Georgia?s day in court: a stunning admission of guilt

[Rusiko Amirejibi-Mullen]

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  
cleansing.?

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  
human-rights lawyer.?

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.?