Military occupation of Georgia by Russia
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 maintains military presence in the breakaway regions of South Ossetia and Abkhazia on the basis of agreements concluded with these entities without the consent of Georgia. While Russia and few other States recognize these entities as independent States, an overwhelming majority of States considers them as part of an internationally recognized territory of Georgia. Russia also exercises its authority over these regions by its overall control over the separatist armed groups. 
Overview
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 of individuals dead, displaced thousands, and created a politically unstable situation, with both territories subject to the de facto authority of separatist governments. South Ossetia, which has a population of approximately 35,500, 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. Similar to South Ossetia, Abkhazia fought a separatist conflict with Georgia in 1992-1994. Abkhazia, which has a population of approximately 250,000, declared itself independent through the promulgation of its constitution in 1994 and then formally in 1999. The Georgian-Abkhazian conflict ended upon the signature of the so-called Moscow Agreement in 1994, which also foresaw the deployment of the peacekeeping force of the Commonwealth of Independent States. Between 1993 and 2008, a large number of resolutions of the United Nations Security Council (UNSC) referred to “Abkhazia, Republic of Georgia” and affirmed Georgia’s sovereignty and territorial integrity. 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. In justifying the presence of its forces, Russia claimed that it protected Russian citizens in the regions. On 12 August 2008, Georgia and Russia signed the EU-mediated ceasefire agreement.
In the aftermath of the 2008 conflict, Abkhazia and South Ossetia reiterated their declaration of independence from Georgia. On 26 August 2008 Russia recognized them as independent States. Since 2008, only Russia, Nicaragua, Venezuela, Nauru, Tuvalu and Syria have recognized independence of Abkhazia and South Ossetia. The European Union and the Organization for Security and Co-operation in Europe (OSCE) condemned the recognition. General international law determines whether a secessionist entity possesses statehood. It remains debated whether recognition is a criterion. Russian troops have been present in the breakaway regions ever since the war. Abkhazia and South Ossetia signed treaties with Russia allowing it to maintain military bases in the regions. Over time, Russia has increased its exercise of control in military, political and economic terms, including by signing the Treaty on Alliance and Strategic Partnership with Abkhazia in 2014 and Treaty on Alliance and Integration with South Ossetia in 2015.
Abkhazia and South Ossetia signed treaties with Russia allowing it to maintain military bases in the regions. Russian troops have been present ever since, and Russia has increased its exercise of control in military, political, and economic terms, including by signing the Treaty on Alliance and Strategic Partnership with Abkhazia in 2014 and Treaty on Alliance and Integration with South Ossetia in 2015.
Elements of occupation
For a territory to be considered occupied it must be 'under the authority of the hostile army.' 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.
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Third, the foreign forces establish their own authority.
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. Two elements must therefore exist in such a situation:
- The foreign state has overall control over de facto local authorities.
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The de facto authorities exercise effective control of a territory.
In particular, an overall control over an organized armed group exists where a State ‘has a role in organizing, coordinating or planning the military actions of the military group, in addition to financing, training and equipping or providing operational support to that group.’
The European Court of Human Rights (ECtHR) developed its own test of effective control over territory for the purposes of establishing State’s extra-territorial jurisdiction under Article 1 of the European Convention on Human Rights. Its significant indicators are: (i) ‘number of soldiers deployed by the State in the territory in question’; (ii) ‘the extent to which the State’s military, economic and political support for the local subordinate administration provides it with influence and control over the region’.
In Georgia v Russia (II), the ECtHR found that Russia exercised effective control over South Ossetia and Abkhazia and the ‘buffer zone’ from the signature of ceasefire agreement on 12 August 2008 to 10 October 2008 (the day of the withdrawal of the Russian troops from the buffer zone) and beyond (pointing to ‘the strong Russian presence and the South Ossetian and Abkhazian authorities’ dependency on the Russian Federation, on whom their survival depends’), thereby establishing Russia’s extra-territorial jurisdiction under Article 1 of the European Convention on Human Rights there.
In examining the case, the ECtHR also referred to the existence of Russia’s occupation of these regions after 12 August 2008. With respect to each alleged violation, the ECtHR also assessed normative conflicts between IHL and IHRL.
The tests for the purposes of occupation or occupation by proxy differ from the effective control test developed by the ECtHR. In fact, the ECtHR held: ‘If there is “occupation” for the purposes of international humanitarian law there will also be “effective control” within the meaning of the Court’s case-law, although the term “effective control” is broader and covers situations that do not necessarily amount to a situation of “occupation” for the purposes of international humanitarian law.’ In this context, apart from a direct reference to Russia’s occupation of South Ossetia and Abkhazia after 12 August 2008, factual findings of the ECtHR concerning Russia’s effective control over South Ossetia and Abkhazia can be taken into account as indicators of Russia’s continued occupation there.
Abkhazia
International Crisis Group estimates that there are around 5,000 Russian personnel in Abkhazia, including ‘3,500 military and 1,500 Federal Security Service (FSB) officers and ‘border guards.’ Russia spent $465 million over four years to refurbish and develop military installations in the Black Sea coastal area, including Bombora – the largest military airfield in the South Caucasus, in Gudauta and a naval port in Ochamchire.
On the basis of the 2010 agreement between Russia and Abkhazia (which is valid for 49 years, after which it automatically extends every fifteen years), Russia operates its 7th military base in Abkhazia in Gudauta. In Georgia v Russia (II) Russia itself acknowledged the creation of this military base after the signing of the agreement with Abkhazia in 2010 and claimed it hosted ‘3,923 servicemen and 873 items of military equipment’. Reportedly, tanks, fighter jets, and armoured personnel carriers are located at the base. Under another treaty signed between Russia and Abkhazia in 2009, Russia also assists in securing and patrolling the administrative border with Georgia.
The Treaty on Alliance and Strategic Partnership signed between Russia and Abkhazia on 24 November 2014 aims to incorporate the region into the Russian military, economic, social and legal space and also to create a common security and defence space. This treaty provides for the mutual defense pact and foresees the creation of the Joint Group of Armed Forces to repel aggression. A separate agreement to this end was signed between Russia and Abkhazia in 2015. This deal foresees the joint conduct of military exercises and stipulates that ‘the Joint Group of Armed Forces is composed of the joint Russian military base stationed on Abkhazian territory, as Russia’s component, and two motorized rifle battalions, an artillery group and an aviation group, as well as a special forces detachment as Abkhazia’s component.’
Compared to South Ossetia, a lower number of Russian citizens occupy high military and security posts in Abkhazia, however with some notable exceptions. It is estimated that the separatist armed forces of Abkhazia are small, somewhere between 1,000 and 5,000 troops. Reportedly, due to the Russian military presence, the investment in equipment of separatist forces has declined. More broadly, Russia also supports Abkhazia in other areas, including by provision of financial support. Nearly the entire Abkhazia population holds Russian citizenship. The ECtHR referred to various reports containing the information as to “the relationship of dependency not only in economic and financial, but also in military and political terms between the Russian Federation and ... Abkhazia.”
In April 2022, Abkhaz leaders have stressed that they still intend to obtain the independence of the breakaway region, while in South Ossetia there have been discussion as to a possible annexation to Russia.
In sum, Russia occupies Abkhazia through its direct military presence underpinned by the series of agreements with the separatist entity. According to International Crisis Group, ‘given its [Russia’s] control over Abkhazia’s ‘borders’, roads and sea, Russia need not maintain a heavy permanent presence, as it can move military equipment and troops into and out of the entity at will.’ The local separatist armed groups could also be seen as Russia’s proxies given the high level of coordination with the Russian Armed Forces and the military and financial support provided by Russia. This conclusion is made on the basis of publicly available data, which support the fulfilment of the requirements of an overall control test.
South Ossetia
Since 2008, Russia has established a significant military presence in South Ossetia. In Georgia v Russia (II), Russia itself acknowledged a substantial military presence in South Ossetia after hostilities had ceased, and then also from 23 August 2008 until the creation of a joint military base (‘the presence of the 693rd motor rifle regiment comprising 4,307 servicemen, 33 tanks, 220 fighting infantry vehicles, 30 artillery systems and 14 air-defense systems’). Currently, on the basis of an agreement with South Ossetia, Russia operates the 4th Military Base in Tskhinvali in South Ossetia, which hosts tactical missiles and anti-missile rockets, among other weapons. A small component is located in the second largest city of Java. In Georgia v Russia (II) Russia itself acknowledged the creation of the 4th military base after the signing of the agreement with South Ossetia in 2010 and claimed it ‘had held 3,285 servicemen and had 305 items of military equipment’. Russian Armed Forces also conduct large military exercises in South Ossetia.
Similar to Abkhazia, under another treaty signed between Russia and South Ossetia in 2009, Russia assists in securing and patrolling the administrative border with Georgia. It is estimated that there are 1,500 Russian FSB (a state security organisation) border guards. Russian troops installed wire fences on the administrative border between South Ossetia and Georgia, sometimes moving the border further into the Georgian territory. The process is known as ‘borderisation.’
The 2015 Alliance and Integration Treaty between Russia and South Ossetia foresees the formation of a common defense and security space and provides for a mutual defense pact. In fact, under the treaty, Russia ensures the defense and security of South Ossetia defense including its border with Georgia. As established by the 2015 Alliance and Integration Treaty, an intergovernmental agreement was signed between South Ossetia and Russia in 2017 specifying the modalities of incorporation of some military units of South Ossetia into the Russian Armed Forces. However, the agreement requires that tho soldiers who decide to serve in the Russian Armed Forces first resign from the so-called South Ossetian army. In fact, the negotiations preceding the conclusion of the 2017 intergovernmental agreement raised the question whether the separate South Ossetian army should be maintained at all. Ultimately, some separate defense structures are preserved. Nevertheless, the so-called South Ossetian army is rather small, amounting up to 800 troops. Moreover, a number of senior security officials in South Ossetia are in fact seconded from Russia.
More broadly, since 2008, Russia has increased its presence in military, political and economic terms. 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 and more than half of the government staff are from Russia. The ECtHR referred to various reports containing the information as to “the relationship of dependency not only in economic and financial, but also in military and political terms between the Russian Federation and South Ossetia.” Russia controls decision making in key spheres such as the border, public order and external relations.
In late March 2022, de facto leader of breakaway South Ossetia Anatoly Bibilov announced his intention to join Russia after April de facto presidential elections. The referendum on the annexation of South Georgia to Russia was originally scheduled to take place on 17 June, however newly elected de facto President Alan Gagloev cancelled the referendum, invoking “uncertainty of the legal consequences of the issue submitted to a referendum”.
In light of the foregoing, it emerges that Russia occupies South Ossetia through the presence of its regular troops underpinned by series of agreements with the separatist territory. In addition, the local separatist armed groups could also be seen as Russia’s proxies given their rather modest size, high level of coordination with the Russian Armed Forces, command structures staffed by the Russian citizens and the military and financial support provided by Russia.
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.
Georgia considers that Russia is occupying South Ossetia and Abkhazia. In contrast, Russia denies being an occupying power.
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’. 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.’
In 2018, the High Representative of the European Union has declared that ‘Russian military presence in both Abkhazia and South Ossetia continues in violation of international law,’ in response to the 10 years anniversary of the conflict. The United States have repeatedly described Abkhazia and South Ossetia as being occupied by Russia. 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’.
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.
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.
