“What good is international law when countries do whatever they want?” I aggressively asked my international law professor years ago. “Well,” he replied with a certain pride, “the United States president usually confers with the State Department legal adviser before he sends troops somewhere.” “But does that change anything?” I insisted. “No,” he replied, “but at least he asks.”
In the Trump era of autocratic hero worship, as rulers suppress protests and judges fawn before the executive branch, the fragility of international law has become more tenuous than usual. If domestic law is frequently sidelined, what chance has international law? For where domestic courts have clear jurisdiction with penalties if invoked, international courts like the European Court of Human Rights (ECHR) have moral authority but little more. International courts are to domestic courts as Chihuahuas are to Doberman pinchers - lots of noise with little bite.
And yet. Last week the ECHR made two decisions that should be noticed. First, the court ruled that Russia committed serious human rights violations during its brief 2008 war with Georgia.
Thirteen years after Russian troops entered the Georgian territories of South Ossetia and Abkhazia in August 2008, the court decided that Moscow was responsible for “inhuman and degrading treatment” of ethnic Georgians including the murder of civilians, the looting and burning of homes and their expulsion from the territory. Although Georgian troops were also cited for human rights violations, the Court found Moscow primarily responsible for numerous violations in what it called a “rampage” through South Ossetia.
A Georgian official went even further: “The European court confirmed that these violations carried out by Russia amounted to ethnic cleansing of Georgians during the 2008 war,” declared Georgia’s justice minister Gocha Lordkipanidze.
According to a Georgian news service, among the consequences of the five-day war were: “412 killed on the Georgian side – including 170 military servicemen, 14 policemen and 228 civilians; 1,747 wounded – including 973 military servicemen, 227 policemen and 547 civilians; three journalists killed, six journalists wounded; 130,000 Internally Displaced Persons (IDPs) – out of which 26,000 are still denied the right of return - and 35,000 houses burned, ruined and destroyed. Overall, the number of IDP’s from both occupied regions is now close to half a million.”
While these figures may not seem overwhelming compared to the number of hospitalized and dead during the current pandemic, the fact that 125 villages have been occupied since the August 2008 war is a significant territorial change. The court said that Abkhazia and Tskhinvali (South Ossetia) are integral parts of Georgia although they are now occupied by Russia. Changing borders and sovereignty through force go against universally accepted international norms.
So besides the human toll during the short war, two parts of Georgia have been separated and their borders are now under Russian control. A few states - Russia, Venezuela, Nicaragua, Nauru and Syria - recognize South Ossetia and Abkhazia as independent countries. Although Russia controls the regions de facto, most countries accept de jure that they are still part of Georgia.
In a separate decision against Russia, the ECHR accepted complaints of human rights violations by Russia in the occupied territory of Crimea. According to the January 14, 2021, decision, Russia illegally extended the Russian Federation’s laws to Crimea as well as imposing Russian nationality in Crimea following its illegal annexation of March 18, 2014. The ECHR declared admissible the “alleged existence of an administrative practice of extending the Russian Federation’s laws to Crimea and the resulting effect that as from 27 February 2014, the courts in Crimea could not be considered to have been ‘established by law’”. The Strasbourg based tribunal is the first international court to specify the date on which Ukraine lost control of its territory.
According to Courthouse News Service: “The court pointed to remarks made by Russian President Vladimir Putin that the Russian government wanted to return Crimea to Russia and that Russian forces had disarmed Ukrainian soldiers there.”
It took the Court thirteen years to reach a final decision in Georgia v. Russia. The final decision in Ukraine v. Russia will not be for several years. The fact that most of Ukraine’s charges were accepted in the preliminary finding bodes well for Ukraine in the final decision.
As a result of the decisions, Russia has threatened to withdraw from the ECHR if it continues to be condemned. This would leave the Court with no future jurisdiction over its actions. "The Russian authorities are exploring the possibility of denouncing the European Convention for the Protection of Human Rights and Fundamental Freedoms and terminating cooperation with the European Court of Human Rights (ECtHR) if the current line of the court, which appears to take decisions against Russia's interests, is not corrected," a Russian news agency quoted officials as saying.
The Georgia-Russia war of 2008 and the Russian annexation of Crimea in 2014 were part of a Russian strategy to secure what it called its “Near Abroad.” Fearful of continued NATO expansion, and remembering the NATO 2008 Bucharest Summit Declaration that "NATO welcomes Ukraine's and Georgia's Euro-Atlantic aspirations for membership in NATO. We agreed today that these countries will become members of NATO.” For the Russian Federation, the potential of NATO troops directly on its borders is as anathema to its security as Soviet troops in Cuba were to the United States in the 1960s. And the Soviet troops and missiles were not on the U.S. border; they were some 90 miles away.
Does international law matter? As the U.S. prepares to try its former president, United States officials should take notice of these ECHR decisions. First, the U.S. should set an example domestically that the law matters. As for following international law, it should do more than just ask the State Department’s legal adviser for an opinion before acting.
As for the Russian Federation, they illegally control South Ossetia, Abkhazia and Crimea. They seized territory by force. Is international law important to them? According to the Associated Press: “Last year’s constitutional vote approved an amendment that emphasized the priority of Russian law over international norms, a provision that could lead to Moscow’s refusal to accept some of the future rulings by the ECHR and other international bodies.” In other words, for Moscow, Nyet, Nyet; don’t even bother to confer with the Foreign Ministry’s legal adviser.