“130. Article 1 of the Convention reads as follows:

‘The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of [the] Convention.’

As provided by this Article, the engagement undertaken by a Contracting State is confined to ‘securing’ (‘reconnaître’ in the French text) the listed rights and freedoms to persons within its own ‘jurisdiction’ (see Soering v. the United Kingdom, 7 July 1989, § 86, Series A no. 161, and Banković and Others, cited above, § 66). ‘Jurisdiction’ under Article 1 is a threshold criterion. The exercise of jurisdiction is a necessary condition for a Contracting State to be able to be held responsible for acts or omissions imputable to it which give rise to an allegation of the infringement of rights and freedoms set forth in the Convention (see Ilaşcu and Others, cited above, § 311).

(α) The territorial principle

131. A State's jurisdictional competence under Article 1 is primarily territorial (see Soering, cited above, § 86; Banković and Others, cited above, §§ 61 and 67; and Ilaşcu and Others, cited above, § 312). Jurisdiction is presumed to be exercised normally throughout the State's territory (see Ilaşcu and Others, cited above, § 312, and Assanidze v. Georgia [GC], no. 71503/01, § 139, ECHR 2004-II). Conversely, acts of the Contracting States performed, or producing effects, outside their territories can constitute an exercise of jurisdiction within the meaning of Article 1 only in exceptional cases (see Banković and Others, cited above, § 67).

132. To date, the Court in its case-law has recognised a number of exceptional circumstances capable of giving rise to the exercise of jurisdiction by a Contracting State outside its own territorial boundaries. In each case, the question whether exceptional circumstances exist which require and justify a finding by the Court that the State was exercising jurisdiction extraterritorially must be determined with reference to the particular facts.

(β) State agent authority and control

133. The Court has recognised in its case-law that, as an exception to the principle of territoriality, a Contracting State's jurisdiction under Article 1 may extend to acts of its authorities which produce effects outside its own territory (see Drozd and Janousek, cited above, § 91; Loizidou (preliminary objections), cited above, § 62; Loizidou v. Turkey (merits), 18 December 1996, § 52, Reports of Judgments and Decisions 1996-VI; and Banković and Others, cited above, § 69). The statement of principle, as it appears in Drozd and Janousek and the other cases just cited, is very broad: the Court states merely that the Contracting Party's responsibility ‘can be involved’ in these circumstances. It is necessary to examine the Court's case-law to identify the defining principles.

134. Firstly, it is clear that the acts of diplomatic and consular agents, who are present on foreign territory in accordance with provisions of international law, may amount to an exercise of jurisdiction when these agents exert authority and control over others (see Banković and Others, cited above, § 73; see also X. v. Germany, no. 1611/62, Commission decision of 25 September 1965, Yearbook 8, p. 158; X. v. the United Kingdom, no. 7547/76, Commission decision of 15 December 1977, DR 12, p. 73; and M. v. Denmark, no. 17392/90, Commission decision of 14 October 1992, DR 73, p. 193).

135. Secondly, the Court has recognised the exercise of extraterritorial jurisdiction by a Contracting State when, through the consent, invitation or acquiescence of the Government of that territory, it exercises all or some of the public powers normally to be exercised by that Government (see Banković and Others, cited above, § 71). Thus, where, in accordance with custom, treaty or other agreement, authorities of the Contracting State carry out executive or judicial functions on the territory of another State, the Contracting State may be responsible for breaches of the Convention thereby incurred, as long as the acts in question are attributable to it rather than to the territorial State (see Drozd and Janousek, cited above; Gentilhomme and Others v. France, nos. 48205/99, 48207/99 and 48209/99, 14 May 2002; and X. and Y. v. Switzerland, nos. 7289/75 and 7349/76, Commission decision of 14 July 1977, DR 9, p. 57).

136. In addition, the Court's case-law demonstrates that, in certain circumstances, the use of force by a State's agents operating outside its territory may bring the individual thereby brought under the control of the State's authorities into the State's Article 1 jurisdiction. This principle has been applied where an individual is taken into the custody of State agents abroad. For example, in Öcalan (cited above, § 91), the Court held that ‘directly after being handed over to the Turkish officials by the Kenyan officials, the applicant was effectively under Turkish authority and therefore within the “jurisdiction” of that State for the purposes of Article 1 of the Convention, even though in this instance Turkey exercised its authority outside its territory’. In Issa and Others (cited above), the Court indicated that, had it been established that Turkish soldiers had taken the applicants’ relatives into custody in northern Iraq, taken them to a nearby cave and executed them, the deceased would have been within Turkish jurisdiction by virtue of the soldiers’ authority and control over them. In Al-Saadoon and Mufdhi v. the United Kingdom ((dec.), no. 61498/08, §§ 86-89, 30 June 2009), the Court held that two Iraqi nationals detained in British-controlled military prisons in Iraq fell within the jurisdiction of the United Kingdom, since the United Kingdom exercised total and exclusive control over the prisons and the individuals detained in them. Lastly, in Medvedyev and Others v. France ([GC], no. 3394/03, § 67, ECHR 2010), the Court held that the applicants were within French jurisdiction for the purposes of Article 1 of the Convention by virtue of the exercise by French agents of full and exclusive control over a ship and its crew from the time of its interception in international waters. The Court does not consider that jurisdiction in the above cases arose solely from the control exercised by the Contracting State over the buildings, aircraft or ship in which the individuals were held. What is decisive in such cases is the exercise of physical power and control over the person in question.

137. It is clear that, whenever the State, through its agents, exercises control and authority over an individual, and thus jurisdiction, the State is under an obligation under Article 1 to secure to that individual the rights and freedoms under Section I of the Convention that are relevant to the situation of that individual. In this sense, therefore, the Convention rights can be ‘divided and tailored’ (compare the decision in Banković and Others, cited above, § 75).

(γ) Effective control over an area

138. Another exception to the principle that jurisdiction under Article 1 is limited to a State's own territory occurs when, as a consequence of lawful or unlawful military action, a Contracting State exercises effective control of an area outside that national territory. The obligation to secure, in such an area, the rights and freedoms set out in the Convention, derives from the fact of such control, whether it be exercised directly, through the Contracting State's own armed forces, or through a subordinate local administration (see Loizidou (preliminary objections), cited above, § 62; Cyprus v. Turkey, cited above, § 76; Banković and Others, cited above, § 70; Ilaşcu and Others, cited above, §§ 314-16; and Loizidou (merits), cited above, § 52). Where the fact of such domination over the territory is established, it is not necessary to determine whether the Contracting State exercises detailed control over the policies and actions of the subordinate local administration. The fact that the local administration survives as a result of the Contracting State's military and other support entails that State's responsibility for its policies and actions. The controlling State has the responsibility under Article 1 to secure, within the area under its control, the entire range of substantive rights set out in the Convention and those additional Protocols which it has ratified. It will be liable for any violations of those rights (see Cyprus v. Turkey, cited above, §§ 76-77).

139. It is a question of fact whether a Contracting State exercises effective control over an area outside its own territory. In determining whether effective control exists, the Court will primarily have reference to the strength of the State's military presence in the area (see Loizidou (merits), cited above, §§ 16 and 56, and Ilaşcu and Others, cited above, § 387). Other indicators may also be relevant, such as the extent to which its military, economic and political support for the local subordinate administration provides it with influence and control over the region (see Ilaşcu and Others, cited above, §§ 388-94).

140. The ‘effective control’ principle of jurisdiction set out above does not replace the system of declarations under Article 56 of the Convention (formerly Article 63) which the States decided, when drafting the Convention, to apply to territories overseas for whose international relations they were responsible. Article 56 § 1 provides a mechanism whereby any State may decide to extend the application of the Convention, ‘with due regard … to local requirements’, to all or any of the territories for whose international relations it is responsible. The existence of this mechanism, which was included in the Convention for historical reasons, cannot be interpreted in present conditions as limiting the scope of the term ‘jurisdiction’ in Article 1. The situations covered by the ‘effective control’ principle are clearly separate and distinct from circumstances where a Contracting State has not, through a declaration under Article 56, extended the Convention or any of its Protocols to an overseas territory for whose international relations it is responsible (see Loizidou (preliminary objections), cited above, §§ 86-89, and Quark Fishing Ltd, cited above).

(δ) The legal space (‘espace juridique’) of the Convention

141. The Convention is a constitutional instrument of European public order (see Loizidou (preliminary objections), cited above, § 75). It does not govern the actions of States not Parties to it, nor does it purport to be a means of requiring the Contracting States to impose Convention standards on other States (see Soering, cited above, § 86).

142. The Court has emphasised that, where the territory of one Convention State is occupied by the armed forces of another, the occupying State should in principle be held accountable under the Convention for breaches of human rights within the occupied territory, because to hold otherwise would be to deprive the population of that territory of the rights and freedoms hitherto enjoyed and would result in a ‘vacuum’ of protection within the ‘legal space of the Convention’ (see Cyprus v. Turkey, cited above, § 78, and Banković and Others, cited above, § 80). However, the importance of establishing the occupying State's jurisdiction in such cases does not imply, a contrario, that jurisdiction under Article 1 of the Convention can never exist outside the territory covered by the Council of Europe member States. The Court has not in its case-law applied any such restriction (see, among other examples, Öcalan; Issa and Others; Al-Saadoon and Mufdhi; and Medvedyev and Others, all cited above).”

“In the respectful submission of the Russian Federation, it would be wrong for an approach in favour of dual application of IHL and HRL [international human rights law] to gain momentum from cases [such as Hassan and Jaloud] which on their facts, in the issues addressed and upon the Court's analysis, do not begin to grapple with the issues of jurisdiction, law and justiciability presented by this case.

Russia respectfully submits that the Court adopted a wrong approach when, in effect, it assumed that it was possible to use IHL to interpret Convention law in both cases. It may be that it was invited down this inappropriate path by the concession of one State – the United Kingdom – that it could do so in Hassan.

On any view, however, it is one thing to say that the Convention applies, and that IHL can be used to modify Convention rights in a situation of detention, or in relation to soldiers performing a policing role in an area where they have effective control. It is quite another to suggest that the Convention applies in armed conflict and the chaos that follows, or to say that the Court can mould the Convention to match IHL on a general basis and so assume jurisdiction over alleged breaches of IHL in a conflict situation. That would not be permissible, practical, or desirable for the reasons developed below.

(A) The Ultra Vires Issue

…

States have not agreed that the Court should adjudicate on matters of IHL. The European Court of Human Rights is only empowered by Article 32 to address ‘… all matters concerning the interpretation and application of the Convention and the

Protocols thereto’. Those do not include matters of interpretation and application of the Geneva Conventions.

On the contrary, the States Parties to the Convention are also States Parties to the Geneva Convention, and in that context, they specifically rejected a suggestion that the International Court of Justice should have jurisdiction over IHL.

On the contrary none of the core instruments of IHL give any jurisdiction to any court in respect of contraventions of IHL.

…

Moreover, this is not an area where a living instrument can grow. On the contrary, if a living instrument grows too far from its roots, it may die, or be pruned. The confinement of the Convention away from armed conflict could not be clearer from the overt conduct of the States who subscribe to it.

Finally on this point, and pace the obligations of the Court in Hassan [at 101] which perhaps again flow from the United Kingdom's concession, States do not derogate from the application of HRL in zones of conflict because of recognition that, even without derogation, HRL will be read in the light of IHL. They do not derogate because they do not anticipate that HRL will apply in such cases at all.

(B) The Inconsistency Issue

The Convention is not designed for conflict. It only mentions war once, and that is to recognise that it may be necessary to abrogate Convention protections domestically, in time of war. Nothing in the Convention purports to regulate war.

Moreover, Convention rights do not sit well with IHL rules. Many of them are completely irreconcilable to a degree that demonstrates that Convention law and IHL were never intended to operate together.”

Article 31 – General Rule of Interpretation

“1. A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.

2. The context for the purpose of the interpretation of a treaty shall comprise, in addition to the text, including its preamble and annexes:

(a) Any agreement relating to the treaty which was made between all the parties in connexion with the conclusion of the treaty;

(b) Any instrument which was made by one or more parties in connexion with the conclusion of the treaty and accepted by the other parties as an instrument related to the treaty.

3. There shall be taken into account, together with the context:

(a) Any subsequent agreement between the parties regarding the interpretation of the treaty or the application of its provisions;

(b) Any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation;

(c) Any relevant rules of international law applicable in the relations between the parties.

4. A special meaning shall be given to a term if it is established that the parties so intended.”

“25. The Court observes that the protection of the International Covenant for the Protection of Civil and Political Rights does not cease in times of war, except by operation of Article 4 of the Covenant whereby certain provisions may be derogated from in a time of national emergency. Respect for the right to life, however, is not such a provision. In principle, the right not arbitrarily to be deprived of one's life applies also in hostilities. The test of what is an arbitrary deprivation of life, however, falls to be determined by the applicable lex specialis, namely, the law applicable in armed conflict which is designed to regulate the conduct of hostilities. Thus whether a particular loss of life, through the use of a certain weapon in warfare, is to be considered an arbitrary deprivation of life contrary to Article 6 of the Covenant, can only be decided by reference to the law applicable in armed conflict and not deduced from the terms of the Covenant itself.”

“106. … the Court considers that the protection offered by human rights conventions does not cease in case of armed conflict, save through the effect of provisions for derogation of the kind to be found in Article 4 of the International Covenant on Civil and Political Rights. As regards the relationship between international humanitarian law and human rights law, there are thus three possible situations: some rights may be exclusively matters of international humanitarian law; others may be exclusively matters of human rights law; yet others may be matters of both these branches of international law. In order to answer the question put to it, the Court will have to take into consideration both these branches of international law, namely human rights law and, as lex specialis, international humanitarian law.”

“215. The Court, having established that the conduct of the UPDF and of the officers and soldiers of the UPDF [Uganda People's Defence Force] is attributable to Uganda, must now examine whether this conduct constitutes a breach of Uganda's international obligations. In this regard, the Court needs to determine the rules and principles of international human rights law and international humanitarian law which are relevant for this purpose.

216. The Court first recalls that it had occasion to address the issues of the relationship between international humanitarian law and international human rights law and of the applicability of international human rights law instruments outside national territory in its Advisory Opinion of 9 July 2004 on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory. In this Advisory Opinion the Court found that ‘the protection offered by human rights conventions does not cease in case of armed conflict, save through the effect of provisions for derogation of the kind to be found in Article 4 of the International Covenant on Civil and Political Rights. As regards the relationship between international humanitarian law and human rights law, there are thus three possible situations: some rights may be exclusively matters of international humanitarian law; others may be exclusively matters of human rights law; yet others may be matters of both these branches of international law. ‘ (I.C.J. Reports 2004, p. 178, para. 106).

It thus concluded that both branches of international law, namely international human rights law and international humanitarian law, would have to be taken into consideration. The Court further concluded that international human rights instruments are applicable ‘in respect of acts done by a State in the exercise of its jurisdiction outside its own territory’, particularly in occupied territories (ibid., pp. 178-181, paras. 107-113).”

“100. The starting-point for the Court's examination must be its constant practice of interpreting the Convention in the light of the rules set out in the Vienna Convention on the Law of Treaties of 23 May 1969 (see Golder v. the United Kingdom, judgment of 21 February 1975, Series A no. 18, § 29, and many subsequent cases). Article 31 of the Vienna Convention, which contains the ‘general rule of interpretation’ (see paragraph 34 above), provides in paragraph 3 that there shall be taken into account, together with the context, (a) any subsequent agreement between the parties regarding the interpretation of the treaty or the application of its provisions; (b) any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation; and (c) any relevant rules of international law applicable in the relations between the parties.

101. There has been no subsequent agreement between the High Contracting Parties as to the interpretation of Article 5 in situations of international armed conflict. However, in respect of the criterion set out in Article 31 § 3 (b) of the Vienna Convention (see paragraph 34 above), the Court has previously stated that a consistent practice on the part of the High Contracting Parties, subsequent to their ratification of the Convention, could be taken as establishing their agreement not only as regards interpretation but even to modify the text of the Convention (see, mutatis mutandis, Soering, cited above, §§ 102-03, and Al-Saadoon and Mufdhi v. the United Kingdom, no. 61498/08, § 120, ECHR 2010). The practice of the High Contracting Parties is not to derogate from their obligations under Article 5 in order to detain persons on the basis of the Third and Fourth Geneva Conventions during international armed conflicts. As the Court noted in Banković and Others (cited above, § 62), although there have been a number of military missions involving Contracting States acting extraterritorially since their ratification of the Convention, no State has ever made a derogation pursuant to Article 15 of the Convention in respect of these activities. The derogations that have been lodged in respect of Article 5 have concerned additional powers of detention claimed by States to have been rendered necessary as a result of internal conflicts or terrorist threats to the Contracting State (see, for example, Brannigan and McBride v. the United Kingdom, 26 May 1993, Series A no. 258-B; Aksoy v. Turkey, 18 December 1996, Reports of Judgments and Decisions 1996-VI; and A. and Others v. the United Kingdom [GC], no. 3455/05, ECHR 2009; see also paragraphs 40-41 above). Moreover, it would appear that the practice of not lodging derogations under Article 15 of the Convention in respect of detention under the Third and Fourth Geneva Conventions during international armed conflicts is mirrored by State practice in relation to the International Covenant for the Protection of Civil and Political Rights. Similarly, although many States have interned persons pursuant to powers under the Third and Fourth Geneva Conventions in the context of international armed conflicts subsequent to ratifying the Covenant, no State has explicitly derogated under Article 4 of the Covenant in respect of such detention (see paragraph 42 above), even subsequent to the advisory opinions and judgment referred to above, where the International Court of Justice made it clear that States’ obligations under the international human rights instruments to which they were parties continued to apply in situations of international armed conflict (see paragraphs 35-37 above).

102. Turning to the criterion contained in Article 31 § 3(c) of the Vienna Convention (see paragraph 34 above), the Court has made it clear on many occasions that the Convention must be interpreted in harmony with other rules of international law of which it forms part (see paragraph 77 above). This applies no less to international humanitarian law. The four Geneva Conventions of 1949, intended to mitigate the horrors of war, were drafted in parallel to the European Convention on Human Rights and enjoy universal ratification. The provisions in the Third and Fourth Geneva Conventions relating to internment, at issue in the present application, were designed to protect captured combatants and civilians who pose a security threat. The Court has already held that Article 2 of the Convention should ‘be interpreted in so far as possible in light of the general principles of international law, including the rules of international humanitarian law which play an indispensable and universally-accepted role in mitigating the savagery and inhumanity of armed conflict’ (see Varnava and Others, cited above, § 185), and it considers that these observations apply equally in relation to Article 5. Moreover, the International Court of Justice has held that the protection offered by human rights conventions and that offered by international humanitarian law co-exist in situations of armed conflict (see paragraphs 35-37 above). In its judgment Armed Activities on the Territory of the Congo, the International Court of Justice observed, with reference to its advisory opinion concerning The Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, that ‘[a]s regards the relationship between international humanitarian law and human rights law, there are thus three possible situations: some rights may be exclusively matters of international humanitarian law; others may be exclusively matters of human rights law; yet others may be matters of both these branches of international law’ (see paragraphs 36 and 37 above). The Court must endeavour to interpret and apply the Convention in a manner which is consistent with the framework under international law delineated by the International Court of Justice.

103. In the light of the above considerations, the Court accepts the Government's argument that the lack of a formal derogation under Article 15 does not prevent the Court from taking account of the context and the provisions of international humanitarian law when interpreting and applying Article 5 in this case.

104. Nonetheless, and consistently with the case-law of the International Court of Justice, the Court considers that, even in situations of international armed conflict, the safeguards under the Convention continue to apply, albeit interpreted against the background of the provisions of international humanitarian law. …

…

107. Finally, although, for the reasons explained above, the Court does not consider it necessary for a formal derogation to be lodged, the provisions of Article 5 will be interpreted and applied in the light of the relevant provisions of international humanitarian law only where this is specifically pleaded by the respondent State. It is not for the Court to assume that a State intends to modify the commitments which it has undertaken by ratifying the Convention in the absence of a clear indication to that effect.”

“In addition, the Court's case-law demonstrates that, in certain circumstances, the use of force by a State's agents operating outside its territory may bring the individual thereby brought under the control of the State's authorities into the State's Article 1 jurisdiction. This principle has been applied where an individual is taken into the custody of State agents abroad. For example, in Öcalan (cited above, § 91), the Court held that ‘directly after being handed over to the Turkish officials by the Kenyan officials, the applicant was effectively under Turkish authority and therefore within the “jurisdiction” of that State for the purposes of Article 1 of the Convention, even though in this instance Turkey exercised its authority outside its territory’. In Issa and Others (cited above), the Court indicated that, had it been established that Turkish soldiers had taken the applicants’ relatives into custody in Northern Iraq, taken them to a nearby cave and executed them, the deceased would have been within Turkish jurisdiction by virtue of the soldiers’ authority and control over them. In Al-Saadoon and Mufdhi v. the United Kingdom ((dec.), no. 61498/08, §§ 86-89, 30 June 2009), the Court held that two Iraqi nationals detained in British-controlled military prisons in Iraq fell within the jurisdiction of the United Kingdom, since the United Kingdom exercised total and exclusive control over the prisons and the individuals detained in them. Finally, in Medvedyev and Others v. France ([GC], no. 3394/03, § 67, ECHR 2010), the Court held that the applicants were within French jurisdiction by virtue of the exercise by French agents of full and exclusive control over a ship and its crew from the time of its interception in international waters. The Court does not consider that jurisdiction in the above cases arose solely from the control exercised by the Contracting State over the buildings, aircraft or ship in which the individuals were held. What is decisive in such cases is the exercise of physical power and control over the person in question.”

“149. It can be seen, therefore, that following the removal from power of the Ba'ath regime and until the accession of the interim Iraqi government, the United Kingdom (together with the United States of America) assumed in Iraq the exercise of some of the public powers normally to be exercised by a sovereign government. In particular, the United Kingdom assumed authority and responsibility for the maintenance of security in south-east Iraq. In these exceptional circumstances, the Court considers that the United Kingdom, through its soldiers engaged in security operations in Basra during the period in question, exercised authority and control over individuals killed in the course of such security operations, so as to establish a jurisdictional link between the deceased and the United Kingdom for the purposes of Article 1 of the Convention.”

“152. The Court now turns to the circumstances surrounding the death of Mr Azhar Sabah Jaloud. It notes that Mr Azhar Sabah Jaloud met his death when a vehicle in which he was a passenger was fired upon while passing through a checkpoint manned by personnel under the command and direct supervision of a Netherlands Royal Army officer. The checkpoint had been set up in the execution of SFIR [Stabilization Force in Iraq]’s mission, under United Nations Security Council Resolution 1483 (see paragraph 93 above), to restore conditions of stability and security conducive to the creation of an effective administration in the country. The Court is satisfied that the respondent Party exercised its ‘jurisdiction’ within the limits of its SFIR mission and for the purpose of asserting authority and control over persons passing through the checkpoint. That being the case, the Court finds that the death of Mr Azhar Sabah Jaloud occurred within the ‘jurisdiction’ of the Netherlands, as that expression is to be construed within the meaning of Article 1 of the Convention.”

“In the present case, the Court must therefore ascertain whether Anastassios Isaak came under the authority and/or effective control, and therefore within the jurisdiction, of the respondent State as a result of the acts of the Turkish and ‘TRNC’ soldiers and/or officials. …

In view of the above, even if the acts complained of took place in the neutral UN buffer zone, the Court considers that the deceased was under the authority and/or effective control of the respondent State through its agents (see Issa and Others, cited above). It concludes, accordingly, that the matters complained of in the present application fall within the ‘jurisdiction’ of Turkey within the meaning of Article 1 of the Convention and therefore entail the respondent State's responsibility under the Convention.”

“However, in the instant case, it was not disputed by the parties that the victims of the alleged events came within the jurisdiction of Turkey. While the applicants attached great importance to the prior establishment of the exercise by Turkey of extraterritorial jurisdiction with a view to proving their allegations on the merits, the Court considers that it is not required to determine the exact location of the impugned events, given that the Government had already admitted that the fire discharged from the helicopters had caused the killing of the applicants’ relatives”

“Unlike the applicants in the Banković and Others case (cited above) she [the applicant in this particular case] was accordingly within territory covered by the Convention.

In these circumstances, even though the applicant sustained her injuries in territory over which Turkey exercised no control, the opening of fire on the crowd from close range, which was the direct and immediate cause of those injuries, was such that the applicant must be regarded as ‘within [the] jurisdiction’ of Turkey within the meaning of Article 1 and that the responsibility of the respondent State under the Convention is in consequence engaged.”

“71. Moreover, a State may also be held accountable for violation of the Convention rights and freedoms of persons who are in the territory of another State but who are found to be under the former State's authority and control through its agents operating – whether lawfully or unlawfully – in the latter State (see, mutatis mutandis, M. v. Denmark, application no. 17392/90, Commission decision of 14 October 1992, DR 73, p. 193; Illich Sanchez Ramirez v. France, application no. 28780/95, Commission decision of 24 June 1996, DR 86, p. 155; Coard et al. v. the United States, the Inter-American Commission of Human Rights decision of 29 September 1999, Report No. 109/99, case No. 10.951, §§ 37, 39, 41 and 43; and the views adopted by the Human Rights Committee on 29 July 1981 in the cases of Lopez Burgos v. Uruguay and Celiberti de Casariego v. Uruguay, nos. 52/1979 and 56/1979, at §§ 12.3 and 10.3 respectively). Accountability in such situations stems from the fact that Article 1 of the Convention cannot be interpreted so as to allow a State party to perpetrate violations of the Convention on the territory of another State, which it could not perpetrate on its own territory (ibid.).”

“17. Finally, by the night of 10 to 11 August, most of the Georgian forces had withdrawn from the territory of South Ossetia. They were followed by Russian troops who entered deeper into Georgian territory by crossing the administrative boundaries of both South Ossetia and Abkhazia and set up military positions in a number of Georgian towns, including Gori, Zugdidi, Senaki and Poti. During the final phase of military hostilities, Abkhaz units supported by Russian forces attacked the Georgian positions in the upper Kodori Valley and seized this territory, which had been vacated by the Georgian forces and most of the local Georgian population by 12 August 2008.

18. … On 12 August, French President Nicolas Sarkozy, in his capacity as Chairman of the European Council, went to Moscow and Tbilisi in a move to stop the military hostilities. A six-point ceasefire plan was agreed upon, providing, inter alia, for the immediate cessation of hostilities and withdrawal of forces to the positions occupied prior to the armed conflict. However, the Russian and South Ossetian forces reportedly continued their advances for some days after the August ceasefire was declared and occupied additional territories, including the Akhalgori district which had been under Georgian administration until the August 2008 conflict, even if it is located within the administrative boundaries of South Ossetia as they had been drawn during the Soviet period. Most of the Russian troops withdrew from their positions beyond the administrative boundaries of South Ossetia and Abkhazia after 22 August, some of them only after an implementation agreement was reached on 8 September 2008 in Moscow or even as late as early October 2008.”

“3.7 Russia's Responsibility as Occupying Power (pp. 123 et seq.)

When Russian forces entered Georgia, including South Ossetia and Abkhazia, which are de jure parts of Georgia, they did so without the consent or agreement of Georgia. International humanitarian law on occupation therefore applied to Russia as an occupying power as it gained effective control over areas of Georgian territory (see above, Chapter 1.2). Tskhinvali and the rest of South Ossetia must be considered under Russian control from August 10, when Georgian forces officially retreated, through the present. Villages in Gori district fell under Russian control as Russian forces moved through them on August 12. Gori city must be considered under effective Russian control at least from August 12 or 13 until August 22, when Russian troops pulled back further north toward South Ossetia. Russia's occupation of the area adjacent to South Ossetia ended when its forces withdrew to the South Ossetia administrative border on October 10.”

1. Prior to the armed conflict (Volume II, pp. 18-19 and 127-35): “‘Creeping annexation’

Georgia's objection to the dominant Russian role in the peacekeeping operation in its conflict zones was motivated mainly by the perception that Russia's contribution to conflict management in the South Caucasus was not ‘peacekeeping, but keeping in pieces’. Russia was seen as the protagonist responsible for keeping the conflicts in the region frozen, in order to maintain a ‘controllable instability’ for the purposes of its own power projection in the South Caucasus. Moreover, Russia was promoting progressive annexation of Abkhazia and South Ossetia by integrating these territories into its economic, legal and security space. The open annexation of these territories was blocked by several obstacles, ranging from Russia's military conflict in Chechnya to its interest in avoiding a massive confrontation with the West.

The clearest demonstration of this Russian policy of integrating separatist entities of neighbouring states into its own legal jurisdiction was ‘passportisation’, the awarding of Russian passports and citizenship of the Russian Federation to residents of Abkhazia and South Ossetia.

In this context, in 2007 Russia paid residents of Abkhazia a total of 590 million rubles in the form of pensions and allocated 100 million rubles to South Ossetia, where the overwhelming majority of the non-Georgian population were already holders of Russian passports.

According to commentaries by Russian political analysts, Moscow was using economic means ‘to try to caution Georgia against attempts to take back the unrecognised republics by force’.

Another aspect of ‘creeping annexation’ was the fact that the separatist governments and security forces were manned by Russian officials. Russia appointed its former civilian and military leaders to serve in key posts in Abkhazia and especially in South Ossetia, including the de facto Defence Ministers of Abkhazia (Sultan Sosnaliev) and South Ossetia (Anatoly Barankevich) and the de facto Chief of the Abkhaz General Staff (LtGen Gennadi Zaytsev). Russian journalist Julia Latynina once described the power elite in South Ossetia as a joint business venture between KGB generals and Ossetian entrepreneurs using money allocated by Moscow for the fight against Georgia.

…

3. Effective government

…

a) South Ossetia

South Ossetia had already established a new constitutional order in 1993, and in a revised form in 2001 with executive, legislative and judicial branches. Nevertheless, there are many doubts as to the effectiveness and independence of the system.

First, as the majority of people living in South Ossetia have acquired Russian citizenship, Russia can claim personal jurisdiction over them… From the point of view of Russian constitutional law, the legal position of Russian citizens living in South Ossetia is basically the same as the legal position of Russian citizens living in Russia.

Second – and still more importantly – Russian officials already had de facto control over South Ossetia's institutions before the outbreak of the armed conflict, and especially over the security institutions and security forces. The de facto Government and the ‘Ministries of Defence’, ‘Internal Affairs’ and ‘Civil Defence and Emergency Situations’, the ‘State Security Committee’, the ‘State Border Protection Services’, the ‘Presidential Administration’ – among others – have been largely staffed by Russian representatives or South Ossetians with Russian citizenship that have worked previously in equivalent positions in Central Russia or in North Ossetia. According to the South Ossetian Constitution, these officials are directly responsible to the de facto President of South Ossetia as ‘head of state’ and of the executive branch (Art. 47 para. 1 of the Constitution). Still, despite this constitutional accountability, the fact that the decisive positions within the security structures of South Ossetia were occupied by Russian representatives, or by South Ossetians who had built their careers in Russia, meant that South Ossetia would hardly have implemented policies contrary to Russia's interests.

De facto control of South Ossetia was gradually built up by Moscow. Russian representatives were not as present within the South Ossetian leadership before summer 2004. Thus the process of state-building was not gradually stabilised after South Ossetia's declaration of independence in 1992, but suffered setbacks after 2004. Even if South Ossetia was not formally dependent on any other state, Russian foreign influence on decision-making in the sensitive area of security issues was so decisive that South Ossetia's claim to independence could be called into question.

To sum up, Russia's influence on and control of the decision-making process in South Ossetia concerned a wide range of matters with regard to the internal and external relations of the entity. The influence was systematic, and exercised on a permanent basis. Therefore the de facto Government of South Ossetia was not ‘effective’ on its own.

b) Abkhazia

The effective control of the Abkhaz authorities over the relevant territory and its residents is problematic, because many inhabitants had acquired Russian citizenship and were – from the Russian perspective – under the personal jurisdiction of the Russian Federation. According to the information given by the Abkhaz authorities ‘practically all the inhabitants of Abkhazia are at the same time citizens of the Russian Federation.’ Russian passport-holders participated massively in presidential and parliamentary elections in Russia.

Russia's control over Abkhazia's security institutions seems to be less extensive than in South Ossetia. Contrary to the situation in South Ossetia, the will to remain independent from Russia has traditionally remained strong among the elites and

Abkhaz public opinion. In the ‘presidential elections’ of 2004/05, for instance, Moscow had to acknowledge the defeat of the candidate whom it had openly supported (Raul Khadjimba) and had to accept the victory of Sergei Bagapsh. This means that the Abkhaz institutions were – at least at that particular moment – not completely under control of the Russian Government.

II. Conclusion

From the perspective of international law, South Ossetia was, at the time of the military conflict in 2008, an entity that had a territory, a population and a government acting on a newly established constitutional basis. But all usual criteria for statehood (in legal and in political terms) are gradual ones. Especially the third criterion, effectiveness was not sufficiently present in the case of South Ossetia, as domestic policy was largely influenced by Russian representatives from ‘within’.

Thus, South Ossetia came close to statehood without quite reaching the threshold of effectiveness. It was – from the perspective of international law – thus not a state-like entity, but only an entity short of statehood.

The status of Abkhazia is slightly different. Contrary to South Ossetia, the Abkhaz ‘government’ has expressed its clear will to remain independent from Russia, even if its policies and structures, particularly its security and defence institutions, remain to a large extent under control of Moscow. Abkhazia is more advanced than South Ossetia in the process of state-building and might be seen to have reached the threshold of effectiveness. It may therefore be qualified as a state-like entity. However, it needs to be stressed that the Abkhaz and South Ossetian claims to legitimacy are undermined by the fact that a major ethnic group (i.e. the Georgians) were expelled from these territories and are still not allowed to return, in accordance with international standards.”

2. During the armed conflict (Volume II, pp. 303-04):

“The statements made by the Russian Federation and the de facto Abkhaz authorities reject any allegation of overall control. The Russian Federation has declared that ‘prior to the conflict in August one could only speak of cooperation between the Russian peacekeeping contingent and South Ossetian and Abkhaz military units wherever peacekeeping forces may be present within parameters commonly accepted in similar situations in other countries. These relations were governed by the mandate of the peacekeeping force. While strong economic, cultural and social ties exist between the Russian Federation and the authorities of Abkhazia, those authorities have stated that, in the course of the operation in the Kodori Valley, ‘the Abkhaz army, while remaining in contact with Russian forces acting from Abkhaz territory, operated independently.’ Further aspects of the assistance and the military structure and command linking the Russian Federation and those entities would need to be substantiated in order to establish such control. According to Georgia, ‘the Abkhaz and South Ossetian military formations did not independently control, direct or implement the military operations during either the armed conflict or the occupation periods. Rather, these military formations acted as agents or de facto organs of the Respondent State and as such constituted a simple continuation of the Russian Federation's armed forces.

In factual terms, one may have to draw a distinction with regard to the nature of the relationship between Russia and South Ossetia on the one hand, and between Russia and Abkhazia on the other. In the former, ties seem to be stronger. During the meeting between the IIFFMCG experts and the representatives of the Ministry of Internal Affairs of Georgia, the representatives stressed the political and economic links between Russia and South Ossetia. They also claimed that Russia exercises control over South Ossetia through various channels ranging from financial help to the presence of Russian officials in key military positions in the South Ossetian forces.”

3. After cessation of the active conduct of hostilities (Volume II, pp. 311 et seq.): “c) IHL of military occupation

… However, the extent of the control and authority exercised by Russian forces may differ from one geographical area to another. It was possibly looser in the territories of South Ossetia and Abkhazia administered by the de facto authorities. In the Kodori Valley, and in districts and villages in South Ossetia such as Akhalgori, where before the conflict the Georgian forces and administration had exercised control, the substitution is more evident. In those cases, such as the buffer zones, the argument of an existing administrative authority different from the Georgian one cannot be admissible, nor can the argument according to which ‘Russia has frequently dissociated itself from, and even condemned, the Ossetian and Abkhaz authorities.’ Regarding the insufficient number of troops invoked by the Russian Federation, this must be linked to the fact that the determination is not about ascertaining the occupation of the whole territory of Georgia. Moreover, in the Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda) case, the arguments used by Uganda of a ‘small number of its troops in the territory’ and their confinement to ‘designated strategic locations’ were not used by the Court to reject the qualification of occupation. Finally, given the fact that a state of occupation may exist without armed resistance, the question of the number of troops cannot in itself be legally relevant.

…

h) Maintenance of law and order

Under the IHL on military occupation the occupying power, once it has authority over a territory, has an obligation to take all the measures in its power to restore, and ensure, as far as possible, public order and safety. Ensuring safety includes protecting individuals from reprisals and revenge. There is also an obligation to respect private property.

Even where the law on occupation is not applicable, under HRL states have an obligation to protect persons under their jurisdiction and prevent violations against them.

In the context of the conflict in Georgia the issue of the maintenance of law and order, and consequently that of the authorities responsible for such maintenance, is critical for several reasons. First, control over certain areas changed during the period of the conflict and its aftermath: in South Ossetia, in villages or districts that had previously been administered by the Georgian authorities, and also in the buffer zones and in Abkhazia, in the Kodori Valley. But it is also relevant for those parts of South Ossetia and Abkhazia where the de facto authorities had been exercising control before the outbreak of the conflict. Secondly, the presence of Russian forces on those territories raises the issue of their responsibilities, whether under the law of occupation or under human rights law. Thirdly, numerous, if not most, violations occurred after the conflict, at a time when the main question was actually one of policing and maintaining order to prevent or stop such violations. Apart from the question of identifying who had responsibility for maintaining public order and ensuring security, there has clearly been, with some exceptions, a vacuum in this regard.

One of the most worrying areas was the buffer zone. The Representative of the Secretary-General on the human rights of internally displaced persons reported that ‘during his visit to the so-called buffer zone, he witnessed evidence of widespread looting of property and listened to villagers reporting incidents of harassment and violent threats committed by armed elements, in tandem with a failure by Russian forces to respond and carry out their duty to protect, particularly in the northernmost area adjacent to the de facto border with the Tskhinvali region/South Ossetia. Villagers explained their permanent fear of attack by what they described as armed bandits coming from the Tskhinvali region/South Ossetia, and their repeated but unsuccessful requests to the Russian forces for protection. Villagers insisted that there were no problems between neighbours within the same villages, irrespective of their ethnic origins, but that the perpetrators were coming from outside the villages, i.e. the Tskhinvali region/South Ossetia.’ In September 2008 the Council of Europe Commissioner for Human Rights also noted that ‘in the northern part – i.e. the area adjacent to the administrative border of South Ossetia – there are still reports of looting, torching and threats, and far fewer people have been able to return.’ Following his special mission to Georgia and the Russian Federation on 22–29 August 2008, the Council of Europe Commissioner for Human Rights stressed the ‘right to protection against lawlessness and inter-community violence.’ He noted that he had ‘received a great number of reports of physical assault, robbery, kidnapping for ransom, looting and torching of houses as well as personal harassment by South Ossetian militia or other armed men in the Georgian villages in South Ossetia and in the ‘buffer zone’.’ He further stated that he ‘was alarmed over the rampant criminality in the ‘buffer zone’.’

While denying the status of occupying power, the Russian Federation acknowledged that it had tried to exercise police powers on the ground. With regard to ‘measures taken outside the scope of hostilities to protect the civilian population from looting, pillaging, abuse etc.,’ it describes the situation as follows. In terms of ‘a police function’:

‘South Ossetia had and still has its own government and local authorities which exercise effective control in this country, maintain the rule of law and protect human rights. At the same time, the Russian military contingent called upon to carry out purely military tasks in the territory of South Ossetia, to the best of their abilities tried to maintain law and order and prevent any offences in the areas of their deployment, including Georgia proper, where owing to the flight of Georgian government authorities an apparent vacuum of police presence ensued. The Russian military force could not substitute for the government of South Ossetia. The Russian military have never been granted the jurisdiction to maintain the rule of law, not to mention that their sheer numbers are insufficient for that task. Nevertheless, the Russian troops apprehended more than 250 persons on suspicion of looting and other crimes. All of them have been handed over to the authorities of South Ossetia for further investigation and criminal prosecution.’

This argument of relying on the South Ossetian de facto authorities to maintain public order and prevent violations of human rights is flawed, however. In the first place, these authorities failed to ensure the protection or safety of persons living on the territory they controlled, as demonstrated above. This is additionally proven by the fact that even Ossetians did not enjoy protection. One of the two remaining residents of Zonkar, a tiny Tskhinvali-administered hamlet in the Patara Liakhvi valley surrounded by ethnic Georgian villages, told Human Rights Watch how men dressed in Ossetian peacekeeper uniforms looted her house and tried to set fire to it. She said that although she reported the incident to the police, no officials from the South Ossetia prosecutor's office came to her house to investigate. Even more worrying, however, is the fact that Ossetian forces were themselves among the main perpetrators of violations of human rights.

Furthermore, the position adopted by the Russian Federation is not admissible in the buffer zone, where the South Ossetian de facto authorities were not exercising control.

Another aspect of the Russian argumentation calls for further analysis. Russia claims that although it was not an occupying power, ‘the Russian military contingent called upon to carry out purely military tasks in the territory of South Ossetia, to the best of their abilities tried to maintain law and order and prevent any offences in the areas of their deployment including Georgia proper, where owing to the flight of Georgian government authorities an apparent vacuum of police presence ensued.’ First, it recognises the absence of policing by Georgian authorities. Second and most importantly it clearly states that effectively the Russian forces, to a certain extent, were trying to maintain order and safety. Russia elaborated further on the actions it carried out in this regard:

‘From day one of the operation, the Russian military command undertook exhaustive measures to prevent pillaging, looting and acts of lawlessness with respect to the local Georgian population. All personnel serving in units that took part in the operation was familiarised with the Directive issued by the General Staff of the Russian Armed Forces and the order given by the Army Commander-in-Chief ‘to maintain public safety and ensure the security and protection of citizens residing in the territory of the South Ossetian Republic’.

Russian troops, jointly with South Ossetian law-enforcement and military units, provided round-the-clock protection of the homes and land allotments that remained undamaged in Georgian villages, at the same time ensuring the safety and security of South Ossetian residents regardless of their ethnic background.’

First of all, this contradicts the information according to which ‘in October an official from the Council of Europe who requested anonymity told Human Rights Watch that a senior member of the Russian military in the region said that the military was given no mandate for the protection of civilians.’

In general, these elements demonstrate that to a certain degree, Russian forces were in a position to ensure public order and safety in the territories they were stationed in, and claim to have undertaken measures in this regard. This contrasts strikingly with what happened on the ground, where there was a serious lack of action by the Russian troops to prevent violations and protect ethnic Georgians.

One of the main measures taken by Russian troops was to set up roadblocks and checkpoints. Regarding South Ossetia, Human Rights Watch noted that ‘roadblocks set up by Russian forces on August 13 effectively stopped the looting and torching campaign by Ossetian forces, but the roadblocks were inexplicably removed after just a week.

As reported by HRW, two residents of Tkviavi, a village 12 kilometres south of Tskhinvali that was particularly hard hit by looters from South Ossetia, said that the looting had decreased when the Russian forces maintained a checkpoint in the village, although the marauders kept coming during the night. Furthermore, several Tkviavi villagers told Human Rights Watch that they believed that more frequent patrolling by the Russian forces or Georgian police would have improved security in the area. A witness told Human Rights Watch that looters ‘seemed to be afraid to encounter the Russians, and were hiding from them, suggesting, according to HRW, that had

Russian forces taken more preventive measures to stop violence against civilians these measures would have been effective.

In this regard, other measures by the Russian troops consisted of patrolling and informing the inhabitants and giving the villagers phone numbers so they could contact the Russian military authorities if they witnessed any kind of violation. Regarding these measures, a habitant of Tkviavi, the former mayor of the village, told the IIFFMCG expert on 3 June that while having offered to help, the Russian military authorities did not do much concretely to stop the looting.

At this stage it is critical to note that the measures such as checkpoints introduced by the Russian forces were meant to prevent violations by South Ossetian militias, and consequently ensure respect of IHL. Oddly, one result of the checkpoints was actually to prevent the Georgian police from maintaining law and order in those areas, and in some cases to stop villagers attempting to return home from Gori to villages in the ‘buffer zone’, while Russia continued to invoke the lawlessness.

On the other hand, testimonies gathered by the IIFFMCG and by HRW also report Russian ground forces trying to protect the civilian population from Ossetian forces, militia members, or criminal elements.

Nevertheless, from all the testimonies collected, it appears that the Russian authorities did not take the necessary measures to prevent or stop the widespread campaign of looting, burning and other serious violations committed after the ceasefire.

Referring to the situation at the end of August, the Council of Europe Commissioner for Human Rights also stressed that ‘the Russian forces have the duty under international humanitarian law to maintain law and order in the zone they control,’ and he ‘raised his serious concerns about the security of the civilians with all sides.’ He noted that the Russian head of the peacekeeping presence in the buffer zone and other high-level Russian officials ‘acknowledged that policing and maintaining law and order were major challenges. According to them, the area had been infiltrated by marauders, criminal gangs and militia, who were committing serious crimes.’

In September 2008, as a way to address this failure to maintain law and order properly, Human Rights Watch called for the EU to provide the monitoring mission scheduled to move into areas near South Ossetia with a policing mandate to protect the civilians.”

“Exactly a year ago, on August 26, Russia recognized the independence of South Ossetia and Abkhazia. In this difficult time, immediately after the aggression staged by the current Georgian leaders, the decision of our country served as a firm guarantee for peace in the region, and the survival of the two nations.

It goes without saying that there will be no return to the past situation. The sooner all parties involved in this process realize this, the easier it will be for them to build a joint future.

Much has been done since then for developing full-scale relations between Russia and South Ossetia and for consolidating their legal foundation. In September 2008, we signed a Treaty on Friendship, Cooperation, and Mutual Assistance, and last April, the Agreement on Cooperation in the Protection of South Ossetia's State Frontier. The Russian border guards have assumed responsibility for securing peace and tranquillity in the region.

More than 30 agreements and treaties – all in all, 36 agreements – are being discussed today. They are designed to consolidate the legal foundation of our cooperation in all areas - security, the economy, and the social sphere.

…

We have also signed an agreement on assistance to South Ossetia in its social and economic development, and an agreement on countering crime. Russia is going to continue rendering all-round political and economic support both to South Ossetia and Abkhazia.

…”

“South Ossetia is no closer to genuine independence now than in August 2008, when Russia went to war with Georgia and extended recognition. The small, rural territory lacks even true political, economic or military autonomy. Moscow staffs over half the government, donates 99 per cent of the budget and provides security.

…

The war dealt a heavy physical, economic, demographic and political blow to South Ossetia. The permanent population had been shrinking since the early 1990s and now is unlikely to be much more than 30,000. The $840 million Russia has contributed in rehabilitation assistance and budgetary support has not significantly improved local conditions. With its traditional trading routes to the rest of Georgia closed, the small Ossetian economy has been reduced to little more than a service provider for the Russian military and construction personnel. Other than the International Committee of the Red Cross (ICRC), no international humanitarian, development or monitoring organisation operates in the region; dependent on a single unreliable road to Russia, the inhabitants are isolated.

…

While Russia controls decision-making in several key spheres, such as the border, public order and external relations, it has allowed South Ossetian elites a degree of manoeuvre on such internal matters as rehabilitation, reconstruction, education and local justice.

…

Military-security decisions are delegated to Russia through bilateral agreements. A day after President Medvedev signed the September 2008 ceasefire with President Sarkozy of France (then the EU presidency) to withdraw from Georgia, the Russian defence minister made it clear that Moscow intended to deploy 3,800 troops in the breakaway entities. A year later, as noted, military cooperation agreements provided authority to station troops and maintain military bases in South Ossetia for 49 years, as well as jointly protect the borders, for renewable five-year periods.

…

Moscow has deployed an estimated 900 border troops along South Ossetia's administrative boundary with the rest of Georgia, replacing Ossetian security forces. On request from the de facto authorities, Russian experts are currently helping to demarcate the ‘state borders’, despite strong Georgian protests. Twenty frontier posts that are being built, not least to monitor Georgian military communications and movements, are expected to be completed by 2011.

…

In September 2008, when its troops still occupied the Georgian ‘buffer zone’, adjacent to South Ossetia and Abkhazia, Russia signed agreements of ‘Friendship and Cooperation’ with both breakaway regions, pledging to help protect their borders. The signatories granted each other the right to military bases in their respective territories, recognised dual citizenship and established common transportation, energy and communications infrastructure. The agreements are valid for ten years and can be renewed every five. Thus, Russia has consolidated its military presence in both regions, instead of withdrawing forces to pre-conflict positions as stipulated by the Medvedev-Sarkozy agreement. It says recognition has brought a ‘new reality’, so ‘bilateral’ cooperation accords take precedence over the ceasefire accord.

…

However, Russia has played a crucial role in providing support for state and institution building in South Ossetia. Most of the ruling elite, including the prime minister, vice prime minister and ministers of defence, economic development and finance, have been transferred from Russia and are under its control. Security and military structures have been controlled by senior officers of the Federal Security Forces (FSB) for many years. A Russian journalist described even pre-war South Ossetia as a joint business venture between FSB generals and Ossetian entrepreneurs using money allocated by Moscow for the competition with Georgia. This has not changed; the current defence minister, Major-General Yuri Tanaev, was previously head of an intelligence department of the Urals military district. Russia's influence over external relations and security is so decisive it arguably undermines the claim to independence.

Nevertheless, Eduard Kokoity, the de facto president, does appear to maintain limited control in certain spheres of internal politics. Russian analysts compare this to Chechnya, where President Kadyrov has been given a virtually free hand in internal affairs as long as he maintains stability and remains loyal to Moscow. Kokoity has been able to concentrate internal power and control over the entity's limited print and electronic media. Criticism of local officials, and particularly Russia's policy, is portrayed by the authorities as pro-Georgian ‘treason’.”

“…

The 2008 war with Georgia allowed Russia to greatly enhance its already considerable military presence. Russian officials say there are roughly 5,000 Russian personnel in Abkhazia: 3,500 military and 1,500 Federal Security Service (FSB) officers and ‘border guards’.

…

At the same time, given its 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.

…

In a further show that Moscow is in control, Russian border guards in September 2012 began manning the lone open checkpoint over the Inguri River, which until then was controlled by Abkhaz guards. This was a symbolic blow to the Abkhaz, whose former leader, Bagapsh, had insisted that Sukhumi would be in formal command of ‘frontier forces’, with the Russians assisting. Now in booths with darkened windows, Russian guards seated behind computer screens check passports and question visitors. During a recent entry by Crisis Group, one Russian and one Abkhaz official manned the booth, with the Russian clearly in charge – though the Russians at the border wear uniforms identical to the Abkhaz, without visible Russian insignia.

Russia has clearly solidified its security presence in Abkhazia over the past five years, flouting the commitments it made in 2008 to pull back its troops to their pre-war locations, claiming that the agreements are no longer valid because of the ‘new realities’ created by diplomatic recognition. But Moscow is apparently not utilising its renovated infrastructure to full capacity. This may be due to a desire to not be seen as an occupying force, but may also be linked to Russian armed forces’ heavy commitment to combating a Salafi-inspired insurgency in the North Caucasus that limits resources available for use in the entity. It is less likely that Russia is doing this to keep the door open to a compromise with Georgia.

Abkhazia's government is overwhelmingly dependent on Russia for budget and development funds. Since 2009 Moscow has provided about 1.9 billion roubles per year in direct budgetary support ($61-$67 million, depending on exchange fluctuations). In 2012, this amounted to 22 per cent of the official 8.6 billion rouble ($287 million) budget. But taking into account that Moscow allocated another 4.9 billion roubles ($163 million) that year as part of a ‘comprehensive aid plan’ for infrastructure development, the actual subsidy for Abkhazia's budget is at least 70 per cent. In addition, Moscow also hands out an estimated two billion roubles ($70 million) in pension payments for Abkhaz residents, most with Russian passports.

…

A big reduction in Russian support would have profound political and social consequences. Abkhaz leaders have never made any secret that their level of real independence is circumscribed by their reliance on Moscow, sometimes using terms like ‘limited sovereignty’, or ‘asymmetrical independence’.

…

As long as Abkhazia remains largely dependent on Russia financially and thus politically, it is only able to make independent decisions on local matters. With no prospect of widespread recognition anytime soon and its development fully tied to Moscow, Abkhazia's ‘independence project’ faces an uphill battle; the entity risks becoming increasingly similar to Russian regions in the North Caucasus.”

“27. With respect to the war crimes, the Chamber considers first that the information reasonably indicates that an international armed conflict existed between Georgia and the Russian Federation between 1 July 2008 and 10 October 2008. The existence of such international armed conflict is rather uncontroversial as concerns the period of armed hostilities between Georgian and Russian armed forces between 8 and 12 August 2008 and the period of Russian occupation of parts of Georgian territory, in particular the ‘buffer zone’, until at least 10 October [2008]. In addition, the Chamber considers, at this stage, that there is sufficient indication that the Russian Federation exercised overall control over the South Ossetian forces, meaning that also the period before the direct intervention of Russian forces may be seen as an international armed conflict (see above paras 9-11).”

“The Russian Government submitted an argument based on the ICJ Bosnian Genocide case, as they had done in Catan and Others (cited above, § 96), and the case of Nicaragua v. the United States of America (see paragraph 93 above), which was part of the case-law taken into account by the Court in Catan and Others (cited above, § 76). In these cases the ICJ was concerned with determining when the conduct of a group of persons could be attributed to a State, with the result that the State could be held responsible under international law for that conduct. In the instant case, however, the Court reiterates that it is concerned with a different issue, namely whether the facts complained of by the applicant fall within the jurisdiction of a respondent State within the meaning of Article 1 of the Convention. As the Court has already found, the test for establishing the existence of ‘jurisdiction’ under Article 1 of the Convention has never been equated with the test for establishing a State's responsibility for an internationally wrongful act under international law (see paragraph 98 above, and Catan and Others, cited above, § 115).”

“The clearest demonstration of this Russian policy of integrating separatist entities of neighbouring states into its own legal jurisdiction was ‘passportisation’, the awarding of Russian passports and citizenship of the Russian Federation to residents of Abkhazia and South Ossetia. …

Another aspect of ‘creeping annexation’ was the fact that the separatist governments and security forces were manned by Russian officials. Russia appointed its former civilian and military leaders to serve in key posts in Abkhazia and especially in South Ossetia, including the de facto Defence Ministers of Abkhazia (Sultan Sosnaliev) and South Ossetia (Anatoly Barankevich) and the de facto Chief of the Abkhaz General Staff (LtGen Gennadi Zaytsev).”

“In September 2008, when its troops still occupied the Georgian ‘buffer zone’, adjacent to South Ossetia and Abkhazia, Russia signed agreements of ‘Friendship and Cooperation’ with both breakaway regions, pledging to help protect their borders. The signatories granted each other the right to military bases in their respective territories, recognised dual citizenship and established common transportation, energy and communications infrastructure. The agreements are valid for ten years and can be renewed every five.”

It next needs to be determined, on an examination on the merits, whether there has been a violation of the rights protected by the Convention capable of engaging the responsibility of the Russian Federation.

Article 2 of the Convention

“1. Everyone's right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.

2. Deprivation of life shall not be regarded as inflicted in contravention of this Article when it results from the use of force which is no more than absolutely necessary:

(a) in defence of any person from unlawful violence;

(b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained;

(c) in action lawfully taken for the purpose of quelling a riot or insurrection.”

Article 3 of the Convention

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

Article 8 of the Convention

“1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

Article 1 of Protocol No. 1

“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.

The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”

“According to individuals interviewed, a disturbing pattern of killings of unarmed civilians continued in a large number of villages after the bombardment ended. Witnesses reported that the perpetrators were often Ossetians – some of whom were described as soldiers and others as civilians – who followed the Russian forces into the villages that were under Georgian administration prior to the August conflict. In Charebi village, for example, two separate witnesses reported that a group of ‘Ossetians’ murdered two village residents in their house. Citizens of Disevi village reported a murder by an ‘Ossetian’ from a nearby village, in addition to deaths from bombing. In Vanati, a displaced couple reported to the HRAM that one of their friends was killed by soldiers. They wanted to bury him but they were not allowed to since it was too late in the day and the Russian army had imposed a curfew. Also in Vanati, a schoolteacher was reportedly killed and his wife, a nurse, was wounded; her house was then set on fire leaving her to die inside. In Ksuisi village, a witness described how when he went outside after the bombing ended he came under sniper fire from an Ossetian village. In Satskheneti a woman witnessed a man shot and killed by an ‘Ossetian’ when he refused to hand over his cows and another man shot dead in a quarrel over a car. In Avnevi, a man was killed when he refused to let marauders into his house.

In contrast to the reports of Russian troops participating in misdeeds, several villagers told how some Russian troops intervened to assist the local population or to protect them from Ossetians. A woman from Tamarasheni, for example, recounted how Russian soldiers asked if she needed food and brought her three day's supply of bread, butter, and canned meat. When a woman in Eredvi was harassed by an Ossetian, a Russian soldier nearby intervened, hit the Ossetian man with the butt of his gun and made him go away. In Charebi, Russian soldiers came and removed an unexploded bomb from a villager's garden. In Nuli, Russian troops handed out white armbands to the population to protect them from ‘Ossetians’. Villagers from Kekhvi, Satskheneti and Ikoti reported that Russian troops did no harm in their villages.”

“A new phase of the hostilities began with the advance of ground forces into the ‘buffer zone’, following which there were numerous reported attacks on civilians. The advancing military forces were variously described by displaced persons as ‘Ossetians’ and ‘Russians’; in many cases civilians were not able to distinguish clearly between the two. Displaced persons witnessed killings of unarmed civilians by incoming military forces in Gori and in the villages of Megvrekisi, Tirdznisi, Ergneti, and Karaleti. In Ergneti, for example, a villager described to the HRAM how he saw a group of ten ‘Ossetians’ in Russian uniforms hit an 80-year old man in the back and then shoot him. The victim, according to the villager, crawled into a building, said ‘I've been shot’, and then fell down and died. In Karaleti, a villager reported, a car with four ‘Ossetians’ dressed in military uniforms entered the village and shot and killed one of his neighbours with an automatic weapon.”

“During the conflict and after the cease-fire, there was a campaign of deliberate violence against civilians: houses were torched and villages looted and pillaged. Most of these acts were carried out in South Ossetia and in the undisputed territory of Georgia, mainly in the areas adjacent to the administrative border with South Ossetia.

These acts occurred even weeks after the cease-fire and the end of the hostilities. Such violations raise the critical question of the general lack of protection in areas under changing control, such as Georgian-administered villages in South Ossetia or the so-called ‘buffer zone’. As highlighted by interviews conducted by Human Rights Watch, most of the acts of violence against civilians, pillage and looting were committed by Ossetian forces. Information gathered from eyewitnesses also indicates the presence of Russian forces while these violations were taking place, and sometimes the participation of Russian forces in these acts. While most of the violations were committed against ethnic Georgians, ethnic Ossetians were also not immune from looters.

According to Human Rights Watch:

‘South Ossetian forces include South Ossetian Ministry of Defence and Emergencies servicemen, riot police (known by the Russian acronym OMON), and several police companies, working under the South Ossetian Ministry of Internal Affairs, and servicemen of the South Ossetian State Committee for Security (KGB). Many interviewees told Human Rights Watch that most able-bodied men in South Ossetia took up arms to protect their homes. As South Ossetia has no regular army its residents tend to refer to the members of South Ossetian forces as militias (opolchentsy) unless they can be distinctly identified as policemen or servicemen of the Ministry of Defence and Emergencies. Credible sources also spoke about numerous men from North Ossetia and several other parts of Russia who fought in the conflict in support of South Ossetia and who were involved in the crimes against civilians that followed.’

‘In some cases, it is difficult to establish the exact identity and status of the Ossetian perpetrators because witnesses’ common description of their clothing (camouflage uniform, often with a white armband) could apply to the South Ossetian Ministry of Defence and Emergencies, South Ossetian Ministry of Internal Affairs, volunteer fighters, or even common criminal looters. Several factors, however, indicate that in many cases the perpetrators belonged to South Ossetian forces operating in close cooperation with Russian forces. The perpetrators often arrived in villages together with or shortly after Russian forces had passed through them; the perpetrators sometimes arrived on military vehicles; and the perpetrators seem to have freely passed through checkpoints manned by Russian or South Ossetian forces.’

‘Witnesses sometimes also referred to the perpetrators as Chechens and Cossacks; whether this was an accurate identification is not clear, although there were media reports of Chechens and Cossacks participating in the conflict.’

Two closely linked questions arise at this point: that of identifying the perpetrators of these violations and that of the exact role played by the Russian forces in the violations. Answering these questions will have key legal implications, as it requires us to distinguish between those who committed these acts of violence and those who did not act to prevent them or stop them.

While it appears difficult to conclude that Russian forces systematically participated in or tolerated the conduct of South Ossetian forces, there do seem to be credible and converging reports establishing that in many cases Russian forces did not act to prevent or stop South Ossetian forces. Human Rights Watch refers to three types of situation: passive bystanders, active participation and the transport of militias. Some testimonies also mention the positive involvement of Russian troops in stopping militias from looting or preventing them from looting and burning houses. HRW refers also to checkpoints and roadblocks set up on 13 August which effectively stopped the looting and torching campaign but which were inexplicably removed after just a week. Interviews conducted in March 2009 by the IIFFMCG's expert also produced different accounts ranging from active intervention to stop violations, to passive observation, and even involvement.

Lastly, it is important to stress from the outset that patterns of violence differed depending on the area concerned. The most extensive destruction and brutal violence seem to have taken place in South Ossetia, with certain characteristics that appear to be different from what happened in the buffer zone. This difference in pattern was explicitly recognised by representatives from the Georgian Ministry of Internal Affairs when meeting with IIFFMCG experts on 4 June 2009. There is, finally, no comparison possible between the situations in these two former areas and the effects of the hostilities in Abkhazia, which were very limited.

…

The conflict in Georgia and its aftermath have been characterised by a campaign of large-scale pillage and looting against ethnic Georgian villages in South Ossetia and in the so-called buffer zones. While this was mainly committed by Ossetian military and militias, including Ossetian civilians, there are many eyewitness reports of looting by Russian forces. Most importantly, numerous testimonies refer to Russian soldiers being present while armed Ossetians were looting. Some pillage started immediately after the withdrawal of the Georgian forces.

HRW documented – and sometimes directly witnessed – systematic looting in Tamarasheni, Zemo Achabeti, Kvemo Achabeti, Kurta, Tkviavi, Tirdznisi, Dvani, Koshka, Megrekisi, Nikozi, Karaleti, Knolevi, Avlevi, Tseronisi, and Kekhvi. The HRAM of the OSCE also reported a number of cases of looting and pillage. By way of example, the HRAM told of a woman in Kekhvi who saw her house being looted by a group of ‘Ossetians’ wearing military uniforms with white arm bands. The men also stole her car and loaded it with furniture from a neighbour's house before driving away. As she fled the village, she saw ‘Ossetian’ soldiers who were being protected by Russian forces and were pillaging shops and other houses.

It is critical to stress that in the aftermath of the conflict the looting and pillage intensified both in South Ossetia and in the buffer zone in Dvani, Megvrekisi and Tkviavi.

Moreover, Ossetian villagers also participated in looting in September, demonstrating a lack of protection and policing by the Ossetian and Russian forces. Many testimonies refer to Russian forces being present whilst Ossetian militias were looting.

Far from being a few isolated cases, in certain villages the pillage seems to have been organised, with looters first using trucks to take the furniture and then coming to steal the windows and doors of houses.

Human Rights Watch also pointed out that ‘in some communities where Ossetians lived side-by-side with Georgians, or in mixed marriages, the Ossetians were also targeted for looting, harassment, and accusations of collaboration’, such as in Zonkar, a tiny Tskhinvali-administered hamlet in the Patara Liakhvi valley surrounded by ethnic Georgian villages.

Amnesty International expressed particular concern at the ‘many reports of Russian forces looking on while South Ossetian forces, militia groups and armed individuals looted and destroyed Georgian villages and threatened and abused the residents remaining there’. It described the following situation:

‘In the village of Eredvi on 26 August Amnesty International representatives witnessed ongoing looting and pillaging, including by armed men. As the looting was going on, Russian military equipment continued to pass through Eredvi ([east] of Tskhinvali) and Russian checkpoints controlled the entry and exit to the village; Amnesty International observed that only ordinary cars, rather than trucks or other large vehicles, were searched, and not in all cases.’

There is consequently extensive evidence of a widespread campaign of looting and pillage by Ossetian forces, as well as unidentified armed Ossetians and sometimes civilians, during the conflict but mostly after the cease-fire. While the Russian forces do not seem to have played an important part in this campaign, they did little to stop it.

…

When considering the destruction of civilian property in the context of the conflict in South Ossetia and its aftermath, a key distinction must be made between on the one hand destruction as a result of shelling, artillery strikes, aerial bombardment or tanks firing, which might constitute a violation of IHL but does not systematically do so, and destruction as a result of deliberate acts of torching and burning. As noted by the HRAM, some destruction resulted from the hostilities proper, whether during the offensive by Georgian forces against Tskhinvali and other villages in South Ossetia, or during Russian aerial bombardments and artillery shelling. Here it is necessary to refer to the section on indiscriminate attacks, above.

This type of destruction is in no way less serious. But it must be stressed from the outset that the extensive damage caused through burning, with some villages almost completely burned down, raises grave concern as to the motives behind such acts. The practice of burning reached such a level and scale that it is possible to state that it characterised the violence of the conflict in South Ossetia. This large-scale campaign of burning targeted ethnic Georgian villages in South Ossetia and, to a lesser extent, the areas adjacent to the administrative border.

In this regard it is also paramount to stress that a number of testimonies seem to suggest a pattern of deliberate destruction and torching in the ethnic Georgian villages in South Ossetia that was different in scale and motives from what happened in the buffer zone.

Regarding the burning and torching of entire villages in South Ossetia, the explanation given by Russia and the de facto South Ossetian authorities failed to convince the IIFFMCG.

According to the Russian Federation, ‘one of the reasons accounting for the fires and destruction in Georgian villages was the deliberate policy of arson perpetrated by the retreating Georgian Armed Forces. As a result a number of ordnances detonated including armour-piercing rocket-launcher rounds that had been placed and stored in advance in residential homes in a number of Georgian villages (Kekhvi, Tamarasheni, Kheita, Kurta, Eredvi, Avnevi, etc.) to arm Georgian paramilitary self-defence units’. Explanations given by South Ossetia also point the finger at Georgians: the representative of one of the two South Ossetian organisations accompanying the IIFFMCG during its visit to South Ossetia in March claimed that the houses were burned by Georgians. These claims, however, are not supported by any information available through interviews of IDPs [internally displaced persons] or of villagers who remained during the hostilities and after. Moreover, according to HRW, the majority of the witnesses it interviewed did not complain about violations against them by the Georgian forces, in the context of the ground offensive.

The South Ossetia de facto Prosecutor-General told the HRAM that the Georgian forces had been using these villages as military positions. This latter explanation could in no way account for the extensive and systematic torching of entire villages witnessed by the IIFFMCG. All the information gathered from a variety of sources points to South Ossetian forces and militias as being the perpetrators, with dozens of testimonies in this regard. Interviews of inhabitants from ethnic Georgian villages as direct eyewitnesses, by Georgian NGOs, Human Rights Watch and Amnesty International, as well as information collected by the IIFFMCG itself, substantiate this pattern.

After the cease-fire this campaign did not stop, but actually intensified. Regarding the extent of the damage caused, it is clear from both eyewitness reports and satellite images that many houses were burned in the last two weeks of August and in September.

This was also confirmed by IDPs interviewed by the IIFFMCG expert and other organisations. Furthermore, although to date unverifiable, one person interviewed by the Mission's expert claimed that some burned houses were later destroyed to conceal the fact that they had been torched. This may be related to confirmed reports of burned houses having been ‘bulldozed’ in September.

The IIFFMCG also wishes to note that this campaign of burning houses in South Ossetia was accompanied by violent practices such as preventing people from extinguishing fires under threat of being killed or forcing people to watch their own house burning.

The IIFFMCG concludes that – as also stated by the HRAM and by HRW – after the bombing, South Ossetians in uniform as well as Ossetian civilians who followed the Russian forces’ advance undertook a systematic campaign of arson against homes and other civilian buildings in villages populated predominantly by ethnic Georgians.

Interviews by the IIFFMCG expert confirmed that with few exceptions Russian forces did not participate directly in the destruction of villages, aside from a brief period in mid-August, but nor did they intervene to stop it.

With regard to the destruction of property in the buffer zone, it is first necessary to state that both types of destruction (as a result of hostilities, and from deliberate torching) were documented in this area. The IIFFMCG expert, travelling in June 2009 on the road from Karaleti to Koshka, saw several houses that had been destroyed by Russian aerial bombardment and artillery shelling. While these forms of destruction do not in themselves amount to a violation of IHL, some instances, discussed earlier, do constitute indiscriminate attacks. As for the burning of houses, the members of the OSCE HRAM counted approximately 140 recently burned homes during their travels in the ‘buffer zone’, none of which showed traces of combat activity.

Without questioning the reality of the destruction by torching of houses in the buffer zone, the IIFFMCG wishes to observe that, at least for the villages its expert visited in June 2009 and in the light of the interviews it conducted, the patterns of destruction through arson appear to be slightly different than in South Ossetia. First, the scale of the destruction is less vast. In Karaleti, inhabitants indicated that 25 houses had been burned. The motive for torching deserves particular attention. While it is true that revenge and private motives are also relevant in explaining the torching of ethnic Georgian villages in South Ossetia, the destruction of only selected houses in the village indicates a more targeted form of violence in the places the IIFFMCG visited. Information gathered by the IIFFMCG expert appears to suggest that lists of houses to be burned down were pre-established. Some inhabitants felt that the destruction was prompted by the fact that the owner had a relative in the police who had allegedly been involved in acts committed against ethnic Ossetians. An elderly woman living with her family on the outskirts of Karaleti explained that the house in front of hers had been burned down by a group of Ossetians because the owner had bought cattle that had previously been stolen from ethnic Ossetians. Similar accounts of the selective torching of houses were collected by the IIFFMCG expert in Tkviavi.

Another explanation for this more selective violence could be that many mixed families with Ossetian relatives live in the buffer zone. When acknowledging the different pattern of violence in the buffer zone, the representatives of the Ministry of Internal Affairs the IIFFMCG met with offered this as a justification for it.

While these considerations cannot be generalised, they need to be taken into account when reflecting on the patterns of violence during the conflict, especially with regard to property rights. This aspect of individualised revenge is critical and should not be overshadowed by more general patterns. For a comprehensive post-conflict solution to be meaningful, this aspect should be addressed in order to defuse tension and deal with the different types of violence effectively.”

“87. The Commissioner received a great number of reports of physical assault, robbery, kidnapping for ransom, looting and torching of houses as well as personal harassment by South Ossetian militia or other armed men both in the Georgian villages in South Ossetia and in the ‘buffer zone’.

88. The Commissioner was alarmed over the ramping criminality in the ‘buffer zone’, as some civilians have remained there or are attempting to go back, if only for short visits. The Commissioner observed for an hour a number [of] civilians passing through the checkpoint in Karaleti on their way to their homes to look after their gardens and property.”

“…

According to eye-witness testimony collected by Amnesty International, the advancing Russian army was accompanied by both regular South Ossetian forces and an array of paramilitary groups. The latter groups have been widely referred to as ‘militias’ (opolchentsy in Russian, dajgupebebi in Georgian), and their exact composition is unclear. Just prior to the conflict there were reports of the arrival of 300 Ossetian volunteers who had been serving in the police in North Ossetia. De facto South Ossetian President Eduard Kokoity reportedly ordered the integration of these volunteers into the de facto South Ossetian Ministry of the Interior forces. There were also reports of representatives of other ethnic groups from the North Caucasus moving into South Ossetia following the onset of hostilities, in order to fight on the South Ossetian side. Amnesty International was also informed in North Ossetia that significant numbers of men who initially fled to North Ossetia from South Ossetia in the first days of the conflict returned to South Ossetia in order to fight. Several South Ossetians interviewed by Amnesty International representatives in both South and North Ossetia stated that they had taken up arms and participated in the hostilities.

The composition of armed groups identified by eye-witnesses as ‘South Ossetian militias’ is therefore extremely difficult to establish. Several accounts collected by Amnesty International indicated that these militias were composed of representatives from different ethnic groups and used Russian as a common language. These groups are widely described as having followed in the wake of Russian ground forces or aerial attacks; they were also widely reported by eye-witnesses and humanitarian organizations as moving through the ‘buffer zones’ established and maintained by Russian armed forces following the cessation of hostilities and throughout the following weeks. It would appear that the majority of these groups answered, if only loosely, to a South Ossetian chain of command and that the South Ossetian forces in turn operated in co-operation with Russian military forces.

Amnesty International is concerned by the serious abuses against ethnic Georgians in South Ossetia and adjacent ‘buffer zones’ under effective Russian control. Amnesty International documented unlawful killings, beatings, threats, arson and looting perpetrated by armed groups associated with the South Ossetian side and acting with the apparent acquiescence of Russian armed forces. Whilst the looting and pillaging of ethnic Georgian villages was initially focused on South Ossetia, and limited, in the immediate aftermath of the conflict, to largely opportunistic raids on Georgian property and villages along the main roads beyond the region's borders, it progressively extended to the adjacent ‘buffer zone’ under effective Russian control in the weeks that followed. However, Georgian-populated settlements in South Ossetia under de facto South Ossetian administrative control are not reported as having suffered extensive damage.

As the occupying power Russian armed forces had overall responsibility for maintaining security, for law and order and for ensuring the welfare of the populations living in areas under their control. The Russian authorities therefore share, with the de facto South Ossetian authority controlling them, accountability for human rights abuses committed by South Ossetian militias engaged in looting, arson and other attacks, whether within the 1990 boundaries of South Ossetia or in Georgia proper.

Amnesty International is seriously concerned by reports of assaults on civilians by groups aligned with South Ossetia, during and in the wake of the conflict. In many cases South Ossetian armed groups or irregulars arrived in villages that were largely depopulated, with only the elderly and infirm remaining. According to eye-witness reports militias ordered local inhabitants to leave; Amnesty International received reports that those who resisted these orders were, in some cases, beaten and/or killed. Others were attacked in the course of uncontrolled looting.”

“Russia's Responsibility as Occupying Power

When Russian forces entered Georgia, including South Ossetia and Abkhazia, which are de jure parts of Georgia, they did so without the consent or agreement of Georgia. International humanitarian law on occupation therefore applied to Russia as an occupying power as it gained effective control over areas of Georgian territory (see above, Chapter 1.2). Tskhinvali and the rest of South Ossetia must be considered under Russian control from August 10, when Georgian forces officially retreated, through the present. Villages in Gori district fell under Russian control as Russian forces moved through them on August 12. Gori city must be considered under effective Russian control at least from August 12 or 13 until August 22, when Russian troops pulled back further north toward South Ossetia. Russia's occupation of the area adjacent to South Ossetia ended when its forces withdrew to the South Ossetia administrative border on October 10.

Human Rights Watch documented one occasion when Russian forces intervened to help a civilian who was the victim of a crime in progress, and two distinct occasions when Russian forces temporarily set up roadblocks to prevent looting. Yet overall, Russian authorities did not take measures to stop the widespread campaign of destruction and violence against civilians in villages in South Ossetia (see below, Chapters 4.2 and 4.3) and in the buffer zone in undisputed Georgian territory. They allowed these areas to become a virtual no-man's land where individuals were able to commit war crimes – to kill, loot, and burn homes – with impunity. This deliberate violence against civilians started in the immediate aftermath of Georgian forces’ withdrawal from South Ossetia and continued in waves in the weeks that followed; concomitantly, Russian forces’ failure to ensure protection of civilians in territories under their control was persistent. Russian forces therefore violated their obligation as an occupying power to ‘ensure public order and safety’ and to provide security to the civilian population in the territory under its control. This is a serious violation of international humanitarian law.

Russia bore responsibility but took no discernable measures on behalf of protected individuals, including prisoners of war, at least several of whom were executed or tortured, ill-treated, or subjected to degrading treatment by South Ossetian forces, at times with the participation of Russian forces.

…

Violations by South Ossetian Forces Overview

Human Rights Watch found that South Ossetian forces and militias committed serious violations of international humanitarian law, including war crimes, in South Ossetia and undisputed Georgian territory controlled by Russian forces.

South Ossetian forces and militias embarked on a campaign of deliberate and systematic destruction of the Tbilisi-backed villages in South Ossetia, which involved the widespread and systematic pillage and torching of houses, and beatings and threats against civilians. In undisputed parts of Georgian territory they conducted a campaign of deliberate violence against civilians, burning and looting their homes, and committing execution-style killings, rape, abductions, and countless beatings. They rounded up at least 159 ethnic Georgians, killing at least one and subjecting nearly all of them to inhuman and degrading treatment and inhuman conditions of detention. They also tortured at least four Georgian prisoners of war and executed at least three.

In engaging in the violence summarized above, South Ossetian forces and militias egregiously violated multiple obligations under humanitarian law with respect to treatment of protected persons, including civilians and others hors de combat. Murder, rape, acts of torture, inhuman or degrading treatment, and wanton destruction of homes and property are all strictly prohibited under both humanitarian law and human rights law, and the perpetrators of such acts should be held criminally responsible for them. To the extent that any of these prohibited acts was committed as part of a widespread or systematic attack directed against any civilian population, they may be prosecuted as a crime against humanity. Where any of these acts, as well as acts such as imprisonment, unlawful detention of civilians, pillaging, and comprehensive destruction of homes and property, were carried out with discriminatory intent against a particular group, in this case ethnic Georgians, they also constitute the crime of persecution, a crime against humanity, prosecutable under the statute of the International Criminal Court.

South Ossetian forces include South Ossetian Ministry of Defense and Emergencies servicemen, riot police (known by the Russian acronym OMON), and several police companies, working under the South Ossetian Ministry of Internal Affairs, and servicemen of the South Ossetian State Committee for Security (KGB). Many interviewees told Human Rights Watch that most able-bodied men in South Ossetia took up arms to protect their homes. As South Ossetia has no regular army its residents tend to refer to the members of South Ossetian forces as militias (opolchentsy) unless they can be distinctly identified as policemen or servicemen of the Ministry of Defense and Emergencies. Credible sources also spoke about numerous men from North Ossetia and several other parts of Russia who fought in the conflict in support of South Ossetia and who were involved in the crimes against civilians that followed.

In some cases, it is difficult to establish the exact identity and status of the Ossetian perpetrators because witnesses’ common description of their clothing (camouflage uniform, often with a white armband) could apply to South Ossetian Ministry of Defense and Emergencies, South Ossetian Ministry of Internal affairs, volunteer fighters, or even common criminal looters. Several factors, however, indicate that in many cases the perpetrators belonged to South Ossetian forces operating in close cooperation with Russian forces. The perpetrators often arrived in villages together with or shortly after Russian forces passed through them; the perpetrators sometimes arrived on military vehicles; and the perpetrators seem to have freely passed through checkpoints manned by Russian or South Ossetian forces.

Witnesses sometimes also referred to the perpetrators as Chechens and Cossacks; whether this was an accurate identification is not clear, although there were media reports of Chechens and Cossacks participating in the conflict. In some cases, witnesses claimed that the groups of perpetrators consisted of both Ossetians and Russians. These incidents also demonstrate Russia's failure to protect civilians in areas under its effective control (as discussed in Chapter 3.7).

…

South Ossetian Abuses in Undisputed Georgian Territory Summary Executions

During and in the immediate aftermath of the war, at least 14 people were deliberately killed by Ossetian militias in territory controlled by Russian forces. Human Rights Watch documented six deliberate killings in undisputed Georgian territory controlled by Russian forces, and received credible allegations of another six cases. As described above, Human Rights Watch also heard allegations of two such killings in South Ossetia. In addition, Human Rights Watch documented the execution of one Georgian detainee and three Georgian prisoners of war by Ossetian forces, as described in Chapters 4.4 and 4.5. Extrajudicial killings constitute murder as prohibited under article 3 common to the Geneva Conventions, and ‘willful killings’ of protected persons as prohibited under the four Geneva Conventions. Willful killings of protected persons constitute grave breaches of the Geneva Conventions and war crimes.

…

Pillage and Destruction of Civilian Property

Ossetian militias looted, destroyed, and burned homes on a wide scale in undisputed Georgian territory south of the South Ossetian administrative border. As noted above (Chapter 3, Violations by Russian Forces), Russian forces were in many instances involved in these actions, either as active participants, passive bystanders, or by providing transportation to militias into villages. The Geneva Conventions prohibit pillage and destruction of civilian property, and the deliberate nature of this violation against protected persons makes it a war crime.

Pillage is prohibited, and the destruction of any real or personal property is only permitted where it is rendered absolutely necessary by military operations.

Villages close to the South Ossetian administrative border such as Koshka, Ergneti, Nikozi, Megvrekisi, Tirdznisi, and Tkviavi in Gori district, and Dvani, Knolevi, Avlevi, and Tseronisi in the Kareli district were particularly hard hit by destruction and pillage. Though the looting and torching was ongoing, two waves are discernible: the first just after Russian troops began the occupation of Gori and Kareli districts, and the second in the last week of August.

As noted above, in some incidents looters killed residents during the pillaging.”

“Georgian statements about cluster munitions evolved dramatically from August 2008 to March 2009. Georgia moved from completely condemning the weapon to acknowledging limited Georgian use to recognising the possibility of a deadly failure of Georgian clusters yet defending their military advantage.

In August 2008 Georgia repeatedly blamed Russia for using cluster munitions but failed to acknowledge its own use. For example, the Ministry of Foreign Affairs issued a statement on August 15 that said, ‘It must be especially stressed, that the use of cluster munitions against civilian population is especially cynical next to the background of the efforts applied by the international community to restrict and even ban such types of weaponry.’ The same day, Georgian President Mikheil Saakashvili, in a press conference with US Secretary of State Condoleezza Rice, described cluster munitions as ‘an inhuman weapon’ and the Russians as ‘21st century barbarians’ and ‘cold-blooded killers’ for using them against civilians.

In early September, however, Georgia acknowledged its own use of cluster munitions. In a letter to Human Rights Watch made public on September 1, the Georgian Ministry of Defence stated that it had used cluster munitions ‘against Russian military equipment and armament marching from Rocki [sic] tunnel to Dzara road.’ The ministry also insisted that cluster munitions ‘were never used against civilians, civilian targets and civilian populated or nearby areas.

The letter, later made public, identified the type of cluster munitions used as Mk.-4 LAR160 rockets carrying M85 submunitions. It said the rockets were launched from the GRADLAR 160 multiple launch rocket system and had a range of 45 kilometres. It also claimed Georgia only had M85s with self-destruct mechanisms. The ministry denied launching rockets toward Shindisi, despite Human Rights Watch's discovery of M85s there. It also said the Russians had not destroyed any GRADLAR launchers during the war.

The ministry concluded:

The discovery of M85 bomblets in Shindisi raises a lot of suspicion … This fact demands proper investigation and Georgian side is ready to participate in and provide all necessary assistance for the conduc[t] of such investigation. If needed, for the investigation purposes, we can provide the name of the supplier company.

In a meeting with Human Rights Watch on October 21, 2008, then-First Deputy Minister of Defence Batu Kutelia presented a more nuanced position on Georgia's use of cluster munitions. He said Georgia has limited M85 stocks and used them only against Russian troops in the area north of Tskhinvali. He did not deny, however, that the M85s Human Rights Watch found in Georgia could be Georgian weapons.

Kutelia said he could not explain the presence of M85 submunitions in areas south of the South Ossetian administrative border. He said:

We received reports of M85s in a number of Georgian villages. How they ended up there is unclear. Our system would not fire there itself…. Perhaps an accident happened. That might be the explanation…. It's a real mystery how they ended up there. It is physically impossible someone fired there.

He said Georgia had opened an investigation into the situation and had requested assistance from the company from which they bought the weapons. He did not disclose the name of the company, but it is presumably Israel Military Industries.

A massive failure is one possible explanation for the many M85 duds Human Rights Watch documented south of the South Ossetian border. In villages other than Tirdznisi and Shindisi, Human Rights Watch found no evidence of M85 submunitions that exploded on impact and much evidence of M85s that had failed to function. According to witnesses, there were also no Russian troops in the areas hit at the time of the strikes. The Mk.-4 rocket has a minimum range of 12 kilometers. According to Kutelia, Georgia fired its rockets from about eight to ten kilometres north of Gori (although the Georgian Ministry of Defence, in a February 2009 response to a Human Rights Watch inquiry, refused to release more detailed information about the launch sites, saying that the information ‘is not public’). If Kutelia's information about the launch sites is correct, the rockets that landed in the Gori District fell short of their minimum range, which would explain why there were high dud ratesFootnote ²² and why so many submunitions were unarmed.

Georgian officials claimed that their military directed cluster munition strikes only against military targets in fairly unpopulated areas just south of the Roki Tunnel. If a massive failure of the weapons system caused the civilian casualties and contamination of a large populated area in the Gori District, however, the consequences of the failure highlight the danger of these weapons. The large number of submunitions dramatically increases the harm caused by any failure.

Kutelia also expressed surprise at the large number of M85 duds found not only by Human Rights Watch researchers but also by Georgian military deminers. Like the former, the latter found no evidence of self-destruct mechanisms, but according to Kutelia, ‘our contract was for self-destruct’. He said the Ministry of Defense, with the company's help, would also investigate that issue.”

“19. During the same period, the civilian population, in particular ethnic Georgian civilians, was attacked by South Ossetian forces, including an array of irregular militias, in Georgian-administered villages in South Ossetia and Georgian villages in the ‘buffer zone’. The attack commenced subsequent to the intervention and in the course of the advancement of the Russian forces, and continued in the weeks that followed the cessation of active hostilities on 12 August 2008.

20. The attack targeted mainly ethnic Georgians following a consistent pattern of deliberate killing, beating and threatening civilians, detention, looting properties and burning houses. The level of organization of the attack is apparent from the systematic destruction of Georgian houses, the use of trucks to remove looted goods, and the use of local guides to identify specific targets. Valuable items were removed from houses or farms before they were set on fire.

21. These acts were reportedly committed with a view to forcibly expelling ethnic Georgians from the territory of South Ossetia in furtherance of the overall objective to change the ethnic composition of the territory, sever any remaining links with Georgia and secure independence. The de facto leadership of South Ossetia reportedly acknowledged some aspects of the policy of expulsion, in particular the deliberate destruction of civilian homes in order to prevent the return of the ethnic Georgian population. The supporting material further suggests that the policy to expel was passed from the highest echelons of the South Ossetian leadership to the South Ossetian forces. It has been reported that irregular armed groups answered, if only loosely, to the South Ossetian chain of command.

22. The attack against the civilian population resulted in between 51 and 113 cases of deliberate killings of ethnic Georgians and the displacement of between 13,400 and 18,500 ethnic Georgian inhabitants from villages and cities in South Ossetia and the ‘buffer zone’. Coercive acts used by South Ossetian forces to create an atmosphere of fear and terror thus forcing ethnic Georgians to leave their place of residence reportedly included killings, severe beatings, insults, threats and intimidation, detention, looting and destruction of property.

23. Accounts vary as regards the conduct of Russian armed forces or the Russian Federation in relation to the acts allegedly committed either by members of the Russian forces or in relation to the acts allegedly committed by South Ossetian forces. The information indicates that some members of the Russian forces actively participated while others remained passive. For example, when asked why the Russian forces do not intervene to extinguish the fires, one Russian army officer is quoted to have said that this is the policy. The Chamber, however, also notes a series of instances where members of the Russian forces purportedly intervened to protect and assist civilian victims.”

“1. On 12 August 2008, pursuant to the instructions of the President of the Russian Federation the Armed Forces in cooperation with other security forces of the Russian Federation and the executive authorities of the Republic of South Ossetia (hereinafter referred to as the RSO) completed the military operations and commenced the peacekeeping activities, as well as the activities to maintain law and order, ensure public security and protection of the individuals within the RSO and the Georgian territory controlled by the Russian Armed Forces.

Notwithstanding the execution of the ceasefire agreement the acts aimed on destabilisation of the situation in the area controlled by the Russian Armed Forces by the nationalistic militias are expected.

Furthermore, looting and robbery attempts by the local population and the soldiers of the RSO are possible.

2. In pursuance of the instructions of the President of the Russian Federation, for the purposes of peacekeeping and ceasefire I hereby ORDER THE FOLLOWING:

…

to prevent looting by the local population and the soldiers;

…

3. To arrange for the cooperation with the units of the Armed Forces of the RSO and executive authorities in order to accomplish the tasks set and to protect the lives of the soldiers and the local inhabitants

…

5. To carry out the commandment of the forces (troops) in the course of accomplishment of the peacekeeping and law enforcement tasks within the RSO and the Georgian territory controlled by the Russian Army in accordance with the shared system with the use of the command points of the military circuit, their direct subordinate units in cooperation with the authorities of the RSO.”

Article 42

“Territory is considered occupied when it is actually placed under the authority of the hostile army.

The occupation extends only to the territory where such authority has been established and can be exercised.”

Article 43

“The authority of the legitimate power having in fact passed into the hands of the occupant, the latter shall take all the measures in his power to restore, and ensure, as far as possible, public order and safety, while respecting, unless absolutely prevented, the laws in force in the country.”

“96. …

Accordingly, occupation within the meaning of the 1907 Hague Regulations exists when a State exercises actual authority over the territory, or part of the territory, of an enemy State.Footnote ²⁵ The requirement of actual authority is widely considered to be synonymous to that of effective control.

Military occupation is considered to exist in a territory, or part of a territory, if the following elements can be demonstrated: the presence of foreign troops, which are in a position to exercise effective control without the consent of the sovereign. According to widespread expert opinion, physical presence of foreign troops is a sine qua non requirement of occupationFootnote ²⁶, that is, occupation is not conceivable without

‘boots on the ground’, therefore forces exercising naval or air control through a naval or air blockade do not sufficeFootnote ²⁷.”

“The question remains whether, when the cease-fire occurred on 12 August 2008, IHL ceased to apply in relation to the August 2008 conflict. While it could be said that it is fairly easy to determine when IHL starts to apply, it seems more difficult to identify the moment when its application ends, mainly owing to the different formulas used in conventional law. Geneva Convention IV, for example, speaks about the ‘general close of military operations’ (Article 6(2)), whereas Additional Protocol II uses the expression ‘end of the armed conflict’ (Article 2(2)). The International Criminal Tribunal for the former Yugoslavia (ICTY), in its decision of 2 October 1995 in the Tadic case, tried to clarify this point by indicating that: ‘International humanitarian law applies from the initiation of such armed conflicts and extends beyond the cessation of hostilities until a general conclusion of peace is reached; or, in the case of internal conflicts, a peaceful settlement is achieved.’ The ICTY thus rejected the factual criteria that signify the cessation of hostilities. This implies that a cease-fire – whether temporary or definitive – or even an armistice cannot be enough to suspend or to limit the application of IHL. Relevant conventional instruments stipulate that a number of provisions continue to apply until the emergence of a factual situation completely independent of the concluding of a peace treaty. Thus, to quote only some examples, the protection provided for people interned as a result of the conflict (in particular, prisoners of war and civilian prisoners) applies until their final release and repatriation or their establishment in the country of their choice.”

“138. Another exception to the principle that jurisdiction under Article 1 is limited to a State's own territory occurs when, as a consequence of lawful or unlawful military action, a Contracting State exercises effective control of an area outside that national territory. The obligation to secure, in such an area, the rights and freedoms set out in the Convention, derives from the fact of such control, whether it be exercised directly, through the Contracting State's own armed forces, or through a subordinate local administration (see Loizidou (preliminary objections), cited above, § 62; Cyprus v. Turkey, cited above, § 76; Banković and Others, cited above, § 70; Ilaşcu and Others, cited above, §§ 314-16; and Loizidou (merits), cited above, § 52). Where the fact of such domination over the territory is established, it is not necessary to determine whether the Contracting State exercises detailed control over the policies and actions of the subordinate local administration. The fact that the local administration survives as a result of the Contracting State's military and other support entails that State's responsibility for its policies and actions. The controlling State has the responsibility under Article 1 to secure, within the area under its control, the entire range of substantive rights set out in the Convention and those additional Protocols which it has ratified. It will be liable for any violations of those rights (see Cyprus v. Turkey, cited above, §§ 76-77).

…

142. The Court has emphasised that, where the territory of one Convention State is occupied by the armed forces of another, the occupying State should in principle be held accountable under the Convention for breaches of human rights within the occupied territory, because to hold otherwise would be to deprive the population of that territory of the rights and freedoms hitherto enjoyed and would result in a ‘vacuum’ of protection within the ‘legal space of the Convention’ (see Cyprus v. Turkey, cited above, § 78, and Banković and Others, cited above, § 80).”

“According to individuals interviewed, a disturbing pattern of killings of unarmed civilians continued in a large number of villages after the bombardment ended. Witnesses reported that the perpetrators were often Ossetians – some of whom were described as soldiers and others as civilians – who followed the Russian forces into the villages that were under Georgian administration prior to the August conflict.”

…

“A new phase of the hostilities began with the advance of ground forces into the ‘buffer zone’, following which there were numerous reported attacks on civilians. The advancing military forces were variously described by displaced persons as ‘Ossetians’ and ‘Russians’; in many cases civilians were not able to distinguish clearly between the two.”

“19. During the same period, the civilian population, in particular ethnic Georgian civilians, was attacked by South Ossetian forces, including an array of irregular militias, in Georgian-administered villages in South Ossetia and Georgian villages in the ‘buffer zone’. The attack commenced subsequent to the intervention and in the course of the advancement of the Russian forces, and continued in the weeks that followed the cessation of active hostilities on 12 August 2008.

20. The attack targeted mainly ethnic Georgians following a consistent pattern of deliberate killing, beating and threatening civilians, detention, looting properties and burning houses. The level of organization of the attack is apparent from the systematic destruction of Georgian houses, the use of trucks to remove looted goods, and the use of local guides to identify specific targets. Valuable items were removed from houses or farms before they were set on fire.”

“South Ossetian forces include South Ossetian Ministry of Defence and Emergencies servicemen, riot police (known by the Russian acronym OMON), and several police companies, working under the South Ossetian Ministry of Internal Affairs, and servicemen of the South Ossetian State Committee for Security (KGB). Many interviewees told Human Rights Watch that most able-bodied men in South Ossetia took up arms to protect their homes. As South Ossetia has no regular army its residents tend to refer to the members of South Ossetian forces as militias (opolchentsy) unless they can be distinctly identified as policemen or servicemen of the Ministry of Defence and Emergencies. Credible sources also spoke about numerous men from North Ossetia and several other parts of Russia who fought in the conflict in support of South Ossetia and who were involved in the crimes against civilians that followed.”

“In some cases, it is difficult to establish the exact identity and status of the Ossetian perpetrators because witnesses’ common description of their clothing (camouflage uniform, often with a white armband) could apply to the South Ossetian Ministry of Defence and Emergencies, South Ossetian Ministry of Internal Affairs, volunteer fighters, or even common criminal looters. Several factors, however, indicate that in many cases the perpetrators belonged to South Ossetian forces operating in close cooperation with Russian forces. The perpetrators often arrived in villages together with or shortly after Russian forces had passed through them; the perpetrators sometimes arrived on military vehicles; and the perpetrators seem to have freely passed through checkpoints manned by Russian or South Ossetian forces.”

“77. … Having effective overall control over northern Cyprus, [Turkey's] responsibility cannot be confined to the acts of its own soldiers or officials in northern Cyprus but must also be engaged by virtue of the acts of the local administration which survives by virtue of Turkish military and other support. ”

and in Ilaşcu and Others (cited above):

“382. In the light of all these circumstances, the Court considers that the Russian Federation's responsibility is engaged in respect of the unlawful acts committed by the Transdniestrian separatists, regard being had to the military and political support it gave them to help them set up the separatist regime and the participation of its military personnel in the fighting ”

and subsequently in Mozer (cited above):

“157. Nevertheless, the Court has established that Russia exercised effective control over the ‘MRT’ during the period in question (see paragraph 110 above). In the light of this conclusion, and in accordance with the Court's case-law, it is not necessary to determine whether or not Russia exercises detailed control over the policies and actions of the subordinate local administration (see Catan and Others, cited above, §§ 106 and 150). By virtue of its continued military, economic and political support for the ‘MRT’, which could not otherwise survive, Russia's responsibility under the Convention is engaged as regards the violation of the applicant's rights.”

“In general, these elements demonstrate that to a certain degree, Russian forces were in a position to ensure public order and safety in the territories they were stationed in, and claim to have undertaken measures in this regard. This contrasts strikingly with what happened on the ground, where there was a serious lack of action by the Russian troops to prevent violations and protect ethnic Georgians.

…

Nevertheless, from all the testimonies collected, it appears that the Russian authorities did not take the necessary measures to prevent or stop the widespread campaign of looting, burning and other serious violations committed after the ceasefire.”

“As Russian forces began to occupy South Ossetia on August 8 and 9, South Ossetian forces travelled with them or followed them into ethnic Georgian villages in South Ossetia and then into Gori and Kareli districts. Most of the able bodied and younger residents had fled just before the start of hostilities or in the initial days of fighting. Most of the residents who remained in the villages had chosen to stay behind to look after their homes and property or were unable to flee. Ossetian forces, at times together with Russian forces, detained some of the residents they found remaining in these villages, particularly in the ethnic Georgian villages of South Ossetia; in most cases, detentions took place in the context of the campaign of looting and destruction described above. Detainees told Human Rights Watch that they were not given reasons for their detention and did not have access to lawyers or any opportunity to challenge their detention.

As Russian and Ossetian forces entered Georgian villages in South Ossetia and the Gori district, they detained at least 159 people, primarily ethnic Georgians as well as at least one Ossetian and one ethnic Russian married to an ethnic Georgian. Forty-five of the detained were women. At least 76 were age 60 or older, and at least 17 were age 80 or older. There was one child, a boy, about eight years old. Human Rights Watch interviewed 29 of the detained, all post-release. Many detainees described ill-treatment during detention, during transfer to custody, and in custody. Most detainees were held in the basement of the South Ossetian Ministry of Interior building in Tskhinvali for approximately two weeks in conditions that amounted to degrading treatment. Some of these detainees were forced to work clearing the Tskhinvali streets of decomposing bodies of Georgian soldiers, and debris. At least one man was executed while in Ossetian custody during his transfer to the Ministry of Interior. All of these actions are grave breaches of the Geneva Conventions and amount to war crimes. To the extent that Russia exercised effective control in the territory where these detentions took place, the Russian government is liable for these acts, which also amount to violations of its human rights obligations under the ICCPR and the ECHR.

In some instances, Russian forces directly participated in the detention of ethnic Georgians, and detainees held in the Ministry of Interior reported being interrogated by people who introduced themselves as members of Russian forces. …

…

All of the detainees interviewed by Human Rights Watch described appalling conditions of detention in small, overcrowded basement cells of the South Ossetian Ministry of Interior building in Tskhinvali. Many detainees described degrading treatment, particularly upon arrival at the facility. Material conditions in Tskhinvali at the time of these detentions were dire: the city had no electricity, very little food, and very little water. Irrespective of these conditions, Russian and Ossetian authorities had an obligation to provide humane conditions of detention in accordance with international standards. Ill-treatment and willfully causing great suffering or serious injury to body or health constitute war crimes. Several detainees told Human Rights Watch that Russian Federation officials were present at certain times at the Ministry of Interior during their detention.

Ill-treatment in detention

Tamaz Chalauri described treatment by Ossetian forces upon his arrival at the Ministry of Interior building in Tskhinvali on August 10: ‘They lined us up facing the wall. They wrote down our names, searched us, took everything we had with us. They were hitting us, kicking us, cursing us the whole time, and calling us, ‘You Georgian pigs, you motherfuckers.’ Others also described searches, which sometimes involved beatings or stripping of clothes, as well as confiscation of money, cell phones, jewellery, and identity documents. Nothing was returned to the detainees upon their release, except identity documents in some cases.

Some detainees reported that Ossetian forces forced them to walk across or spit on a Georgian flag placed on the ground near the Ministry of Interior building. When Ilo Khabareli refused to step or spit on the flag and said, ‘Kill me here because I won't do that,’ an Ossetian fighter hit him on the head, forcing him into a wall, where he hit his head again. Vazha Lagazashivili told Human Rights Watch that when he tried to walk around the flag, Ossetians hit him with the butt of a gun on the back and neck.

Human Rights Watch did not interview anyone who was beaten at the detention facility, except in those cases when the interviewee was beaten upon arrival as described above. However, former detainees told Human Rights Watch that many of the men, particularly the young men, were beaten, and that some were beaten frequently. They described consistently how men would be taken out of their cells and out of the basement, and how, when they were returned, they showed clear signs of beatings. Manana Gogidze, 48, from Tamarasheni, told Human Rights Watch that she witnessed young men regularly being beaten:

We saw them being taken upstairs and we could hear their screams. When they were brought back, they would bear clear signs of beating. I saw the bruises myself as I was trying to help them. There was a young man from Tirdznisi who was beaten several times. I saw large dark bruises mostly on his back There was one [elderly] detainee who spoke no Ossetian despite having an Ossetian name. He was hit once by the guards for not speaking Ossetian.

Salimat Bagaeva told Human Rights Watch, ‘[Y]oung men would be taken out and then badly beaten. I saw them. Their bodies would be covered in bruises. There was one who had a broken nose.’

Several, although not all, detainees reported that they were interrogated during their detention. One reported being insulted by an Ossetian police officer, but none of those interviewed by Human Rights Watch reported ill-treatment during interrogation.

Degrading conditions of detention

Detainees stated that the basement contained five dark, dirty, poorly ventilated cells without windows, designed for short-term detentions. Women and men were held in separate cells. The cells quickly became overcrowded and the guards eventually opened the doors of the cells and detainees could move into the hall or the small, fenced-in, outdoor exercise yard accessible from the basement. These areas quickly also became full as more detainees were brought to the basement. According to one detainee, ‘There wasn't even space to walk around in the corridor or in the exercise yard’ due to the large number of people.

With many more detainees in the cells than there were bunk beds for them, most were forced to sleep sitting up or lying on the floors of the cells, halls, or exercise yard. One detainee, 76-year-old Rusudan Chrelidze, remarked that in her cell, ‘the women were sleeping like herrings in a tin.’ A 47-year-old detainee from Karaleti reported that in his cell people slept in shifts because there was not enough space for people to lie down.

Detainees described being given small quantities of water that contained sand and was frequently undrinkable, and insufficient food. During the initial days of detention, detainees received only bread. Guards would throw four to five loaves of bread into the cells, saying ‘Eat, you pigs!’ Detainees stated that later they were given slightly more and better food, including buckwheat cereal, more servings of bread, and tea. Detainees reported losing significant weight during their two weeks of detention.

There was one toilet for all detainees covered with a plastic sheet that the detainees put up themselves. The toilet smelled terribly and frequently overflowed because it did not have water. When asked what had been the most difficult part of her experience in detention, Rusudan Chrelidze said, ‘The toilet was a big problem. There was only one and there was always a long line for it.’

Forced labour

Ossetian forces forced many of the male detainees to work, which included recovering decomposing bodies from the streets of Tskhinvali, digging graves, and burying bodies, as well as clearing the streets of building debris from the hostilities. Two detainees interviewed by Human Rights Watch stated that they volunteered to work on some days in order to be out of the overcrowded cells for a few hours. None of the workers received any compensation for this work. Under the Fourth Geneva Convention, adults (individuals age 18 or older) may be required to work as is necessary to maintain public utilities, and to meet needs of the army and humanitarian needs, such as activities related to feeding, sheltering, clothing, and health care of the civilian population. People must be appropriately compensated for their work, and there can be no obligation to work based on any form of discrimination. Unpaid or abusive forced labour, or work that amounts to partaking in military operations, is strictly prohibited.

Vazha Lagazashivili, age 58, told Human Rights Watch that he was forced to work every day of his 20-day detention:

They would take us out at 9 a.m. until late evening. We were cleaning the streets. They told me that I must go. We had to clear dead bodies from the street. We had to pick them up and put them into body bags. Some had limbs missing. [We also] collected the body parts.

I was taken out sometimes to do other work, like unload trucks full of humanitarian aid from Russia… They would give us one tin of food per person and some bread after we unloaded the trucks. We could only rest when we were given some food, for about half an hour. Of course I was not paid.

Revaz R., 36, from Zemo Achabeti, confirmed that he was among 30 men who were forced to work from early morning until 7 or 8 p.m. ‘We cleaned the street, threw out garbage, and removed and buried the dead. We buried about 44 people. Most of the corpses were already decaying,’ he told Human Rights Watch. He also stated that while they worked they received better food, such as canned meat. After about a week in detention, Ossetian forces also forced 70-year-old Gaioz Babutsidze to work for two days lifting coffins off trucks and placing them in graves. He estimates that they buried 50 bodies.

Those who worked were also subjected to degrading treatment as they were taken from their work locations to the Ministry of Interior building. ‘Sometimes they would make us walk back to the police station … accompanied by four soldiers … People on the streets would yell at us, insult us. They were cursing, swearing, calling us sons of bitches, pigs, whores,’ Vazha Lazagashivili told Human Rights Watch.

ICRC, journalist visits to the facility

Detainees reported that the International Committee of the Red Cross visited the facility in mid-August.

Journalists also visited the facility. David Giunashvili stated that he spoke to a journalist from the Moscow newspaper Nezavisimaya Gazeta. Tamaz Chalauri told Human Rights Watch that he was forced to give an interview to Russian television. Emilia Lapachi, age 51, recalled being pressured to speak positively about her detention experience for Russian journalists:

One day Russian journalists came to interview us. We were told by the guards that … if we wanted to be released, we should tell them that we had been treated well and that we had no complaints. We were told to say that we had been taken to custody for our own safety and security. We discussed it among ourselves and decided to say anything to be released from there.

…

Release of civilian detainees

Ossetian forces released one group of 61 detainees, including most of the elderly and all of the women, on August 21, in exchange for eight detainees whom the Georgian Ministry of Defence described as militia fighters. Other civilians were released on subsequent days, including a final group of 81 civilians on August 27, who, according to the Georgian Ministry of Defence, were exchanged for four people detained during active fighting and described as ‘militants,’ as well as nine Ossetians previously convicted for crimes and serving sentences in Georgian prisons. While prisoner exchanges are a recognised and legitimate process to facilitate repatriation of prisoners who are in the hands of the enemy, it is prohibited to use the mechanism of prisoner exchanges as a means of effecting population transfer. It is also prohibited to use prisoners as hostages – that would be to unlawfully detain persons with the intent of using them to compel the enemy to do or abstain from doing something as a condition of their release.”

“The Georgian authorities report that 159 Georgian civilians were held by the de facto South Ossetian authorities. These were held in the main police station in Tskhinvali for periods of between three and 10 days before being transferred to the Georgian authorities between 19 and 27 August. On 21 August, Amnesty International delegates spoke to a number of the first group of Georgian detainees to be released. From their accounts, it would appear that the earliest civilian detainees were taken captive around 10 August whilst the hostilities were still ongoing. These were mostly young men. The majority of civilian detainees, however, would appear to have been taken captive after 13 August, that is, after the formal cessation of hostilities and whilst the looting and destruction of the Georgian villages near Tskhinvali was taking place. Most of these later detainees were elderly residents who had not fled during the conflict. Whilst it is arguable that these detainees were removed from their homes for their own safety, the danger attendant on their remaining arose from the criminal actions of Ossetian forces, militia and private citizens engaged in the burning and pillaging of Georgian villages.

From the accounts of detainees, it would appear that they were provided with basic food and tea during their captivity. They were kept, without bedding or blankets, in four cells opening on to an open exercise yard, which became progressively more overcrowded as new detainees arrived. Whilst the detainees spoken to alleged frequent verbal abuse, they did not suggest that they were physically ill-treated during their captivity beyond the obvious hardship, especially for the many elderly captives, of their cramped, hot and uncomfortable accommodation. It was alleged, however, that the more able-bodied detainees were taken from the police station during the day, beaten and made to work on the removal of debris from streets of Tskhinvali.”

“A substantial number of civilians were arbitrarily detained in South Ossetia, primarily by armed Ossetian forces. Many were taken to places of detention in Tskhinvali.

The HRAM interviewed several displaced persons who had been arbitrarily detained and were subsequently released, each of whom provided extensive details. A villager from Tamarasheni, for example, was arrested by Ossetian militiamen while he was trying to extinguish a fire in a pigpen. His wife was also detained. They were given no reason or explanation for their detention. They were taken to Tskhinvali and held in a compound composed of a small room and a big yard. They were not handcuffed or physically abused, but they had to sleep on the floor and were given only bread and water. Two other women from the same village were detained under similar circumstances. One of them recalled sitting for ten days in the detention centre, since there were no beds and just one open toilet for the use of both men and women. There was no access to doctors, but some medicines were distributed. She remembered seeing ‘Russians acting as supervisors’ of the detention centre.

Two villagers from Java described being taken to a makeshift prison in Tskhinvali, located in a three storey building next to a drugstore. Five or six rooms were crowded with 95 detainees; detainees also had access to a paved courtyard surrounded by a solid metal fence. The detention centre was guarded by men in military uniforms. The detainees were fed small meals of buckwheat and bread once or twice a day, with tea. The two villagers were assigned separately to work details. One spent four days sweeping streets and loading trucks; the other was forced to bury bodies. While on work details, they were guarded by Ossetians. Neither was physically abused. Their release was arranged by the ICRC on 27 August.

The HRAM also interviewed a woman from Kekhvi, who was detained with many other villagers by Ossetian police. Their place of detention was a building in the centre of Tskhinvali, in front of a well-known drugstore, perhaps the same one described by the two men from Java (above). She and the other villagers were detained for nine days. There were 161 people in the detention centre; men and women were held together. ‘We lived like dogs, animals. There was a toilet next to us and I was lying on the floor with no mattress, sleeping next to the toilet, choking because of the smell. We only got a small piece of bread to eat, no tea. It was only hot water without sugar. Some of the guys among the prisoners went upstairs and brought the food down but we had no contact with prison staff.’ The detainees had no access to a lawyer and did not see a doctor until their fifth day of detention, when an ICRC representative visited the prison. Some of the young male prisoners were forced to bury bodies. Another resident of the same village gave a very similar account.

A detainee described being detained with his neighbours by ‘Ossetians’ and driven to Tskhinvali, where the group was held in a dirty basement. After entering the building, they were forced to wipe their feet on a Georgian flag and then spit on it. The detainee described how he was then taken into a room where he was strip searched, robbed and beaten with rifles and fists. The conditions in the detention centre were very bad. There was very little food – ‘for twenty people, we received three loaves of bread; and per person one small glass of boiled buckwheat and one glass of red tea with no sugar’ – and the water was from a barrel in the toilet. The detainees were forced to work in teams burying bodies; the villager said he personally buried 44. After about ten days, the women and about 15 old men were released, but the young men were held for another week. A day or two after the women were released the detainees were visited by Georgian church officials, who brought food, and then by the ICRC, which brought clothes and blankets. The interviewee surmised that his captors deliberately released the women before allowing the Red Cross to visit so that an international organisation would not see women being held in such conditions. The interviewee, together with 84 other detainees, was released in a prisoner exchange on 27 August, after 16 days in detention.”

“During the meeting the [Mission] had on 5 June 2009 with representatives of the de facto Ministry of Defence and Ministry of Interior of South Ossetia, these authorities actually acknowledged that civilians had been present in the Ministry of Interior building, but they indicated that they had been taken there in the context of safety measures to protect them from the effects of the hostilities. Not only is this in complete contradiction with numerous testimonies from persons detained there but, even if it were so, it would be impossible to explain why, if such measures were taken for protection purposes, those persons were not released until 27 of August, two weeks after the hostilities had ended, and why they had to clean the streets and bury dead bodies.”

“During hostilities and occupation, the Fourth Geneva Convention permits the internment or assigned residence of protected persons such as civilians for ‘imperative reasons of security’. However, unlawful confinement of a protected person is a war crime.

Human Rights Watch has not been presented with evidence that there were reasonable security grounds for the detention of the 159 persons detained by Ossetian and Russian forces. Many of those detained were very elderly, and one was a small child. Most were detained in circumstances that strongly suggest that they were not taking up arms, not participating in hostilities, and not otherwise posing a security threat, as described below.

If, among the detained, there were Georgians who participated in hostilities against Ossetian or Russian forces, but who were not members of the Georgian military, under international humanitarian law such persons would be considered non-privileged combatants. Georgians who took up arms to defend their lives or property from advancing Ossetian or Russian forces would be considered armed civilians. In both cases, detention of such persons would be considered reasonable on security grounds. Such persons are entitled to the protections guaranteed to civilians under the Fourth Geneva Convention. Detentions must be carried out in accordance with a regular procedure permissible under international humanitarian law. Those detained have a right to appeal their internment and have their case reviewed every six months. The Fourth Geneva Convention provides detailed regulations for the humane treatment of internees. The International Committee of the Red Cross must be given access to all protected persons, wherever they are, whether or not they are deprived of their liberty.

Given their particular vulnerability, children are afforded special protections under the Geneva Conventions. Protocol I states, ‘Children shall be the object of special respect … Parties to the conflict shall provide them with the care and aid they require, whether because of their age or for any other reason.’

Ossetian President Eduard Kokoity has stated that ‘ethnic Georgians were detained for their personal safety’ and that ‘the Ministry of Interior [was] protecting them and saving their lives.’ While the Geneva Conventions allow for internment in order to provide for the security of civilians, Human Rights Watch has not found evidence that the detentions by Russians and Ossetians had this purpose or were justified on these grounds. The fact that the majority of individuals were detained as Georgian soldiers were retreating and in areas in which Russian and Ossetians exercised effective control suggests that in most cases civilians were not likely to be threatened by armed combat. Furthermore, Russian and Ossetian forces apprehended most individuals in a violent and threatening manner and subjected them to inhuman and degrading treatment and conditions of detention, and forced labor, reflecting no intent on the part of these forces to provide for the personal safety and well-being of those detained.”

“… Article 3 enshrines one of the most fundamental values of democratic societies. The Convention prohibits in absolute terms torture and inhuman or degrading treatment or punishment, irrespective of the victim's conduct (see, for example, Labita v. Italy [GC], no. 26772/95, § 119, ECHR 2000-IV). Ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of this minimum is relative: it depends on all the circumstances of the case, such as the duration of the treatment, its physical and mental effects and, in some cases, the sex, age and state of health of the victim (see, among other authorities, Ireland v. the United Kingdom, 18 January 1978, § 162, Series A no. 25).

Ill-treatment that attains such a minimum level of severity usually involves actual bodily injury or intense physical or mental suffering. However, even in the absence of these, where treatment humiliates or debases an individual, showing a lack of respect for or diminishing his or her human dignity, or arouses feelings of fear, anguish or inferiority capable of breaking an individual's moral and physical resistance, it may be characterised as degrading and also fall within the prohibition of Article 3 (see, among other authorities, Vasyukov v. Russia, no. 2974/05, § 59, 5 April 2011).

In the context of deprivation of liberty the Court has consistently stressed that, to fall under Article 3, the suffering and humiliation involved must in any event go beyond that inevitable element of suffering and humiliation connected with detention. The State must ensure that a person is detained in conditions which are compatible with respect for human dignity, that the manner and method of the execution of the measure do not subject him to distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention and that, given the practical demands of imprisonment, his health and well-being are adequately secured (see Kudła v. Poland [GC], no. 30210/96, §§ 92-94, ECHR 2000-XI, and Popov v. Russia, no. 26853/04, § 208, 13 July 2006).

When assessing conditions of detention, account has to be taken of the cumulative effects of these conditions, as well as of specific allegations made by the applicant (see Dougoz v. Greece, no. 40907/98, § 46, ECHR 2001-II). The length of the period during which a person is detained in the particular conditions also has to be considered (see, among other authorities, Alver v. Estonia, no. 64812/01, § 50, 8 November 2005).” (see Ananyev and Others v. Russia, nos. 42525/07 and 60800/08, §§ 139-42, 10 January 2012; Idalov v. Russia [GC], no. 5826/03, §§ 91-95, 22 May 2012; and Georgia v. Russia (I), cited above, § 192)

“230. The Court notes at the outset the fundamental importance of the guarantees contained in Article 5 for securing the right of individuals in a democracy to be free from arbitrary detention at the hands of the authorities. It is for that reason that the Court has repeatedly stressed in its case-law that any deprivation of liberty must not only have been effected in conformity with the substantive and procedural rules of national law but must equally be in keeping with the very purpose of Article 5, namely to protect the individual from arbitrariness (see Chahal, cited above, § 118). This insistence on the protection of the individual against any abuse of power is illustrated by the fact that Article 5 § 1 circumscribes the circumstances in which individuals may be lawfully deprived of their liberty, it being stressed that these circumstances must be given a narrow interpretation having regard to the fact that they constitute exceptions to a most basic guarantee of individual freedom (see Quinn v. France, 22 March 1995, § 42, Series A no. 311).”