Eurasia Insight:
PANKISI TENSION AND INTERNATIONAL LAW
Christopher Waters: 12/20/02
A EurasiaNet Commentary

On several occasions since the second Chechen conflict began in 1999, Russian warplanes have allegedly violated Georgian airspace and attacked ground targets. While denying these allegations, Russian authorities have threatened to send troops into Georgia’s Pankisi Gorge to hunt Chechen fighters said to be operating there.

Such action appears to constitute a clear violation of Article 2(4) of the UN Charter, which states that all members of the UN "must refrain in their international relations from the threat or use of force against the territorial integrity" of other states. However, shifting interpretations of international law in the post-September 11 era mean that, from a global legal standpoint, the enquiry into Russia’s aggressive behavior is not so clear-cut.

The UN Charter allows two exceptions to the non-use of force principle. The first is where states act under a UN Security Council mandate. As Russia is acting without a mandate from the Security Council this exception need not be considered further. The second exception is self-defense in the face of an armed attack, which the Charter calls an "inherent" right and permits until the Security Council steps in to deal with a situation. Although undefined in the Charter, the meaning of self-defense has been given shape by customary law, a combination of state practice and the belief that the practice is based on legal obligation. In order to avoid abuses, this body of law lays down conditions for the exercise of self-defense.

The long-accepted test requires forcible reaction to be "instant, overwhelming, leaving no choice of means, and no moment for deliberation." This classic statement, however, was aimed at self-defense against attacks by states, not terrorists. Before September 11, 2001, some states, notably Israel and the United States, had argued that the right to self-defense extended to reactions against countries harboring or tolerating terrorism. September 11 and the subsequent US actions against Afghanistan brought this minority view of self-defense to the forefront.

Assuming for the moment that customary law on self-defense has been broadened to permit attacks on states harboring terrorists in certain circumstances, does Russia have legal justification for its actions and threats, as it claims? The answer is likely no.

Georgia and Afghanistan are not comparable. It appears Georgia has made and is making serious efforts to remove Chechen fighters from its territory. In August it launched a security sweep of the Pankisi Gorge and recently extradited suspected terrorists to Russia. [For background see the Eurasia Insight archive]. That is not to say that its efforts have been entirely successful; indeed, given the sorry state of Georgia’s security forces it would be surprising if they were. But a terrorist presence in a state cannot by itself provide the justification for an attack by another state.

The network of terrorist cells responsible for the attack on the World Trade Center apparently spans dozens of countries; it would be antithetical to the governing principles of international law to allow attacks against all of them. What distinguishes Afghanistan is that the Taliban regime was an accomplice of al Qaeda.

The United States had broad support for its action in Afghanistan from the UN Security Council and General Assembly, all NATO countries (the organization invoked the collective self-defence principle for the first time in its history) and many non-NATO states. On the other hand, Russia’s unilateral actions and threats vis-à-vis Georgia have found little international support. Indeed many commentators have seen Russia’s pressure on Georgia as motivated less by the need for self-defense than by President Putin’s desire to divert attention from the failures of the Chechen conflict and, at the same time, pressure Georgia over a host of other issues which plague the two countries’ relations.

It should also be noted that in addition to the question of whether or not there is a legitimate occasion for self-defense, international law requires that reactions be "proportionate" and that the laws of armed conflict be adhered to. The drastic nature of Russia’s aggression – which killed civilians this past summer – raises further questions as to the legality of the actions. That Russian-Georgian tension has eased in recent weeks does not preclude the possibility that Moscow may once again threaten Tbilisi with aggressive action. Many contentious issues between Moscow and Tbilisi remain unresolved, including the matter of Russian base closures. [For additional information see the Eurasia Insight archive].

As others have noted, protests by the West appear muted as Russian support is sought for the other "war on terrorism" and a potential strike on Iraq. An additional reason for the low-key protests may be the desire to avoid charges of hypocrisy over use of the self-defense concept. If there is any lesson in all of this for international lawmakers, it is that the law on self-defense – even in wars against terrorism – must be kept within strict limits.

As Antonio Cassese, former President of the International Criminal Tribunal for the former Yugoslavia, puts it, "the response to the appalling tragedy of 11 September may lead to acceptable legal change in the international community only if reasonable measures are taken, as much as possible on a collective basis, which do not collide with the generally accepted principles of this community. Otherwise, the road would be open to the setting in of that anarchy in the international community so eagerly pursued by terrorists."

Editor’s Note: Christopher Waters is a Lecturer in International Law at the University of Reading (UK).