The Tagliavini Report Revisited : Jus ad Bellum and the Legality of the Russian Intervention in Georgia

The purpose of this manuscript is to critically examine the legal findings of the Tagliavini Report in hope of contributing to the debate on its principal conclusions. The establishment of an independent fact-finding commission to explore the origins and course of the conflict marked the first time in its history that the EU, key mediator in concluding the Georgia-Russia conflict’s ceasefire, intervened actively in an armed conflict. The author, disparate from the Fact-Finding Mission, does not find Georgia to have the right of self-defence in regard of attacks by Ossetian secessionist forces preceding the Russian invasion. The author argues, analogously to the Tagliavini Report, that Georgian offensive on Tskhinvali in South Ossetia represented an excessive use of force which violated Article 2(4) of the UN Charter. In regards to the central issue, the author contends that the Russian military intervention in Georgia on 8 August 2008 following Georgian offensive on Tskhinvali was not justified under the scope of reinforcing its peacekeeping force, or on the grounds of humanitarian intervention, intervention by invitation, or protection of citizens. Distinct from the Tagliavini Report, this manuscript reaches the conclusion that Russia was neither entitled to invade Georgia for protecting its peacekeeping contingent that comprised part of an international peacekeeping force. Author Affiliations Utrecht University School of Law, LL.M. Public International Law (2011); University of Tartu, LL.B. (2010). Counsellor, Public Law Division at the Estonian Ministry of Justice. The author would like to thank Professor Eric Myjer, Chisom Udeze and Kati Jakobson-Lott for their help and support in writing this manuscript. A rt ic le Merkourios International and European Security Law Vol. 28/74 04


I. Introduction
In the prevailing opinion, Georgia has been held liable for initiating the 'five-day' international armed conflict against Russia in August 2008.This is due to the argument that it allegedly commenced military activities in South Ossetia and thus purportedly acted as an aggressor State under the 'first strike rule'.Yet, as Sir Gerald Fitzmaurice has noted: 'When you get a war involving a group of States, you get a chain of events in which it is very difficult to say which action comes first, and visà-vis whom.' 1 This characterization describes fittingly the situation on 7/8 August in South Ossetia as well as the days leading up to the escalation of the conflict.
Thus, this analysis addresses the events leading up to the outbreak of the August 2008 armed conflict in Georgia with focus on the legality of the Russian intervention in the South Ossetia conflict.This paper aims to deconstruct the controversial legal narrative, 2 in hope of contributing to the debate on whether the Russian Federation had the right under international law to invade Georgia on 8 August 2008. 3In this light, this study is divided into four main chapters; the first three chapters address the state of affairs in South Ossetia prior to 8 August so as to provide the basis for examining the legality of the Russian invasion on 8 August in the fourth chapter.Here, the analysis focuses on four main justifications set forth by Russia: intervention by invitation, humanitarian intervention, protection of citizens, and protection of peacekeepers.
The key materials used for the analysis are the extensive volumes of the report conducted by the Independent International Fact-Finding Mission on the Conflict in Georgia ('Tagliavini Report' and 'Fact-Finding Mission' used interchangeably).The Fact-Finding Mission noted that its report marked 'the first time in its history that the European Union has decided to intervene actively in a serious armed conflict.' 4 This intervention incorporated the input of twenty experts on military, legal, humanitarian and historical issues, and this mission provided an invaluable material used in this study.Hence, this paper draws heavily from and critically analyses the findings of the Tagliavini Report.The following chapter provides an overview of its principal conclusions.

II. Description of the main findings of the Tagliavini Report
Hostilities between the Georgian paramilitary and police units and the Ossetian militia escalated in July 2008.The latter had effective control over most part of the breakaway region. 5A report was issued at the beginning of August 2008 by the observers of the Organization for Security and Cooperation in Europe (OSCE) and the representatives of Russian forces in South Ossetia.They claimed that there was evidence of attacks, involving heavy weapons prohibited under the 1992 Sochi Agreement, 6 against ethnic Georgian villages in the region. 7e Fact-Finding Mission established that the hostilities did not only affect the paramilitary units and militia of the warring parties, but also had a significant impact on the inhabitants of the villages under attack.Consequently, fatalities occurred on both sides and the hostilities were characterized as 'heavy fighting' from 6 August 2008 onwards. 8The evacuation of the Ossetian civilian population from South Ossetia to Russia had commenced in early August 2008 and explicitly indicated the extent of the warfare in the region. 9The Tagliavini Report characterized the conflict as a low-intensity war prior to the Russian intervention on 8 August 2008. 10e Tagliavini Report concluded that the Georgian offensive on 7/8 August 2008 on the South Ossetian capital Tskhinvali

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did not satisfy the requirements of having been necessary and proportionate in order to defend the Georgian villages that had been targeted by the Ossetian militia.It also found that the Georgian use of force against Russian peacekeeping forces during the military assault on Tskhinvali, i.e. on Georgian territory, was not justified.The reasons for such conclusion were manifold.First, Russia had not launched its armed invasion before the start of the Georgian operation.Second, the purported large-scale presence of Russian armed forces in South Ossetia prior to the Georgian offensive was not verified.Likewise, the Tagliavini Report did not ascertain that Russia was on the verge of such attack.Third, no evidence supported claims that Russian peacekeeping contingent in South Ossetia had been in flagrant breach of their obligations under international agreements.In essence, the Tagliavini Report noted that Russia had the right to defend its peacekeeping contingent using proportionate military means, whereas its claims in support of humanitarian intervention and for the protection of its own citizens were not legitimate under international law.Therefore, Russia's initial intervention in Georgia for the protection of its peacekeepers was regarded as legal, but the majority of the subsequent military operations were deemed to exceed the reasonable limits of defense, e.g. the bombing of the upper Kodori Valley and Georgian towns, the deployment of armoured units to reach extensive parts of Georgia, the establishment of military positions in major Georgian towns, the deployment of navy units on the Black Sea. 11 Prior to the Russian intervention on 8 August 2008, the belligerents in the intra-State phase of the conflict were Georgian armed forces and South Ossetian militia that comprised the special police units 'OMON' as well as the 'national guard'.Subsequent to the Russian invasion in Georgia, its forces and South Ossetian militia constituted a coalition against Georgia.Yet, at the time of conflict, an additional armed contingent was present in South Ossetia, made up of peacekeeping troops.Hence, it is necessary to analyse its mandate and ostensible responsibility for its failure to contain the fighting from both sides.

A. The Mandate and Efficacy of the Peacekeeping Force
The 1992 Sochi Agreement, signed by Georgian, Russian and South Ossetian leaders, aimed for 'immediate cessation of bloodshed and achieving comprehensive settlement of the conflict'. 12As a result, Article 3(5) 13 of the 1992 Sochi Agreement outlined the tenets for the Joint Peacekeeping Force (JPKF) to safeguard this objective.The scope of this mandate was further specified in the protocols to the Sochi Agreement according to which the JPKF was more similar to a peace-enforcement than a peacekeeping mission, although it was formulated as the latter.The JPKF was authorized to 'restore' peace, 'support law and order' and make 'active use of measures including use of weapons in the case of violating by uncontrolled armed formations of any opposed parties to the conflict'. 14wever, the impartiality and neutrality of the JPKF, composed mainly (two-thirds of the overall force) of the Russian and Ossetian troops, had been in doubt. 15In 2006, the Georgian Parliament adopted unequivocally a non-binding resolution in which it called for a review of the 1992 Sochi Agreement and the replacement of the JPKF with truly international peacekeeping troops. 16However, Georgia was unable to provide any corresponding evidence of a material breach of the 1992 Sochi Agreement.Consequently, it did not terminate or suspend the treaty under Article 60(1) of the Vienna Convention on the Law of Treaties (VCLT). 17The treaty did not contain provisions on the termination of the peacekeeping mission in South Ossetia.Hence, the Sochi Agreement, along with the peacekeeping regime in South Ossetia, remained in force until 29 August 2008 when the Georgian government issued Decree 552 whereby it denounced the treaty under Article 60(1) of the VCLT.Sochi Agreement, the obligation to 'undertake urgent measures aimed at restoration of peace and order'.By August 2008 however, the peacekeeping regime in South Ossetia had broken down and the fighting could not have been countered by the JPKF. 18Moreover, the Joint Control Commission ('JCC'), composed of representatives from the OSCE, Georgia, Russia, North Ossetia and South Ossetia, did not function effectively.Hence, it was unable to safeguard peace in South Ossetia.

B. Georgia's Prospects in Regard of the Malfunctioning Peacekeeping Force
Prior to the Georgian offensive on Tskhinvali, the peacekeeping regime in South Ossetia had broken down.The Russian Commander of the JPKF had reported on 7 August that he could not stop the Ossetian attacks launched against the Georgian villagers and police. 19This provided Georgia with evidence of the malfunctioning of the 1992 Sochi peacekeeping regime.
Furthermore, Georgia alleged that Russia had intervened indirectly in its internal armed conflict by sending irregulars, as well as providing armaments and logistical support to help secessionist forces.On these grounds, if sufficiently proven, Georgia could have made a claim for a material breach of the 1992 Sochi Agreement under Article 60(1) of the VCLT.Georgia may have additionally relied on a material breach of the stationing agreements contained in the 1992 Sochi Agreement.On this basis, Georgia would have been entitled to terminate the bilateral treaty on a prior notice. 20In principle, it could have appealed for a different international peacekeeping mission in South Ossetia, following the example of the re-establishment of the peacekeeping force in the Israel-Lebanon border in 2006. 21

A. The Applicability of Article 2(4) of the UN Charter to the Georgian Intra-State Conflict
The Ossetian militia's attacks were ongoing on 7 August 2008, hence providing legitimacy in the light of immediacy and necessity for the Georgian offensive on Tskhinvali. 22Georgia's offensive commenced at 23:35 on 7 August 2008 and involved approximately ten to eleven thousand troops. 23Whether the offensive reached the threshold of Article 2(4) of the United Nations (UN) Charter 24 (Article 2(4)) needs additional scrutiny.
The answer to this question is affirmative as is evidenced by the choice of the weapons used in an indiscriminate manner 25 in the civilian area, e.g.cluster munitions. 26Furthermore, the political objective of the offensive is noticeable from the selection of its target, i.e. the capital of South Ossetia, which was not directly related to the hostilities against Georgian villages and police. 27Moreover, the form of the action clearly exceeded its defensive implications. 28It thus cannot be characterized as a police operation that would not violate the ban on the use of force.By employing excessive and punitive counter-force, Georgia thus breached Article 2(4).
Yet, it is widely claimed that Article 2(4) only applies to the inter-State level and does not refer to a State's right to suppress its internal conflicts. 29Resultantly, it is alleged, Article 2(4) should not have any relevance for the internal conflict in the region of South Ossetia, due to the fact that the latter constituted an integral part of Georgia.Hence, it may be argued that Georgia could have easily suppressed the internal conflict by means of crackdown without conflicting international law and the ban on the use of force.
Nevertheless, according to Bruno Simma's commentary on the UN Charter, South Ossetia is subject to Article 2(4) due to its status as a de facto State: 'It is almost generally accepted that de facto regimes exercising their authority in a stabilized manner are also bound and protected by Art.2(4).' 30 Furthermore, in accordance with the Nicaragua case, the prohibition on the use of force constitutes a rule of customary law. 31Thus, contrary to Article 51 of the UN Charter (Article 51), which is subject to considerably stricter threshold criteria, 32 Article 2(4) was applicable to the Georgian intra-State conflict prior to 8 August 2008.Hence, it restricted the conflicting sides to conduct measures short of the use of force.The Georgian authorities, as well as their South Ossetian counterparts, were entitled to undertake only such operations that would not breach Article 2(4) or that would conform with the exceptions to the general prohibition on the use of force stated in the UN Charter.
In this regard, it is relevant to recall that the prohibition on the use of force under Article 2(4), widely considered as a jus cogens rule, is subject to two exceptions under the UN Charter: the authorization for the use of force by the UN Security Council under Chapter VII and the inherent right to invoke the concept of self-defence under Article 51. 33 Due to the political impasse in the Security Council on this matter, its potential power to authorize measures under Article 2(4) could not have provided any remedy to the counterparties.In this context, Georgia invoked the right of self-defence to repel the attacks conducted by the Ossetian militia against its villages and police.Its right to invoke Article 51 depended on various factors that will be subsequently examined.

B. The Ossetes' Armed Activities in Georgia in View of Article 51
1.

The Applicability of Article 51 to Non-State Actors
The hostilities against Georgian villages and police were conducted by individuals and armed groups that were not directly controlled by any State. 34Significantly, however, the concept of self-defence, as traditionally understood, applies to an armed response to an attack by a State. 35It is notable that, despite the fact that the UN General Assembly Resolution 3314 Definition of Aggression 36 did not intend to provide the definition of 'armed attack', 37 its references to different acts of aggression in Article 3 are limited to inter-State attacks.According to the International Court of Justice (ICJ), this includes a State's 'substantial involvement' in 'the sending by or on behalf of a state of armed bands, groups, irregulars or mercenaries, which carry out acts of armed force against another state', 38 in the event that 'such an operation, because of its scale and effects, would have been classified as an armed attack rather than as a mere frontier incident had it been carried out by regular armed forces.' 39 In the Palestinian Wall the ICJ established that an 'armed attack' under Article 51 is confined to States, either in direct or indirect terms, 40 and does not encompass actions by non-State actors which are not attributable to States. 41In this regard, the Ossetian militia's attacks against Georgian villages and police cannot be attributed to any State.This entails that under the restrictive approach to Article 51, Georgia could not have invoked the right of self-defence. 42The Tagliavini Report, however, did not interpret Article 51 restrictively and concluded, presumably in relation to Article 3(a) of the Definition of Aggression 43 , that: In this context, the delineation of the territories of South Ossetia and Georgia follows de facto jurisdiction of the South Ossetian entity short of statehood.Because 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". 44is line of reasoning is significant for its possible implications on the limits and scope of the concept of self-defence.In the immediate aftermath of the 11 September 2001 terrorist attacks, the conditions for invoking the right of self-defence were subject to extensive debate.Thus, it was argued that due to the scale and effects of the operations, an armed attack in terms of Article 51 encompasses non-State actors. 45This debate has implications to the Georgian intra-State conflict's legal framework because, similarly to the Al-Qaeda terrorist network, the Ossetian militia was a non-State actor.
Therefore, the ICJ's opinion in the Palestinian Wall that Article 51 covers only States but not non-State actors, has been subject to criticism.It has been noted that '[t]his finding is inconsistent with the Court's own judgment in Nicaragua and state practice before and after 9/11.' 46 It has also been underlined that Article 51, due to the inherent character of the right of self-defence, 'must reflect the realities of the international system and the aspirations of the international community.' 47Indeed, among the UN Member States, only Iran and Iraq challenged the legality of the 7 October 2001 military operation against Afghanistan. 48Notably, Article 51 does not explicitly limit the scope of perpetrators of an 'armed attack' to States. 49ence, it is widely argued, contrary to the ICJ in the Palestinian Wall opinion, that Article 51 also includes attacks of sufficient scale and effects that have been committed by non-State actors. 50Therefore, if the 9/11 terrorist attacks did result in a new understanding of the limits of Article 51, it would be justifiable to reach the conclusion that was drawn in the Tagliavini Report.The attacks against Georgian villages and police, commenced by the Ossetian militants, would thus fall under the scope of Article 51.
However, previous research on this matter has concluded that 'State practice has consistently upheld the need for a certain link with a state.' 51 Furthermore, with reference to the principles of non-intervention and State sovereignty, it has been pointed out that a different conclusion would undermine the fundamental principles of State sovereignty and non-intervention. 52n this regard, it is important to note that the applicability of Article 51 to the circumstances in the Georgian intra-State conflict is questionable in comparison to the 9/11 terrorist attacks.Unlike the Al-Qaeda terrorist network that was harbored by Afghanistan, the Ossetian militants' activities were not imputable to any State.Hence, it is uncertain whether Georgia had the right to invoke the right of self-defence in its intra-State conflict, as maintained in the Tagliavini Report.

The Applicability of Article 51 to Intra-State Armed Activities
The 9/11 terrorist attacks provide another illustrative example for analyzing the applicability of Article 51 to the Georgian intra-State armed conflict.Universally, it is agreed that the terrorist attacks against the United States were directed from abroad.This constituted the essential precondition for NATO to qualify them as 'armed attacks' in terms of Article 5 of the North Atlantic Treaty 53 and Article 51 of the UN Charter. 54This position was adopted inter alia by the European Union and Russia, 55 as well as by the Organization of American States and, debatably, 56 by the UN Security Council in Resolutions 1368 and 1373.
In contrast, the Ossetian militia's attacks against Georgian villages and police were directed from de jure Georgian territory.The Tagliavini Report nevertheless recognized them as armed attacks under Article 51.This is noteworthy as it contradicts ICJ's position.In the Palestinian Wall, the Court stated that the position as adopted in the Tagliavini Report, is not in accordance with Article 51. 57  Yet, the Tagliavini Report established essentially that Articles 3(b) and 3(d) of the Definition of Aggression were applicable to the situation in Georgia because of the Ossetes' use of heavy weapons and attacks against Georgian villages and police. 60The Tagliavini Report concluded 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.' 61 Notably, the Tagliavini Report makes the distinction between territories that fall under South Ossetia's jurisdiction and those that are under Georgia's jurisdiction. 62This is significant, as the Tagliavini Report, on the other hand, accepted Georgia's territorial integrity.In view of the Tagliavini Report, South Ossetia was an 'entity short of statehood' that supposedly justified the applicability of Article 51, since the hostilities 'are equivalent to an attack on the "territory of another State"'. 63is line of reasoning might find support from certain scholarly disputes, as evidenced in the dissenting views of Judge Burgenthal and Judge Higgins in the Palestinian Wall as they argued that Article 51 does not unequivocally subject the right of self-defence to armed attacks from abroad. 64However, within the current context, it seems that by categorizing the Ossetian militia's hostilities against ethnic Georgian villagers and police as armed attacks in terms of Article 51 and thereby entitling the Georgians to invoke the right of self-defence, the Tagliavini Report has expansively interpreted the scope of Article 51.
This conclusion raises the question of the range of available measures for a conflicting side that has been a victim of an unlawful use of force, e.g.Georgia, but cannot invoke the right of self-defence since the use of force has not reached the strict conditions of an armed attack in terms of Article 51. C.

Countermeasures in an Intra-State Conflict
The ICJ has introduced an innovative concept of countermeasures under its case law.Thus, Georgia might have been entitled to undertake proportional countermeasures in accordance with Article 22 of the International Law Commission (ILC) Articles on State Responsibility as a means for redress when confronting unlawful use of force. 65The applicability of this 'very controversial and contested concept' 66 to the Georgian intra-State conflict is discussed below.
As generally understood, countermeasures exclude the responsibility of the actor and preclude the wrongfulness of the act per se. 67This is further evidenced in the ICJ's judgments in United States Diplomatic and Consular Staff in Tehran, 68 Military and Paramilitary Activities in and Against Nicaragua, 69 and in Gabčikovo-Nagymaros Project. 70Yet, the ILC Articles on State Responsibility under Articles 51 and 52 as well as the ICJ in its case law have limited the use of countermeasures to the preconditions of proportionality and necessity. 71Notably, the condition of proportionality is determined and evaluated on the basis of the aim of the countermeasures, which entails that, if necessary, the measures undertaken may exceed the limits of the unlawful action that is being repelled. 72wever, it is questionable whether States may undertake countermeasures for deterring unlawful use of force.Some legal scholars have argued that countermeasures may involve use of force outside the UN's Charter system in order to provide legal means for States, e.g.Georgia, to counter unlawful use of force short of an armed attack. 73Yet, this position is superseded by Article 50(1)(a) of the ILC Articles on State Responsibility according to which: 'Countermeasures shall not affect the obligation to refrain from the threat or use of force as embodied in the Charter of the United Nations.' Therefore, the concept of countermeasures similarly to the concept of self-defence under Article 51 was not applicable to the intra-State conflict in Georgia.Hence, Georgia was obliged to comply with Article 2(4) in its response to the unlawful use of force by the Ossetian militia.
Since Georgia's right to invoke Article 51 as well as the concept of countermeasures for countering the Ossetian attacks was questionable, it is necessary to examine whether Georgia had the right to undertake the offensive on Tskhinvali on the basis of pre-emptive self-defence for deterring the alleged Russian invasion in South Ossetia.

D. The Applicability of Pre-emptive Self-Defence vis-à-vis Russia
Russian forces had stayed on high alert pursuant to the conclusion of large-scale 74 , military exercises since 2 August 2008 and were situated close to the Georgian border on the other side of the Caucasus near the Roki mountain tunnel.In the context of the unstable situation in South Ossetia, it constituted a threat of force against Georgia in terms of Article 2(4). 75wever, it cannot be verified on the basis of available evidence that Russia 'was on the verge of such a major attack, in spite of certain [military] elements and equipment having been made readily available.' 76Thus, Georgia could not have appealed to the right of pre-emptive self-defence, the concept of which as a whole has been generally considered to be in breach of modern international law. 77The Russian military build-up on the other side of the Caucasus constituted an abstract threat, which does not permit the other side to use force under the scope of Article 51.As widely acknowledged, Article 2(4), grounded further by customary law, is 'a cornerstone of the United Nations Charter' and has to be read restrictively. 78.
The Applicability of Article 51 and Anticipatory Self-Defence vis-à-vis Russia Prior to the commencement of the Georgian offensive on Tskhinvali around midnight of 8 August, Georgia had claimed that Russia had sent regular forces to South Ossetia. 79Russia, on the other hand, maintains that such movement was part of the normal operation of the peacekeeping force. 80The dispute is significant as it could essentially alter the responsibility of the warring sides for the outbreak of the August 2008 conflict in South Ossetia.
The 1992 Sochi Agreement on the ceasefire of the 1991-1992 conflict in South Ossetia provided, under Article 2, the withdrawal of the conflicting sides' armed forces.The treaty established the JPKF, which was composed of three battalions (each up to 500 troops) from Russia, Georgia and South Ossetia and was headed by a Russian officer. 81Additionally, each of the three sides was permitted to have 300 troops in reserve and allowed to deploy them under the prior authorization of the JCC. 82Unauthorized reinforcement of the peacekeeping force was not allowed.
On the basis of Georgia's allegations, if Russia had launched a military invasion in South Ossetia prior to the Georgian offensive on Tskhinvali, Russia's main justifications -protection of citizens and peacekeepers -would be eroded.In such a case, Russia could not have based its intervention on the right of self-defence under Article 51.Instead, its invasion would have constituted an act of aggression under Article 3(a) 83 of the Definition of Aggression, thereby altering the responsibility for waging an inter-State armed conflict. 84wever, Georgia, having the burden of proof in this case, has failed to substantiate these allegations. 85Furthermore, the Fact-Finding Mission concluded that: 'There is no evidence that the number of Russian peacekeepers present in South Ossetia was higher than allowed.' 86 To conclude, it has not been established that Russian armed forces had been present in South Ossetia prior to 8 August 2008.It has also not been proven that Russia had significantly surpassed the limit on the number of its peacekeeping troops, which might have otherwise constituted an act of aggression under Article 3(e) of the Definition of Aggression 87 .
Hence, Georgia could not have claimed the right to commence the offensive in South Ossetia under Article 51.For the same reason it could not have invoked the right to interceptive anticipatory self-defence, a concept that has been widely understood in accordance with the UN Charter and customary law. 88This means that Georgia's offensive on Tskhinvali, the scale of which did not fall below the threshold of Article 2(4), constituted a violation of the prohibition on the use of force as stated in Article 2(4).

V. The Legality of the Russian Military Invasion
As a direct consequence of the Georgian offensive on the South Ossetian capital Tskhinvali on 7 August 2008, the intra-State conflict escalated to an international scale.Russia immediately commenced its military invasion, contrary to the expectations of the Georgian authorities and military planners. 89ssia set forth essentially four justifications for its invasion in South Ossetia on 8 August 2008: the invitation by the South Ossetian de facto authorities, invasion for humanitarian purposes, protection of its citizens, and protection of its peacekeepers.Russia could not have claimed the right to individual or collective self-defence under Article 51, since its territory was not attacked by Georgia nor was South Ossetia, as a region short of statehood, 90 subject to the collective selfdefence system. 91Likewise, Russia could not have justified its intervention by claiming the right to anticipatory self-defence.Thus, the Nuremberg Tribunal has maintained that: '[P]reventive action in foreign territory is justified only in case of "an instant and over-whelming necessity for self-defence, leaving no choice of means, and no moment of deliberation"'. 92In this regard, the Georgian offensive on Tskhinvali was not directed against Russia and took place in the Georgian territory.As examined earlier, Russia did not have the right to send its armed forces into Georgia under the façade of a unilateral reinforcement of peacekeeping troops.Thus, the subsequent analysis on the legality of the Russian invasion in Georgia is limited to the above four arguments set forth by the Russian Federation.

A. Intervention by Invitation
Russia claimed that it launched its military invasion in South Ossetia 'following a request from the government of South Ossetia.' 93 The concept of military intervention, distinguished from collective self-defence, 94

B. Humanitarian Intervention
Russian authorities argued initially that the Georgian offensive on Tskhinvali resulted in the death of approximately 2,000 civilians. 104Pursuant to the commencement of the Georgian military operation, the Ossetes pledged to the Russian authorities 'to do everything to stop the genocide of the Ossetian people'. 105However, the alleged fatality rate of 2,000 people was significantly overestimated.
Independent studies suggest that 162 civilians died in the course of the August 2008 conflict. 106This figure includes the fatalities that resulted from the offensives of the Russian and Ossetian forces.Thus, the Tagliavini Report concluded that the 'allegations of genocide […] are neither founded in law nor substantiated by factual evidence.' 107 In any event, the UN General Assembly in its resolutions 108 , as well as an overwhelming majority of States, have taken the position that humanitarian intervention under international law is not permitted. 109This implies that humanitarian intervention may not be regarded as a rule of customary law.Moreover, Russia in particular has persistently objected to State practice that would mirror aspects of a humanitarian intervention. 110Consequently, in accordance with the estoppel principle, it cannot appeal to this concept on its own.

C. Protection of Nationals Abroad
As the third principal justification for its intervention, Russia argued that it had the right to protect its citizens in South Ossetia.Thus, Russia invoked Article 61(2) of its Constitution according to which '[t]he Russian Federation shall guarantee its citizens defense and patronage beyond its boundaries'. 111On the basis of this legal reasoning, Russia alleged that it had the right to launch 'counter-attacks'. 112However, as evidenced in Article 27 of the VCLT and pursuant to the Nottebohm case, '[i]t is international law which determines whether a State is entitled to exercise protection'. 113Thus, Article 61(2) of the Russian Constitution could not justify the Russian intervention in case it would breach international law.
The use of force for protecting citizens or nationals abroad has been widely regarded as not falling within the scope of the concept of self-defence and Article 51. 114 Bruno Simma's comment on the UN Charter states that: The use of force to protect nationals abroad is a breach of international law, even if some authorities have claimed the contrary and international practice is showing a tendency to resurrect the law in existence before the U.N. Charter came into force. 115 the basis of the extensive analysis on State practice and opinio juris, Tom Ruys concludes similarly that: 'In light hereof, the author finds it impossible to assert that there exists de lege lata a customary right of forcible protection of nationals, as defined by Waldock, Dugard and others.' 116 Even scholars who advocate in support of the right to protect citizens abroad, 117 do not challenge the argument that such operations have to be accompanied by situations of emergency and strictly limited in scope. 118Generally, the proponents of the concept argue that three cumulative preconditions have to be satisfied, as mandated by Sir Humphrey Waldock: if (1) an imminent threat of injury to nationals exists, (2) which the territorial sovereign is unwilling or unable to counter by providing protection to the citizens, the intervening State may then (3) undertake actions that are strictly confined to the object of protecting its nationals against injury. 119They admit that unless such operations satisfy the 'Caroline' criteria, 120 they cannot be undertaken. 121Additionally, States that commence military action on this basis have to demonstrate that they have previously exhausted other available means, e.g.evacuation which, however, might constitute itself a violation of the host state's sovereignty if conducted without its prior consent 122 and negotiations. 123In any case, a large-scale military invasion for the protection of citizens in another sovereign State is prohibited under international law.
More importantly, the Russian line of argument poses greater challenges.Ninety percent of residents in South Ossetia 124 who had Russian citizenship, were naturalized through the 'passportisation' policy.This was based on the Russian Law on Citizenship, which entered into force in 2002.It provided, under Article 14, that Russian citizenship might be granted under a simplified procedure. 125It made it possible for South Ossetian residents to apply for a Russian citizenship without leaving home. 126Thus, the question that arises is how the 'passportisation' policy is reconcilable with the effective nationality principle as formulated in the Nottebohm case. 127e Ossetes who were naturalized through the 'passportisation' policy retained their Georgian citizenship.Hence, they had dual citizenship.Under the effective nationality principle, it is possible to argue that the Russian citizenship may have had precedence in some instances over Georgian citizenship due to their personal ties to Russia.Even so, it cannot overrule the fact that the granting of Russian citizenship in South Ossetia under simplified terms took place in breach of international law.
The inhabitants of South Ossetia lived de jure in Georgia.Under international law, an explicit consent of the home country is a compulsory precondition for changing one's citizenship: in this regard, Georgian domestic law does not recognize dual citizenship. 128Moreover, under the scope of the 'passportisation' policy, Georgia's approval for the conferral of citizenship was not sought.This rationale was followed in the Tagliavini Report, which concluded: The vast majority of purportedly naturalized persons from South Ossetia and Abkhazia are not Russian nationals in terms of international law.Neither Georgia nor any third country need acknowledge such Russian nationality.They were still citizens of Georgia at the time of the armed conflict of August 2008, and in legal terms they remain so to this day unless they had renounced or lost their Georgian nationality in regular ways. 129e term 'in regular ways' should be understood as other legal methods distinct from the artificial acquisition of Russian passports via the 'passportisation' policy. 130In this regard, the Nottebohm case notes that although a State is free to determine the rules related to the acquisition of its citizenship, it is international law that sets forth the rules for establishing whether a State's policy is in conformity with law and should be recognized accordingly by other States. 131

D.
Protection of Peacekeepers

Fatalities in the Russian Peacekeeping Contingent
According to the Tagliavini Report it was 'likely' 132 that two Russian peacekeepers in Tskhinvali had died and five had been wounded as a result of the Georgian offensive around midnight of 8 August.The Georgians, however, claim that they were fired at from the peacekeepers' compound and thus they had to return fire. 133 is a general rule that by infringing the principle of neutrality, peacekeepers lose their protective civilian status and thus may lawfully be subject to an attack. 134Hence, if peacekeepers have initiated hostilities or launched hostile acts they may be targeted as any other combatants of warlike armed forces.This raises the question whether the two alleged fatalities and five casualties in the Russian peacekeeping contingent, 135 provided the legal basis for the Russian military invasion in Georgia. 136 Uncertainty over an Alleged Georgian Attack on the Russian Peacekeeping Base The Tagliavini Report concludes that the alleged Georgian assault against Russian peacekeepers equalled an armed attack against the Russian Federation. 137The Tagliavini Report reached this conclusion on the basis of two considerations: first, the Commander of the JPKF was in all circumstances appointed from the Russian side, and secondly, the State that was to provide the troops to the JPKF had to also bear the consequences of the violations of the peacekeeping regime that were committed by the peacekeepers. 138Therefore, Russia purportedly had the right to self-defence and to intervene in the Georgian intra-State armed conflict within the tenets of Article 3(d) of the Definition of Aggression. 139vertheless, this argument should be approached critically.As already stated, Georgian forces had the right to undertake proportional countermeasures.Thus, the initiation of the Georgian offensive per se was not in breach of international law, as also noted in the Tagliavini Report. 140It is yet to be established whether Georgian forces initiated the hostilities against the Russian peacekeepers.Georgia denied these claims, stating that its troops that entered Tskhinvali were fired upon from the Russian peacekeeping positions. 141This line of events should not be excluded, considering the prevailing situation in Tskhinvali.
If the Georgian arguments were correct, the Russian peacekeepers could not claim the right of self-defence, as they would be held accountable for opening fire.Yet, no factual evidence suggests that the Russian peacekeepers had been acting in the alleged manner.Hence, the neutral status of the peacekeepers was not lifted.However, the Fact-Finding Mission, by referring to the conflicting narratives of the Russian and Georgian sides, noted that it 'does not have independent reports, which could substantiate or deny the allegations of either side' 142 and 'that the fact of the Georgian attack on the Russian peacekeepers' base could not be definitely confirmed by the mission.' 143 Despite the lack of clear evidence the Tagliavini Report continued to draw its conclusions on the basis that Georgian forces had commenced an attack against the Russian peacekeepers' military base. 144Thus, one of the main conclusions of the Tagliavini Report on which it based its subsequent analysis on the legality of the Russian invasion was that: If the Russian allegations were true, the attack by Georgian armed forces on the Russian military base would surpass the minimum threshold in scale and effects required for an "armed attack" in the sense of Art.51 of the UN Charter.In such a case, Georgia could not justify its operation against the peacekeepers as selfdefense necessary to respond to an ongoing or imminent attack by Russia.Therefore there was an armed attack by Georgia in the sense of Art.51.That means that Russia's military response could be justified […]. 145is line of argument is an aberration based on a conditional clause and formulated by assumptions, and yet it stands as the basis for a far-reaching conclusion.It has been noted by Théo Boutruche that: 'Crucially, for any type of fact-finding to be meaningful it needs to be credible.' 146The conclusion made in the Tagliavini Report was not based on impartial evidence as noted in the Report itself, 147 but on information that could not be confirmed or verified by the Fact-Finding Mission.It is also indicative that the Tagliavini Report did not provide any study of the purported Georgian actions against the Russian peacekeepers in its overview on the military activities in Georgia. 148e standard of proof based on the comparative method, which was adopted by the Tagliavini Report 149 , fails to establish facts in relation to a contentious matter.Théo Boutruche has pointed out that: 'Fact-finding serves a primary purpose of objectively establishing "what really happened".' 150 However, in the Tagliavini Report the Russian intervention was proven lawful along with the escalation of the conflict to international scale without sufficient evidence to support such a strong conclusion.This runs against the judgment in the Oil Platforms case in which the ICJ noted that the State which claims to have been a victim of an attack has to provide clear evidence in support of that claim: failing to do so would result in the dismissal of the claim. 151e Tagliavini Report acknowledged that the circumstances in which it had to provide its conclusion on the legality of the Russian invasion were unclear.Yet, on the basis of unconfirmed facts and evidence, it nevertheless drew its conclusion in support of the Russian claim.It thus represents probably the weakest link in the Tagliavini Report's analysis.However, as the decision was made in the Report to proceed with the legal analysis on the basis that an alleged attack on the Russian peacekeepers base had occurred, so will the present study carry on the examination of the Report's analysis in this regard.

Peacekeepers as State Instrumentalities: the Command and Control Test
The question of whether the purported attack on the Russian peacekeeping contingent in Tskhinvali could be categorized as an aggression against Russian land forces in terms of Article 3(d) of the Definition of Aggression is ambiguous.Moreover, it is the principal indicator for the analysis on the applicability of the concept of an armed attack and Article 51.
Georgia, South Ossetia and Russia, as the troop-allocating entities, were responsible for the actions of their peacekeeping troops.It is unequivocal that this is an important factor in determining whether a peacekeeping contingent represents 'State instrumentalities'. 152Nevertheless, it should not be regarded as the only principal criterion.It has been noted that the decisive factor for determining whether a peacekeeping force represents its allocating State, is subject to the test based on command and control.This 'is an indication of the extent to which personnel should be regarded as agents of the entity leading the operation and whether or not their actions are imputable to that entity.' 153 Hence, the JPKF should be subject to the command and control test, which was not scrutinized in the relevant analysis in the Tagliavini Report.
In order to determine the status of the Russian peacekeeping troops, it is necessary to analyze the legal instruments to the JPKF in South Ossetia.

Article
command' 175 and the JCC. 176Finally, '[a] joint (united) military procuracy' was created with equal representation from each side, 177 which was entitled to conduct '[o]versight of the legality of the activity of the military contingents'. 178e JPKF was thus subordinate to the JCC and to the joint military command.This line of command indicates that according to the legal regime, the Russian peacekeeping contingent was under an effective control and command of the international peacekeeping force.Therefore, based on the criteria upon which the multinational force (MNF) in Lebanon from 1982-1984, it was considered to maintain a national character.The JPKF in South Ossetia, mutatis mutandis, possesses an international character.As such, there existed 'a general rule concerning the behaviour of the force' and a high level of integration was evidenced by a common institution of the participating States, whereby the JPKF was constituted as a unit with a high degree of co-ordination between the various national contingents. 179e fact that the JPKF was headed by a Russian commander is without prejudice to the internationality of the peacekeeping mission in Georgia.Previous UN peacekeeping missions contend that 'the operational command of the UN peace-keeping forces lies with the Commander and that the chain of command runs through the commanders of the national contingents.' 180hus, the structure of the JPKF seemed to roughly follow the UN standards for peacekeeping missions.
The Tagliavini Report appears to overlook the fact that the JPKF was a tripartite regime in which two allocating entities, i.e.South Ossetia and Georgia, were former warring sides.In this context, the appointment of the Russian commander as the head of the mission follows the rationale of safeguarding the impartiality of the tripartite peacekeeping force.Moreover, the Ossetians and the Georgians had the right to appoint the other two chief military commanders of the JPKF.
Similarly, the UN peacekeeping missions, forerunners to the JPKF in South Ossetia, comprised officers who represented their countries at the headquarters. 181It seems to suggest that the officers in the JPKF that were appointed on the basis of nationality were not prejudicial to its international command and control structure.Therefore, in reference to the criteria applied to the UN peacekeeping missions, the JPKF's command institutions had a 'supranational authority over the military units concerned and the individuals within them' which is why the troop-allocating entities 'relinquished their power of disposal over these contingents, and have thus delegated their sovereignty'. 182e Tagliavini Report argued that the allocating States to the JPKF in South Ossetia remained responsible for the violations of the Sochi Agreement and decisions of the JCC. 183However, this may be seen as an effective means to adjust the JPKF to the specific circumstances of the conflict in South Ossetia and, particularly, to the interests of the three parties involved.Hence, the fact that the allocating States had agreed that they remain responsible for the contingents seemed to guarantee, in terms of Article 31(1) of the VCLT, that they would not readily breach the object and purpose of the 1992 Sochi Agreement, i.e. the comprehensive settlement of the conflict between the Ossetians and the Georgians. 184hat implies that the Tagliavini Report's main conclusion -that Russian peacekeepers in the JPKF represented 'State instrumentalities' subject to an armed attack in terms of Article 3(d) of the Definition of Aggression-is doubtful.On this basis, the Tagliavini Report concluded that Russia was entitled to invoke self-defence under Article 51.As examined, this line of reasoning is not without doubt, which is not to say that the Russian peacekeepers would not have maintained the right to personal on-the-spot self-defence if they had been attacked. 186e follow-up of the Russian invasion is not scrutinized in the current study.However, it should be noted that the Russian regular forces, 'covered by air strikes and by elements of its Black Sea fleet, penetrated deep into Georgia, cutting across the country's main east-west road, reaching the port of Poti and stopping short of Georgia's capital city, Tbilisi.' 187 They 'set up military positions in a number of Georgian towns, including Gori, Zugdidi, Senaki and Poti', 188 in addition to an attack on the Georgian positions in the breakaway region in Abkhazia. 189

VI. Conclusion
This research established that the peacekeeping force, comprising of troops from Georgia, South Ossetia, and Russia, was provided with the mandate to enforce peace in South Ossetia during the intra-State phase of the conflict prior to 8 August 2008.In reality however, the peacekeeping regime had broken down and consequentially, did not provide efficient means for restrain the warfare.
Within the aforementioned context, Georgia did not have the right to invoke the right of self-defence under Article 51 due to the fact that the attacks by the Ossetian militia were not launched from abroad.Furthermore, Georgia could not have employed countermeasures under chapter II of the ILC Articles on State Responsibility because countermeasures cannot affect the obligation to refrain from the use of force.Hence, Georgian offensive on Tskhinvali around midnight of 8 August 2008 represented an excessive and punitive use of force which violated Article 2(4). 190Even where the Georgians would have been entitled to undertake conduct under Article 51, as suggested in the Tagliavini Report, it would have violated the Caroline principle to employ 'nothing unreasonable or excessive' 191 and thus the condition of proportionality. 192Nevertheless, this conclusion per se is without prejudice to the legality of the Russian invasion in Georgia that was triggered by the Georgian offensive on 8 August 2008.
In regards to the legality of the Russian military intervention, this paper contends that Russia was not entitled to launch the invasion under the scope of reinforcing the JPKF, or on the grounds of humanitarian intervention, intervention by invitation, or protection of citizens.The question of whether the invasion was justified for the purpose of protecting the Russian peacekeeping contingent should be addressed on the basis of two interrelated criteria.
First, in accordance with the Oil Platforms case, there has to be sufficient evidence for determining whether an attack has occurred against the peacekeeping contingent in the first place.Second, in case such an attack has occurred, it is relevant to inquire whether it was directed against a State.The latter condition in terms of Article 51 relates to the question whether the peacekeeping troops represented 'State instrumentalities'.
The Fact-Finding Mission noted that there was insufficient evidence to ascertain an attack against the Russian peacekeeping contingent.Moreover, the Tagliavini Report's reliance in establishing facts on what is 'likely', 193 does not provide sufficient grounds for judging over war and peace as evidenced in the ICJ's Oil Platforms case.Nevertheless, in case Georgia had initiated an attack against the Russian peacekeeping base in Tskhinvali, the peacekeepers' status as 'State instrumentalities' would still be questionable.
The two members of the JPKF of Russian nationality that were purportedly killed in the attack by Georgia were under the command and control of the JCC and the joint military command of the JPKF.The international character of the peacekeeping mission is further mirrored in the direct participation of the OSCE.The Tagliavini Report's conclusion, that the Russian peacekeeping contingent represented 'State instrumentalities' and, as a consequence, Russia was entitled to intervene in the intra-State conflict under Article 51, remains uncertain.
It should be noted that the analysis in the Tagliavini Report is focused on the accountability of the allocating States for the activities of the peacekeeping troops.However, this does not undermine the status of the peacekeeping force for the main reason that in jurisprudence, more weight has been accorded to the command and control test.In this regard, it is important that the peacekeeping troops in South Ossetia were subjected to the JCC as well as the joint military command, and not to any one of the three allocating entities.The importance here is that, only the former can exercise command and control over the peacekeeping troops.In closing, unlike the Tagliavini Report, this research finds that the peacekeepers retained their neutral status under the auspices of the JPKF.

1
Quoted in SM Schwebel, Justice in International Law (Cambridge University Press 1994) 568. 2 For an illustrative example of Georgia's and Russia's contrasting interpretations of relevant facts see Case Concerning Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Georgia v Russian Federation) [2011] ICJ Rep (1 April 2011).3 For an analysis of the conflict through the prism of international relations see eg PW Schulze, 'Geopolitics at Work: the Georgian-Russian Conflict' [2009] 1 GoJIL 332.For a study on the region's history see eg SE Cornell, Small Nations and Great Powers: A Study of Ethnopolitical Conflict in the Caucasus (Curzon Press 2001).4 H Tagliavini (ed), 'Independent International Fact-Finding Mission on the Conflict in Georgia' 1 (Report, The Council of the European Union 2009) 2.
5 C Welt, 'The Thawing of a Frozen Conflict: The Internal Security Dilemma and the 2004 Prelude to the Russo-Georgian War' [2010]62 Eur Asia Stud 93-94.See also A Bellal and S Casey-Maslen, 'Enhancing Compliance with International Law by Armed Non-State Actors' [2011] 3 GoJIL 184.6 Art 3 of the Agreement on Principles of Settlement of the Georgian -Ossetian Conflict 1992 in T Diasamidze, Regional Conflicts in Georgia -the Autonomous Oblast of South Ossetia, the Autonomous SSR of Abkhazia (1989-2006) The Collection of Political-Legal Acts (The Regionalism Research Centre 2006) 98. Subsequently references in relation to Georgia's legal acts are made to the latter compilation, albeit the documents are available also at <http://www.rrc.ge>accessed 4 May 2011.7 M Malek, 'Georgia & Russia: The "Unknown" Prelude to the "Five Day War"' [2009] 3 CRIA 229.8 H Tagliavini (ed), 'Independent International Fact-Finding Mission on the Conflict in Georgia' 2 (Report, The Council of the European Union 2009) 245. 9 ibid 208. 10 ibid 209.
Therefore, in the course of the conflict in July and in the beginning of August 2008, the JPKF had under Article 3 of the 1992 'In case of violation of provisions of this Agreement, the Control Commission shall carry out investigation of relevant circumstances and undertake urgent measures aimed at restoration of peace and order and non-admission of similar violations in the future.' 14 Art 1 of the Annex No 1 to Protocol No 3 of the JCC Session (12 July 1992) in Diasamidze (n 6) 106.See also Protocol No 3 of the Meeting of Joint Control Commission ('JCC') for the Georgian-Ossetian Conflict Settlement (12 July 1992) in Diasamidze (n 6) 105.The UN peacekeeping forces, by comparison, have a very limited mandate.See LC Green, The Contemporary Law of Armed Conflict (Manchester University Press 2008) 382.15 I Facon, 'Integration or Retrenchment?Russian Approaches to Peacekeeping' in RE Utley (ed), Major Powers and Peacekeeping: Perspectives, Priorities and the Challenges of Military Intervention (Ashgate Publishing 2006) 32.See also H McCoubrey and J Morris, Regional Peacekeeping in the Post-Cold War Era (Kluwer Law International 2000) 85. 16 G Hafkin, 'The Russo-Georgian War of 2008: Developing the Law of Unauthorized Humanitarian Intervention after Kosovo' [2010] 28 BUILJ 223-224.17 Vienna Convention on the Law of Treaties (adopted 22 May 1969, entered into force 27 January 1980) 1155 UNTS 331 (VCLT).
August 2008.Therefore, Russia cannot be held responsible under Art 4 of the articles on State Responsibility and Art 3(g) of the Definition of Aggression concerning the sending by or on behalf of a State of armed bands, groups, irregulars or mercenaries.35 EPJ Myjer and ND White, 'The Twin Towers Attack: An Unlimited Right to Self-Defence?' [2002] 7 JCSL 7. See also A Cassese, 'Terrorism is Also Disrupting Some Crucial Legal Categories in International Law' [2001] 12 EJIL 993.36 UNGA Res 3314 (1974) GAOR 29th Session Supp 19.37 T Ruys and S Verhoeven, 'Attacks by Private Actors and the Right of Self-defence' [2005] 10 JCSL 302-303.
30 Simma (n 29) 121.31 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States of America) (Merits) [1986] ICJ Rep 14, para 188.32 Simma (n 29) 796.33 N Schrijver, 'Challenges to the Prohibition to Use Force: Does the Straitjacket of Artice 2(4) UN Charter Begin to Gall Too Much?' in N Blokker and N Schrijver (eds), The Security Council and the Use of Force: Theory and Reality -a Need for Change?(Martinus Nijhoff 2005) 36.34 There was no indication that Russia had sent any irregulars from its territory to fight in South Ossetia prior to the Georgian assault on Tskhinvali on 7/8 38 UNGA Res 3314 (n 36) Art 3(g).39 Military and Paramilitary Activities in and against Nicaragua (n 31), para 195.40 See for the difference between the two concepts in TD Gill, 'The Law of Armed Attack in the Context of the Nicaragua Case' [1988] 1 Hague YIL 49.See also Report of the Secretary-General 'Question of Defining Agression' (1952) UN Doc A/2211, 56.See also Schwebel (n 1) 561.41 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (Advisory Opinion) [2004] ICJ Rep 136, para 139.See also A Orakhelashvili, 'Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory: Opinion and Reaction' [2006] 11 JCSL 125.See also NA Shah, 'Self-defence, Anticipatory Self-defence and Pre-emption: International Law's Response to Terrorism' [2007] 12 JCSL 97.See also K Oellers-Frahm, 'The International Court of Justice and Art 51 of the UN Charter' in K Dicke et al. (eds), Weltinnenrecht: Liber amicorum Jost Delbrück (Duncker&Humblot 2005) 510.
The Court's reasoning applies mutatis mutandis to the situation in Georgia:Article 51 of the Charter thus recognizes the existence of an inherent right of self-defence in the case of armed attack by one State against another State.However, Israel does not claim that the attacks against it are imputable to a foreign State.The Court also notes that Israel exercises control in the Occupied Palestinian Territory and that, as Israel itself states, the threat which it regards as justifying the construction of the wall originates within, and not outside, that territory.[…]Consequently,the Court concludes that Article 51 of the Charter has no relevance in this case.58Notably,Georgia's territorial integrity at the time of the August 2008 conflict was recognized by all member States of the UN.The Tagliavini Report thus concluded that a recognition of Abkhazia and South Ossetia as independent States would breach international law. 59Furthermore, with regard to the aforementioned ICJ arguments, it is worth mentioning that Georgia's control over South Ossetia was analogous with Israel's over Palestine, i.e. lack of political control, yet the presence of troops in the territory.
The Protection of Nationals Abroad: Russia's Use of Force in Georgia' in A Constantinides and N Zaikos (eds), The Diversity of International Law: Essays in Honour of Professor Kalliopi K. Koufa (Martinus Nijhoff 2009) 142-143.See also Wood (n 54) 84.58 Construction of a Wall in the Occupied Palestinian Territory (n 41), para 139.See also Orakhelashvili (n 41) 125, 127-128.59 Tagliavini (n 4) 17. 60 UNGA Res 3314 (n 36) Art 3(b),(d) concerning bombardment or the use of any weapons against the territory of another State and an attack on the forces of another State.61 Tagliavini (n 8) 244.See also Military and Paramilitary Activities in and against Nicaragua (n 31), para 195.The threshold for an armed attack in terms of scale and effects is not defined and it is thus a subject of conflicting interpretations.See also Simma (n 29) 795.See also Oellers-Frahm (n 41) 507.62 Tagliavini (n 8) 244.63 ibid.64 Orakhelashvili (n 41) 125.
subsequent to request on behalf of a legitimate government, constitutes a rule of customary law.95According to Article 20 of the ILC Articles on State Responsibility, further supported by the ICJ's judgment in Armed Activities on the Territory of the Congo, 96 a corresponding valid consent by the host State for the presence of foreign forces constitutes a circumstance precluding wrongfulness.97Nevertheless,SouthOssetiarequested Russia's military assistance at 11:00 on 8 August 2008, i.e. after Russian forces had launched its attacks against Georgian troops. 98 thus constituted an ex post facto invitation, which is legally invalid.99Additionally, it is relevant to recall that South Ossetia was not an independent State.Thus, it has been noted that in case 'the government that invites the intervention is widely recognized as both the de facto and the de jure government, the international community accepts the government's right to request outside armed assistance.'The Practice of Recognition in the Wake of Kosovo, South Ossetia, and Abkhazia' [2011] 24 LJIL 467-490.91 Prior to the August 2008 conflict in South Ossetia, none of the UN Member States had recognized the independence of South Ossetia.The UN Security Council in Resolution 1808, less than four months preceding the outbreak of the conflict in South Ossetia, confirmed its support to the territorial integrity of Georgia.However, due to the change of policy in Russia, it recognized the independence of South Ossetia, as well as Abkhazia, on 26 August 2008.By recognizing the unlawful statehood of the breakaway regions, Russia violated Georgia's sovereignty and the principle of non-intervention under Art 2(1) of the UN Charter.See C Ryngaert and C Griffioen, 'The Relevance of the Right to Self-determination in the Kosovo Matter: In Partial Response to the Agora Papers' [2009] 8 Chinese 100Despite the South Ossetian government's de facto rule over most of the breakaway region's territory, it lacked international legitimacy as no State, including Russia at the time, 101 had recognized its statehood.It should be noted that the ICJ reiterated in the Nicaragua case that 'no such general right of intervention, in support of an opposition within another State, exists in contemporary international law.' 102 The Ossetian authorities thus did not have the right to invite Russian regular forces to invade Georgia. 10390 On South Ossetia's right to secession see A Nussberger, 'The War between Russia and Georgia -Consequences and Unresolved Questions' [2009] 1 GoJIL 351-360.See also R Müllerson, 'Precedents in the Mountains: On the Parallels and Uniqueness of the Cases of Kosovo, South Ossetia and Abkhazia' [2009] 8 Chinese JIL 10-17.See also K Knop, Diversity and Self-Determination in International Law (Cambridge University Press 2002).For an analysis on the recognition of South Ossetia see C Ryngaert and S Sobrie, 'Recognition of States: International Law or Realpolitik?Responsibility: Consent' in Crawford, Pellet and Olleson (n 22) 439-440.97 See on the implications of a given consent in cases of a violation of an erga omnes norm in Tanca (n 72) 20-22.98 Tagliavini (n 8) 281.99 N Ronzitti, 'Use of Force, Jus Cogens and State Consent' in A Cassese, The Current Legal Regulation of the Use of Force (Martinus Nijhoff 1986) 160.See also Mansour (n 96) 444-445.100 D Wippman, 'Treaty-Based Intervention: Who Can Say No?' [1995] 62 UCLR 621.See also L Doswald-Beck, 'The Legal Validity of Military Intervention by Invitation of the Government' [1985] BYBIL 191-192.See also A Abass, 'Consent Precluding State Responsibility: A Critical Analysis' [2004] 53 ICLQ 215.101 Russia recognized South Ossetia on 26 August 2008.102 Military and Paramilitary Activities in and against Nicaragua (n 31), para 209.103 G Cahin, 'Attribution of Conduct to the State: Insurrectional Movements' in Crawford, Pellet and Olleson (n 22) 248.See also Mansour (n 96) 443.
According to Georgia's information dossier provided to the Fact-Finding Mission, the Russian Deputy Minister of Foreign Affairs informed the Georgian Foreign Minister of Foreign Affairs on 8 August 2008 at 02:37, three hours prior to the first encounter between the Russian peacekeeping contingent and Georgian forces, that Russian military started operations in South Ossetia due to casualties in its peacekeeping forces.
The following factors have particular significance.First, although it has been claimed that the JPKF 151Case Concerning Oil Platforms (n 22), para 64.'As regards the alleged firing on United States helicopters from Iranian gunboats and from the Reshadat oil platform, no persuasive evidence has been supplied to support this allegation.There is no evidence that the minelaying alleged to have been carried out by the Iran Ajr, at a time when Iran was at war with Iraq, was aimed specifically at the United States; and similarly it has not been established that the mine struck by the Bridgeton was laid with the specific intention of harming that ship, or other United States vessels.' 152 Report of Secretary General (1996) UN Doc A/51/389, para 16. 153 Engdahl (n 134) 20.See also Reparation for Injuries Suffered in the Service of the United Nations (Advisory Opinion) [1949] ICJ Rep 174, 177.