Georgian defense attorney Nino Lomjaria has stated that the recent ruling by the European Court of Human Rights (ECHR) in the 2008 Russia-Georgia war “is of great legal and historical importance to Georgia” and that the ruling is likely to have some implications of the investigation into the implications War by the International Criminal Court (ICC).
Since 2016, the ICC prosecutor has been investigating the alleged war crimes and crimes against humanity committed during the war in August 2008. We believe that the ECHR ruling will have an impact on this process, particularly the part relating to the torture of Georgian prisoners of war. The European Court of Justice unanimously ruled that Georgian prisoners of war had been tortured and found Russia responsible, ”said Lomjaria.
According to Lomjaria, the ECHR confirmed that from August 12 to October 10, 2008, Russia exercised “effective control” over the Georgian-occupied areas of Abkhazia and Tskhinvali (South Ossetia) and the buffer zone.
Since then, Russia’s strong presence in the Occupied Territories confirms that Russia continues to have “effective control” over these territories. The ECHR stated that Russia has a legal obligation to ensure the safe return of internally displaced persons to their homes, ”said Lomjaria.
On January 21, 2021, the ECHR published its ruling on the 2008 Russia-Georgia war.
The ECHR found that violations of:
- Article 2 (right to life), Article 3 (prohibition of torture) and Article 8 (right to respect for private and family life) of the European Convention on Human Rights and Article 1 (protection of property) of Protocol No. 1 of the Convention.
- Article 3 on the conditions of detention of around 160 Georgian civilians in the basement of the de facto Interior Ministry of South Ossetia between August 10 and 27, 2008. The court found the conditions inhuman.
- Article 5 (Right to Freedom and Security) relating to the arbitrary detention of Georgian civilians in August 2008.
- Article 3 (prohibition of torture) in relation to the acts of torture committed by the Georgian prisoners of war.
- Article 2 of Protocol No. 4 (Free Movement of Persons) on the inability of Georgian nationals to return to their homeland in South Ossetia and Abkhazia.
- And that in Georgian villages after the end of hostilities, inhuman and degrading treatment of Georgian citizens and violation of their right to life based on ethnicity, there had been systematic burning and looting of houses.
The ECHR said that Russia controls the regions occupied by Georgia and is responsible for human rights violations there. Photo: Nino Alavidze / Agenda.ge.
The Grand Chamber of the ECHR unanimously decided that Article 2 of the Convention required Russia to conduct an appropriate and effective investigation not only into the murder of Georgian citizens after the end of hostilities (after the ceasefire agreement of August 12, 2008), but also in the events that occurred during the active phase of the hostilities (August 8-12, 2008); However, Russia did not conduct such an investigation.
The Grand Chamber noted in its decision that during the active phases of the hostilities (August 8-12), Russia attempted to take control of Georgian territory through air and artillery bombing. However, the active fighting between enemy forces trying to gain control of an area in the context of chaos resulted in no “effective control” over that area.
At the same time, the court concluded that the events during the active phase of the hostilities (August 8-12, 2008) did not fall within the jurisdiction of Russia, as they were not based on the European Convention, but on the basis of the norms of the international humanitarian law.
The court concluded that the events following the end of the hostilities (after the ceasefire of August 12, 2008) fell under the jurisdiction of Russia and held Russia responsible for the violations committed during that period.
