Non-Use of Force in Geneva Talks – No Can Do

By MP Sergi Kapanadze, European Georgia, former chief negotiator of Georgia at the Geneva International Discussions.

At the next 43rd round of the Geneva International Discussions (GID), which takes place today, March 28, 2018, many eyes will be turned to Palais des Nations, to see whether the Participants will agree to oral declaration on the non-use of force. Here, I will try to briefly explain what is at stake, what is being discussed and who benefits if such statement is indeed agreed.
The Setting for Geneva 43

On March 20, 2018, Russian daily Kommersant reported that the next round of the Geneva Discussions could be a “breakthrough.” and that the South Caucasus was “being prepared for the oral peace.” Kommersant also noted that the Russian MFA assessed this possibility as “a noticeable step forward at the political and emotional levels.”

This statement was preceded by the statement of the Russian MFA in response to the Georgian Prime-Minister’s appeal to Moscow, in which he requested the return of the body of Mr. Archil Tatunashvili, brutally murdered in Tskhinvali on February 22, and by the same token expressed readiness to achieve more results in the Geneva Discussions and to launch direct dialogue “with the Abkhaz and the Ossetians.”

In the Russian response to Mr. Kvirikashvili’s statement the following passage drew particular attention: “mentioning of the aspiration to have progress in the Geneva Discussions by Kvirikashvili, gives us hope that the Georgian side will be constructive at the next round of the Geneva Discussions at the end of March.” As it was well known that the statement on NUF was discussed in Geneva, everyone assumed that Russia expected certain compromise from Georgia.

The Background for Non-use of Force

The Geneva International Discussions has had two major issues as its cornerstones – Non-Use of Force (NUF) and International Security Arrangements (ISA). In Geneva, “language” NUF-ISA was often used together. NUF reflected the interests of the Russian side, and Abkhaz and Ossetian participants. ISA was the major agenda item for Georgia. It was initially agreed that NUF-ISA would become an integral part of the agenda of the first working group – dealing with security issues – and the arrangement has remained intact until today.

The issue of the mandatory non-use of force agreement between the parties to conflict has been an issue of contention long before the August 2008 war. There were at least 18 various statements, protocols, or signed documents before 2008 that obliged Georgian and Ossetian, Georgian and Abkhaz sides to stick to the non-use of force arrangement. The August 2008 war and Russia’s occupation of Abkhazia and South Ossetia annulled all pre-2008 NUF related acquis and gave ground to new arguments for Georgia. Now, any signature on the document together with the representatives of Sokhumi and Tskhinvali could have been interpreted as an acquiescence to the Russian driven “new reality in the South Caucasus” – i.e. the existence of two new states, which were seeking recognition.

To avoid the repetition of the pre-2008 war scenario, in which every serious issue was held hostage by the non-use of force treaty issue, the Georgian side in 2009 decided to close the chapter by adopting the high-level unilateral declaration not to use force. Such declarations are universally recognized as binding under international law. This proposal came from the co-chairs of the GID and was quickly adopted by Georgia.

The Pledges

NUF pledge came from Georgia on November 23, 2010, when then President Mikheil Saakashvili spoke in the European Parliament and said “that Georgia will never use force to restore its territorial integrity and sovereignty, that it will only resort to peaceful means in its quest for de-occupation and reunification. He then wrote letters to the Secretary Generals of UN, NATO and OSCE, as well as the heads of EU institutions and the President of the USA, in which he reiterated that “Georgia commits itself not to use forces neither against the occupation forces, nor against their proxies, in order to reunite our illegally divided country.” Moreover, after the change of power in Georgia in 2012, the new Parliament of Georgia confirmed “Georgia’s commitment for non-use of force, pledged by the President of Georgia [in]… 2010.”

Georgia’s unilateral pledge not to use force, was also followed by the NUF pledges from other participants, despite their status and non-recognition. Abkhaz and Ossetian leaders also issued similar unilateral pledges, which Russian Permanent Mission to the UN “kindly” circulated among the UN member states. In the pledge by Sokhumi, Mr. Sergey Bagapsh stated that “in its relations with Georgia, Abkhazia intends to fully adhere to the widely recognized principle of non-use of force or threat of use of force, as is foreseen by international law.”

Furthermore, these pledges were joined by similar letters from the de jure authorities of Abkhazia and the Tskhinvali Region/South Ossetia. Mr. Giorgi Baramia and Mr. Dmitry Sanakoev, also circulated their own pledges, thus effectively rendering that all participants of the Geneva talks took the NUF pledge.

Well, all, except for Russia.

The Russian Pledge

Certainly, UN Charter guarantees that no country shall use force, or resort to the threat of use force. This obligation by Moscow was blatantly broken in August 2008. The cease-fire agreement of August 12, 2008, in its first article provided for the non-use of force and non-resumption of hostilities. Georgian side considers itself fully bound by this provision, which was also reiterated in the address of the President of Georgia to European Parliament when he undertook an additional unilateral NUF obligation.

Thus, by the end of 2010 Russian arguments for NUF weakened, as Georgia undertook the NUF obligation. What remained was Moscow’s reciprocal obligation. This request was, however, rejected by Moscow.

Indeed, the August 12 cease-fire agreement stipulates that Moscow should not use force. However, the Russian side has questioned the validity of this agreement, and on many occasions argued that this Agreement is not obligatory for Moscow for several reasons. Firstly, Moscow argues, this is an agreement between Georgia on one side, and Abkhazia and South Ossetia on the other side. To illustrate this point they often refer to their version of the cease-fire agreement also signed by Mr. Eduard Kokoity and Mr. Sergey Bagapsh. Secondly, Moscow argues, that the part of the obligation deriving from the August 12 cease-fire agreement, related to the withdrawal of forces, became invalid, as soon as Moscow recognized the independence of Abkhazia and South Ossetia on August 26, 2008.

These arguments further reinforced the position of Tbilisi, that to conclude the chapter on non-use of force, it was Russia who should have undertaken the similar obligation. Tbilisi argued that even the unilateral obligation of Moscow would do.

In fact, international pressure on Russia did raise after 2010 regarding the issue of non-use of force. In February 2012, the EU foreign Ministers called on Russia to pledge the non-use of force against Georgia. The statement read that “the EU calls on the participants of the Geneva International Discussion to the conflict to continue to work together towards sustainable security arrangements. In this regard, a clear non-use of force commitment by Russia would be necessary.” In 2016, Warsaw Summit NATO heads of states welcomed “Georgi’s commitment not to use force” and called “on Russia to reciprocate.”

Obviously, the goal of increasing the pressure on Moscow to pledge NUF was at least partially achieved.

NUF in Geneva

After the NUF pledge by Georgia, this issue was discussed in Geneva in two ways. First of all, International Security Arrangements was an agenda item that was closely linked with NUF. In 2009-2010, several attempts were made to bring together all ideas regarding security architecture in the occupied regions. While various versions of NUF-ISA papers were drafted by the co-chairs, there was no consensus over the issue. However, NUF and ISA became linked very closely. Co-chairs and Georgians insisted that the best way to ensure any non-aggression commitment was to increase the international security presence in both occupied regions. The famous maxim of the first EU co-chair Amb. Pierre Morel was that – “best guarantee for the non-use of force is strong international security arrangements.”

The second way how NUF was dealt, was through drafting of the so-called NUF statement. This was the initiative of the co-chairs, which was welcomed by Georgia, since drafting of the document meant that Russia would be pressured to undertake the NUF pledge one way or another.

Georgian position on the NUF document at that time, unlike today, was quite clear. This was to be a welcoming statement by the Geneva participants, which could only be issued after the Russian side pledged its NUF unilaterally. This approach was epitomized in the footnote that Georgian side introduced in the title of the document. The footnote read “this statement can only be issued after the Russian side has made a unilateral legally-binding declaration on the non-use of force.” This footnote stayed in the text at least until February 2013.

In other words, the drafting process of the NUF paper was all about increasing pressure on Russia to pledge NUF, at least in the same way as Georgia did. This pressure was well complemented by international statements and declarations, which regularly welcomed Georgia’s NUF and called on Russia to reciprocate.

In 2014-2015, this approach of Georgia obviously changed. The footnote disappeared from the text, and the text became about the Geneva participants pledging non-use of force through this document as opposed to previous approach – in which the declaration was to welcome the NUF commitments by the participants, including Russia.

Problems with the NUF Oral Declaration

There are at least five reasons, why it will be a problem for the country and Georgia’s national interest, if Georgia agrees to the NUF Declaration.

First of all, this text completely removes the pressure on Russia to pledge non-use of force towards Georgia. As soon as the text is agreed, Russia will likely reinforce its talking point that Moscow helped to mediate the NUF statement between Georgia and Abkhazia and South Ossetia, and that it will now guarantee the NUF together with the EU. There is nothing to suggest that Moscow changed this official position. For this particular reason, the Georgian delegation for years argued that first Russia had to pledge NUF and then the statement had to be adopted within the Geneva talks. The pressure on Russia is already weak. It is clear that the change of Georgia’s strategy to press Moscow on NUF “yielded results.” On December 11, 2017, when for the first time the Group of Friends of Georgia issued a statement in the OSCE, it miraculously omitted call on Moscow to pledge the non-use of force towards Georgia, even though the Geneva talks and the non-use of force were mentioned several times.

Secondly, this statement will further reinforce the positions of Moscow, Tskhinvali and Sokhumi to press Georgia to now move towards signing the non-use of force agreement. The text, which is currently being discussed leaves impression that this statements paves way to further work on NUF, but this time legally agreed. The second paragraph of the text says that the Participants “… affirm their readiness to work on implementing steps… with the aim to ensure non-use of force.” This could well be interpreted by Moscow as the necessity to move from “oral” to “written” and “legal.”

Thirdly, this text completely omits the cherished agenda item for the Georgian side – the international security arrangements (ISA). This is probably the biggest problem. It seems that ISA has been downgraded to “implementing steps,” however, the whole concept of ISA was that it was beyond just implementing steps of August 12, which never called for international peacekeeping force – one of the major elements of ISA, per Georgian side. There is nothing to suggest that once the NUF text is agreed, the Geneva participants will all of a sudden move to seriously discussing ISA. Moscow has never agreed to this approach and is unlikely to change its position now. So, why such naiveté from Tbilisi? Completely unclear.

Fourthly, agreement over this text means that the whole structure of the Geneva talks might become jeopardized. Current text reads that “The Participants of the Geneva International Discussions, based on the 12 August 2008 Agreement agree not to use force or threat of force in relations with each other, and confirm their readiness to resolve all disputes by exclusively peaceful means…”

In other words, this statement assumes that the Participants (with capital P) of the Geneva Discussions become bound by the NUF. In Geneva, however, there are no Participants, especially with capital letter. The procedural note, which set up the structure of Geneva envisages either the Delegations to the Plenary session (Georgia, Russia, USA, OSCE, UN and EU), or working group format, with the participation of experts from Abkhazia and South Ossetia in their individual capacity. The fact that now for the first time in Geneva “the Participants” agree to some binding statement, obviously upgrades ranks of Abkhaz and Ossetian participants and jeopardizes the long-standing Georgian position that the Geneva talks is all about Georgian-Russian conflict.

Even if after the statement is agreed, Georgia argues that the NUF statement is an agreement between Georgia and Russia, this will immediately be rejected by Moscow, and most likely no one else, including the co-chairs, will uphold Georgia’s claim. It is, therefore, likely that this statement will be widely interpreted as a statement by all participants, which are at least on par with each other, and which are capable of undertaking such obligation. This is certainly an upgrade in the status for the Abkhaz and the Ossetians, since such statement does no longer envisage their participation in individual capacity. In short, if this statement means obligation for the Participants – Abkhazia and South Ossetia have upgraded their status. If this statement is made only by the experts in individual capacity – then the text makes no legal, or political sense – unless the participants have just agreed not to fight personally with each other, which is a ridiculous preposition.

And finally, this statement is completely out of the international context. As Russia continues its war efforts in Ukraine, as it poisons foreign citizens with new generation nerve gas, as it intervenes in other countries’ elections, and as its diplomats get expelled, it will be absolutely out of line to have Georgia agree with Moscow on the non-use of force statement. It would portray Russia constructive, which it is not, and it would show that Georgia is actually making progress with Russia, which it actually is not making (see Tatunashvili murder).

What then should happen?

As a quip in the 1980s BBC TV series Yes, Prime Minister! goes, the government fallacy is that it thinks it should do something, and since “this” is “SOMETHING,” than it should do it. Unfortunately, pledging the NUF in such an incongruent and dubious way, with so many strings attached and dangers unexplored, will be a mistake and will not amount to “doing something” – at least not something good or useful.

It is obvious that the Georgian leadership wants to reinvigorate the Geneva talks, and that is a noble goal. However, Tbilisi should understand that the problem of Geneva lies in the lack of political will in Moscow and by extension in Sokhumi and Tskhinvali. The reason for unsuccessful Geneva rounds is not in Geneva, it is not in the agenda, it is not in the process, nor in the NUF text – it lies in Moscow’s reluctance to make any progress. And by giving in, removing pressure from Moscow and by abandoning a strategy of perseverance and pressure, one will never make Russia budge and agree to the things we want – in this case – serious discussion on the international security arrangements.

What we could do instead is to go back to the original strategy, which was mistakenly changed by the current Geneva negotiators – to put the Russian NUF before any joint statements are made in Geneva. In other words, once/when Russia pledges NUF towards Georgia, then this text can be agreed and published. Before that – NO CAN DO!

Meanwhile, co-chairs and other participants should understand that new agenda items are necessary for the Geneva talks. This agenda items could include issues that are important for all participants. One of such issues, for me is a freedom of movement or small “status-neutral” steps, such as suggested in a discussion paper drafted with my participation by the Center of OSCE Research (CORE), regarding status-neutral approach to arms control and security issues in the occupied Abkhazia region.

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