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Payam Akhavan

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The World Court's Decision on Kosovo Reinforces Georgia's Case

Posted: 08/05/10 12:41 PM ET

On July 22, the International Court of Justice delivered an advisory opinion holding that Kosovo's declaration of independence in February 2008 "did not violate any applicable rule of international law." While analysts have underscored that the opinion resonates far beyond Kosovo, it is also worth noting that that the ICJ's ruling unambiguously confirms that Russia's continuing occupation of Georgian territory is a flagrant violation of international law.

The legal question before the court was "narrow and specific" and did not deal with whether or not territorial secession is lawful. The UN General Assembly asked only whether or not the declaration of independence is in accordance with international law. It did not ask about the legal consequences of that declaration. It did not ask whether or not Kosovo had achieved statehood. It did not ask about the validity or legal effects of the recognition of Kosovo by those states that have recognized it as independent. The opinion thus leaves unanswered the validity of Kosovo's status as a state and its recognition by the international community. The ICJ knew that affirming Kosvo's independence would have created a chaotic precedent for "breakaway regions" around the world.

But the ruling that Kosovo's declaration of independence was not illegal exposes Russia's predicament in 2008. Back then, Moscow opposed Kosovo's secession; paradoxically, however, Russia would soon invoke that same secession to annex two regions of Georgia. In August of that year, following a series of deliberate provocations, Moscow launched a massive invasion of Georgia in support of "ethnic separatists" in Abkhazia and South Ossetia. Under the guise of self-determination, Moscow supported the ethnic cleansing of Georgians from these regions and recognized them as independent states, even though they remain subject to Russian domination and control.

For Georgia, the most pertinent passage in the Court's decision is its reaffirmation Article 2(4) of the UN Charter, a fundamental principle holding that states "shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any State." In the case of Abkhazia and South Ossetia, Russia remains an occupying power in these territories. Kosovo's declaration of independence from Serbia was clearly dissimilar from a situation of aggression and the annexation of territory by another state.

Another fundamental distinction is that, as recognized by the UN tribunal for former Yugoslavia, the majority Kosovar Albanians were victims of ethnic cleansing by the Milošević regime. This is the exact opposite of what happened in Abkhazia and South Ossetia, where Russian-backed proxies pushed out the the vast majority of the population--largely Georgians, as well as Greeks, Armenians, Jews, and other non-Abkhaz or Ossetian ethnicities, who in the early 1990s made up over 80% of the population of these territories. They were expelled through what the UN, European institutions, and human rights NGOs have recognized as a systematic campaign of terrorization, mass-expulsion, and wanton destruction of towns and villages. Almost 10 percent of Georgia's current domestic population is internally displaced persons with little hope of returning to their homes in the foreseeable future, since Russia continues to occupy about 20 percent of Georgia.

Russia has portrayed itself as a defender of human rights while actively participating in the ethnic cleansing of Georgians, and it has succeeded in this campaign through an expensive and carefully implemented public relations campaign. To this day, Russia validates its crimes against Georgians by recognizing its ethnic separatist proxies in Abkhazia and South Ossetia as "independent states." As part of its Orwellian propaganda, Russia has attempted to invert the role of aggressor and victim by turning international law on its head.

As atrocities were being committed with Russian support in the Georgian territories, Moscow made an empty threat to take Georgia to The Hague. Instead, it was Georgia that brought Russia before the World Court in August 2008. And it is Russia that has done its utmost to escape accountability by arguing that the Court has no jurisdiction to hear the complaint on behalf of the victims in Georgia. While a final judgment is still pending, an interim decision in October 2008 recognized that widespread acts of discrimination and violence had occurred and that Russia was responsible to the victims.

So while news reports on the Court's opinion on Kosovo make reference to the potential impact on separatist causes around the world, the decision only strengthens Georgia's case that victims of ethnic cleansing have an undeniable right to return to their homes and villages and that Russia's illegal occupation of Abkhazia and South Ossetia must end. The international community must ensure that these fundamental principles of justice are upheld.