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International law and a notion of aggression
08/04/2010 11:52
Paata Tsintsadze

Just about three years ago hardly anyone could imagine that cynical manipulation of a notion and essence of aggression would still exist in the XXI century and some big states would find "extraordinary" definitions for these universally acknowledged and established terms. Exactly that was seen by the world in August 2008 during Georgian-Russian war when Russia tried to paint Georgia as an aggressor. It is astonishing (but easily explained) that Russian authorities have been trying stubbornly till this day to persuade its population and the outside world that it was small and weak, compared to Russia, Georgia that attacked this nuclear super-power. This version is so exotic and absurd that in different international reality asserting the opposite would have been like breaking into the open doors.

It is sad that Moscow managed to gain certain influence over the international community (and first of all over Europe) through putting into motion its powerful financial resources which was openly demonstrated in some clauses of well-known report of the Tagliavini commission.

It is also notable that Moscow has never used the UN Security Council's powers as an argument to justify its aggression for a very simple reason – it does not possess such powers. Another matter is that neither the Tagliavini report nor any other authoritative international organizations (especially Europe) denied unambiguously and clearly Russian propagandistic falsifications about "Georgian aggression". Maybe this fact indeed has its objective reasons and even an explanation but as political and financial and economical situation is a temporary factor which now or later is bound to change. And international norms will some day (earlier than later) will get back a function of main regulatory mechanism of international relations that is eminently characteristic of the civilized world (otherwise cannot be imagined in XXI century). We are obliged to conduct any polemic with any opponent in connection with international law and the UN Charter that was created based on its values.

Let's see how aggression is defined by authoritative and universal legislative document that was recognized by almost the entire world - General Assembly resolution 3314 of December 14th 1974 - "Definition of Aggression ". The resolution says as follows: the General Assembly "Calls the attention of the Security Council to the Definition of Aggression, as set out below, and recommends that it should, as appropriate, take account of that Definition as guidance in determining, in ac¬cordance with the Charter, the existence of an act of aggression". The very first article clearly and concretely determines as to what can be called an aggression. "Aggression is the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State". To avoid all possible ambiguity there is an explanatory note as to how this definition "State" should be understood. Namely, using the above-mentioned term does not necessarily mean recognition i.e. if one state declared a separatist regime as a "state" that fact does not automatically make the latter a state.

The article 2 specifies that use of armed force by one state against another state in contravention of the Charter shall constitute prima facie evidence of an act of aggression.

The clause 3 goes even further when defining an act of aggression:

(a) The invasion or attack by the armed forces of a State of the territory of another State, or any military occupation, however temporary...
(b) Bombardment by the armed forces of a State against the territory of another State or the use of any weapons by a State against the territory of another State;
(c) The blockade of the ports or coasts of a State by the armed forces of another State;

No less important is the clause 5 which unambiguously says:

1. No consideration of whatever nature, whether political, economic, military or otherwise, may serve as a Justification for aggression.
2. A war of aggression is a crime against international peace. Aggression gives rise to international responsibility.
3. No territorial acquisition or special advantage resulting from aggression is or shall be recognized as lawful.

In order to avoid all ambiguity and incorrect interpretations the clause 8 specifies that definition of the aggression could in any way prejudice the right to self-determination, freedom and independence "particularly peoples under colonial and racist regimes or other forms of alien domination". Even such general overview should have been enough for the international community, not to mention Tagliavini report, in order to openly state declare the Russian aggression. Nobody can deny that Russia turned untouchable territory of Georgia into "the object of occupation" and that Russia disrupted territorial integrity of Georgia and put in danger its political independence, that Russia bombed Georgian cities and carried out blockades of Georgian ports. As it is well-known neither Russia can deny all this but it justifies itself with "coercion to peace", "salvation of Ossetian people", "attacks on its peace keepers" and other far-fetched artificial arguments. Even in hypothetical case of reality to have anything in common with lies spread across the entire world by the Russian propaganda their intrusion into Georgia should have been assessed as aggression since, as we mentioned, the clause 5 of the Definition of Aggression rules out any consideration of whatever nature, whether political, economic, military or otherwise to be served as justification of aggression (i.e. The invasion or attack by the armed forces of a State of the territory of another State). Endless statements of the official Moscow that intrusion of Russian armed forces into Georgia and bombing of Georgian cities and settlements was just a coercive measure and its goal was to "save" Ossetian people is not based on any norm of international law.

The declaration (October 24 1970) of the General Assembly of the United Nations specifies in details those main principles of the international law with regards to which Russian military aggression (August 2008) and Russian interpretations of the principle and right of nations to self-determination cannot hold criticism. Here are several passages from the mentioend declaration: "Considering it essential that all States 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", "Convinced in consequence that any attempt aimed at the partial or total disruption of the national unity and territorial integrity of a State or country or at its political independence is incompatible with the purposes and principles of the Charter" the General Assembly "solemnly proclaims the following principles": The first principle refers to territorial integrity and political independence of states – " Every State has the duty (i.e. it is a duty and not a recommendation. P. T) to refrain in its international relations from the threat or use of force against the ter¬ritorial integrity or political independence of any State, or in any other manner inconsistent with the purposes at the United Nations. Such a threat or use of force constitutes a violation of international law and the Charter of the United Nations and shall never be employed as a means of settling international issues...

A war of aggression constitutes a crime against the peace, for which there is responsibility under international law."

Both in Abkhazia at the time and Tskhinvali region during the days of the Russian aggression local irregular armed units and mercenaries (so-called volunteers) were especially brutal towards Georgian population. One of the principles of the declaration directly obliges every state to refrain from "organizing" and "encouraging" such military units. It is true that authors of the Tagliavini report timidly avoided mentioning this "uncomfortable" for Russia fact but results of acts of mercenaries and local armed bands were so obvious and terrible that they could not to altogether conceal all this and modestly, with just one sentence criticized Russia for not "stopping" "bandits" and "marauders". As for occupation of one country by another country both resolutions of 1970 and 1974 confirm that duration of the occupation does not have principle importance (obviously for juridical responsibility). International law considers even a brief occupation a crime. It means that Russia carried out occupation of Georgian territories. Of course, Abkhazia and Tskhinvali region where today Russian military units are deployed and construction of military bases is under way are occupied by Russia. But according to Moscow it is on the territories of "sovereign countries" in compliance with the agreements with these "countries". But what about a period before the recognition of their "independence"? Was not it what happened there during this (even brief) period an occupation? Was not this violation of norms of international law?

A classic example of voluntaristic interpretation of norms of international law is a version of the Russian leadership that interference in internal affairs of Georgia (even with use of force) is justified with international law as in the same Tskhinvali region citizens of Russia allegedly were in danger. At that mass provision of Russian passports for residents of Abkhazia and Tskhinvali region and thus "reregistering" Georgian citizens into Russian ones (a fact that again was just briefly touched upon in the Tagliavini report) is subject to another judicial assessment. In addition, if we for a second imagine such absurd issue (and especially genocide) to be true Russia still did not have juridical right to interfere in internal affairs of Georgia with use of force. What we read in the above-mentioned declaration of October 24 1970 on Principles of International Law: " No State or group of States has the right to intervene, directly or indirectly, for any reason whatever, in the internal or external affairs of any other State". In other words, interference in internal and external affairs of another state under whatever reason or pretext is considered as violation of international law and the same as aggression.

A separate article of the declaration is dedicated to "the principle of equal rights and self-determination of peoples". It is well-known that it was this principle that became a main argument against fundamental norms and principles of territorial integrity in the hands of separatists and their supporters all over the world. At first sight (and especially in discussions of dilettante and demagogic kind) it seems that international law does not specifies boundaries of right of self-determination and whether it includes right of secession. Allegedly Helsinki Conference discussed an issue of borders after the World War II and it has nothing to do with borders of sovereign states that appeared after the collapse of the Soviet Union. Both above-mentioned resolutions of the UN General Assembly (1970 and 1974), not to mention other acts of international law, were approved and came into force before the Helsinki Conference. Although we should agree that the very first sentence of the clause on the principle of equal rights and self-determination of peoples of the Declaration of October 24 1970 gives a pretext for ambiguous and provocative demagogy and interpretation that is against the spirit of the document, if one wishes. The first paragraph was formulated the following way: " By virtue of the principle of equal rights and self-determination of peoples enshrined in the Charter of the United Nations, all peoples have the right freely to determine, without external interference, their political status and to pursue their economic, social and cultural development, and every State has the duty to respect this right in accordance with the provisions of the Charter". This formulation apparently gives any people right to determine its own political status. In reality there is one decisive and definitive word in the entire text. This word is "external" or external interference. As to what self-determination principle implies is clearly explained in the following paragraph: "to bring a speedy end to colonialism". Here unacceptability of "subjection of peoples to alien subjugation, domination and exploitation" is also mentioned. The last paragraph of the mentioned clause leaves no room for superficial absolutization of self-determination right, as well as speculation with this noble principle and cynical falsification of international law. It reads: "Nothing in the foregoing paragraphs shall be construed as authorizing or encouraging any action which would dismember or impair, totally or in part, the territorial in¬tegrity or political unity of sovereign and independent States". And to conclude: "Every State shall refrain from any action aimed at the partial or total disruption of the national unity and terri¬torial integrity of any other State or country". As to Russia, it never did refrain from actions resulting in such results and this can be assessed as an aggression.

Apart from the above-mentioned two documents of international juridical power there are tens of similar documents in order to illustrate Russian aggression of August 2008 as well as superiority of principle of territorial integrity (of any state) in general. That's why there are so many attempts in Georgian as well as western publications and scientific and analytical literature to explain this juridical alogism - why it is not possible in the XXI century to establish norms of international law in relations between states and prevention of any aggression. Sometimes we even encounter suppositions that international law has turned into fiction and that the world today is governed by "the law of the strong". On the other hand, it is obvious that correlation of forces and danger of nuclear apocalypses in the world influences efficiency factor of the international law itself. But more dangerous for the humanity is "games with no rules" i.e. ignoring completely norms of international law and establishment of "law of power ", "aggressor's justice".

Seven years have passed since the war against Saddam Hussein regime. Memories of despotism of Hussein and punitive operations of the members of the coalition are beginning to fade away. And before the end of 2009 not many would have thought that any leader of the coalition member states would have had to answer, even if it was just before his own people, for participation in 2003 operation (as one of the initiators). On January 29th 2010 the whole world saw video of interrogation of former British Prime Minister Tony Blair when the former Prime Minister who just three months earlier was a real candidate for the post of the EU President was giving evidence for eight hours at the Iraq inquiry that was established by the current Prime Minister. He was giving evidence with regards to what his motivation was when he involved the country in 2003 Iraq adventure (most of the British believe it to be an adventure and some consider it invasion into Iraq). At the same time when Tony Blair was answering questions a large rally was taking place in a street against the background of the theatricalized prison cell. There was an effigy of Tony Blair sentenced to life imprisonment in the cell. Despite the fact that the enquiry intends to work till the end of 2010 one issue is considered obvious – having invaded Iraq British authorities at that time violated international law. And the former Prime Minister is guaranteed complete fiasco of reputation and political future. Of course, we can argue that what is possible in Great Britain belongs to the sphere of fantasy in the Russian federation. But when he was preparing to be the number one politician in Europe Blair also would have thought of events of January 29th to be from the world of fantasy.


 
 
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