Russia is occupying the regions of South Ossetia and Abkhazia in Georgia. Separatist movements are active in South Ossetia and Abkhazia.
Russia is the occupying power in areas of South Ossetia and Abkhazia, which are internationally recognised as forming part of Georgia. Russia exercises its authority over these regions by its overall control of the separatist movements, which had previously established de facto control over the regions. In other words, Russia is using proxy forces. For further information on the use of proxy forces, see 'contemporary challenges for classification – control over proxy forces’ in our classification section.
Georgia declared independence from the Soviet Union in 1991. Since then, it has experienced tension and conflict with secessionist wars fought in South Ossetia and Abkhazia. These conflicts have left thousands dead, displaced thousands, and created a politically unstable situation, with both territories subject to the de facto authority of separatist governments. For further information, see N. Kalandarishvili-Mueller, ‘On the Occasion of the Five-year Anniversary of the Russian-Georgian War: Is Georgia Occupied?', EJIL: Talk Blog, 1 October 2013; A. Bellal (ed), The War Report. Armed Conflict in 2014, Oxford University Press, 2015, pp 83ff. For an in-depth review, see Independent International Fact Finding Mission on the Conflict in Georgia, Report, Volume II, 2009, pp 61 ff. South Ossetia, which has a population of approximately 70,000, formally declared independence from Georgia during the armed conflict between Georgian forces and South Ossetian separatist forces in 1991-1992. The conflict ended in summer 1992 when the warring parties agreed on the deployment of joint peacekeeping forces that included Russian troops. For further information, see Global Security, South Ossetia; ‘South Ossetia Profile’, BBC, 21 April 2006. As South Ossetia, Abkhazia fought a separatist conflict with Georgia in 1991-1992. Abkhazia, which has a population of approximately 350,000, formally declared independence in 1999. For further information, see ‘Abkhazia Profile’, BBC, 10 August 2017. While formally part of Georgia, both Abkhazia and South Ossetia have been under the control of separatist governments since then.
After a period of heavy fighting between the Georgian and South Ossetian forces, Russian troops entered South Ossetia on 8 August 2008. The fighting soon involved Russian, Georgian, South Ossetian and Abkhaz forces. During the intervention, Russian troops moved beyond the traditional boundaries of South Ossetia and launched strikes near the Georgian capital. The Russian forces succeeded in defeating the main Georgian forces, forcing a retreat. By August 10, the Russians had consolidated their position in South Ossetia. Russia also entered Georgia through Abkhazia and drove out the Georgian forces therein, taking full control of the region. For further information, see A. Bellal (ed), The War Report. Armed Conflict in 2014, Oxford University Press, 2015, pp 83ff ; Insight on Conflict, Georgia: Conflict Profile, March 2015; Human Rights Watch, Up in Flames. Humanitarian Law Violations and Civilian Victims in the Conflict over South Ossetia, Report, 23 January 2003; Independent International Fact Finding Mission on the Conflict in Georgia, Report, Volume 1, 2009.
In justifying the presence of its forces, Russia claims that it protects Russian citizens in the regions. See International Crisis Group, Georgia-Russia: Still Insecure and Dangerous, Europe Policy Briefing No 53, 22 June 2009; Independent International Fact Finding Mission on the Conflict in Georgia, Report, Volume 1, 2009, p 21. In the aftermath of the 2008 conflict, Abkhazia and South Ossetia reiterated their declaration of independence from Georgia and signed treaties with Russia allowing it to maintain military bases in the regions. Russia recognized their declaration of independence. Institute for War & Peace Reporting, August 2008 Russian-Georgian War: Timeline. Only a few other states recognized their declaration of independence while the European Union and the Organization for Security and Co-operation in Europe (OSCE) condemned the recognition. ‘EU Condemns Moscow’s Recognition of South Ossetia and Abkhazia’, Spiegel Online, 1 September 2008; OSCE, OSCE Chairman Condemns Russia’s Recognition of South Ossetia, Abkhazia Independence, OSCE Press Release, 26 August 2008. General international law determines whether a secessionist entity possesses statehood. It remains debated whether recognition is a criterion. For further information and references on statehood and the role played by recognition, see 'international armed conflict -secessionist entities' in our classification section. Russian troops have been present ever since, and Russia has increased its exercise of control in military, political and economic terms, including by signing a treaty on alliance and integration with each breakaway region in 2014. For a detailed analysis of these treaties, see N. Kalandarishvili-Mueller, 'Guest Post: The Status of the Territory Unchanged: Russia's Treaties with Abkhazia and South Ossetia, Georgia', Opinio Juris Blog, 20 April 2015.
Elements of occupation
For a territory to be considered occupied it must be 'under the authority of the hostile army.' Article 42, 1907 Hague Convention (IV) Respecting the Laws and Customs of War on Land and its Annex: Regulations Concerning the Laws and Customs on Land. For an occupation to exist hostile foreign forces must exercise effective control. Three elements must be fulfilled for effective control to exist.
- First, the armed forces of a foreign state are physically present in the territory and the territorial state did not consent to their presence.
- Second, the presence of the foreign forces prevents the effective local government in place at the time of invasion from exercising its powers.
- Third, the foreign forces establish their own authority. For further information, see ‘military occupation – elements of occupation’ in our classification section.
States may use proxy forces to occupy a territory: if a state exercises overall control over de facto local authorities or other local groups that exert effective control over the territory, the state can be considered an occupying force. For further information on overall control, see ‘contemporary challenges for classification – control over proxy forces’ in our classification section. Two elements must therefore exist in such a situation.
- The foreign state has overall control over de facto local authorities.
- The de facto authorities exercise effective control of a territory. For further information, see T. Ferraro ‘Determining the Beginning and End of an Occupation Under International Humanitarian Law’, 94 International Review of the Red Cross 885 (2012) 158 ff.
The two regions have established de facto authorities independent from Georgia. These authorities exercised effective control and are supported by Russia. Russia has since increased control over the local authorities in Abkhazia and South Ossetia as a result of its significant financial support and large military presence. According to the European Court of Human Rights, significant indicators of overall control are: the presence of large number of troops engaged in active duties in the occupied area, and the fact that the local authority is dependent for its survival on military and other support from the occupying state. See ECtHR, Ilaşcu and Others v Moldova and Russia, Grand Chamber, Judgment, App no 48787/99, 8 July 2004, §§312-315. Russia exercises such overall control over the local authorities in South Ossetia and Abkhazia.
Russia has established overall control in the area. Since 2008, it has further increased its presence in military, political and economic terms. Russia has established a significant military presence. The International Crisis Group estimates that up to 5,000 Russian military troops are based in South Ossetia. In addition, there are 900 Russian FSB (a state security organisation) border guards who are stationed along the boundary with Georgia, as well as around South Ossetian boundaries. See International Crisis Group, South Ossetia: Rise of a New Politics and Foreign Policy, 17 February 2012.
Further demonstrative of Russia’s level of control is the fact that it provides direct financial aid to South Ossetia. Since 2008 this aid comprises 99% of South Ossetia’s budget See International Crisis Group, South Ossetia: Rise of a New Politics and Foreign Policy, 17 February 2012. and more than half of the government staff are from Russia. International Crisis Group, South Ossetia: The Burden of Recognition, Report No 205, 7 June 2010. Russia controls decision making in key spheres such as the border, public order and external relations. International Crisis Group, South Ossetia: The Burden of Recognition, Report No 205, 7 June 2010. For a similar assessment of the Russian influence, see N. Kalandarishvili-Mueller, ‘On the Occasion of the Five-year Anniversary of the Russian-Georgian War: Is Georgia Occupied?', EJIL: Talk Blog, 1 October 2013.
Since the 2008 conflict Abkhazia has become increasingly dependent on Russia. Indicative of this is the fact that Russia is reported to be financing more than half of the region’s budget. For example, Russia spent $465 million to refurbish and develop military installations in the Black Sea coastal area. International Crisis Group, Abkhazia: Deepening Dependence, Report No 202, 26 February 2010. Russia’s overall control is further demonstrated by the signing of the Treaty on Alliance and Strategic Partnership between Russia and Abkhazia on 24 November 2014. The aim of this treaty is to solidify the integration of Abkhazia into the Russian Federation through incorporation of the region into the Russian military, economic, social and legal space and also to create a common security and defence space and joint armed forces of Russia and Abkhazia. See, ‘Moscow, Sokhumi Sign Treaty on “Alliance and Strategic Partnership”’, Civil.Ge Daily News Online, 24 November 2014. See also A. Bellal (ed), The War Report. Armed Conflict in 2014, Oxford University Press, 2015, p 85. Nearly the entire Abkhazia population holds Russian citizenship. International Crisis Group, Abkhazia: Deepening Dependence, Report No 202, 26 February 2010. The International Crisis Group estimates that between 4,000 and 5,000 Russian security personnel are in Abkhazia, including coast guard units, border forces and regular troops. International Crisis Group, Abkhazia: Deepening Dependence, Report No 202, 26 February 2010.
Views of the parties to the conflict and the international community
The subjective views of the parties may be an indicator, but are not determinative for the classification of a situation. For further information, see ‘overview- classification based on legal criteria and facts’ in our classification section.
Georgia considers that Russia is occupying South Ossetia and Abkhazia. See ICJ, Case Concerning Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Georgia v Russian Federation), Decision on Request for the Indication of Provisional Measures, 15 October 2008, §44; ECtHR, Georgia v Russia (II), Admissibility Decision, App no 38263/08, 13 December 2011, §§24-25. In contrast, Russia denies being an occupying power. See ICJ, Case Concerning Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Georgia v Russian Federation), Request for the Indication of Provisional Measures, 15 October 2008, §74; ECtHR, Georgia v Russia (II), Admissibility Decision, App no 38263/08, 13 December 2011, §44.
After the 2008 war, the Parliamentary Assembly of the Council of Europe denounced the Russian use of force as ‘a violation of Council of Europe principles’ and pointed out that it ‘led to the occupation of a significant part of the territory of Georgia’. See Resolution 1633 (2008), Parliamentary Assembly, 2 October 2008. See also Resolution 1683 (2009), Parliamentary Assembly, 29 September 2009, §10 where the General Assembly points out that ‘under international law, Russia bears responsibility for violations of human rights and humanitarian law in those areas that fall under its de facto control.’ While not expressly calling Russia an occupying power, the Committee of Ministers of the Council of Europe stated in May 2017 that ‘Georgia, as the only sovereign State under international law over its regions of Abkhazia and Tskhinvali region/South Ossetia, is still prevented from exercising legitimate jurisdiction over these regions due to the illegal actions of the Russian Federation, including its continuing military presence therein.’ Council of Europe, Committee of Ministers, The Council of Europe and the Conflict in Georgia, Decision, Doc CM/DEL/DEC(2017)1285/2.1, 1285th Meeting, 3 May 2017. The United States have repeatedly described Abkhazia and South Ossetia as being occupied by Russia. See for example Ambassador Daniel B. Baer, Violations of the Rights of Residents of Georgia’s Occupied Regions: Statement at the PC, Statement to OSCE Permanent Council, 3 March 2016. The 2017 Consolidated Appropriations Act 2017, which was signed and became law in May 2017, included a provision referencing the ‘Russian occupied Georgian territories of Abkhazia and Tskhinvali Region/South Ossetia’. See Consolidated Appropriations Act, 2017, Sec 7070 (C)(1). See also ‘Donald Trump signs legislative act, which recognizes Abkhazia and Tskhinvali as regions occupied by Russia’, Interpressnews, 6 May 2017; A. Wigglesworth, ‘Trump Welcomes Georgia’s Prime Minister’, Los Angeles Times, 8 May 2017.
The law of military occupation is set out in the 1907 Hague Convention (IV) Respecting the Laws and Customs of War on Land and its Annex: Regulations Concerning the Laws and Customs on Land, the 1949 Geneva Conventions (IV) Relative to the Protection of Civilians Persons in Time of War and the 1977 Additional Protocol I applicable to International Armed Conflict. Both Georgia and Russia are parties to the four 1949 Geneva Conventions and 1977 Additional Protocol I.
Customary international humanitarian law is also applicable during occupation, it complements the protection granted by treaties and binds all parties to the conflict. Customary international law consist of unwritten rules that come from a general practice accepted as law. Based on an extensive study, the International Committee of the Red Cross maintains a database on customary international humanitarian law.
In addition to international humanitarian law, international human rights law continues to apply during times of occupation. Both Russia and Georgia are parties to the International Covenant on Civil and Political Rights, the International Covenant on Economic Social and Cultural Rights, and the European Convention on Human Rights. Russia remains bound by its international human rights law obligations in the territory it occupies.