In this area the notion of “due diligence”, which calls
for an assessment in concreto, is of critical importance 1082.
108Ibid., p. 154, para. 430.
3789.76 Under Article 3 of the 1965 Convention, a State Party is “under an
obligation to succeed, whatev er the circumstances”, in eradicating the
commission of racial segregation.
9.77 Hence the elements of the cause of action in relation to the eradication of
racial segregation in Article 3 are as follows:
1. The existence of racial segregation;
2. In a territory under the jurisdiction of a State Party;
3. Which has not been eradicated by that State Party?
9.78 Russia has breached Article 3 of the 1965 Convention by failing to
eradicate the practice of racial segregation in South Ossetia and Abkhazia, which
is manifested by the refusal of the de facto authorities to permit the return of
ethnic Georgians who were displaced as a result of ethnic violence, following the
mass expulsions from South Ossetia in 1991-1992 and 2008, and from Abkhazia
in 1992-1994 and 2008. As a result, Sout h Ossetia and Abkhazia have become
ethnically homogenous enclaves for the ethnic Ossetians and Abkhaz.
9.79 South Ossetia and Abkhazia are terri tories under the jurisdiction of
Russia for the purposes of Article 3 of the Convention. Russia has exercised
jurisdiction over those territories by different means corresponding to two
distinct periods:
1. From 8 August 2008 until the present, Russia has
exercised effective control over South Ossetia and
Abkhazia by virtue of its military occupation of those
areas within the national territory of Georgia, including its
exercise, through its military forces, of the responsibilities
of “State Border Guards” re sponsible for policing the two
379 regions’ administrative boundaries with the rest of
Georgia and controlling all entry into the regions.
2. Since before 8 August 2008, Russia has exercised
effective control over South Ossetia and Abkhazia by
virtue of its control over the de facto authorities in those
areas within the national territory of Georgia. This control
was established as a result of Russia’s military
intervention in support of thede facto authorities in the
period 1991-1994, and it has gr own to include control
over the de facto governmental administrations, finances
and public order in the two regions.
B. E VIDENCE S UPPORTING THE B REACH AND A TTRIBUTION
9.80 Russia’s international responsibil ity is engaged for breaching its
obligations under Article 2( 1)(d) to “prohibit and bring to an end… racial
discrimination by any persons, group or organization”. As discussed above,
there is clear evidence that forces associated with the de facto authorities
engaged in violent discrimination agai nst the ethnic Georgian population. The
evidence is equally clear that Russi a took no action to prevent such
discriminatory acts, despite having the dominant military force in the South
Ossetia and Abkhazia, which was fully cap able of taking appropriate steps to
protect ethnic Georgians and their property.
9.81 In that regard, independent fact -finders and eye-witnesses both reported
that the Russian army failed to take acti on to stop the abuse of ethnic Georgians
and the destruction of their property, even when such discriminatory acts were
being perpetrated in the Russian army’s presence. For instance, Amnesty
380International determined that the “Russi an armed forces failed to ensure and
protect the human rights of the ethnic Ge orgian populations” and that “Russian
military forces did not uphold their oblig ation to maintain law and order and
prevent looting by South Ossetian militia gr oups in areas under their control”.
HRW likewise found that “Ossetian militias” had “arrive[d] in villages together
with Russian forces, and the latter at the very least provided cover for the
burning and looting of homes”. 1083 An example of this failure to stop violent
discrimination occurred in the ethnic Georgian enclave north of Tskhinvali,
where HRW observed Ossetian forces looting and burning literally “next to
1084
Russian tanks and personnel carriers”. The OSCE’s human rights
investigative mission found evidence of similar conduct by Russia, reporting that
“Russian troops and tanks stood by while ‘O ssetians’ set fire to most houses in
1085
the village”. Similarly, the UN Secretary -General’s Representative on the
Human Rights of the Internally Displ aced concluded, following a fact-finding
mission, that there was a “failure by Russian forces to respond and carry out their
duty to protect”. 1086
9.82 The same evidence demonstrates th at Russia breached its obligation
under Article 3 to “undertake to prohibit and eradicate all pr actices” of “racial
segregation”. In that regard, Russia failed to take any action to prevent the
armed forces of the de facto authorities from ethnically cleansing the Georgian
population from South Ossetia, the intent of which was to segregate ethnic
Georgians from ethnic Ossetians. Further, Russia has failed to undertake to
1083
See supra Chapter 3, para. 3.35.
1084See supra Chapter 3, para. 3.36.
1085Ibid.
1086See supra Chapter 3, para. 3.24.
381prohibit and eradicate this practice of racial segregation -- and, in fact, has
contributed to its consolidation -- by refusing to permit ethnic Georgians to
return to their homes in South Ossetia and Abkhazia, and ag reeing to have the
Russian army serve as the offici al State Border Guards of the de facto regimes,
and to carry out their discriminatory policies designed to prevent ethnic Georgian
1087
IDPs from returning to their homes .
9.83 Nor has Russia undertaken any effo rt to prosecute or punish the
perpetrators of acts intend ed to create racial segregation, even when committed
by its own armed forces. As the Council of Europe determined after assessing
the activities of the General Prosecutor’s Office of Russia, “[i]t would seem that
there is no intention to investigate possible violations of human rights and
humanitarian law committed by Russian fo rces and forces under the control of
the de facto South Ossetian authorities” 1088. In fact, the Council of Europe found
that the Special Investigation Committee of the Russian prosecution service that
was responsible for the investigation and prosecution of criminal acts committed
in South Ossetia had reportedly “closed its investigations on the ground in South
Ossetia in mid-September, at a time when credible reports indicated that looting,
pillaging, as well as acts of ethnic cleaning were taking place on a daily basis in
1089
the areas under Russian control” .
***
1087See supra Chapters 5 and 6.
1088Council of Europe, Parliament Assembly, The implementation of Resolution 1633 (2009) on
the consequences of the war between Georgia and Russia , Doc. 11800 (26 January 2009), para.
50 (emphasis added). GM, Vol. II, Annex 60.
1089Ibid.
3829.84 In sum, Russia is internationally responsible for breaching Articles
2(1)(a), 2(1)(b), 2(1)(d), 3 and 5 of the 1965 Convention. Russia’s further
responsibility for breaches of the Court’s Order of 15 October 2008 on
Provisional Measures is addressed in the next Chapter.
383 CHAPTER X.
RUSSIA’S RESPONSIBILITY FOR FAILURE TO COMPLY WITH
THE COURT’S ORDER ON PROVISIONAL MEASURES Section I. The Court’s Provisional Measures Order Creates Binding
Obligations
10.1 The Court affirmed in its decision in LaGrand that its “orders on
provisional measures under Article 41 [of the Statute] have binding effect” 109.
The purpose of provisional meas ures is to protect the ri ghts of either party,
pending the determination of the merits of the case. The Court’s Order of 15
October 2008 on Provisional Measures thus created freestanding legal
obligations which both parties were required to comply with.
10.2 In three recent judgments at the merits stage of the proceedings, the Court
found that the respondent State had breached its order on provisional measures.
In Application of the Convention on the Prevention and Punishment of the Crime
of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro) , the Court
declared in the operative part of its judgment on the merits that Serbia and
Montenegro had failed to comply with the Court’s order indicating provisional
measures by failing to take all measures within its power to prevent genocide in
1091
Srebrenica in July 1995 . Likewise, in Armed Activities on the Territory of the
Congo (Democratic Republic of the Congo v. Uganda), the Court found that
Uganda had failed to comply with each of the three provisional measures
indicated by the Court by reason of the violations of humanitarian and human
rights law by its military forces after those measures were indicated 1092. Most
109La Grand (Germany v. United States of America), Judgment, I.C.J. Reports 2001, p. 506,
para. 109.
109Application of the Convention on the Prevention and Punishment of the Crime of Genocide
(Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, I.C.J. Reports 2007, p. 167,
para. 469.
109Case Concerning Armed Activities on the Territory of the Congo (Democratic Republic of the
Congo v. Uganda), Judgment, I.C.J. Reports 2005,p. 83, para. 264.
387recently, in Avena and Other Mexican Nationals , the Court affirmed that the
United States of America had breached the Court’s order of provisional measures
by executing Mr. José Ernesto Medellín Rojas before the Court delivered its
1093
judgment on the merits .
Section II. The Evidence Supporting the Breach of the Court’s Order
10.3 In its Order of 15 October 2008, th e Court indicate d the following
provisional measures:
A. Both Parties, within South Osseti a and Abkhazia and adjacent areas
in Georgia, shall
(1) refrain from any act of racial discrimination against
persons, groups of persons or institutions;
(2) abstain from sponso ring, defending or supporting
racial discrimination by any persons or organizations,
(3) do all in their power, whenever and wherever
possible, to ensure, without distinction as to national or
ethnic origin,
(i) security of persons;
(ii) the right of persons to freedom of movement
and residence within the border of the State;
(iii) the protection of th e property of displaced
persons and of refugees;
(4) do all in their pow er to ensure that public authorities
and public institutions under their control or influence do
1093
Request for Interpretation of the Judgment of 31 March 2004 in the Case Concerning Avena
and Other Mexican Nationals (Mexico v. United States of America), Judgment, I.C.J. Reports
2009, p. 16, para. 53.
388 not engage in acts of racial discrimination against
persons, groups of persons or institutions;
B. Both Parties shall facilitate, and refrain from placing any impediment
to, humanitarian assistance in support of the rights to which the local
population are entitled under the International Convention on the
Elimination of All Forms of Racial Discrimination;
C. Each Party shall refrain from a ny action which might prejudice the
rights of the other Party in respect of whatever judgment the Court
may render in the case, or which might aggravate or extend the
dispute before the Court or make it more difficult to resolve.
10.4 As set forth in detail in Chapte r 7, Russia has breached the Provisional
Measures that the Court indicated in its Order of 15 October 2008. Because the
facts that support Russia’s breach of that Order were set out in full in Chapter 7,
Georgia will not recapitulate them here , other than to summarize their salient
features.
10.5 Since the Order of 15 October 2008, th e few remaining ethnic Georgians
in South Ossetia, principally in Akhalgor i, continue to be subject to ethnically-
1094
targeted human rights abuses . For example, the OSCE’s High Commissioner
on National Minorities reported in late November 2008 that “the situation in the
District of Akhalgori is particularly worrying in view of recent statements by
those exercising jurisdiction over populati on and territory that the inhabitants
have to acquire South Ossetian/Russian passports or leave their homes”. 1095
Further, Russian and de facto forces continue to loot and burn the homes of
ethnic Georgians who have been expelled. As the Council of Europe reported in
April 2009, six months after the Court in dicated provisional measures, “[t]he
1094
See supra Chapter 7, para. 7.15 et seq.
1095
See supra Chapter 7, para. 7.22.
389villages of South Ossetia previously unde r Georgia’s control have been razed to
the ground with the exceptions of a handful of houses. The intention to cleanse
1096
the area of ethnic Georgians is clear” .
10.6 Similarly, Russia is responsible fo r ongoing discrimination in the Gali
District of Abkhazia, again in bre ach of the Court’s Order on Provisional
Measures. As the OSCE High Commissioner on National Minorities concluded,
for the “Georgian population in the Gali District” life is “very difficult as they
1097
are deprived of several of their basic human rights.” These include
1098
fundamental rights related to citizenship, identity and education .
10.7 Further, in both South Ossetia and Abkhazia, Russia and the de facto
authorities prevent the return of ethnically cleansed Georgians, also in breach of
the Court’s Order indicating Provisional Measures. This prohibition is enforced
by the Russian army, which pursuant to agreements between the Respondent
State and the de facto authorities, has assumed re sponsibility for patrolling the
administrative boundaries of South Ossetia and Abkhazia as their official State
Border Guards 1099. The ban on returning ethnic Georgians is given additional
force by discriminatory measures adopted by the de facto regimes, and enforced
by the Russian Federation border guards, that are intended to deter ethnic
Georgians from attempting to return, in cluding forced passportization and a
prohibition on Georgian education 1100. The discriminatory impact of these
1096See supra Chapter 7, para. 7.14.
1097See supra Chapter 7, para. 7.26.
1098
See supra Chapter 7, para. 7.27.
1099
See supra Chapter 7, para. 7.5.
1100See supra Chapter 7, para. 7.27.
390measures is compounded by the o ngoing refusal of Russia and the de facto
regimes to permit adequate access to huma nitarian and relief agencies and the
corresponding denial of independent and impartial international monitoring 1101.
10.8 These facts, as well as those set forth in Chapter 7, make clear that Russia
has breached the Provisional Measures indicated by the Court in its Order of 15
October 2008.
1101
See supra Chapter 7, para. 7.52 et seq.
391CHAPTER XI.
REMEDIES Section I. Introduction
11.1 The specific remedies requested by Georgia are set out in the
Submissions to this Memorial. In this Chapter, the legal basis and authority for
these remedies is analyzed with references to judgments of the Court and the
ILC’s Articles on State Responsibility.
11.2 Georgia seeks a declaration from th e Court that the Respondent by its
conduct described in this Memorial has violated and continues to violate its
obligations under the 1965 Convention. The Court is also requested by Georgia
to order the Respondent to cease its ongoing violations of the 1965 Convention
and to take immediate and effective st eps to ensure full compliance with its
obligations. In addition, Georgia requests certain orders to restore the status quo
ante in South Ossetia and Abkhazia in respect of the right of ethnic Georgians to
reside in their homes in those areas of Georgia. Finally, compensation is sought
from the Respondent for the expenses that Georgia has incurred in dealing with
the humanitarian crisis caused by the ma ssive internal displacement of ethnic
Georgians from South Ossetia and Abkhazia since 1991.
11.3 Each of these remedies will be discussed in turn after a brief analysis of
the law applicable to the secondary consequences for breach of the obligations in
Part I of the 1965 Convention.
Section II. Applicable Law
11.4 The 1965 Convention does not purport to regulate the consequences for a
breach of the obligations in Part I by the States Parties. The norms of general
international law concerning state res ponsibility therefore apply. As the
Permanent Court of International Justice established in Factory at Chorzów:
395 It is a principle of internati onal law that the breach of an
engagement involves an obligation to make reparation in adequate
form. Reparation therefore is th e indispensable complement of a
failure to apply a convention and th ere is no necessity for this to
be stated in the convention its elf. Differences relating to
reparations, which may be due by reason of failure to apply a
convention, are consequently differences relating to its
1102
application .
11.5 More recently, the International C ourt of Justice has affirmed the
application of the law of state responsi bility to a cause of action based upon an
international treaty in Gabcíkovo-Nagymaros Project:
[A]n evaluation of the extent to which the suspension or
denunciation of a convention, seen as incompatible with the law
of treaties, involves the res ponsibility of the State which
proceeded to it, is to be made under the law of State
responsibility… It is moreover well established that, when a State
has committed an internationally wrongful act, its international
responsibility is likely to be involved whatever the nature of the
obligation it has failed to respect… 1103
11.6 The ILC’s Articles on State Responsibility have been referred to by the
Court in its recent judgments and are relied on by Georgia as an accurate
codification of the relevant rules of customary international law.
Section III. Declaration of the Court
11.7 In its submissions in Part F of its Memorial, Georgia has requested the
Court to adjudge and declare that th e Respondent by its conduct has violated
1102
Factory at Chorzów, Jurisdiction, Judgment No. 8, 1927, P.C.I.J. Series A, No. 9, p. 21.
1103
Gabcíkovo-Nagymaros Project (Hungary v. Slovakia), Judgment, I.C.J. Reports 1997, para.
47.
396and, in some respects, continues to violate its obligations under Part I of the 1965
Convention.
11.8 As the Court has jurisdiction over the present dispute by virtue of Article
22 of the 1965 Convention, it clearly ha s the authority to determine the
lawfulness of the Respondent’s conduct and to make a declaration of its findings.
Indeed, this is the most common form of relief granted by the Court. For
instance, in Corfu Channel , the Court found that Br itain had conducted an
unlawful mine-sweeping operation and held:
[T]o ensure respect for international law, of which it is the organ,
the Court must declare that the action of the British Navy
1104
constituted a violation of Albanian sovereignty .
11.9 A declaration from the Court as to the wrongfulness of the Respondent’s
conduct is essential to ensure that any future conduct by the Respondent in South
Ossetia and Abkhazia is grounded in respec t for the rights of ethnic Georgians
and is consistent with the fundament al prohibition of all forms of ethnic
discrimination.
Section IV. Duty of Cessation and Non-Repetition
11.10 In Construction of a Wall, the Court affirmed the duty of cessation as part
of general international law in line with its previous jurisprudence:
The Court observes that Israel also has an obligation to put an end
to the violation of its internati onal obligations flowing from the
construction of the wall in the Occupied Palestinian Territory.
The obligation of a State respon sible for an internationally
1104 th
Corfu Chanel (United Kingdom of Great Britain v. Albania), Judgment of April 9 , 1949,
I.C.J. Reports 1949, p. 35.
397 wrongful act to put an end to that act is well established in general
international law, and the Cour t has on a number of occasions
confirmed the existence of that obligation (Military and
Paramilitary Activities in and against Nicaragua (Nicaragua v.
United States of America), Merits, Judgment, I.C.J. Reports 1986,
p. 145); United States Diplomatic a nd Consular Staff in Tehran,
Judgment, I.C.J. Reports 1980, p. 44, para. 95; Haya de la Torre,
1105
Judgment, I.C.J. Reports 1951, p. 82) .
11.11 The duties under consideration are refl ected in Article 30 of the ILC’s
Articles:
The State responsible for the internationally wrongful act is under
an obligation:
3. to cease that act, if it is continuing;
4. to offer appropriate assurances and guarantees of
non-repetition, if circumstances so require.
11.12 By persisting with its illegal condu ct in respect of South Ossetia and
Abkhazia, Russia is challenging the funda mental interests protected by the 1965
Convention not only to the detriment of Ge orgia and its nationals but also to the
detriment of the other States Parties to the 1965 Convention, all of which have a
stake in safeguarding the continued valid ity and effectiveness of the infringed
obligations. Georgia therefore respectfu lly requests the Court to order the
Respondent to cease all acts in contrave ntion of its obliga tions under the 1965
Convention and to provide appropriate assurances an d guarantees that it will
refrain from all such acts in the future . Such assurances and guarantees are
appropriate in the present case given that Russia has failed to comply with the
1105
Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory,
Advisory Opinion, I.C.J. Reports 2004, p. 197, para. 150.
398Order of the Court on Provisional Measures dated 15 October 2008 and
continues to be in default, thus giving rise to a real risk that Russia will continue
to breach its obligations under the 1965 Convention following the Court’s
judgment on the merits.
11.13 Russia is continuing to violate the 1965 Convention and the Court’s
Order on Provisional Measures by continuing to prevent the return of internally
displaced ethnic Georgians by, among other means, its formal recognition of
South Ossetia and Abkhazia as “independent states”. By this recognition, Russia
has contributed to consolidation of th e effects of ethnic cleansing in these
territories in breach of its obligation “not to sponsor, defend or support racial
discrimination by any persons or organi zations” in Article 2(1)(b) of the 1965
Convention. As described in Chapters 5 and 6, the de facto regimes have
promulgated policies and enacted laws w ith the effect of denying the right of
ethnic Georgian IDPs to return to thei r homes. Russia, by formally recognising
those separatist entities and then entering into bilateral agreements with each of
them as if they were sovereign states, has, inter alia, assumed direct
responsibility, exercised on the ground by Russian military forces, for serving as
their “state border guards”, policing their borders with the rest of Georgia, and
enforcing their ethnically discriminatory policies against ethnic Georgian IDPs
seeking to enjoy their right of return. In Russia’s own words, “[t]he Russian
border guards in Abkhazia a nd South Ossetia are obliged to act in accordance
with the relevant Republic’s national regulations” 1106. Thus, the formal
recognition of South Ossetian and Abkh azian sovereignty has been used by
1106
Case Concerning Application of the International Convention on the Elimination of All
Forms of Racial Discrimination (Georgia v. Russian Federation), Report of the Russian
Federation on Compliance with the Provisional Measures Indicated by the Order of the Court of
15 October 2008 (8 July 2009), p. 12.
399Russia as a justification for its own ongoing acts of discrimination against ethnic
Georgians. In these circumstan ces, Russia’s recognition of the two de facto
entities constitutes both an acceptance and a perpetuation of an unlawful
situation, and as such constitutes an ongoing violation of the 1965 Convention
and the Court’s Order on Provisional Measures.
Section V. Duty to Make Full Reparation
11.14 The classic statement on the content of the obligation of reparation in
international law is to be found in the Pe rmanent Court of International Justice’s
decision on the merits in Factory at Chorzów:
The essential principle contained in the actual notion of an illegal
act — a principle which seems to be established by international
practice and in particular by the d ecisions of arbitral tribunals —
is that reparation must, as far as possible, wipe out all the
consequences of the illegal act and reestablish the situation which
would, in all probability, have ex isted if that act had not been
committed. Restitution in kind, or, if this is not possible, payment
of a sum corresponding to the valu e which a restitution in kind
would bear; the award, if need be, of damages for loss sustained
which would not be covered by restitution in kind or payment in
place of it — such are the pr inciples which should serve to
determine the amount of compensation due for an act contrary to
international law 110.
11.15 The duty to make full reparation is re flected in Article 31 of the ILC’s
Articles.
11.16 It is Georgia’s submi ssion that, in order to “wipe out all the
consequences” of Russia’s breaches of its obligations under the Convention,
110Factory at Chorzów, p. 47.
400Russia is under a duty to adopt ce rtain measures to restore that status quo ante
and to pay compensation for part of th e direct damage caused to Georgia by
reason of such breaches. Restitution in kind and compensation are the two forms
of reparation identified in the Permanent Court’s statement of principle in
Factory at Chorzów and are also included in Article 34 of the ILC’s Articles.
Each will be considered separately below.
A. R ESTITUTION IN K IND
11.17 According to Article 35 of the ILC’s Articles:
A State responsible for an internationally wrongful act is under an
obligation to make restitution, that is, to re-establish the situation
which existed before the wrongful act was committed, provided
and to the extent that restitution:
(a) is not materially impossible;
(b) does not involve a burden out of all proportion to the benefit
deriving from restitution instead of compensation.
11.18 In the present case, it is clear ly impossible to re-establish
comprehensively the status quo ante . Nonetheless, it is possible for Russia to
take measures to facilitate the return of ethn ic Georgians who have been forced
to abandon their homes in South Ossetia and Abkhazia following the campaign
of ethnically motivated violence that has been waged against them. The
dependence of the de facto authorities in South Ossetia and Abkhazia upon
Russia has already been documented in this Memorial. Russia is in a position to
exercise decisive influence over these au thorities to secure the return of the
internally displaced ethnic Georgians and accordingly should be compelled by
the Court to adopt appropriate measures towards this end.
401 B. C OMPENSATION
11.19 The Court stated in Gabcíkovo-Nagymaros Project:
It is a well-established rule of international law that an injured
State is entitled to obtain comp ensation from the State which has
comm1108d an internationally wrongful act for the damage caused
by it .
11.20 The relevant principles of international law on compensation are set out
in Article 36 of the ILC’s Articles:
1. The State responsible for an internationally wrongful act is
under an obligation to compensate for the damage caused thereby,
insofar as such damage is not made good by restitution.
2. The compensation shall cover any financially assessable
damage including loss of profits insofar as it is established.
11.21 Although Georgia is entitled to cla im full compensation to “wipe out the
consequences” of Russia’s breaches of the 1965 Convention, it would be
difficult to quantify with precision the sepa rate instances of damage caused to
Georgia and its nationals by breaches of the 1965 Convention attributable to the
Respondent. Georgia has therefore electe d to seek partial compensation for a
head of damage that is readily quantifiable and for which the causal connection
to a particular violation is self-evident. But for Russia’s direct participation in
the expulsion of ethnic Georgians from S outh Ossetia and Abkhazia in violation
of its obligations in Articles 2(a)(1) and 5, as well as Russia’s breaches of Article
2(1)(b)’s obligation “not to sponsor, de fend or support racial discrimination” by
the de facto authorities and Articles 2(1)(d) a nd 3’s obligations to “prohibit and
1108
Gabcíkovo-Nagymaros Project, p. 81, para. 152.
402bring to an end… racial discrimination” and to “prevent, pr ohibit and eradicate
all practices” of “racial segregation”, the vast majority of ethnic Georgians IDPs
would not have been expelled from these territories and/or would have been able
to return. As a result of those e xpulsions and the corresponding humanitarian
crisis, Georgia has been re quired to expend significant resources over the entire
period of this dispute to provide basic humanitarian aid to the Georgian IDPs.
Georgia respectfully requests the Court to order Russia to pay compensation in
an amount reflecting these expenses incurr ed by Georgia as a direct result of
Russia’s breach of Articles 2, 3 and 5 of the 1965 Convention together with
interest to be assessed in accordance with the principles set out in Article 38 of
the ILC’s Articles.
11.22 It is submitted that the precise quantification of such compensation could
be reserved to a short separate phase on damages following the Court’s judgment
on the merits. As was stated by the Court in Fisheries Jurisdiction:
It is possible to request a general declaration establishing the
principle that compensation is due, provided the claimant asks the
Court to receive evidence to determine, in a subsequent phase of 1109
the same proceedings, the amount of damage to be assessed .
11.23 The Court has adopted this approach in several cases 1110. As the Court
acknowledged recently in Democratic Republic of the Congo v. Uganda, this has
the advantage of allowing the Parties to enter into negotiations to arrive at a joint
1109Fisheries Jurisdiction (Federal Republic ofGermany v. Iceland), Merits, Judgment, I.C.J.
Reports 1974, p. 204, para. 76.
1110Corfu Channel, p. 26; United States Diplomatic and Consular Staff in Tehran (United States
of America v. Iran), Merits, Judgment, I.C.J. Reports 1980, p. 46, para. 95; Military and
Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America),
Merits, Judgment, I.C.J. Reports 1986, pp. 142-143, 149, paras. 284, 292.
403assessment of the appropriate compensation before resorting to the Court if no
agreement is forthcoming 1111.
1111
Case Concerning Armed Activities on the Territory of the Congo (Democratic Republic of the
Congo v. Uganda), Judgment, I.C.J. Reports 2005,p. 82, paras. 260-261.
404 PART F.
SUBMISSIONS SUBMISSIONS
On the basis of the evidence and legal argument presented in this Memorial,
Georgia requests the Court to adjudge and declare:
1. that the Russian Federation, through its State organs, State agents and other
persons and entities exercising govern mental authority, and through the de
facto governmental authorities in Sout h Ossetia and Abkhazia and militias
operating in those areas, is responsible for violations of Articles 2(1)(a),
2(1)(b), 2(1)(d), 3 and 5 of the 1965 Convention by the following actions:
(i) the ethnic cleansing of Georgians in South Ossetia; (ii) the frustration of
the right of return of Georgians to their homes in South Ossetia and
Abkhazia; and (iii) the destruction of Georgian culture and identity in South
Ossetia and Abkhazia;
2. that the Russian Federation is respon sible for the violation of the Court’s
Order on Provisional Measures of 15 October 2008 by the following
actions: (i) acts of discrimination, in cluding by violence, against Georgians
in South Ossetia and Abkhazia; (ii) the frustration of the right of return of
Georgians to their homes in Sout h Ossetia and Abkhazia; (iii) the
destruction of Georgian culture and identity in South Ossetia and Abkhazia;
and (iv) the obstruction of access to humanitarian assistance;
3. that the Russian Federation is under an obligation to cease all actions in
contravention of its obligations under Articles 2(1)(a), 2(1)(b), 2(1)(d), 3
and 5 of the 1965 Convention and th e Court’s Order on Provisional
Measures , including all acts of discrimination as well as all support, defence,
sponsorship of, or efforts to consolidate, such discrimination,and to provide
appropriate assurances and guarantees that it will refrain from all such acts
in the future;
4074. that the Russian Federation is unde r an obligation to re-establish the
situation that existed before its violations of Articles 2(1)(a), 2(1)(b),
2(1)(d), 3 and 5 of the 1965 Convention, in particular by taking prompt and
effective measures to secure the return of the internally displaced Georgians
to their homes in South Ossetia and Abkhazia;
5. that the Russian Federation is under an obligation to compensate for the
damage caused by its violations of Articles 2(1)(a), 2(1)(b), 2(1)(d), 3 and 5
of the 1965 Convention and of the C ourt’s Order on Provisional Measures
with such compensation to be quantified in a separate phase of these
proceedings.
Georgia reserves its rights to amend these submissions in the course of the
proceedings.
2 September 2009,
408 Certification
I certify that the annexes are true copies of the documents referred
to and that the translations provided are accurate.
409 LIST OF ANNEXES
TABLE OF CONTENTS
VOLUME II
UNITED NATIONS DOCUMENTS
th
Annex 1 U.N. Economic and Social Council, Report of the 13 Session of
the Sub-Commission on Prevention of Discrimination and
Protection of Minorities (1961) , U.N. Doc. E/CN.4/815 (9
February 1961).
Annex 2 U.N. Economic and Social Council, Commission on Human
Rights, Report on the Twentieth Session, Official Records, Thirty-
Seventh Session, Supplement No. 8, E/3873, U.N. Doc.
E/CN.4/874. (17 February – 18 March 1964).
Annex 3 International Convention on the Elimination of All Forms of
Racial Discrimination, 660 UNTS 195 (21 December 1965),
(entered into force 4 January 1969).
Annex 4 U.N. General Assembly, Report of the Committee on the
Elimination of Raci al Discrimination, Official Records, Forty-
Sixth Session, Supplement No. 18, U.N. Doc. A/46/18 (1992).
Annex 5 U.N. Security Council, Letter dated 2 October 1992 from the
First Deputy Foreign Minister of Georgia Addressed to the
President of the Security Council , U.N. Doc. S/24626 (7 October
1992).
Annex 6 U.N. Security Council, Annex, Summary of the report of the
goodwill mission to Georgia , U.N. Doc. S/24633 (8 October
1992).
Annex 7 U.N. Office of the High Commissioner for Human Rights, CERD,
General Recommendation No. 14: Definition of discrimination
411 (Art.1, par.1), U.N. Doc. A/48/18 (22 March 1993).
Annex 8 U.N. Security Council, Letter dated 2 July 199 3 from the head of
state of the Republic of Georgia addressed to the President of the
Security Council, U.N. Doc. S/26031 (2 July 1993).
Annex 9 U.N. Commission on Human Rights, Sub-Commission on
Prevention of Discrimination and Protection of Minorities,
Possible ways and means of facilitating the peaceful and
constructive solution of problem s involving minorities, Report
submitted by Mr. Asbjorn Eide , U.N. Doc. E/CN.4/Sub.2/1993/34
(10 August 1993).
Annex 10 U.N. General Assembly, Annex, Report on the question of the use
of mercenaries as a means of violating human rights and impeding
the exercise of the right of peoples to self-determination, submitted
by the Special Rapporteur of the Commission on Human Rights ,
U.N. Doc. A/48/385 (23 September 1993).
Annex 11 U.N. Security Council, Resolution 876, U.N. Doc. S/RES/876 (19
October 1993).
Annex 12 U.N. Security Council, Provisional Verbatim Record of the 3295th
Meeting, U.N. Doc. S/PV/3295 (19 October 1993).
Annex 13 U.N. General Assembly, Report of the Committee on the
Elimination of Racial Discrimi nation, Letter of Transmittal from
Chairman of CERD to Secretar y-General of United Nations,
Official Records, Forty-Eighth Session, Supplement No. 18, U.N.
Doc. A/48/18 (1994).
Annex 14 U.N. Economic and Social Council, Commission on Human
Rights, Letter dated 23 February 1994 from the Permanent
Representative of Georgia to th e United Nations addressed to the
Chairman of the fiftieth se ssion of the Commission on Human
Rights, U.N. Doc. E/CN.4/1994/123 (1 March 1994).
Annex 15 U.N. Security Council, Report of the Secretary-General
Concerning the Situation in Abkhazia, Georgia , U.N. Doc.
412 S/1994/253 (3 March 1994).
Annex 16 U.N. Security Council, Annex I, Agreement on a Cease-Fire and
Separation of Forces, signed in Moscow on 14 May 1994, U.N.
Doc. S/1994/583 (14 May 1994).
Annex 17 U.N. Commission on Human Rights, Sub-Commission on
Prevention of Discrimination and Protection of Minorities,
Working Paper Containing Sugges tions for a Comprehensive
Programme of Prevention of Discrimination and Protection of
Minorities, U.N. Doc. E/CN.4/Sub.2/1994/36 (6 July 1994).
Annex 18 U.N. General Assembly, Annex VII, General Recommendation No.
19, Prevention, Prohibition and Eradication of Racial Segregation
and Apartheid , Official Records, Fiftieth Session, U.N. Doc.
A/50/18 (1995).
Annex 19 U.N. General Assembly, Report of the Committee on the
Elimination of Raci al Discrimination, Official Records, Forty-
Ninth Session, Supplement No. 18, U.N. Doc. A/49/18 (1995).
Annex 20 U.N. Office of the High Commissioner for Human Rights, CERD,
General Recommendation No. 20: Non-discriminatory
implementation of righ ts and freedoms (Art. 5) , Forty-Eighth
Session, U.N. Doc. A/51/18 (1996).
Annex 21 U.N. Office of the High Commissioner for Human Rights, CERD,
General Recommendation No. 22: Art. 5 and refugees and
displaced persons, Forty-Ninth Session, U.N. Doc. A/51/18
(1996).
Annex 22 U.N. General Assembly, Annex, Report on the policy of ethnic
cleansing/genocide conducted in the territory of Abkhazia,
Georgia, and the necessity of brin ging to justice the persons who
committed these crimes in accordance with international
principles of due process, U.N. Doc. A/52/116 (16 April 1997).
Annex 23 U.N. Security Council, Resolution 1124, U.N. Doc. S/RES/1124
(31 July 1997)
413Annex 24 U.N. Security Council, Letter dated 26 May 1998 from the
Permanent Representative of Ge orgia to the United Nations
addressed the President of the Security Council, U.N. Doc.
S/1998/432 (26 May 1998).
Annex 25 U.N. Security Council, Report of the Secretary-General
Concerning the Situation in Abkhazia, Georgia, U.N. Doc.
S/1998/497 (10 June 1998).
Annex 26 U.N. Security Council, Report of the Secretary-General
Concerning the Situation in Abkhazia, Georgia , U.N. Doc.
S/1998/647 (14 July 1998).
Annex 27 U.N. General Assembly, Report of the Committee on the
Elimination of Racial Discrimination, Official Records, Fifty-
Third Session, Supplement No. 18, U.N. Doc. A/53/18 Supple. 18
(10 September 1998).
Annex 28 Intentionally omitted.
Annex 29 UNHCR, Background Paper on Refugees and Asylum Seekers
from Georgia (October 1999).
Annex 30 UNHCR Global Report (2000).
Annex 31 U.N. Economic and Social Council, Commission on Human
Rights, Report of the Representative of the Secretary-General on
internally displaced persons, Mr. Francis M. Deng, submitted
pursuant to Commission on Hum an Rights resolution 2000/53,
Addendum: Profiles in Displacement: Georgia , U.N. Doc.
E/CN.4/2001/3/Add.4 (25 January 2001).
Annex 32 U.N. Security Council, Report of the Secretary-General
Concerning the Situation in Abkhazia, Georgia, U.N. Doc.
S/2001/713 (19 July 2001).
Annex 33 UNHCR Global Report (2002).
414Annex 34 U.N. Security Council, Resolution 1462, U.N. Doc. S/RES/1462
(30 January 2003).
Annex 35 United Nations Press Release, “ UN renews efforts for Georgian-
Abkhaz peace” (20 February 2003).
Annex 36 U.N. Security Council, Resolution 1524, U.N. Doc. S/RES/1524
(30 January 2004).
Annex 37 U.N. CCPR, General Comment No. 31, Nature of the General
Legal Obligation Imposed on St ate Parties to the Covenant, U.N.
Doc. CCPR/C/21/Rev.1/Add.13. (26 May 2004).
Annex 38 U.N. General Assembly, Report of the Committee on the
Elimination of Raci al Discrimination, Official Records, Sixtieth
Session, Supplement No. 18, U.N. Doc. A/60/18 (2005).
Annex 39 U.N. Security Council, Report of the Secretary-General on the
situation in Abkhazia, Georgia , U.N. Doc. S/2006/19 (13 January
2006).
Annex 40 U.N. Economic and Social Council, Commission on Human
Rights, Report of the Representative of the Secretary-General on
the human rights of internally di splaced persons, Walter Kälin,
Addendum, Mission to Georgia, U.N. Doc. E/CN.4/2006/71/Add.7
(24 March 2006).
Annex 41 U.N. General Assembly, Note by the Secretary-General, Report of
the Representative of the Secretary-General on the human rights
of the internally displaced, U.N. Doc. A/61/276 (21 August 2006).
Annex 42 UNHCR Global Report (2007).
Annex 43 U.N. General Assembly, Report of the Committee on the
Elimination of Raci al Discrimination, Official Records, Sixty-
Second Session, Supplement No. 18, U.N. Doc. A/62/18 (2007).
Annex 44 U.N. Security Council, Report of the Secretary-General on the
Situation in Abkhazia, Georgia, U.N. Doc. S/2007/15 (11 January
415 2007).
Annex 45 U.N. General Assembly, Statement of Mr. Rogachev,
Representative of the Russian Fede ration, 97th Plenary Meeting,
Official Records, Sixty-Sec ond Session, U.N. Doc. A/62/Pv.97
(15 May 2008).
Annex 46 UNHCR, Reports of Lawlessness Creating New Forcible
Displacement in Georgia (26 August 2008).
Annex 47 UNHCR, Emergency Operation Daily Update, New Humanitarian
Tragedy Unfolding in Gori (26 August 2008).
Annex 48 UNHCR, Emergency Operation Daily Update, Situation North of
Gori is Deteriorating (27 August 2008).
Annex 49 UNHCR, Georgia: Buffer Zone Displaced Registered, Tell of
Militia Intimidation (29 August 2008).
Annex 50 United Nations Press Release, “Georgia: UN Expert on Internally
Displaced Persons Says Security is Key to Return” (4 October
2008).
Annex 51 “Special envoy concerned about lack of protection for internally
displaced in Georgia”, United Nations Radio (6 October 2008).
Annex 52 U.N. Security Council, Report of the Secretary-General on the
Situation in Abkhazia, Georgia, Pursuant to Security Council
Resolution 1839 (2008), U.N. Doc. S/2009/69 (3 February 2009).
Annex 53 U.N. General Assembly, Report of the Representative of the
Secretary-General on the human ri ghts of Internally Displaced
Persons, Walter Kälin, Addendum, Mission to Georgia, U.N. Doc.
A.HRC/10/13/Add.2 (13 February 2009).
Annex 54 U.N. Security Council, Report of the Secretary-General pursuant
to Security Council resoluti ons 1808 (2008), 1839 (2008) and
1866 (2009), U.N. Doc. S/2009/254 (18 May 2009).
416INTER-GOVERNMENTAL AND MULTI-LATERAL ORGANISATION
DOCUMENTS
Annex 55 Council of Europe, Parliamentary Assembly, Humanitarian
situation of the displaced persons in Georgia , Doc. 7629 (6
September 1996).
Annex 56 Council of Europe, Parliamentary Assembly, The situation on the
ground in Russia and Georgia in th e context of the war between
those countries, Memorandum, Doc. 11720, Addendum II (29
September 2008).
Annex 57 Council of Europe, Commissioner for Human Rights, Thomas
Hammarberg, Special Follow-Up Mission to the Areas Affected by
the South Ossetia Conflict: Implementation of the Commissioner’s
six principles for urgent human rights and humanitarian
protection, CommDH(2008)33 (21 October 2008).
Annex 58 Council of Europe, Commissioner for Human Rights, Thomas
Hammarberg, Special Follow-Up Mission to the Areas Affected by
the South Ossetia Conflict: Implementation of the Commissioner’s
six principles for urgent human rights and humanitarian
protection, CommDH(2008)37 (16 December 2008).
Annex 59 Council of Europe, Parliamentary Assembly, Committee on
Migration, Refugees, and Population, Report, The humanitarian
consequences of the war between Georgia and Russia , Doc.
11789 (12 January 2009).
Annex 60 Council of Europe, Parliamentary Assembly, The implementation
of Resolution 1633 (2009) on the consequences of the war between
Georgia and Russia, Doc. 11800 (26 January 2009).
Annex 61 Council of Europe, Parliamentary Assembly Press Release,
“Corien Jonker: ‘Humanitarian sc ars of South Ossetian conflict
run deep’” (16 March 2009).
Annex 62 Council of Europe, Parliamentary Assembly, Committee on
Migration, Refugees, and Population, Report: The humanitarian
consequences of the war between Georgia and Russia: Follow-up
417 given to Resolution 1648 (2009), Doc. 11859 (9 April 2009).
Annex 63 Council of Europe, Secretary General, Report on the human rights
situation in the areas affected by the conflict in Georgia, First
report, SG/Inf(2009)7 (16 April 2009).
Annex 64 Council of Europe, Parliamentary Assembly, Follow-up given by
Georgia and Russia to Resolution 1647 (2009) , Doc. 11876 (28
April 2009).
Annex 65 Council of Europe, Parliamentary Assembly, The Humanitarian
Consequences of the War betw een Georgia and Russia: Follow
Up Given to Resolution 1648 (2009), Resolution 1664 (29 April
2009).
Annex 66 Council of Europe, Commissioner for Human Rights, Thomas
Hammarberg, Report on Human Rights Issues Following the
August 2008 Armed Conflict, CommDH(2009)22 (15 May 2009).
Annex 67 Council of Europe, Secretary General, Report on the human rights
situation in the areas affected by the conflict in Georgia, Second
Report April-June 2009, SG/Inf(2009)9 (30 June 2009).
Annex 68 CSCE, Budapest Document 1994: Towards a Genuine Partnership
in a New Era (6 December 1994).
Annex 69 OSCE, Lisbon Summit, Lisbon Document (1996).
Annex 70 OSCE, Istanbul Summit, Istanbul Document (1999).
Annex 71 OSCE, Office for Democratic In stitutions and Human Rights,
Human Rights in the War-Affected Areas Following the Conflict in
Georgia (27 November 2008).
Annex 72 OSCE Press Release, “OSCE High Commissioner on National
Minorities deeply concerned by recent developments in Abkhazia”
(14 April 2009).
418Annex 73 Statement of OSCE High Commis sioner on National Minorities,
Knut Vollebaek to the 765th Plenary Meeting of the OSCE
Permanent Council (18 June 2009).
Annex 74 OSCE Mission to Georgia, Mandate (Adopted: 13 December
1992- Closed: 30 June 2009).
Annex 75 Statement by the Minister of Special Affairs of Georgia at the
Permanent Council of the OS CE, PC.DEL/207/ 01 (30 March
2001).
Annex 76 Statement of Response to the Geor gian Intervention on Events in
Abkhazia, United States Mission to the OSCE, PC.DEL/49/03 (24
January 2003).
Annex 77 Statement of the Georgian Delegation, Special Permanent Council,
PC.DEL/654/04 (13 July 2004).
Annex 78 Statement by the Chairman, High-Level Meeting of the Group of
Friends of the Secretary General, Geneva (7-8 April 2005).
Annex 79 EU Statement on Georgia and the Batumi Conference,
PC.DEL/776/05 (21 July 2005).
Annex 80 Statement of the Chairman, High-Level Meeting of the Group of
Friends of the Secretary-General, Geneva (2-3 February 2006).
Statement by Minister of Fo reign Affairs of Georgia,
Annex 81
PC.DEL/0101/06 (9 February 2006).
Annex 82 Statement of the Chairman, High-Level Meeting of the Group of
Friends of the Secretary-General, Geneva (12-13 February 2007).
Annex 83 Statement of the U.S. Mission to the OSCE, PC.DEL/303/08 (17
April 2008).
Annex 84 Statement by Deputy Head of Mission, PC.DEL/34/09 (23 January
2009).
419Annex 85 Presentation, “South Ossetia Conflict Resolution Plan”, by the
Prime Minister of Georgia, 575th Special Meeting of the
Permanent Council, PC.DEL/106005 (27 October 2005).
Annex 86 European Union Monitoring of Mission in Georgia, Mandate (11
August 2008).
Annex 87 Intentionally omitted.
Annex 88 Intentionally omitted.
Annex 89 Intentionally omitted.
Annex 90 Intentionally omitted.
VOLUME III
GOVERNMENT DOCUMENTS
Annex 91 Resolution of the Presidium of the Supreme Soviet of the
Abkhazian Autonomous Soviet So cialist Republic (ASSR) on
creation of the first regiment the internal forces of Abkhazia
(undated).
Annex 92 Information Note of the Embassy of Georgia in Russian
Federation concerning the activities undertaken by the Embassy in
2005 (undated).
Annex 93 Declaration on the State Sovere ignty of the Abkhaz Soviet
Socialist Republic (25 August 1990).
Annex 94 Decree Issued by the Presidium of the Supreme Council of the
Georgian SSR on the Decision Ta ken by the Supreme Council of
the Abkhaz ASSR on 25 August 1990 (26 August 1990).
420 Annex 95 Declaration on the State Sovereig nty of the Soviet Democratic
Republic of South Ossetia (20 September 1990).
Annex 96 Protocol of the Negotiations between the Chairman of the
Supreme Council of the RSFSR and the Chairman of the Supreme
Council of the Republic of Georgia, 23 March 1991, Vestnik
Gruziy, #42 (28 March 1991).
Annex 97 Protocol of the Inter-Parliamentary Commission established under
the Resolution of the USSR Su preme Soviet’s Council of
Nationalities of 24 April 1991, “On proposals aimed at
normalization of the situation in the south Ossetia and its
neighboring area”, Sakartvelo, special edition 1995 (31 May
1991).
Annex 98 Protocol on re-subordination of military units 5482, USSR of the
internal affairs of the Abkhazian Republic (27 December 1991).
Annex 99 Ruling of the Presidium of the S upreme Soviet of Abkhazia, on
location of military units, border and internal forces, VFM forces
and making changes to the orde r of their functioning on the
territory of Abkhazia (29 December 1991).
Annex 100 Resolution of the Presidium of the Supreme Soviet of the
Abkhazian Autonomous Soviet Socialist Republic (ASSR), on
establishment of economic independence (April 1992).
Annex 101 Order #64 of the Chairman of the Supreme Soviet of the
Abkhazian Autonomous Soviet So cialist Republic (ASSR), to the
commanders of military units 74545, 10935, 62329 (13 June
1992).
Annex 102 Agreement on Principles of th e Settlement of the Georgian-
Ossetian Conflict between the Republic of Georgia and the
Russian Federation, signed in Sochi (24 June 1992).
Annex 103 Decision #1 of the Session of the Joint Control Commission (JCC)
Vladikavkaz (4 July 1992).
421Annex 104 Provision On Joint Peacekeeping Forces (JPKF) and Law and
Order Keeping Forces (LOKF) in the Zone of Conflict, Annex #1
to Protocol 3 of the Joint C ontrol Commission (JCC) (12 July
1992).
Annex 105 Protocol of Negotiations between the Governmental Delegations
of the Republic of Georgia and the Russian Federation (9 April
1993).
Annex 106 Final Document of the Moscow Meeting (3 September 1992).
Annex 107 Declaration of the Government of the Russian Federation, signed
at Moscow (2 October 1993).
Annex 108 Memorandum of Understanding between the Georgian and
Abkhaz sides at the negotiations in Geneva (1 December 1993).
Annex 109 Agreement between Georgia an d the Russian Federation on
Friendship, Good Neighborhood and Cooperation (3 February
1994).
Annex 110 Quadripartite Agreement on Volunt ary Return of Refugees and
Displaced Persons (4 April 1994).
Annex 111 Declaration on the results of the First Meeting of the Quadripartite
Commission on the issues of voluntary return of refugees and
displaced persons, Sochi, 9 April 1994, Svobodnaia Gruzia, #57
(12 April 1994).
Annex 112 Declaration of the Second Me eting, Sochi, 27 April 1994,
Svobodnaia Gruzia, #71 (4 May 1994).
Annex 113 Regulation on the JCC for the settlement of the Georgian-Ossetian
Conflict (adopted 31 October 1994).
Annex 114 Regulation Concerning the Basic Pr inciples of Operation of the
Military Contingents and of th e Groups of Military Observers
Designated for the Normalization of the Situation in the Zone of
the Georgian-Ossetian Conflict, Annex #1 to the JCC Decree of 6
422 December 1994 (6 December 1994).
Annex 115 U.S. Department of State, Country Report on Human Rights
Practices 1994, Georgia (30 January 1995).
Annex 116 Protocol on Georgian-Abkhaz conflict settlement (24 July 1995).
Annex 117 Decision of the CIS Heads of Stat es on the presence of Collective
Peace Keeping Forces in the Conf lict zone of Abkhazia, Georgia
(signed by Georgia 1 March 2002, signed by Russian Federation 8
February 2002).
Annex 118 Memorandum on Necessary Measures to be undertaken in order to
Ensure Security and Strengtheni ng of Mutual Trust Between the
Parties to the Georgian-Ossetian Conflict (16 May 1996).
Annex 119 Protocol #7, Meeting of the JCC for the Georgian-Ossetian
Conflict Settlement (13 February 1997).
Annex 120 JCC Procedure of Voluntary Return of Refugees and IDPs as a
Result of the Georgian-Ossetian Conflict to the Places of their
Permanent Residence, Annex 3 (13 February 1997).
Annex 121 Decision taken by the Council of the Heads of States of the
Commonwealth of Independent States on support to the
Peacekeeping Operations in the conflict Zone of Abkhazia,
Georgia (28 March 1997).
Annex 122 Decision taken by the Council of the Heads of States of the CIS on
Implementation of the Measures for Conflict Settlement in
Abkhazia, Georgia (28 March 1997).
Annex 123 Decision of the JCC, for the Georgian-Ossetian Conflict
Settlement, on the process of im plementation of the Procedure on
Voluntary Return of Refugees and IDPs (26 September 1997).
Annex 124 Regulation on the JCC, Special Ad Hoc Committee on facilitation
of the volunteer return of refugees and IDPs to the places of their
423 former inhabitance (26 September 1997).
Annex 125 Final statement on the outcome of the resumed meeting held
between the Georgian and Abkhaz parties held in Georgia (17 - 19
November 1997).
Annex 126 Decision taken by the Council of the Inter-Parliamentary
Assembly of the Member-States of the CIS on the situation of
conflict settlement in Abkhazia, Georgia (28 February 1998).
Annex 127 Decision taken by the Council of the Heads of States of the CIS on
further steps towards the settleme nt of the Confli ct on Abkhazia,
Georgia (2 April 1999).
Annex 128 Istanbul Statement of the Georgian and Abkhaz Sides on
Confidence Building Measures (7 - 9 June 1999).
Annex 129 Protocol #10 of the Session of JCC for the Georgian-Ossetian
Conflict Settlement, Settlement of Tsinandali,Annex 3 (23 July
1999).
Annex 130 U.S. Department of State, Country Reports on Human Rights
Practices 1999, Georgia (23 February 2000).
Annex 131 Agreement between the Govern ment of Georgia and the
Government of the Russian Federation on Cooperation in
Restoration of Economy in the Georgian-Ossetian Conflict Zone
and Return of Refugees, Tbilisi (23 December 2000).
Annex 132 Yalta Declaration of the Georgian and Abkhaz sides (15-16 March
2001).
Annex 133 Decision of the Council of Head s of States of the CIS on
prolongation of the peacekeeping oper ation in the conflict zone in
Abkhazia, Georgia (2 October 2002).
Annex 134 Minutes of the Deputy Minister of Foreign Affairs of Georgia, Mr.
S. Dogonadze, and Ambassadors of the Group of Friends (14
424 November 2002).
Annex 135 Letter of Embassy of Georgia in Russian Federation to the
Ministry of Foreign Affairs of Georgia (23 December 2002).
Annex 136 Concluding Statement on the meeti ngs between President of the
Russian Federation, Mr. Vladimir Putin and President of Georgia,
Mr. Eduard Shevardnadze, Svobodnaya Gruzia, #60 (12 March
2003).
Annex 137 Information Paper prepared by the Ministry of Foreign Affairs of
Georgia (20 January 2004), referencing Meeting of the Group on
the Return of IDPs established under the Sochi agreement (16 July
2003).
Annex 138 Protocol #30, Meetings of Co-Chairmen of the JCC for Georgian-
Ossetian Conflict Settlement (16 April 2004).
Annex 139 Information Note of the Ministry of Foreign Affairs of Georgia,
Meeting of the Working Group on the Issues of Return of
Refugees to Gali District, Moscow (26-27 April 2004).
Annex 140 Ministry of Foreign Affairs of Russian Federation, Department of
Information and Print, Meeti ng of the Working Group on the
Issues of Return of Refugees within the framework of the
Georgian-Abkhaz Conflict Resolution/Settlement Process (21 July
2004).
Annex 141 U.S. Department of State, Country Report on Human Rights
Practices 2005, Georgia (8 March 2006).
Annex 142 Ministry of Finances of the Russian Federation, Press Release,
“On the Signing of Agreements betw een the Ministry of Finances
of the Russian Federation and th e Ministry of Finances of
Abkhazia and the Ministry of Fi nances of South Ossetia on 17
March 2009” (16 March 2009).
Annex 143 Agreement between the Russian Federation and the Republic of
South Ossetia regarding joint effo rts in protection of the state
425 border of the Republic of South Ossetia (30 April 2009).
Annex 144 Agreement between the Russian Federation and the Republic of
Abkhazia regarding joint efforts in protection of the state border of
the Republic of Abkhazia (30 April 2009).
NON-GOVERNMENTAL ORGANISATION REPORTS
Annex 145 Human Rights Watch, Bloodshed in the Caucusus: Violations of
Humanitarian Law and Human Rights in the Georgia-South
Ossetia Conflict (March 1992).
Annex 146 Human Rights Watch/Helsinki , Human Rights Watch Arms
Project, Georgia/Abkhazia: Violations of the Laws of War and
Russia’s Role in the Conflict (March 1995).
Annex 147 Human Rights Watch, Georgian Villages in So uth Ossetia Burnt,
Looted (13 August 2008).
Annex 148 Human Rights Watch, Safe Corridor Urgently Needed for
Civilians in Gori District (13 August 2008).
Annex 149 Human Rights Watch, Russia/Georgia: In vestigate Civilian
Deaths (14 August 2008).
Annex 150 Human Rights Watch, Georgia: International Groups Should Send
Missions (18 August 2008).
Annex 151 Human Rights Watch, EU: Protect Civilians in Gori District (28
August 2008).
Annex 152 Human Rights Watch, Georgia: Satellite Images Show
Destruction, Ethnic Attacks (29 August 2008).
Annex 153 Human Rights Watch, Georgia: EU Missi on Needs to Protect
Civilians, In Security Vacuum, Frequent Attacks and Pervasive
Fear (16 September 2008).
426Annex 154 Human Rights Watch, Russia/Georgia: Investigate Abuses of
Detainees, Allegations of Execution, Torture in South Ossetia (21
September 2008).
Annex 155 Human Rights Watch, Russia: Protect Civilians in Occupied
Georgia, Fear of Ethnic Violen ce, Isolation in South Ossetian
District (25 November 2008).
Annex 156 Human Rights Watch, Up in Flames: Humanitarian Law
Violations and Civilian Victims in the Conflict Over South Ossetia
(January 2009).
Annex 157 Amnesty International, Georgia: Summary of Amnesty
International’s Concerns (August 1998).
Annex 158 Amnesty International, Civilians in the Line of Fire: The Georgia-
Russia Conflict (November 2008).
Annex 159 Amnesty International, Civilians in the Aftermath of War: The
Georgia-Russia Conflict One Year On (7 August 2009).
Annex 160 International Crisis Group, Georgia: Avoiding War in South
Ossetia, Europe Report No. 159 (26 November 2004).
Annex 161 International Crisis Group, Abkhazia Today, Europe Report No.
176 (15 September 2006).
International Crisis Group, Georgia’s South Ossetia Conflict:
Annex 162
Make Haste Slowly, Europe Report No. 183 (7 June 2007).
Annex 163 International Crisis Group, Russia vs. Georgia: The Fallout ,
Europe Report No. 195 (22 August 2008).
Annex 164 International Crisis Group, Georgia: The Risks of Winter, Europe
Briefing No. 51 (26 November 2008).
Annex 165 International Crisis Group, Georgia-Russia: Still Insecure and
Dangerous, Europe Briefing No. 53 (22 June 2009).
427 BOOKS AND ACADEMIC ARTICLES
Annex 166 Jonathan Aves, “The rise and fall of the Georgian nationalist
movement, 1987-1991”, The Road to Post-Communism –
Independent Political Movements in the Soviet Union 1985 – 1991
(1992).
Annex 167 Thomas Goltz, Letter from Eurasia: the Hidden Russian Hand ,
Foreign Policy, No. 92 (Autumn 1993).
Annex 168 Svetlana Chervonnaya, Conflict in the Caucasus (1994).
Annex 169 Erika Dailey, Human Rights and the Russian Armed Forces in the
‘Near Abroad, Helsinki Monitor, No. 2 (1994).
Annex 170 Catherine Dale, “The Case of Abkhazia (Georgia)”, Peacekeeping
and the Role of Russia In Eurasia (1996).
Annex 171 Catherine Dale, The Dynamics and Challenges of Ethnic
Cleansing: The Georgia-Abkhazia Case , Refugee Survey,
Quarterly, Vol. 16, No.3 (1997).
Annex 172 Spryos Demetriou, Politics from the Barrel of a Gun: Small Arms
Proliferation and Conflict in the Republic of Georgia (1989-
2001), Occasional Paper No. 6, Sma ll Arms Survey, (November
2002).
Pavel Baev, “Georgia”, Conflicts in the OSCE Area , International
Annex 173
Peace Research Institute (15 July 2004).
Annex 174 Therese Freese, Fate of Conflict Zone Residents Hangs on a
Thread in South Ossetia, Central Asia-Caucasus Institute (28 July
2004).
Annex 175 Eduard Shevardnadze, Thoughts about Past and Future (2006).
Annex 176 Analytical Group on Abkhazian i ssues of the Parliament of
Georgia, Facts of Genocide and Ethnic Cleansing of Georgians in
Gali Region by the Abkhazian Separatists , Digital Caucasus (21
428 January 2007).
Annex 177 Sarah E. Mendelson, “An August War in the Caucasus”, Center
for Strategic and International Studies (11 August 2008).
Annex 178 Andrei Illarionov, “The Russian Leadership’s Preparation for War,
1999-2008,” The Guns of August 2008: Russia’s War in Georgia,
Central Asia-Caucasus Institute (2009).
Annex 179 Zhirokhnov Mikhail Alexandrovich, “Air Forces in Abkhazia,
Patriotic War of Abkhaz, Aviation in Abkhaz-Georgian War 1992-
93”, No. 3 (2001).
Annex 180 Intentionally omitted.
Annex 181 Intentionally omitted.
Annex 182 Intentionally omitted.
Annex 183 Intentionally omitted.
Annex 184 Intentionally omitted.
VOLUME IV
NEWS ARTICLES
Annex 185 “Clamor in the East; Georgian Le gislature Asserts Right to Leave
Soviet Union”, New York Times (20 November 1989).
Annex 186 “For the Right Affair?”, Epicentre, No. 28 (18 August 1992).
Annex 187 Arkadi Popov, “War in Abkhazia”, Grajdanskaia Misl ( 22 July
1993).
429Annex 188 Dmitri Kholodov, “The city is leaving by sea”, Moskovski
Komsomolec (22 September 1993).
Annex 189 Aleksei Chelnokov, “Sukhumi in the Hands of Marauders”,
Izvestie (7 October 1993).
Annex 190 Igor Rotar, “Green kerchief on the door—Abkhazians live here”,
Nezavisimaya Gazeta (18 October 1993).
Annex 191 Shota Khaduri, “Have We Really Lost Samachablo?”, Asaval-
Dasavali (5-11 October 1998).
Annex 192 “Railway communication between Ru ssian city of Sochi and the
capital of Abkhazia Sukhumi has been restored”, Aspny Press (25
December 2002).
Annex 193 “Putin corrected law on citizenship”, Lenta.ru (24 September
2003).
Annex 194 “A new bridge is brought into service on the Russian-Abkhaz
border at River Psoy”, IA Regnum (28 November 2003).
Annex 195 “Abkhazia will not be a part of Ge orgia, and will rather elect the
State Duma Members of the Russian Federation”, Pravda (29
November 2003).
Annex 196 “South Ossetia preparing for Pres idential Elections in Russian
Federation”, IA Regnum (29 January 2004).
Annex 197 “Saakashvili threatens tourists”, Nezavisimaya Gazeta (6 August
2004).
Annex 198 “Trains from Abkhazia arri ve back to Russia”, Lenta.ru (7
September 2004).
Annex 199 “South Ossetia – it is already Russia”, Nezavisymaia Gazeta (17
September 2004).
430Annex 200 “Rival Abkhaz Presidential Candidates Meet in Moscow”, Radio
Free Europe (3 November 2004).
Annex 201 “Governor of Krasnodor Krai declared he would close the borders
of the region in case the situa tion is exacerbated in Abkhazia and
Ukraine”, News.ru (30 November 2004).
Annex 202 Vladimir Socor, “Russia Blockading Abkhazia to Overturn
Presidential Election”, Eurasia Daily Monitor, Vol. 1, No. 138 (1
December 2004).
Annex 203 “Russia Blockades Abkhazia”, Civil Tbilisi (1 December 2004).
Annex 204 Jean-Christophe Peuch, “Georgia : Russia steps up pressure on
Abkhaz Opposition”, Radio Free Europe (1 December 2004).
Annex 205 “Russia sends mission to Abkhazia”, Civil Georgia (1 December
2004).
Annex 206 “Russia cut railway connections with Abkhazia”, Polit.ru (2
December 2004).
Annex 207 “Railway connection between Moscow and Sukhumi is cut”, RIA:
Novosti (2 December 2004).
Annex 208 Jean-Christophe Peuch, “Georgia: Abkhazia Presidential Rivals
Strike Tentative Last-Minute Deal”, Radio Free Europe (6
December 2004).
Annex 209 “Tangerine policy at Kremlin”, Novopol News (7 December
2004).
Annex 210 “Interview with the Chairman of Pension Fund and Social
Protection of South Ossetia”, IA Regnum (9 March 2005).
Annex 211 German Pronin, “Abkhazia will provide Georgians with
Autonomy”, Utro.ru (18 April 2005).
431Annex 212 “Krasnodar Region has included Abkhaz population in budget”,
Lenta.ru (7 June 2005).
Annex 213 “Presidents of North and South O ssetia discussed the process of
fulfillment of Vladimyr Putin’s instructions”, IA Regnum (21 July
2005).
Annex 214 “Leaders of South and North Osse tia signed a joint statement in
Tskhinvali”, IA Regnum (18 September 2005).
Annex 215 “I am not going to hide that Russia has armed it well here”, Vlast,
No. 38 (26 September 2005)
Annex 216 “Structural changes were made to the government of South
Ossetia”, IA Regnum (29 November 2005).
Annex 217 “Chronology of the Conflic t in South Ossetia”, News.ru (13
February 2006).
Annex 218 “Russian leadership took a prin cipal decision on South Ossetia
joining RF?”, IA Regnum (23 March 2006).
Annex 219 “Sergey Shamba: Abkhazia is de facto under Russian
protectorate”, IA Regnum (24 March 2006).
Annex 220 “Kokoity: North and South Ossetia must work as a single
government”, IA Regnum (28 March 2006).
Annex 221 “President Sergey Bagapsh leav es for Moscow with working
visit”, Apsny Press (17 April 2006).
Annex 222 “Eduard Kokoity: We shall not stop in our achievements”, IA
Regnum (19 May 2006).
Annex 223 “Olet Bartsits: Increased investment into Abkhazia’s economy are
irreversible”, Official Site of the Prident of the Republic of
Abkhazia (19 January 2007).
432Annex 224 Alexander Shetinin and Yulia Sh atova, “Interview with Sergey
Bagapsh”, Official Site of the President of the Republic of
Abkhazia (31 July 2007).
Annex 225 “Russian investments to be of much significance for Abkhaz
economy - President of Abkhazia”, Official Site of the President of
the Republic of Abkhazia (8 November 2007).
Annex 226 “The head of South Ossetia app ealed to the people to actively
participate in the State Duma elections”, IA Regnum (26
November 2007).
Annex 227 “Eduard Kokoity: Recognition of South Ossetia’s independence is
really possible already in 2008”, IA Regnum (20 February 2008).
Annex 228 “Aslakhanov: The volunteers from Northern Caucasia will defend
Abkhazia and South Ossetia”, SOJCC.RU (5 April 2008).
Annex 229 “Operation of the Russian pea cekeeping forces in Abkhazia,
Georgia” Infospace (18 June 2008).
Annex 230 Maria Bondarenko, “Don Cossacks ar e getting ready to fight in
South Ossetia”, Nezavisymaya Gazeta (6 August, 2008).
Annex 231 Yuri Snegirev, “Volunteers have even come from Moscow”,
Izvestia (6 August 2008).
Annex 232 “Georgia and South Osse tia exchange fire”, Russia Today (7
August 2008).
Annex 233 Konstantine Kukharenko, “Military men nod to politicians”,
Rossyskaia Gazeta, (8 August 2008).
Annex 234 “Cossacks are forming motorized infantry regiment to assist South
Ossetia,” Lenta.ru (8 August 2008).
Annex 235 “Over a thousand Dagestan volu nteers ready to go to South
Ossetia”, Caucasian Knot (8 August 2008).
433Annex 236 “Seven Thousand Volunteers le ft North Ossetia for South
Ossetia”, Caucasian Knot (9 August 2008).
Annex 237 Tom Parfitt, “Armed Cossacks pour in to fight Georgians”, The
Guardian (9 August 2008).
Annex 238 “Georgian Troops Burn South Ossetian Refugees Alive”, Pravda
(10 August 2008).
Annex 239 “Russia’s Cossacks rush to join fighting with their ‘brothers’”,
Trendz News (11 August 2008).
Annex 240 “In North Ossetia, volunteers are trying to create official battalions
to be sent to South Ossetia, with the help of military registration
and enlistment offices (military commissariat)”, Echo of Moscow
Radio (11 August 2008).
Annex 241 “Ossetians of Karachaevo-Cherkessia form volunteer units to help
South Ossetia”, Caucasian Knot (11 August 2008).
Annex 242 “Atamans announced about march of volunteers”, Vesti (11
August 2008).
Annex 243 “Breakaway regions backed by Caucasian neighbours”, The Irish
Times (12 August 2008).
Annex 244 “Russia ‘ends Georgia operation’”, BBC News (12 August 2008).
Annex 245 “Interview with Vasily Lunev”, Companion Magazine (14 August
2008).
Annex 246 “Russia Launches Genocide Probe Over S. Ossetia Events”, RIA:
Novosti (14 August 2008).
Annex 247 Foreign Ministry of the Russian Federation, Information and Press
Department, “Commentary regard ing a media statement of the
President of South Ossetia, Eduard Kokoity” (17 August 2008).
434Annex 248 “Georgian Refugees Tell of Attacks and Looting”, The Financial
Times (18 August 2008).
Annex 249 “Volunteers are able not only to fight”Main News (18 August
2008).
Annex 250 “From Murmansk to South Ossetia”, Murmansk Gazetta (19
August 2008).
Annex 251 John Wendle, “Fanning Ethni c Flames in Georgia”, Time
Magazine, (20 August 2008).
Annex 252 “Russian Troops to Stay in Georgia Buffer Zone”, Radio Free
Europe (20 August 2008).
Annex 253 “LSO Conducted Valery Gergie v Leads Pro-Russia Concert in
Ossetia”, The Telegraph (21 August 2008).
Annex 254 “Death Toll in South Ossetia a Te nth of Initial Russian Claims”,
The Australian (22 August 2008).
Annex 255 Dmitry Steshin, “South Ossetia ha s been won over. What to do
with it in the future?” Komsomolskaya Pravda (22 August 2008).
Annex 256 Brian Whitmore, “Scene At Russia-Georgia Border Hinted at
Scripted Affair”, Radio Free Europe (23 August 2008).
Annex 257 “Georgian Civilians Tell of Miserable Conditions as War
Captives”, The Washington Post (24 August 2008).
Annex 258 “Russian Forces Setting Up Occupation Zones in Georgia”,
Eurasia Daily Monitor, Vol. 5, Issue 162 (25 August 2008).
Annex 259 “S. Ossetia ‘emptied of Georgians’”, BBC News (25 August
2008).
Annex 260 “Kouchner claims ethnic cleansing in Georgia”, Euronews (27
435 August 2008).
Annex 261 “Pictures ‘Show Georgia Torching’”, BBC News (29 August
2008).
Annex 262 Dmitri Volchek, “Recognition of independence of Abkhazia and
South Ossetia: why nobody supported Russia?”, Radio Liberty (30
August 2008).
Annex 263 “EU observers will not monitor Abkhazia, S. Ossetia: Russia’s
Lavrov”, Reuters (11 September 2008).
Annex 264 “Putin: Spending of Funds on restoration of South Ossetia is to be
controlled,” RIA: Novosti (16 September 2008).
Annex 265 “Local wars ahead: An interv iew with former soldier and
journalist Arkady Babchenko on th e Russian military action in
South Ossetia and Georgia”, Signandsight.com (18 September
2008).
Annex 266 “Russia says troops can stay in Akhalgori-Agencies”, Reuters (11
October 2008).
Annex 267 “MFA Abkhazia: Georgian refuge es may return only to Gali
District”, Rosbalt.ru (20 October 2008).
Annex 268 “The Prime Minister of Sout h Ossetia has been elected”,
Kommersant (22 October 2008).
Annex 269 “Russian tax inspector became th e Chairman of South Ossetian
Government”, Vremya Novostey (23 October 2008).
Annex 270 “Interview with Andrey Illarionov”, Echo of Moscow Radio (24
October 2008).
Annex 271 “S. Ossetian Cabinet Revamped”, Civil Tbilisi (1 November
2008).
436Annex 272 “Russians Mining Abkhaz Administrative Border”, Rustavi 2 (2
November 2008).
Annex 273 “The Government of South Os setia is mixed with SOK”,
Kommersant (14 November 2008).
Annex 274 “Russia to put military bases in South Ossetia and Abkhazia”,
Russia Today (19 November 2008).
Annex 275 “Russia fully staffs bases in Abkhazia and So uth Ossetia” RIA:
Novosti (19 November 2008).
Annex 276 “What Russian papers say”, RIA: Novosti (28 November 2008).
Annex 277 “There is no place for this President in South Ossetia”, (Interview
with Anatoly Barankevich), Kommersant (4 December 2008).
Annex 278 Olga Allenova, Sergey Titov, Ulianovsk, “There are more and
more Ex-es in South Ossetia: The Minister of Finances worked in
the Republic only for a week”, Kommersant, No. 222 (5 December
2008).
Annex 279 “Russian occupants, separatist Abkhazians dispatch military
equipment and live force on the territory of Abkhazia”, 1st
Channel (14 December 2008).
Annex 280 “Russia, Georgia Disagree Over Troop Pullback”, Associated
Press (2009).
Annex 281 Alexey Pleshkov, “South Ossetia: Fi ght for the financial hole”,
Delovoy Petersburg (1 September 2008).
Annex 282 “The Defenders of South Ossetia were honored in Vladikavkaz”,
IA Regnum (15 January 2009).
Annex 283 “Russian passports for Akhalgori residents”, Georgia Times (16
January 2009).
437Annex 284 “Interview with Kazbek Friev”, OS Radio (21 January 2009).
Annex 285 “Equipment of Russian Military Bases in Abkhazia and South
Ossetia will be finished by the end of the year”, Apsny Online (22
February 2009).
Annex 286 “Shamba: refugees may return only in Gali district”, Nasha
Abkhazi, (26 Feb. 2009).
Annex 287 “In Abkhazia they hope that econ omic crisis will not effect
financial support from Russia,” Apsny Press (10 March 2009).
Annex 288 “Tskhinval will report on the money allocated by Russia –
Ministry of Finance of South Ossetia”, South Ossetian Information
Agency OSInform (17 March 2009).
Annex 289 “Bagapsh gave Georgians one more month to acquire Abkhaz
passports”, Rosbalt Caucasus (20 March 2009).
Annex 290 “Sergey Bagapsh: Russian money goes on the arrangement of
vocational places of Russians”, Vesti (21 March 2009).
Annex 291 “Russian Language ‘Pressed’ on Georgian Teachers in Abkhazia,”
Radio Free Europe (24 March 2009).
Annex 292 Eka Kevanishvili, “Teachers In Abkhazia’s Gali District Under
Pressure to Give Up Georgian Language”, Eurasia Insight (29
March 2009).
Annex 293 Felix Corley, “Abkhazia: ‘W e’ll kick out anyone,’” Forum 18
News (7 April 2009).
Annex 294 “The population of Leningori District of South Ossetia is being
passportized”, South Ossetian Information Agency OSInform (7
April 2009).
Annex 295 Ellen Barry, “Abkhazia Lures its Expatriates, Welcoming Them
One by One”, New York Times (8 May 2009).
438Annex 296 Brian Whitmore, “Abkhazia And th e Perils of ‘Independence’”,
Radio Free Europe (19 June 2009).
Annex 297 Tom Esslemont, “UN Monitors to Leave Georgia”, BBC News (15
July 2009).
Annex 298 “South Ossetia introduced the New Prime Minister: Vadim
Brovtsev appointed as the Head of the Government”, Kommersant,
No. 142 (6 August 2009).
Annex 299 Intentionally omitted.
Annex 300 Intentionally omitted.
Annex 301 Intentionally omitted.
VOLUME V
CORRESPONDENCE AND COMMUNICATIONS
Annex 302 Ciphering Book #6, Call log of V. Ardzinba (Started 18 December
1992).
Annex 303 Communication from K. Khgenti, Tbilisi to Ministry of Foreign
Affairs of Russian Federation (16 March 1993).
Annex 304 Letter from State Advisor of Just ice, Prosecutor of the Abkhazian
Autonomous Republic, A. Latsuz baia and Chief Advisor of
Justice, Head of the Investigation Group, E. Topichiev to
Prosecutor General of Georgia, J. Babilashvili (29 June 1998).
Annex 305 Letter to Mr. A. Baluashvili (7 June 1998).
Annex 306 Letter from Mr. Adamia to the Pres ident of Georgia, as copied to
Minister of Foreign Affairs, Mr. Mengarishvili (23 October 2002).
439Annex 307 Letter of intentions attached to the letter of State Minister of
Georgia to Minister of Forei gn Affairs of Georgia, Gela
Bejhuashvili (9 June 2006).
Annex 308 Letter from President Mikheil Saakashvili to President Dmitry
Medvedev (23 June 2008).
Annex 309 Letter of President Saakashvili of Georgia to President Putin of the
Russian Federation (26 July 2004).
Annex 310 Letter of President Putin of the Russian Federation to President
Saakashvili of Georgia (14 August 2004).
Annex 311 Letter from President Dmitry Medvedev of the Russian Federation
to President Mikheil Saakashvili of Georgia (1 July 2008).
Annex 312 Letter from the OSCE High Comm issioner on Minorities, Knut
Vollebaek, to the OSCE Chairma n, Minister Alexander Stubb (27
November 2008).
Annex 313 Telephone intercept, Arsen Kvezerov to unidentified woman (13
August 2008).
th
Annex 314 Telephone intercept, Deputy Head of the 7 Battalion of the South
Ossetian Defence Force, Merab Doguzov, to Deputy Commander,
North Ossetia-Alania Peacekeeping Battalion, Tolik Bibilov (20
August 2008).
Annex 315 Telephone intercept, Vilord to Merab Doguov (20 August 2008).
th
Annex 316 Telephone intercept, Commander of the 9th battalion (Ghromi),
Toliv Goiaev and Deputy Head of the 7 battalion of the Ministry
of Defense of the Republic of South Ossetia, Arsen Kvezerov (22
August 2008).
Annex 317 Telephone intercept, unidentified man to Serzhik Bestaev (19
September 2008).
440Annex 318 Letter from Ministry of Economic Development of Georgia,
Department of Statistics, to Deputy Head of the Department of
Public International Law, Ministry of Justice of Georgia (11
August 2009).
WITNESS STATEMENTS
Annex 319 Declaration of Klara Khetaguri (undated).
Annex 320 Declaration of Shaliko Chaladze, Victim Interrogation Protocol
(October 1993).
Annex 321 Declaration of Nana Arjevanidze, Victim Interrogation, Protocol
(12 October 199_).
Annex 322 Declaration of Nunu Benidze, Victim Interrogation Protocol (23
December 1993).
Annex 323 Declaration of Manuchar Nakopia , Victim Interrogation Protocol
(15 October 1993).
Annex 324 Declaration of Mikhail Georgi evich Demianov, Protocol of
Suspect Interrogation (29 November 1993).
Annex 325 Declaration of Anatoli Jologua, Vi ctim Interrogation Protocol (5
October 1995).
Annex 326 Declaration of Pridoni Odisharia, Victim Interrogation Protocol
(27 May 1998).
Annex 327 Declaration of Roin Matkava, W itness Interrogation Protocol (26
May 1998).
Annex 328 Declaration of Mamuka Chakaberia, Victim Interrogation Protocol
(27 May 1998).
Annex 329
Declaration of Nineli Kvashilava , Victim Interrogation Protocol
441 (27 May 1998).
Annex 330 Declaration of Patulia Butbaia, Victim Interrogation Protocol (28
May 1998).
Annex 331 Declaration of Vakhtang Kobalia, Victim Interrogation Protocol
(28 May 1998).
Annex 332 Declaration of Lasha Sondzia, Vi ctim Interrogation Protocol (28
May 1998).
Annex 333 Declaration of Otar Minjoraia, Victim Interrogation Protocol (29
May 1998).
Annex 334 Declaration of Giorgi Gulordava, Victim Interrogation Protocol
(30 May 1998).
Annex 335 Declaration of Murtaz Chakaberia, Witness Interrogation Protocol
(1 June 1998).
Annex 336 Declaration of Jeiran Dzandzava, Witness Interrogation Protocol
(3 June 1998).
Annex 337 Declaration of Akaki Dgebia, Victim Interrogation Protocol (4
June 1998).
Annex 338 Declaration Patsiko Tsatsua, Victim Interrogation Protocol (4 June
1998).
Annex 339 Declaration of Toria Natela, Witn ess Interrogation Protocol (5
June 1998).
Annex 340 Declaration of Chichiko Chargazia, Witness Interrogation Protocol
(5 June 1998).
Annex 341 Declaration of Gogola Khasaia, Vi ctim Interrogation Protocol (7
June 1998).
442Annex 342 Declaration of Daviti Sharia, Witness Interrogation
Protocol (10 June 1998).
Annex 343 Declaration of Dato Kiria, Witness Interrogation Protocol (22 June
1998).
Annex 344 Declaration of Gocha Buliskiria, Witness Interrogation Protocol
(28 June 1998).
Annex 345 Declaration of Tamara Butbaia, Victim Interrogation Protocol (29
June 1998).
Annex 346 Declaration of Badri Kvatsabaia , Witness Interrogation Protocol
(29 June 1998).
Annex 347 Declaration of Avalion Kikalia, W itness Interrogation Protocol (3
July 1998).
Annex 348 Declaration of Jambuli Chekhuria , Witness Interrogation Protocol
(25 August 1998).
Annex 349 Interview with Sergey Shamba (4 May 2005).
Annex 350 Declaration of Zhuzhuna Zhuzhaniashvili (19 August 2008).
Annex 351 Declaration of Tinatin Gagnidz e, Protocol of a Victim
Testimonial (23 August 2008).
Annex 352 Declaration of Teimuraz Jashas hvili, Protocol of a Victim
Testimonial (23 August 2008).
Annex 353 Declaration of Nugzar Gogidze, Pr otocol of a Victim Testimonial
(29 August 2008).
Annex 354 Declaration of Jimsher Babutsidze (30 August 2008).
Annex 355 Declaration of Victor Bezhanishvili, Protocol of a Victim
443 Testimonial (31 August 2008).
Annex 356 Declaration of Vazha Kopadze, Pr otocol of a Victim Testimonial
(31 August 2008).
Annex 357 Declaration of Enver Babutsidze (31 August 2008).
Annex 358 Declaration of Zaza Gogishvili, Pr otocol of a Victim Testimonial
(2 September 2008).
Annex 359 Declaration of Giorgi Kharibegashvili, Protocol of a Victim
Testimonial (2 September 2008).
Annex 360 Declaration of Ruslan Sikturashvili, Protocol of a Victim
Testimonial (2 September 2008).
Annex 361 Declaration of Darejan Bakhtad ze, Protocol of a Victim
Testimonial (2 September 2008).
Annex 362 Declaration of Gaioz Tkhlashi dze, Protocol of a Victim
Testimonial (5 September 2008).
Annex 363 Declaration of Eliko Arsenadze, Pr otocol of a Victim Testimonial
(6 September 2008).
Annex 364 Declaration of Tsiuri Megrelishvili, Protocol of a Victim
Testimonial (6 September 2008).
Annex 365 Declaration of Inga Ivanishvili, Pr otocol of a Victim Testimonial
(6 September 2008).
Annex 366 Declaration of Gela Turashvili, Pr otocol of a Victim Testimonial
(6 Septemeber 2008).
Annex 367 Declaration of Zaur Chighladze, Pr otocol of a Victim Testimonial
(8 September 2008).
444Annex 368 Declaration of Liana Kuchishvili, Protocol of a Victim
Testimonial (19 September 2008).
Annex 369 Declaration of Shota Gogichaishvili, Protocol of a Victim
Testimonial (25 September 2008).
Annex 370 Declaration of Ioseb Jamerashvili, Protocol of a Victim
Testimonial (22 October 2008).
Annex 371 Declaration of Kakhaber Tkemal adze, Protocol of a Victim
Testimonial (22 October 2008).
Annex 372 Declaration of Maro Kokolashv ili, Protocol of a Victim
Testimonial (27 October 2008).
Annex 373 Declaration of Zurab Mebonia (4 February 2009).
Annex 374 Interview of Sergei Giorgi Karg inov, Witness Inte rview Protocol
(13 May 2009).
Annex 375 Interview of Artur Oleg Kaloev, Witness Interview Protocol (14
May 2009).
Annex 376 Interview with Akaki Tsotniashvili (20 May 2009).
Annex 377 Declaration of Malkhaz Meskhi (25 May 2009).
Annex 378 Declaration of Violeta Chopliani (9 July 2009).
Annex 379 Declaration of Dali Kvanchiani (9 July 2009).
Annex 380 Declaration of Maia Kordzaia (9 July 2009).
Annex 381 Declaration of Giorgi Kapanadze (10 July 2009).
Annex 382 Declaration of Valerian Makhniashvili (10 July 2009).
445Annex 383 Declaration of Tsitsino Shaorshadze (10 July 2009).
Annex 384 Declaration of Ilia Kobaladze (10 July 2009).
Annex 385 Declaration of Vazha Tsiskadze (10 July 2009).
Annex 386 Declaration of Nanuli Gogaladze (10 July 2009).
Annex 387 Declaration of Alexandra Gegelashvili (10 July 2009).
Annex 388 Declaration of Nodar Beruashvili (10 July 2009).
Annex 389 Declaration of David Dzadzamia (16 July 2009).
Annex 390 Declaration of Omar Chavchavadze (24 July 2009).
Annex 391 Declaration of Besik Sidamonidze (24 July 2009).
Annex 392 Declaration of Dimitri Kvinikadze (4 August 2009).
Annex 393 Declaration of Otar Tabatdze (4 August 2009).
Annex 394 Second Declaration of David Dzadzamia (7 August 2009).
Annex 395 Declaration of Liza Gogashvili, Pr otocol of a Victim Testimonial
(21 August 2008).
Annex 396 Declaration of Iason Nadiradze, Pr otocol of a Victim Testimonial
(26 August 2009).
IMAGES
Annex 397 UNOSAT, Village Damage Summary: Nuli, South Ossetia,
Georgia, Imagery Recorded on 19 August 2008 (19 August 2008).
Annex 398
UNOSAT, Update 1: Active Fire Loca tions for Tskhinvali, South
Ossetia, Georgia , Imagery Recorded 7-20 August 2008 (20
446 August 2008).
Annex 399 UNOSAT, Update 2: Active Fire Loca tions for Tskhinvali, South
Ossetia, Georgia - Active Fire Locations Detected with MODIS,
Imagery Recorded 7-24 August 2008 (24 August 2008).
Annex 400 UNOSAT, Satellite Damage Assessment for Kekhvi Area, South
Ossetia, Georgia, Imagery Recorded 19 August 2008 (25 August
2008).
Annex 401 UNOSAT, Overview of Village Damage Atlas: Kekhvi to
Tskhinvali, South Ossetia, Georgia, Imagery Recorded 19 August
2008 (26 August 2008).
Annex 402 UNOSAT, Village Damage Atlas: From Kekhvi to Tskhinvali,
South Ossetia, Georgia , Atlas Sheet 1, Imagery Recorded on 19
August 2008 (26 August 2008).
Annex 403 UNOSAT, Village Damage Atlas: From Kekhvi to Tskhinvali,
South Ossetia, Georgia , Atlas Sheet 2, Imagery Recorded on 19
August 2008 (26 August 2008).
Annex 404 UNOSAT, Village Damage Atlas: From Kekhvi to Tskhinvali,
South Ossetia, Georgia , Atlas Sheet 3, Imagery Recorded on 19
August 2008 (26 August 2008).
Annex 405 UNOSAT, Village Damage Atlas: From Kekhvi to Tskhinvali,
South Ossetia, Georgia , Atlas Sheet 4, Imagery Recorded on 19
August 2008 (26 August 2008).
Annex 406 American Association for the A dvancement of Sciences (AAAS),
High-Resolution Satellite Image ry and the Conflict in South
Ossetia: Summary Report (9 October 2008).
Annex 407 UNOSAT, Village Damage Summary: Avnevi, South Ossetia,
Georgia, Imagery Recorded 19 August 2008 (10 October 2008).
447Annex 408 UNOSAT, Village Damage Summary: Eredvi, Berula, and
Argvitsi, South Ossetia, Georgia,Imagery Recorded 10 & 19
August 2008 (16 October 2008).
ADDITIONAL DOCUMENTS
Annex 409 Georgian Ministry of Foreign Relations, Russian Officials in the
De Facto Administrations of South Ossetia and Abkhazia
(undated).
Annex 410 UN Office for the Coordination of Humanitarian Affairs,
“Situation in Georgia (as of 25 Aug 2008)”,Situation Report on
the Situation in Georgia No. 7 (26 August 2008).
Annex 411 Declaration of Alan Ivanovich Parastaev (23 June 2009).
Annex 412 U.N. General Assembly, Report of the Committee on the
Elimination of Raci al Discrimination, Official Records, Forty-
Eighth Session, Supplement No. 18, U.N. Doc. A/48/18 (1994).
Annex 413 Declaration of Zurab Khutsishvili (10 July 2009).
Annex 414 Declaration of Spartak Nefaridze (10 July 2009).
Annex 415 Declaration of Lavrenti Gabatashvili (10 July 2009).
448 LIST OF FIGURES AND PHOTOGRAPHS
FIGURES PAGE
Figure 2.1 Georgia 19
Figure 3.1 The Ethnic Cleansing of South Ossetia and 48
Adjacent Areas
Figure 3.2 Areas and Dates of Military Activities 51
Figure 3.3 Comparative Damage Assessment, 52
Tamarasheni (10 & 19 August 2008)
Figure 3.4 Damage Assessment, Kurta Municipality 72
Figure 3.5 Damage Assessment, Kvemo Achabeti 82
Figure 3.6 Damage Assessment, Zemo Achabeti 83
Figure 3.7 Damage Assessment, Kekhvi 87
Figure 3.8 Damage Assessment, Eredvi 98
Figure 3.9 Damage Assessment, Avnevi 110
Figure 3.10 Damage Assessment, Nuli 112
Figure 4.1 Zones of Control in South Ossetia: 1992 – 137
August 2008
Figure 6.1 Gali District 205 PHOTOGRAPHS PAGE
Photograph 3.1 Excavator destroying buildings belonging to 54
ethnic Georgians in Tamarasheni
(late August 2008)
Photograph 3.2 Russian soldiers near house set on fire in 79
Kvemo Achabeti (18 August 2008)
Photograph 3.3 Russian soldier walks by house set on fire in 80
Kvemo Achabeti (18 August 2008)
Photograph 3.4 Russian military vehicle, Kvemo Achabeti 81
(19 August 2008)
Photograph 3.5 Elderly Georgian couple escapes from a 81
house set on fire in Kvemo Achabeti
(19 August 2008)
Photograph 3.6 Excavator tears down a destroyed house in 82
Achabeti (22 August 2008)
Photograph 3.7 Burning homes in Kekhvi (19 August 2008) 88
Photograph 3.8 Russian checkpoint, Kekhvi (21 August 2008) 89
Photograph 3.9 Burning homes in Kekhvi (23 August 2008) 90
Photograph 3.10 House on fire in Eredvi (28 August 2008) 100
Photograph 3.11 Burning house in Avnevi (4 September 2008) 107
Photograph 3.12 “Ossetians Live Here.” Sign on home in 109
Eredvi (4 September 2008)
Photograph 3.13 South Ossetian de facto Interior Ministry 125
detention centre with Russian troop barracks
in background
Photograph 3.14 Ethnic Georgians from South Ossetia being 127
taken by Russian forces to Gori
(16 August 2008)
- 450 -
Memorial of Georgia