I. INTRODUCTION
On 2 December 2008 the Council of the European Union took the decision to establish an Independent International Fact-Finding Mission on the Conflict in Georgia (IIFFMCG) which had occurred in August of that year.Footnote 1 The Mission conducted visits and meetings and received correspondence from all four entities involved in the conflict.Footnote 2 It was able to call on the guidance and advice of an advisory board of politicians and senior civil servants, as well as on the expertise of military and legal experts, historians and political analysts.Footnote 3 On 30 September 2009, just over a year after the tensions in the Caucasus boiled over into a high-intensity armed conflict, the Mission published its report.Footnote 4 The report is significant because, as it correctly noted:
This is the first time in its history that the European Union has decided to intervene actively in a serious armed conflict. It is also the first time that after having reached a ceasefire agreement the European Union set up a Fact-Finding Mission as a political and diplomatic follow-up to the conflict.Footnote 5
However, whilst it labeled itself a ‘fact-finding mission’, IIFFMCG's remit went beyond simply investigating ‘the origins and the course of the conflict in Georgia’.Footnote 6 The Mission was additionally charged with assessing these facts ‘with regard to international law…, humanitarian law and human rights, and the accusations made in that context’.Footnote 7 Thus, whilst the report was keen to stress ‘that the Fact-Finding Mission is strictly limited to establishing facts and is not a tribunal’,Footnote 8 there was an inherent contradiction in what it set out to do and, ultimately, the 1100-page ‘fact-finding’ report ended up casting judgment on the lawfulness of many of the issues that arose from that conflict. Given that it would seem unlikely that the legal issues addressed in the report will ever be examined by the International Court of Justice (ICJ)Footnote 9 or any other international tribunal, the legal determinations therein are potentially significant.
Whilst the report offered a comprehensive background to the events that erupted on 7/8 August 2008, and presented its conclusions as to violations of international humanitarian law and international human rights law,Footnote 10 it was its assessment of the lawfulness of the use of force by all of the parties involved in the conflict that was perhaps the most notable. This was not least because of the factual confusion that existed over the initial stages of the conflict, including what measures of force were employed, when and by whom.Footnote 11 Indeed, on the day of the publication of the report it was the jus ad bellum issues that made the headlines.Footnote 12
The aim of this short article is not to offer an assessment of the lawfulness of the actions of the parties concerned.Footnote 13 Neither is it to give a full summary of the findings of the Mission, either generally or with regard to use of force issues specifically. Indeed, it is worth noting that there are a number of aspects of IIFFMCG's treatment of jus ad bellum issues that are worth further consideration,Footnote 14 but these will not be discussed here. These issues will necessarily be left for others to examine. The sole aim of this piece is to offer some comments on the single most important conclusion of the report, and the one that significantly altered the way in which the Mission carried out its analysis on the use of force issues. That is, the applicability of the jus ad bellum to entities short of statehood.Footnote 15
II. THE APPLICABILITY OF THE JUS AD BELLUM TO ENTITIES SHORT OF STATEHOOD
Despite the fact that the jus ad bellum is a notoriously uncertain area of international law, its applicability to the forcible actions of States—particularly the applicability of its fundamental provisions in the United Nations (UN) Charter: Article 2(4) and Chapter VII—is uncontroversial.Footnote 16 Of course, one might well dispute the specific application of the law in any given case, but its applicability to States in the first instance is clear. Thus, here, the fact that jus ad bellum governs the respective uses of military force—and, indeed, the preceding threats of military force—by Russia and Georgia is not worthy of further comment.
However, in analysing the use of force in the context of the Caucasus conflict, the Mission for the most part took the view that the legal regime of the jus ad bellum was applicable in its entirety to the forcible actions of all of the entities involved—to Russia and Georgia as states, but also to South Ossetia (categorized in the Report as ‘an entity short of statehood’)Footnote 17 and Abkhazia (which was viewed as ‘a state-like entity’).Footnote 18
Such a wholesale application of the law on the use of force to entities that are not States is, at the very least, highly controversial.Footnote 19 This is not to say that the application of the jus ad bellum to non-State entities is necessarily always incorrect, at least when the law on the use of force is taken as constituting more than just the general prohibition of the use of force enshrined in article 2(4), only that such an approach is far from being as free from controversy as the Report implied. Perhaps more important, then, is the fact that IIFFMCG's reasoning for this approach was neither clear nor consistent.
A. Article 2(4) of the UN Charter
In applying the jus ad bellum to the non-State entities involved in the conflict, the Report began by referencing article 2(4). This provision as it appears in the UN Charter reads as follows:
All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.Footnote 20
Before addressing any issue of applicability, the first point of concern here is the fact that the Report misquoted article 2(4). It stated that ‘[u]nder article 2(4) of the UN Charter, the use of force is prohibited only if it is directed against “the sovereignty, territorial integrity or political independence of another state”, or if it is “in any other manner inconsistent with the Charter of the United Nations.”’Footnote 21 There is no mention of ‘sovereignty’ in that provision.Footnote 22 Moreover, this article of the Charter refers to the purposes of the UN, and not the ‘Charter’ of the UN as the Report indicates. This is perhaps a relatively minor point, in that the meaning of article 2(4) was essentially preserved. Having said this, it is hardly reassuring that, in a Report of this kind, the core provision of the law in this area was incorrectly stated, especially when this was presented as a direct quote and was compounded by repetition.Footnote 23
The report then proceeded to submit that the prohibition on the use of force should be applied to South Ossetia. Yet, the prohibition on the use of force, as found in article 2(4), is clearly addressed to ‘States’. In fact, not only is article 2(4) addressed to States, it is also explicit in prohibiting the use of force in the ‘international relations’ of States. This would further indicate that the use of force employed as part of a State's ‘internal relations’—such as an attack on a non-State entity existing within the State—would not be prohibited by article 2(4). Or, as Dinstein has put this, ‘[i]ntra-state clashes therefore are out of reach of the Charter's provision.’Footnote 24
Irrespective of this apparent inapplicability of article 2(4) to forcible actions taken by or against South Ossetia or Abkhazia, the Mission took the view that ‘[i]n the Georgian-South Ossetian conflict, the use of force is “inconsistent with the Charter of the United Nations [sic]”, and therefore the prohibition of the use of force is applicable to the conflict…’Footnote 25 Of course, the use of force in the Georgian-South Ossetian conflict was almost certainly not consistent with the Charter of the UN broadly defined (or the purposes of the UN, somewhat more specifically—not to mention more accurately—defined), given the organization's penchant for the peaceful settlement of disputes and the non-use of force.Footnote 26
However, this in itself is a somewhat flimsy basis for arguing that article 2(4) is applicable to non-State entities. The report expands upon this assertion on the basis that the prohibition on the use of force is referred to in three separate peace agreements made between various different groupings of Georgia, Russia, South Ossetia, North Ossetia and Abkhazia.Footnote 27 Whilst the prohibition of the use of force is indeed mentioned explicitly in two of these three documentsFootnote 28 (and is inherently implicit in the third),Footnote 29 article 2(4) itself is not expressly mentioned in any of them.
Nevertheless, the Mission seemed sure that ‘[d]espite the differing status of the parties to the conflict (Georgia as a state, South Ossetia as an entity short of statehood and legally a part of Georgia), the prohibition of the use of force as endorsed in the UN Charter applies to their relations.’Footnote 30 This is, as we have noted, at best debatable and the support for this contention in the Report is weak.
For example, IIFFMCG placed a great deal of weight on the fact that the preamble of the 1992 Sochi Agreement reaffirms ‘the commitment to the UN Charter and the Helsinki Final Act.’Footnote 31 Indeed, it is concluded that ‘[t]his clause is a clear indication that Georgia accepts the applicability of the prohibition of the use of force in its conflict with South Ossetia.’Footnote 32 Furthermore, the Report goes on to state that ‘[t]he reference to the UN Charter would not make any sense if it did not include the prohibition of the use of force, as this is the centrepiece of the Charter.’Footnote 33 Yet, this seems an illogical conclusion. There would be no need, in any of the three peace agreements, for an express denunciation of the use of force if article 2(4) was in fact applicable. In such a case, article 2(4) would, in and of itself, act as a restriction of the use of force against or by a non-State entity.
It is not uncommon for various international instruments to call for the non-use of force between different entities.Footnote 34 It does not follow from this, however, that a wholesale incorporation of the prohibition of the use of force that applies between States is what is being alluded to in such instruments. References to abstinence from forcible action of this kind may well be intended to reaffirm article 2(4), but they may equally be used instead of it because it does not apply. In the case of the Caucasus conflict, all that the three agreements noted by the Report indicate is that the parties have pledged not to use force in solving this crisis, nothing more.
The simple fact that the various entities involved in this dispute (or set of disputes) have agreed not to use force against each other does not constitute an incorporation of article 2(4) into these agreements. Nor does it hold as a basis for the conclusion that this provision is applicable to non-State entities. It should be recalled that article 2(4) is a treaty provision between the member states of the UN and is recognized as being applicable in customary international law to the international relations of non-party states.Footnote 35 The various uses of force in the Caucasus by or against non-State entities may well breach the provisions of the agreements between them (and between them and State parties) that pledge to maintain peaceful relations, but this does not correspond to a breach of article 2(4). This is particularly true when it is considered, as has already been noted, that this provision (and its corresponding customary international law manifestation) is directed at the use of force between ‘States’ in the technical sense.Footnote 36
B. The Definition of Aggression
All of this is not to say that the jus ad bellum is necessarily inapplicable to non-State entities in its entirety. In contrast to the application of article 2(4), forcible actions by or against South Ossetia (or Abkhazia) were arguably contrary to article 3(d) of the 1974 Definition of Aggression, which holds that an ‘attack by the armed forces of a state on the land, sea or air forces, or marine or air fleets of another state’ constitutes an unlawful act of aggression.Footnote 37 This is on the basis that article 1 of that instrument indicates that the term ‘State’ is used therein without prejudice to issues of recognition or membership of the UN.Footnote 38 As such, the de facto ‘State like’ qualities of South Ossetia or Abkhazia would mean that the prohibition of acts of ‘aggression’ would apply as much to those entities as to Russia or Georgia. Of course, the Definition of Aggression is not binding in itself, but the ICJ has indicated that at least some of its provisions are representative of customary international law.Footnote 39
The Report missed this key distinction between the meaning of ‘State’ in the UN Charter and the meaning of the same term in the Definition of Aggression. Indeed, when it did apply the Definition of Aggression to the actions of Georgia against South Ossetia on 7/8 August 2008, the Report simply noted that these actions ‘were not directed against the territory of “another state”, but against the territory of an entity short of statehood outside the jurisdiction of the attacking state. But as argued above, the prohibition of the use of force applies here as well.’Footnote 40 This completely misses the point that the attacks against South Ossetia were in all likelihood attacks against a ‘State’ for the purposes of the Definition of Aggression. Instead, the dubious conclusion as to the applicability of the general prohibition on the use of military force was simply reiterated.
C. Article 51 of the UN Charter
The Mission went further than holding that article 2(4) of the UN Charter was applicable to non-State entities. It also took the view article 51 of the same treaty, the Charter provision governing self-defence, was similarly applicable in noting that its finding regarding article 2(4) ‘guides not only the applicability of Art 2(4), but also of Art 51 of the UN Charter.’Footnote 41
The reasoning provided by IIFFMCG for this controversial contention was that:
According to the wording of Art 51, this provision applies only to UN member states. Yet, if the use of force is prohibited in the relations between a state and an entity short of statehood, then self-defence must be available to both sides as well. The scope of both rules ratione personae must be identical, because otherwise the regime of the use of force would not be coherent. This means that self-defence is admissible also for an entity short of statehood.Footnote 42
The casual and cursory manner in which the Report stated this conclusion is startling and should not go unchallenged. Whether non-State entities have the right to self-defence under international law is a largely unexplored and controversial issue.Footnote 43 The Mission failed to even acknowledge this fact when it set out this claim. It is only much later in the Report that it briefly alluded to the controversy, stating that: ‘[e]ven if self-defence by an entity short of statehood were allowed (which is highly controversial, as shown above).’Footnote 44
Unfortunately, the Report did not elucidate this controversy as it claimed. If anything, it simply implied, uncritically, that entities short of statehood are entitled to invoke the right of self-defence where there has been a call for the abstinence of force by both sides. It is this fact—that the Report did not offer any further explanation for the applicability of self-defence beyond its traditional ‘State-based’ nature—that is most concerning here. Admittedly, there is a degree of logic to the Report's argument. If one accepts the applicability of article 2(4) to non-State entities, a corresponding application of article 51 of the UN Charter would make a degree of theoretical sense. Yet such a theoretical leap—however logical—is not a substitute for the identification of a positive legal basis for such an application of self-defence. Article 51, much like article 2(4), is clear that it applies to states, or specifically to armed attacks ‘against a Member of the United Nations.’Footnote 45
D. Specific Problems with the Report's Application of the jus ad bellum to Non-State Entities
By concluding that articles 2(4) and 51 of the UN Charter were applicable to South Ossetia and Abkhazia as well as to Georgia and Russia, the Mission created a variety of problems for itself when it actually came to attempting such an application. The Report had to proceed by stretching the analogy it had drawn between ‘State-like’ entities and an actual state. For example, it took the view that ‘[b]ecause the Georgian villages attacked by South Ossetian forces were not under the jurisdiction of South Ossetia before 8 August 2008, the actions by the South Ossetian militia are equivalent to an attack on the “territory of another State”.’Footnote 46 Such a conclusion again logically flows from the starting point of the applicability of article 2(4), but it would seem to be difficult to reconcile with the accepted approach taken by international law.Footnote 47
Furthermore, the Report went on to say that ‘[t]hese acts were serious and surpassed a threshold of gravity and therefore also constituted an “armed attack” in terms of Art 51 of the UN Charter.’Footnote 48 Such a claim is factually debatable in the first instance, and is also cursory in a legal sense (given that the ‘gravity threshold’ for an armed attack is far from clear).Footnote 49 More importantly, though, this again assumes that a non-State entity can commit an armed attack at all. This is perhaps arguably the case, given current trends in State practice,Footnote 50 but it is far from certain.Footnote 51
Similarly, cracks in this apparent application of the jus ad bellum are also visible when the Report addressed the issue of Russia's right to the collective self-defence of South Ossetia. Here, the Report again asserted that ‘[t]he right to individual self-defence is a necessary counterpart to the prohibition on the use of force. If South Ossetia is bound to refrain from the use of force, it must in consequence also be entitled to defend itself.’Footnote 52 However, it then went on to acknowledge that a right of collective self-defence in aid of a non-State entity would lead to complications. In particular, the Report noted that ‘[i]ndividual self-defence and collective self-defence are not logically linked, especially where the right to individual self-defence flows, as here, not unequivocally from Charter law or customary law, but mainly or even exclusively from the special treaties between the sides.’Footnote 53 This is interesting not least because it amounts to IIFFMCG acknowledging that its basis for applying the jus ad bellum in this context was weak.
Of course, the inapplicability of the right of Russia to invoke the right of collective self-defence in support of South Ossetia must be correct. Any such precedent would be extremely damaging to international peace and security. States could forcibly aid any entity that requested help; the scope for the (increased) abuse of the right of self-defence would be huge. However, the decision of the Mission to apply the jus ad bellum, and in particular article 51, to South Ossetia left it with the difficult task of having to artificially distinguish between individual self-defence (applicable to non-State entities) and collective self-defence (which is necessarily inapplicable to them). The Report defended such a distinction on the basis that ‘[i]t is not inconsistent to allow an entity short of statehood to defend itself against armed attacks, while at the same time limiting its right to “invite” foreign support.’Footnote 54
Yet to grant the right of individual self-defence whilst denying the right of collective self-defence is surely inconsistent. These two manifestations of self-defence are clearly linked in article 51. Such logic leads to the bizarre (not to mention confusing) conclusion that some of article 51 applies to non-State entities, but not all of it. Moreover, there are practical problems with such an approach. For example, let us adopt the argument that collective self-defence exists to give weak states the possibility of being defended from attacks by much stronger states: take the archetypal case of Kuwait being attacked by Iraq in August 1990. In such cases, denying the right of collective self-defence to a weak State almost makes providing such a State with the right to individual self-defence useless in practice.Footnote 55
This problem is even more pronounced when the ‘weak State’ is not in fact a State at all, but a non-State entity. After all, a ‘State like’ entity is probably going to be even ‘weaker’ than a weak State. On most occasions such an entity would not be able to defend itself adequately against the organized armed forces of a State. Indeed, this would seem relatively clear from the conflict in the Caucasus, where South Ossetia's resistance to the Georgian offensive was largely ineffectual until Russian support appeared.
Interestingly, the Report notes that ‘the use of force by secessionist groups is any case illegal under international law, even assuming that a right to secede exists. The general rule is that South Ossetian authorities and armed forces were not themselves entitled to use force in order to attain self-determination.’Footnote 56 This conclusion would seem correct, but it ignores the fact that it is at least arguable that all of the uses of force by South Ossetia against Georgia were targeted towards the ultimate goal of secession. As such, the prohibition of the use of force as mentioned in the various agreements relied upon by the Mission could be viewed as a reference to force employed in this context, rather than a reference to article 2(4). If one were to accept this, then the right of self-defence as encompassed in article 51 would similarly not be applicable.
III. CONCLUSION
This comment has offered criticism of a specific issue that arises from the Report of the Independent International Fact-Finding Mission on the Conflict in Georgia. Indeed, it has been argued that the Mission's blanket application of article 2(4) and 51 of the UN Charter to the actions of, and actions taken against, the two non-State entities involved in the conflict—South Ossetia and Abkhazia—was flawed. This is both because of the dubious conceptual coherence of such a conclusion and because of the practical difficulties associated with in fact applying these core provisions of the jus ad bellum to non-State entities.
However, perhaps more concerning than the conclusion of IIFFMCG in this regard was the fact that the controversial aspects of this approach went virtually unacknowledged, and that these stark legal conclusions were reached in such a cursory and uncritical manner. Although, as noted above, this comment does not seek to examine the Mission's Report in general, or even to offer a comprehensive critique of its use of force aspects, it is worth pointing to the fact that the confused and ultimately inadequate approach to the applicability of the jus ad bellum can be seen as stemming, at least in part, from a relatively superficial methodological approach to international law. For example, the Report based too many of its conclusions throughout on the jurisprudence and doctrine of scholarly opinion and the ICJ, as opposed to the practice of states. Indeed, while there were many references to ‘State practice’ to support the positions adopted by the Mission, there were also extremely few instances where actual examples of such practice were drawn upon in support of the contentions made.
This kind of ‘brushstrokes’ approach to international law is surely undesirable, particularly given the de facto importance of the Report. Whilst the Mission made it clear it was not a tribunal, it was still required as part of its mandate to address the facts under international law.
Returning to the specific issue discussed here, it would seem that instead of systematically ascertaining and applying international law to the conflict, the Mission took a prescriptive step, and confused the desirable development of the law with its current content. It is certainly possible to argue that there is merit to the Report's view that article 2(4) should restrict the actions of non-State entities, as well as actions taken against them, and that as a corollary to this, non-State entities should be able to act in self-defence. As a policy matter, it is desirable for states to be restricted directly under the key provisions of the jus ad bellum from attacking other entities, be they States or not. Similarly, providing such entities with rights (the lawful right to defend themselves) and duties (the obligation not to attack) under the jus ad bellum is appealing.
However, it is very difficult to conclude that this is part of the existing lex lata. Instead, perhaps, it may be suggested that the application of the jus ad bellum to non-State entities is aspirational, or, at best, an emerging principle of lex ferenda. Any arguments to make the law more ‘coherent’, whilst welcome, need to be pronounced as lex ferenda and have no place in a Report of this nature. Importantly, applying the rules to these entities would mean a large conceptual and practical shift in the legal regime of the jus ad bellum. Any such process would need careful consideration; the ramifications could be great. The system as it stands is not able coherently to cope with the applicability of the core provisions of the jus ad bellum to non-State entities, as we have seen (for example, with regard to collective self-defence). It must therefore be concluded that the Report's approach to the jus ad bellum in this context is extremely concerning, largely because of its failure to acknowledge the controversial aspects of what it set out, or the possible consequences of such a shift.
