Address of the delegation of the Republic of South Ossetia to the Geneva International Discussions on security in South Caucasus to the international community
Regarding the so-called “Georgian occupied territories”
Over the past few years the international community has been facing persistent imposition of the need to use the term “Georgian occupied territory” regarding South Ossetia and Abkhazia based on the so-called “territorial integrity of Georgia within its internationally recognized borders.” With support of some political groups in the western countries the Georgian politicians and experts are seeking to create sustainable terminology and incorporate into the international law terms that have no legal basis whatsoever.
Georgia sees the law adopted by the Georgian Parliament in October 2008, shortly after the Georgian armed aggression against South Ossetia which ended with complete defeat of the Georgian regular army and peace enforcement, as a formal basis for such a viewpoint.
Up to this time Georgia’s political leadership is trying to demonstrate to the country’s population intensive work on maintaining the relevance of Georgia’s problems on the international agenda. The country’s leadership speculates on the situation with the internally displaced persons while being directly responsible for their fate, and stirs up hysteria regarding the process of the demarcation of the national border of the Republic of South Ossetia. The efforts of the Georgian propaganda have led to the term “occupied territory” now being used not only in the narrow circle of the “friends of Georgia,” but also in the European agencies, major international organizations, the European Union and NATO, thus claiming to be the legal definition of the political and legal status of South Ossetia and Abkhazia.
Given the current realities, persistent use of the aforementioned term, which bears a completely different historical and political meaning in the international law, cannot but cause concern.
The consequences of this trend are obvious:
- Georgia the policy of so-called “de-occupation” imposes on its political partners, in the context of which the Geneva discussions with their
fundamental goal to create conditions for maintaining peace and security in Southern Caucasus become absolutely meaningless;
- Georgian party seeks international support for its demands regarding the deployment of Russian military forces in South Ossetia, the only guarantor of South Ossetia’s safety from a new aggression from Georgia;
- By presenting the events of August 2008 as a starting point in the settlement of the relations between Georgia and South Ossetia, Georgia is trying to negate the part of the relations between South Ossetia and Georgia that is undesirable to it, as well as to absolve itself of responsibility for armed aggressions against South Ossetia that, starting from 1989, have led to loss of human lives in an extent enormous for South Ossetia, as well as to immense economic damage.
In view of the above, we consider it necessary to present comprehensive foundation of the irrelevance of the term “occupied territories” with regards to South Ossetia, as South Ossetia has never in its history been a part of a single state entity with Georgia, and the territory of South Ossetia has never been a part of the territory of Georgia, with the exception of the period of co-existence within the Soviet Union.
In 1774, South Ossetia as part of the single independent Ossetia (Alania), a confederative union of self-governed lands, voluntarily joined the Russian state. Georgia at the time was composed of the Kingdoms of Kartli-Kakheti and Imereti, as well as of three principalities – the Principality of Guria, of Mingrelia and of Svaneti. All these territorial entities were to different degrees dependent from Turkey and Iran, which excludes the concept of single statehood and territorial integrity. In 1801, the Kingdom of Kartli-Kakheti became a part of the Russian Empire, while South Ossetia on a geographical basis was administratively sorted into two Russian governorates – Tiflis and Kutais Governorates.
In 1918 Georgia, while being a Russian province, declared independence from Russia and announced creation of a democratic republic. For the nationalists that seized power in Georgia the desire of the people of South Ossetia to not be a part of the separatist Georgia became a reason for a military aggression against South Ossetia and genocide of Ossetians in 1920. After the Soviet power was established in Georgia and in South Ossetia, the bolshevist leadership in Moscow, ignoring the desire of the people of South Ossetia, issued a special decree making South Ossetia a part of the Georgian Soviet Socialist Republic as autonomy. The USSR decree of April 20, 1922 is the only document legally formalizing inclusion of the territory of South Ossetia into the territory of the Georgian SSR and the USSR.
The history of the independent Republic of South Ossetia does not start with the events of 2008, but rather with Georgia and other subjects of the USSR legal system establishing their sovereignty, a process that began in the end of the 1980s. In this process South Ossetia had absolutely equal identity and rights with Georgia, as established in the Constitution of the Soviet Union.
South Ossetia was forced to exercise its constitutional right for independence by the unacceptable actions of the leaders of the Georgian SSR, the actions that did not fit into the frames of the Constitution of the single Soviet state and of the international law, which guarantees the right to self-determination to all people. The policy of nationalism in Georgia, its course toward secession from the Soviet Union without regards to desires of the autonomic entities, fostering of the idea of a mono-ethnic state, animosity that grew into permanent military aggression starting from 1989 – these were the factors on which was based the desire of the people of South Ossetia for independent existence and development beyond the borders of the Georgian Soviet Socialist Republic, which seized to exist.
We believe it necessary to reiterate one of the most important aspects of those events: the transformation of the South Ossetian Autonomous Oblast into the Republic of South Ossetia did not violate a single clause of the existing law – the Constitution of the Soviet Union, the Constitution of the Georgian SSR, the Law of the USSR “On the Division of Powers between the Union of Soviet Socialist Republics and the Subjects of the Federation.” According to these laws, South Ossetia’s secession from the Georgian SSR and establishment of its own nationhood was based on the same grounds as Georgia’s secession from the Soviet Union.
Moreover, Georgia, blatantly ignoring legal aspects and common sense, under the slogans “This is our land!” and “Georgia for Georgians!” started a military aggression against South Ossetia, which was at the time an autonomous subject within the territorial structure of the Soviet Union.
Following its own course toward sovereignty, on June 20, 1990 the Supreme Council of the Georgian SSR abolished all legal acts and recognized as invalid all legal documents adopted after the Sovietization of Georgia in 1921. As a result, the Decree “On the formation of the South Ossetian Autonomous Oblast and its inclusion in the Georgian SSR,” adopted in 1922, was also abolished. The only legal act, according to which the territory of South Ossetia de-jure could have been considered a part of the Georgian SSR, became invalid.
Under these circumstances, in accordance with the right of the nation and the existing law, on September 20, 1990, the Republic of South Ossetia was created within the borders of the former South Ossetian Autonomous Oblast. The same
year saw election to the legislative body of the republic – the Supreme Council; the structure of the state was formed. The establishment of the Republic of South Ossetia had all the necessary historical foundations and was absolutely impeccable in political and legal terms.
Since March 1990, South Ossetia has never participated in any political processes in Georgia, has not taken part in elections and referendums, including the referendum on Georgia’s secession from the USSR on March 31, 1991 and the elections to the Supreme Council of the Georgian SSR in October 1990, when the nationalists led by Zviad Gamsakhurdia came to power in Georgia. After the collapse of the Soviet Union in 1991 South Ossetia has never been politically or legally relevant to Georgia.
On the next day after the official date of the collapse of the Soviet Union the Supreme Council of South Ossetia adopted the Decree on the National Sovereignty. The referendum on the independence of the republic took place on January 9, 1992, with its results being consolidated on May 29, 1992 with the declaration of independence of South Ossetia.
By the moment of international recognition of Georgia’s sovereignty in 1992, South Ossetia has already existed as a sovereign state independent from Georgia. South Ossetia is not and has never been connected to the definition of integrity of Georgian territory. There is and there cannot be any legal, political or moral grounds to continue viewing the territory of modern Georgia within the borders of the former Georgian SSR.
In this regard we consider it necessary to take a closer look at the history and political and legal aspects of the Russian military presence on the territory of South Ossetia.
On the night of August 8, 2008, Georgia started a perfidious full-scale military aggression against South Ossetia with the use of all kinds of heavy weapons and aviation, thus gravely violating provisions of the UN Charter, the UN General Assembly Resolution 3314 of December 14, 1974, and its own assurances of the desire for peace.
The fact that Georgia was the first to attack South Ossetia, alongside numerous proofs of aggression, was confirmed by an international commission led by Heidi Tagliavini.
According to Article 1 of the UN General Assembly Resolution 3314 of December 14, 1974, “aggression is the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State, or in any other manner inconsistent with the Charter of the United Nations.” The
explanatory note to the Article specifies that “in this Definition the term "State" is used without prejudice to questions of recognition or to whether a State is a member of the United Nations.”
In the context of this Resolution the attack of Georgia’s regular army against the Republic of South Ossetia in August 2008, aimed at seizing the territory of South Ossetia and ousting or killing its population is a crime against peace and in accordance with the international law has to entail accountability respective of the crime.
To define the signs characterizing aggression we refer to Article 2 of the UN General Assembly Resolution 3314 of December 14, 1974, which states that “the First use of armed force by a State in contravention of the Charter shall constitute prima facie evidence of an act of aggression.”
Paragraphs 1 and 3 of Article 5 of the Resolution say that “no consideration of whatever nature, whether political, economic, military or otherwise, may serve as a justification for aggression,” and no territorial acquisition or special advantage resulting from aggression can be recognized as lawful.
Article 7 of the Resolution states that nothing in this definition of aggression “could in any way prejudice the right to self-determination, freedom and independence, as derived from the Charter, of peoples forcibly deprived of that right.”
Here we must stress that Georgia has previously blatantly violated international law with the military aggression against South Ossetia in 1989-1992. It was the international community ignoring the legal aspect of these events and Georgia escaping accountability for the crimes committed during the aggression that were viewed by the Georgian government and then-leader of the country Mikheil Saakashvili as an opportunity for a new armed attack on South Ossetia in August 2008 and attempt to seize its territory.
In the extremely severe situation caused by the attack and in the face of a real threat of destruction South Ossetia, in complete accordance with the international law, chose to exercise the right provided by Article 7 of the Resolution, the UN Charter and the Declaration on Principles of International Law and called on its ally, the Russian Federation, to provide the military assistance needed to repel the aggression.
This request itself had its own historic grounds: on June 24, 1992, in Dagomys, thanks to a successful mediation mission of the Russian Federation and with the concurrence of all the interested parties, including Georgia, an agreement was reached to create a unique trilateral format of peacekeeping operation on the
territory of South Ossetia, and the Georgian aggression against South Ossetia was stopped. From 1992 and to August 8, 2008, Russian peacekeepers have been serving in South Ossetia on an impeccable legal basis.
In accordance with the request, on August 9, 2008, Russia deployed additional military forces to South Ossetia, freed its territory from the aggressor and on August 12, 2008, within the framework of the peace enforcement operation ended all military actions. On October 10, 2008, in implementation of the Medvedev-Sarkozy agreement all Russian military units left the Georgian territory and withdrew to their positions on the territory of South Ossetia, where the peacekeepers have been deployed for 16 years. Commitments of the Russian Federation in accordance with the Medvedev-Sarkozy agreements were fully met.
Unfortunately, these events did not receive adequate political and legal assessment from the international society. Basically, Georgia managed to once again escape responsibility for starting a full-scale war with the neighboring state. And it is this injustice exactly, which is being ignored by the international society, that allows Georgia to continue imposing the use of the term “occupied territory” regarding South Ossetia - with a persistence worthy of a better cause.
At the initiative of the delegation of South Ossetia, the legitimacy of the use of the terms “occupation” and “occupied territory” regarding South Ossetia and Abkhazia has been discussed within the framework of the Geneva international discussions.
The parties established that, in accordance with the codification of the Hague IV Convention on laws and customs of war of October 18, 1907, and the Geneva conventions of 1949, occupation is a situation in which the territory in question is “placed under the authority of the hostile army.” In such situation the authority of the occupied state is basically terminated and the territory is ruled by the military command of the occupation forces.
Other obligatory factors that characterize occupation regime are:
- violent intervention of the military forces of the occupying party;
- a victim state
- the occupying country accepting governing functions, establishing its own administration on the occupied territories or full control over the occupied territory and its people;
- the occupying party issuing binding legal acts on the occupied territory;
- the occupying party having police functions, etc.
Not a single one of the above-mentioned indicators has any correlation with the real state of affairs and cannot be used in regards to the Russian Federation and its military forces. The presence of the Russian forces on the territory of South Ossetia is based on the alliance between the two sovereign states, South Ossetia and Russia, and is regulated by their legislation and bilateral agreements, is in full compliance with international law, does not in any way infringe upon the interests of any third states and has no relation whatsoever to the territory of Georgia.
Unfortunately, the compelling evidence, including that of international law experts, regarding irrelevance and legal illiteracy of the use of the term “occupied territories” in regards to South Ossetia is still being ignored not only in by Georgia, which for certain reasons can be understood, but by major international organizations including the United Nations as well, which continue to adopt various documents on a regular basis mentioning the “occupation of the Georgian territories.”
Continuing this practice, which is seen in South Ossetia as a demonstrative and adamant rejection of the existing political reality, continues to further complicate the situation and has a negative impact on the atmosphere of the Geneva international discussions, further postponing the prospects of the settlement of the relations between South Ossetia and Georgia in general.
