Georgia?s day in court: a stunning admission of guilt
r.amirejibi-mullen at qmul.ac.uk
Wed Dec 10 19:25:07 UTC 2008
McGill University | Montreal, Quebec | Dec 10 2008
Georgia?s day in court
McGill law Professor Payam Akhavan is representing Georgia in its
International Court of Justice case against Russia.
McGill professor Payam Akhavan takes on the Russian giant
By Pascal Zamprelli
In telling a war story, it?s rare to focus on the lawyers.
But McGill law professor Payam Akhavan is playing a critical role in
the conflict over a pair of breakaway regions few people had heard of
before August. That?s when he found himself in the midst of an
international incident, having to make decisions about how to take the
Russian Federation to court even as their tanks were rolling in South
Ossetia and Abkhazia.
Akhavan?s client? Georgia. The task? To take Russia to the
International Court of Justice (ICJ) ? the first time anyone had ever
done so ? to prove it had been, and still was, complicit in ethnic
cleansing of Georgians by separatist militias in South Ossetia. To top
it off, Akhavan had only three weeks to prepare the case.
?I was asked to immediately file an application with the ICJ on Aug.
10, two days after the war had begun,? Akhavan said, ?and I wasn?t
even sure if there would still be a government to represent once I did.?
On Aug. 15, South Ossetian (separatist) President Edouard Kokoity told
the Moscow-based newspaper Kommersant his soldiers had flattened all
the Georgian villages in South Ossetia thereby establishing the
boundaries of his republic. Kokoity was adamant: no Georgians would
ever be allowed to return to their homes.
The statement was an ominous warning for displaced Georgians, and the
international community heard confirmation that the Russian military
complex, largely believed to be playing puppet master to the South
Ossetian militia, was back with a vengeance.
What Akhavan heard, however, was a stunning admission of guilt ? a
self-incriminating statement that would become a key piece of evidence
in his case.
Akhavan and his colleagues were seeking a court order to put an end to
what they believed was the systematic and violent expulsion of ethnic
Georgians from South Ossetia and Abkhazia. Kokoity?s statement ?was
one of the most incriminating pieces of evidence we had,? Akhavan
said, ?and we used it with great success at the court, together with
witness testimony and satellite imagery? that gave credence to claims
of systematic ethnic cleansing.
A brewing conflict boils over
There remains international disagreement as to who is responsible for
initiating the August conflict. As is often the case, there is no
clear-cut answer. The brief war was the result of years of escalating
tension and mounting rhetoric.
Russia has never been comfortable with the fact South Ossetia and
Abkhazia have legally been in Georgian territory since the collapse of
the Soviet Union, and began to support and assist separatist factions
in those areas immediately following the empire?s breakup. Over the
ensuing decade and a half, ethnic Georgians have been intimidated or
forcibly expelled from the breakaway regions, shifting demographics so
as to ensure they became the minority.
More recently, the widespread recognition by the international
community of Kosovo?s independence in February, with which Russia
disagreed, coupled with the negotiations that seemed to be leading
toward Georgian membership in NATO, which Russia had vowed to do
everything to prevent, led Vladimir Putin, who was then still
President of Russia, to act. He declared his country would move to
recognize the independence of South Ossetia and Abkhazia, and began
making its presence felt in those regions.
That?s what first compelled Georgian President Mikheil Saakashvili, in
June, to ask Akhavan to provide his views on how the situation could
be resolved through international law. The two had met over 15 years
earlier at a conference on ethnic conflict, and had stayed in touch.
Having watched his friend appear as counsel before international
courts and tribunals, advise the UN, and become an internationally
recognized expert on human rights, Saakashvili knew Akhavan was the
person to call.
But Akhavan?s mandate changed dramatically a few weeks later, when
South Ossetian militias began shelling Georgian villages. Georgia
began planning its response, and Russia seemed primed to involve
itself. For Akhavan, the motives behind Russia?s military buildup were
clear: ?The armed conflict was in the making some time before, and the
Ossetian militia who were operating immediately adjacent to the bases
of so-called Russian peacekeepers were clearly provoking Georgia into
some sort of response, which would then justify a Russian invasion.?
Building the case against Russia
Georgia?s case rested on the claim that the Russians were in ?direct,?
or at least ?effective,? control of South Ossetian actions. The
historical ties between Russia and South Ossetia, illustrated by the
number of Russian officials heading South Ossetian government
ministries, suggested this was the case.
The Russians contended they were not taking sides, but merely keeping
the peace and protecting civilians in the wake of Georgian attacks.
Furthermore, Akhavan knew the ICJ, more accustomed to hearing boundary
disputes between states than allegations of violent acts, would be
reluctant to get involved.
As soon as the case was filed, Akhavan and his team rushed to the
Georgian capital of Tbilisi to gather evidence, mainly from refugees
in internally displaced persons camps. Over three intensive weeks, 300
testimonies were whittled down to 10 statements providing the most
detailed and compelling proof. They wanted ?people who had actually
seen the Russian forces come into their village, who had seen the
Ossetians burning homes in concert with the Russians.?
The evidence showed ?that the Russian forces worked with Ossetian
militia, that Ossetian villages and Ossetian homes in Georgian
villages were completely untouched, that Georgian homes and villages
were specifically targeted, and that soldiers told Georgians,
including the elderly, women and children, that if they did not leave
they would be killed.?
United Nations satellite imagery corroborated the testimony,
confirming that only Georgian villages and homes in South Ossetia had
been systematically destroyed. ?It indicated clearly that the
Georgians had conducted themselves quite well in focusing on military
targets, whereas the Russian/Ossetian forces had engaged in ethnic
More jaw-jaw, less war-war
On Oct. 15, the ICJ ruled narrowly in favour of Georgia?s request for
emergency provisional measures, diplomatically calling on both sides
to abide by their international obligations and ensure the security of
all persons. There will be more court dates and arguments as the case
is further debated on its merits, but the benefits of taking action
are already being felt in other ways, revealing the positive effects
formal legal action can have on continuing violent conflict.
The day after Kokoity?s ill-advised statement, the Russian Foreign
Minister, aware a case had been filed at the ICJ, claimed Kokoity was
just emotional and didn?t really mean what he had said. This suggested
the Russians were in fact pulling Kokoity?s strings, and, as
important, that the court case was having some desired effect.
Kokoity?s tone changed dramatically, and in a complete turnabout at a
subsequent UN meeting, he claimed all Georgian refugees would be
allowed to return on a non-discriminatory basis. These new statements,
says Akhavan, ?sounded almost as if they were written by a
And as the legal and diplomatic processes gradually unfold, the
violence has significantly subsided. ?We think that there was some
effect on behaviour on the ground as well,? Akhavan said, ?by virtue
of the fact that the Court was engaged and that Russian conduct would
be scrutinized and exposed.?
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