ICJ’s Kosovo Verdict Weakens Russian Position

By David Iberi

On July 22, 2010, the Hague-based International Court of Justice (ICJ), the principal judicial organ of the United Nations, issued its advisory opinion on whether the unilateral declaration of independence by Kosovo on February 17, 2008 was in accordance with international law. The ICJ concluded that the adoption of the declaration of independence did not violate general international law, Security Council resolution 1244 (1999) or the constitutional framework, and “consequently, the adoption of that declaration did not violate any applicable rule of international law.”

The Russian authorities have long claimed that Kosovo sets a precedent for other cases, such as Georgia’s Abkhazia and South Ossetia, and any international decision on Kosovo should thus apply to those territories as well. The United States and the majority of the international community have, on the other hand, maintained that each situation is unique and should be judged as separate cases. The ICJ’s recent decision on Kosovo has confirmed the validity of the latter approach. However, by basing its conclusion on several key elements, the international court has set its own “precedent” of how, if need be, those other cases would be considered in the future. The manner in which the court approached the Kosovo case weakens the Russian claim of the independence of the two Georgian territories. This is in addition to the already declared political stance by the United States, Lithuania, and several other countries, that Russia is an occupying power in Georgia.

The ICJ based its opinion on three major arguments. First, there are no general rules of international law that prohibit unilateral declarations of independence. Second, Security Council Resolution 1244 on Kosovo did not create a barrier to the declaration of independence. And third, the constitutional framework that was established to stabilize the situation did not bar Kosovo from declaring its independence.

In addition, the court gave thorough consideration to the urgent humanitarian crisis – as described in Resolution 1244 – that constituted a threat to international peace and security and thus necessitated immediate international involvement under Chapter VII of the UN Charter. The international civilian and security presences were deployed to Kosovo and in effect terminated Yugoslavia’s jurisdiction over that territory.

Regarding the Georgian provinces of Abkhazia and Tskhinvali region/South Ossetia, the former conflict was covered by the UN arrangement under Chapter VI, not VII, which required Georgia’s consent to host an international presence, and the latter conflict was not even addressed by the United Nations and was instead regulated under the auspices of the Organization for Security and Cooperation in Europe (OSCE). Russia played an upper hand both in terms of the military presence on the ground and the role it played in negotiations.

While Georgia repeatedly called for a real international mission to be deployed and efficient conflict resolution formats to be established, Russia obstructed Georgia’s legitimate requests by using its P-5 member status on the UN Security Council and by exploiting the consensus-based mechanisms within the OSCE. Then, following the August 2008 invasion, Russia used its powers to terminate both the UN and OSCE missions.

In stark contrast to Kosovo, there was neither a Chapter VII arrangement toward Georgia nor, consequently, any special international jurisdiction over parts of Georgian territory. Instead, it was the Russian invasion and the occupation of the Georgian provinces that changed the status quo and those developments immediately preceded Russia’s recognition of the two provinces. The Russian recognition was thus a unilateral decision by one sovereign state to change the borders of another.

A second argument is that Abkhazia and “South Ossetia” declared their independence after a mass ethnic cleansing of hundreds of thousands of Georgians, and other ethnicities had artificially changed the demographic composition of the two regions. Russia’s military presence in those territories both before and after the war as well as the absence of proper international peace mechanisms have prevented the majority Georgian population from returning home. While in Kosovo the very purpose of the international mission was to help the Kosovar Albanians to return safely, hundreds of thousands of Georgians have not been allowed to go back to Abkhazia and Tskhinvali. Thus, unlike Kosovo, the de-facto authorities in Abkhazia and Tskhinvali do not represent the majority of the lawful residents in those territories but are merely puppet regimes whose declarations have no legitimacy. Recognizing the independence of the occupied territories would just legitimize the use of ethnic cleansing as a device to change international borders.

The ethnic cleansing of Georgians has been officially recognized by the UN General Assembly, by the OSCE in 1994, 1996 and 1999 during its Budapest, Lisbon and Istanbul summits, and by several individual states. Paragraph 17 of the 1999 OSCE Istanbul Summit Document states: “We reiterate our strong condemnation as formulated in the Budapest and Lisbon Summit Documents of the ‘ethnic cleansing’ resulting in mass destruction and expulsion of predominantly Georgian population in Abkhazia, Georgia.”

In early 1990s, the Russian Federation itself officially used the term ethnic cleansing, and sometimes even genocide, in reference to the events that unfolded in Abkhazia. On October 2, 1993, during the mass expulsion of the Georgian population, Russia “denounce[d] the facts of genocide [sic] and gross violations of human rights” and called for “the creation of an international tribunal to investigate those crimes and duly punish the culpable” (Newspaper “Svobodnaya Gruziya”, #181, October 3, 1993). On October 13, 1993 Vitaly Churkin, then representative of the Ministry of Foreign Affairs and current permanent representative of Russia to the UN, put on the “Abkhaz leadership the full responsibility for ethnic cleansing against the non-Abkhaz population in the region.” On October 14, 1993, the Russian government demanded the “Abkhaz authorities” “to stop the violations of human rights… and the massive ethnic cleansing of the non-Abkhaz population.”