Q&A: Human Rights Protection under Occupation

Several weeks ago, the Russian armed forces stationed in Tskhinvali Region/South Ossetia renewed installation of wire fences along the occupation line. Weeks before, a new Russian-language school was opened in Akhalgori. Few days ago, the Tskhinvali authorities also shut down crossing points to prohibit local residents from voting in the Presidential polls.

The Government of Georgia has described these restrictions as continuation of gross human rights violations, and has vowed to use international legal mechanisms to ease the rights situation of local residents.

To find out what measures are available and whether the authorities are doing enough to protect the rights of the local Georgian populations in Abkhazia and Tskhinvali Region/South Ossetia, we have approached Dr. Saba Pipia of Tbilisi State University, who teaches international humanitarian law and international criminal law at the Faculty of Law.

What is occupation?

Under its conventional meaning, as accepted in international law, occupation happens only in cases when the occupying power physically captures and takes over a certain territory, replacing the previous ruler and establishing its own authority. The Russian Federation has argued that its presence in Abkhazia and Tskhinvali regions does not amount to occupation, as it has not established a distinct Russian authority in the two territories, and has not replaced the acting rulers. However, the conventional approach has been changed recently; under the contemporary law on occupation, the territory is considered occupied even in the circumstances, when the de facto local authorities, which hold the territory under their effective control, are overly controlled by the alien state. This very alien power is regarded as an occupant.

Are Georgian territories occupied under this interpretation?

Under international law, the Russian Federation is an occupant power, whereas proxy governments of Sokhumi and Tskhinvali are entities acting under the de facto control of Russia. Consequently, the responsibility to ensure safety and welfare of local population primarily rests on the Russian Federation.

Actions, taken by the de facto governments of Abkhazia and Tskhinvali Region, which are encouraged or disinclined by the Russian Federation, indeed invoke international legal responsibility. Such actions are: complete ban on receiving education in Georgian language, which firstly became effective in the Georgian secondary schools of Gali and more recently also in Akhalgori district; or preventing people from voting in the elections.

Does the civilian population living in the occupied territories enjoy the right to receive education in native language?

The Fourth Geneva Convention (related to the protection of civilian population) deals with the right to education in occupied territories. The Convention imposes obligation on occupying power to facilitate the proper working of all institutions devoted to the care and education of children, with cooperation of national and local authorities. Schools are, certainly, implied under these institutions, while their “proper working” means that the occupying authorities are bound not only to avoid interfering with their activities, but also to support them actively and even encourage them to pursue their activities as they did before. This encompasses the obligation of the Russian Federation to ensure that inhabitants of the occupied territories are given possibility to get general education in their own language.

The right to receive education in own language is also guaranteed under the European Convention on Human Rights, which applies to the entire territory of Georgia, including the regions of Abkhazia and Tskhinvali. Moreover, the European Court of Human Rights contemplated that the right to education also embeds unhindered opportunity to study in the alphabet of own language. In Katan and Others v. Moldova and Russia (para.144), the Court held that the language policy, applied by the Transnistrian authorities, was intended to enforce the Russification of the language and culture of the Moldovan community living in this region; and this policy violated European Convention on Human Rights and gave rise to the responsibility of Russian Federation for the actions of de facto government of Transnistria, which was acting under the direct control of the Russian Federation.

Furthermore, the Court in the inter-state dispute concerning the case Cyprus v. Turkey (paras. 273-280) maintained that denial to receive secondary education in Greek language for Greek Cypriots living in the occupied northern part of the island, was a breach of Convention, since pupils, who had already gone through basic education through the medium of Greek language were not able to pursue secondary education due to the restrictions set by the de facto authorities of Northern Cyprus. For this reason, parents had to transfer their children to the south, in the non-occupied part of the island, or to continue their education at Turkish or English-language schools in the north.

With regard to Transnistria, the European Court of Human Rights, in the case Illascu and Others v. Moldova and Russia (para. 331) has developed an approach, pursuant to which the Republic of Moldova may also be held responsible for human rights violations in this territory if it does not comply with obligation, to secure the rights and freedoms to everyone living within its jurisdiction; this obligation is, however, limited in the circumstances to a positive obligation to take the diplomatic, economic, judicial or other measures that are both in its power to take and in accordance with international law.

Can the occupant power prohibit population from participating in the election held in the non-occupied part of the country?

Whereas military interests of the occupant are concerned, it is high likely that it will limit political activities of the population in order to prevent resistance through political means. Broad interpretation of Article 43 of the Hague Regulations permits the occupant to do so in circumstances of occupation, but the occupying power is not allowed to impose restrictions on participation or political campaigning in the non-occupied part of the country (in case of partial occupation). Article 42 of the Hague Regulations clearly indicates that occupation extends only to the territory where authority has been established and can be exercised. Therefore, preventing people from voting in the non-occupied parts of the country contravenes the spirit of the occupation law and should be considered illegal, because the occupant power is not entitled to ban political activities outside the occupied territory. Thus, decisions by the de facto authorities to prevent people residing in the occupied territories from voting in the elections held in the Tbilisi-controlled territory are unlawful and void.

What kind of obligations are imposed on the Government of Georgia in terms of securing the human rights of civilians living in the occupied territories?

The Government of Georgia, like the Moldovan authorities do share positive obligation to secure human rights protection of persons residing in occupied territories. Honoring this obligation would imply raising awareness regarding violations of fundamental rights of ethnic Georgians at international fora in order to mobilize the international community and to prevent illegal actions [which are condoned or neglected by Russian Federation] of de facto authorities through diplomatic pressure. At the Geneva talks format, the Georgian Government has been actively pressing on humanitarian issues, including the human rights situation of Georgians living in Gali and Akhalgori districts, but the negotiation process has not produced any tangible outcomes so far. Moreover, in the inter-state proceedings at the ECtHR concerning the case Georgia v. Russia (II), Georgia asserts that the Russian Federation has continuously breached rights (inter alia, right to education) of ethnic Georgians living in occupied territory; judgment of the Court is pending.  At the same time, it is vitally important to raise the issue of discrimination and harassment of ethnic Georgians living in Abkhazia and Tskhinvali regions within relevant United Nations agencies. Annually, the so-called “return of IDPs” resolution is being adopted by the UN General Assembly with more and more supporters voting in favor. The issue can be raised at other discussion formats of the General Assembly. It could also fall under the jurisdiction of the UN Court, which may be requested by the General Assembly to deliver advisory opinion on the status of Abkhazia and Tskhinvali regions and the state of human rights situation there. This however would require launch of a broad advocacy campaign by the Georgian Government. It is worth noting that the first attempt to discuss the situation in occupied territories at the International Court of Justice has not ended successfully since the proceedings at the Court have been terminated as the Court declared the case inadmissible and did not proceed to its merits.

The de facto authorities have also limited the residence rights of locals living in the occupied territories, most notably in Abkhazia. What measures can the Georgian Government take to address the problem?

Consistent and effective steps by the Georgian Government is a matter of urgency since the presence of a whole Georgian community happens to be at stake. The decision significantly worsens the rights situation of Georgians living in Abkhazia; it will cause additional problems for freedom of movement and safe living. Without a doubt, the decision aims to forcibly change the demographic composition of the region. By refusing to take Abkhaz citizenship (or permanent residence), inhabitants of Gali district would face serious problems in crossing the occupation line.

The Fourth Geneva Convention outlaws forcible deportation or transfer of protected persons from the occupied territory. Such forcible expulsion also includes the case of protected persons belonging to ethnic or political minorities who might have suffered discrimination or persecution on that account and might therefore wish to leave the country. Stemming from this, discriminatory measures (including issuing of the so called residence permits) – taken by the authorities in Sokhumi – the primary objective of which is to suppress the Georgian population, might effectively be considered as de facto forcible transfer, which constitutes grave breach of the Geneva Conventions and is declared as war crime under the Statute of the International Criminal Court (Rome Statute).

What obligations may be imposed on Georgian authorities in relation to investigation and prosecution of crimes committed in the occupied territories?

Before the cases go to international judicial bodies, it is critically important to have proceedings at national level – for Georgian law enforcement bodies to launch investigations on crimes committed in the occupied territories, with the aim to prosecute alleged perpetrators, notwithstanding the possibility for them to stand for trial personally. Such gesture from the domestic courts of Georgia would largely contribute to restoration of justice and recognition of violation of victims’ rights.

This post is also available in: ქართული (Georgian)