Juristica International

1. Introduction

The Crimean conflict in 2014 followed in many respects the pattern of Russia’s previous interventions in a neighbouring state – e.g., the 2008 Georgian conflict. Yet its similarities with the forgotten Abkhazian conflict in 1992–1993 are not widely acknowledged.

The conflict in Abkhazia broke out in the turbulent aftermath of the collapse of the Soviet Union. In consequence of the de facto statehood of Abkhazia, *1 the conflict over the breakaway region was ‘frozen’ for approximately 15 years and escalated again in 2008. This article addresses questions regarding the right of self-determination, unlawful threat and use of force, territorial integrity, and armed conflict by using the example of the Abkhazian conflict.

The substantial complexity of the related matters, the difficulty in establishing facts, and the associated political quagmire have contributed to the modest list of literature published on the Abkhazian conflict, a fortiori in the legal field. It has been regarded as a ‘forgotten conflict’. *2 The principal aim of the present study is to determine whether Abkhazia had the right to claim statehood and to examine Russia’s actions in support of the Abkhaz separatist forces during the conflict in 1992–1993.

2. Abkhazia’s secession in comparison with the Crimean case

Georgia and Ukraine declared independence from the Soviet Union in 1991. However, for reason of domestic political power struggles, their state authority was fragmented and territorial integrity challenged. Like many other former Soviet republics, *3 Georgia and Ukraine were torn into domestic rivalry between different factions that represented the population’s heterogeneous ethnic composition. *4

Subsequently to the dissolution of the Soviet Union, three breakaway regions emerged in Georgia, viz. Abkhazia in the north-west, South Ossetia in the north, and Adjaria in the south-west. The Adjarians’ strivings for separatism were effectively curtailed in 2004 pursuant to a political solution according to which Adjaria was granted autonomous status under Georgia’s central government’s effective control. *5 The status of Abkhazia and South Ossetia, however, continues to be a source of conflict. *6

In Ukraine, Crimea was granted the status of an autonomous parliamentary republic. Sevastopol, which serves as the base for the Russian Black Sea Fleet, was a separate municipality in Crimea and continues to be, as it was declared a federal city by the Russian Federation under Article 2 of the 2014 Treaty on the Accession of the Republic of Crimea to Russia (with analogous status granted only to Moscow and St Petersburg). *7

2.1. The Abkhazians and Crimeans as a ‘people’?

The Abkhazians are ethnically, linguistically, and culturally distinct from the Georgians and related to the peoples of the North Caucasus in Russia. *8 The Georgians have recognised the Abkhazians as indigenous, *9 thus acknowledging their principal right to retain their corresponding autonomous political status. *10 By contrast, the majority of Crimea’s population – i.e., Russians – are not indigenous. Instead, the Crimean Tatars may be regarded as the indigenous people of Crimea, but, because of the deportation during the Soviet era, they constitute only about one tenth of the current Crimean population. *11

Owing to the absence of a clear definition of a ‘people’ in international law, the term has been subject to various legal interpretations in the context of self-determination. *12 The general meaning of ‘minorities’ *13 , as well as ‘communities’ *14 , may be indicative for interpreting the term ‘people’. In this context, the Crimean Russians have no profoundly distinct characteristics. In comparison, the fact that the Abkhazians have their own culture, traditions, and language implies that they may be regarded as a ‘people’ according to the more liberal view. *15 Yet the recognition of Abkhazians as a peopleis not sufficient for the Abkhazians to enjoy the right to external self-determination, *16 since it is subject to additional and more stringent criteria, as examined next.

2.2. The right of external self-determination: Uti possidetis juris

Forming part of customary international law, *17 the right of self-determination, as granted under Article 1(2) of the United Nations (UN) Charter, *18 constitutes an erga omnes norm. *19 Additionally, in terms of Article 53 of the Vienna Convention on the Law of Treaties *20 , it has been deemed by some scholars to possess a jus cogens character. *21 However, the right of self-determination has been used in practice restrictively, which is mirrored in the principle uti possidetis juris.

According to the Badinter Arbitration Committee, ‘it is well established that, whatever the circumstances, the right of self-determination must not involve changes to existing frontiers at the time of independence (uti possidetis juris) except where the States concerned agree otherwise’. *22 Derived from the 19th-century post-colonial Latin American context, the uti possidetis rule re-emerged in the 1960s when African successor states were required to accept borders that they inherited from the colonial era. *23 The International Court of Justice (ICJ) noted in the Frontier Dispute case that the purpose of the rule is to prevent the independence and stability of new states being endangered by fratricidal struggles. *24

The uti possidetis principle thus safeguards the balance between the right of self‑determination and territorial integrity of a state. It reflects particular significance in regard of the Abkhazian and Crimean breakaway regions.

Georgia restored its independence in 1991 under the principle of state continuity, whereby its statehood is – pursuant to Georgian constitutional law – founded on the independence of the Georgian Democratic Republic in 1918–1921, which was later annexed by the Soviet Union. *25 Abkhazia was part of Georgia under the independent 1921 Constitution, according to which the region was granted autonomy in Georgia along with Zaqatala *26 and Adjaria. *27

Abkhazia unilaterally declared its sovereignty in August 1990, *28 thereby proclaiming itself a sovereign union republic within the Soviet Union. *29 However, notwithstanding certain claims to the contrary, *30 this was not a declaration of independence, nor did the declaratory document alter the state-legal status of the breakaway region in light of Georgia’s territorial integrity. *31 This also corresponds to the views of Abkhazian historians. *32 Therefore, the 1990 declaration of sovereignty should not be regarded as an act of secession. The critical date, which is necessary for determining the legality of the secession, is in 1999, when, pursuant to a referendum in October, *33 the Abkhazians declared independence. *34

The UN and its Security Council have unequivocally supported Georgia’s territorial integrity. *35 This has been confirmed in numerous UN Security Council resolutions. *36 Hence, prior to the August 2008 conflict in South Ossetia, no UN Member State, including Russia, *37 recognised Abkhazia as an independent state. The UN Security Council confirmed its support to the territorial integrity of Georgia in Resolution 1808, *38 less than four months prior to the outbreak of the international armed conflict between Russia and Georgia in 2008, as a result of which Abkhazia, in effect, claimed statehood.

Russia’s unstable stance toward treaty law is mirrored also in the fact that in 1994 Ukraine agreed to send its strategic nuclear weapons arsenal (the third largest in the world) to Russia for dismantling and Russia, correspondingly, reaffirmed its commitment to Ukraine to respect its borders and also recognised that ‘border changes can be made only by peaceful means and consensual means’ and reaffirmed its ‘obligation to refrain from the threat or use of force against the territorial integrity’ of Ukraine. *39 In 2009, the United States and Russia confirmed ‘that the assurances recorded in the Budapest Memoranda will remain in effect’. *40 Despite these commitments, Russian forces occupied Crimea in 2014 to facilitate the Crimean secession from Ukraine.

The critical date for determining the legality of the Crimean secession is 16 March 2014. On that date, following a declaration of independence adopted on 11 March 2014, an independence referendum was held. In a key result of the referendum, Crimea was declared independent, only to join the Russian Federation two days later. *41 The referendum was declared illegal by the UN General Assembly by a recorded vote of 100 in favour to 11 against. *42 In particular, pursuant to the ICJ’s advisory opinion on Kosovo, the illegality attached to the Crimean declaration of independence and the following referendum stemmed from the fact that they were connected with the previous unlawful use of force by Russia. *43

Pursuant to the uti possidetis principle, Abkazia and Crimea did not have the right to claim statehood. The uti possidetis principle results in exemption from the right of external self-determination for the sub-regional entities of the former Soviet republics. Thereby, the dissolution of the Soviet Union did not continue beyond federal level, which was composed of Ukraine and Georgia, instead of sub-regional Abkhazia and Crimea. *44 The uti possidetis principle was thus equally applicable to Abkhazia and Crimea, with the latter granted, analogously to Abkhazia, Autonomous Soviet Socialist Republic status following a referendum on 20 January 1991.

Whether the right of remedial secession provides a legal basis for Abkhazia’s and Crimea’s statehood is examined next.

2.3. The right of external self-determination: Remedial secession

The right of remedial secession per se is questionable under international law. *45 Nonetheless, it has been characterised in the influential Reference re Secession of Quebec case as a measure of ‘self-help’ where a ‘people’ is oppressed. *46 Some authors have considered it a customary rule. *47 It has been noted in legal literature that, for the right of remedial secession to apply, the group invoking the right needs to constitute a ‘people’. *48 As analysed above, the Russians who constitute the majority in Crimea have no distinct identity and, hence, may not be regarded as a ‘people’, unlike, potentially, the Abkhazians.

Yet it is unclear whether the Abkhazians represented a clear majority in Abkhazia, which is thought to constitute another criterion for a legitimate remedial secession. The situation in Abkhazia in the 1990s should be analysed from the critical‑date standpoint. *49 As analysed above, the critical date is 1999 when the declaration of independence was announced.

In 1989, prior to the outbreak of the conflict, the population of the Abkhaz autonomous republic was 525,000. This comprised 45.7% Georgians and only 17.8% Abkhazians, while also Armenians, Greeks, and Russians constituted significant minorities. *50 However, this last internationally recognised census is not accurate in its reflection of Abkhazia’s demographic situation in 1999.

The conflict in 1992–1993 resulted in drastic alterations in the composition of Abkhazia’s population, primarily due to the internal displacement of most of the ethnic Georgians whose residence had been in Abkhazia. According to the 2003 census, conducted by Abkhazia’s de facto government, the Abkhazians’ representation in the region’s population rose to approximately 44.1%. In Georgian data, on the other hand, the corresponding figure remained close to 20%. *51 It is important to determine whether this constituted a clear majority in the breakaway region, which is a precondition for claiming the right to remedial secession.

It has been noted that ‘as the risk of creating a large minority in the newly established State must be brought to a minimum, a majority of at least 80% would be required’ *52 in order to constitute a ‘clear majority’. Although the precise level for a ‘clear majority’ may be debatable, it is clear that, under this criterion, the Abkhazians, who probably accounted for around 30–35% of Abkhazia’s population, did not constitute a clear majority to legitimately claim remedial secession. *53

In addition, by the time of the declaration of independence in 1999, the Georgian government had shown good will in respect of resolving the crisis in the breakaway province, *54 and the political process for peaceful settlement of the dispute was still under way. *55 After its restoration of independence, Georgia offered Abkhazia the broadest autonomous status within a federal framework, leaving the main governmental functions under the control of the Georgian executive power. *56 The Abkhazian authorities, for reason of their preference for a confederative state, did not accept these proposals. *57 A model based on a confederative state would have provided the Abkhazians with international recognition of their sovereignty and thus, potentially, the right to secede. *58

Moreover, the 1999 Security Council Resolution 1255, *59 in combination with the Security-Council-backed ‘Boden paper’, *60 which regarded Abkhazia as a sovereign entity within Georgia, essentially promised a breakthrough in the years-long negotiations over Abkhazia’s status. Furthermore, there was considerable room for debate on issues such as internal self-determination. Georgia’s willingness to establish an Abkhazian autonomous region was demonstrated by the fact that in August 1991 a compromise was reached between the Abkhaz and the Georgians according to which the composition of the Abkhaz Parliament was to be based on ethnic quotas strongly in favour of the Abkhaz. *61

3. Russia’s intervention in the Abkhazian conflict

The warring parties in the 1992–1993 conflict in Abkhazia, if one leaves aside the participation of mercenaries and the alleged intervention of Russian forces, were represented by Georgian armed forces on one side and Abkhaz separatist forces on the other.

The Abkhaz forces were under the authority of the Abkhazian Defence Ministry. *62 They had a command structure and exercise of leadership control. *63 These forces were governed by rules, and there were provision of military training *64 alongside recruitment of conscripts, *65 organised acquisition and provision of weapons and supplies, and established communications infrastructure. *66 Additionally, Abkhaz forces gained control over most of the breakaway region’s territory prior to the August 2008 Georgian conflict, are in control of the whole province at present, and controlled a varying but significant proportion of the entity’s territory throughout the 1992–1993 conflict. *67 In light of these circumstances, it may be concluded that the Abkhaz forces were established as organised armed groups in the conflict. *68

It has been estimated by the warring parties’ human rights committees that on the Georgian side at least 4,000 individuals were killed in the Abkhazian conflict (both civilians and combatants) and 10,000 were wounded, whereas on the Abkhazian side 4,040 persons died (2,220 combatants, 1,820 civilians) and approximately 8,000 were wounded. *69 By contrast, the August 2008 conflict in South Ossetia resulted in approximately 300 fatalities and 500 injuries on the South Ossetian and Russian side and in 364 fatalities and 2,234 injuries on the Georgian side. *70 Hence, the fighting in Abkhazia in 1992–1993 was categorised as a major armed conflict under the Uppsala Conflict Data Program’s definition, according to which the conflict needs to involve at least 1,000 battle-related deaths in at least one calendar year, *71 whereas the Georgian conflict in August 2008 remained at the level of a minor conflict. *72

Furthermore, according to an independent estimate, approximately 300,000 people fled Abkhazia during the conflict in 1992–1993, including almost the entire Georgian population of about 250,000, and the majority of the internally displaced persons have still not had the opportunity to return to their original residence in Abkhazia. *73 In the 1992–1993 conflict, the most prominent actors in the cease-fire negotiations were the UN Security Council and Russia. *74 When these indicative figures are considered in light of the Milošević case *75 and the Tadic case, *76 the Abkhazian conflict from 1992–1993 was an armed conflict for the purposes of Common Article 2 of the 1949 Geneva Conventions.

In the ordinary meaning, ‘international armed conflicts’ are conflicts between states, whereas ‘non-international armed conflicts’ are those between states and armed groups within the territory of a state or states. *77 International armed conflicts encompass interventions that are generally understood as implying ‘dictatorial interference by a State in the affairs of another State for the purpose of maintaining or altering the actual condition of things’. *78 This necessitates an examination of Russian alleged intervention in the Abkhazian conflict.

At the time of the 1992–1993 conflict in Abkhazia, Russia had an extensive military presence in the breakaway region (e.g.,amounting to 2,500 troops in 1994). *79 Also, analogously to the Crimean self-proclaimed leaders in 2014, the separatist rulers of Abkhazia engaged in manipulation whereby Russia’s military presence acted against Georgian authorities during the 1992–1993 conflict by, inter alia, calling for Russia’s participation in the conflict. *80 Correspondingly, Russia repeatedly threatened Georgia in 1992–1993 with military intervention. *81 This implies a threat of force, which is deemed to exist in cases of implicit demonstrations of force if accompanied with a military presence that makes the threat credible. *82

Georgia alleged in the Georgia v Russia case before the ICJ that Russia extensively supported separatist movements in the Abkhazian conflict. *83 Russia purportedly supplied Abkhaz secessionists with tanks and other modern weaponry during the 1992–1993 armed conflict. *84 Independent observers also have acknowledged that Russia provided assistance to the Abkhaz separatists in Georgia. *85 Whilst third states may provide assistance to the de jure and de facto legitimate government of a particular state (e.g., the Georgian government), it is not permitted with regard to internal opposition –e.g.,Abkhaz forces or secessionists in eastern Ukraine. *86

It has been noted that Russian assistance to the Abkhaz side included the transfer of weapons: T-72 tanks, Grad rocket launchers, over 100,000 landmines, and other heavy equipment. *87 Human Rights Watch (HRW) has observed that possible sources for Abkhaz weapons included ‘supplies and support authorized by branches of the Russian army or government in Moscow’ *88 , and HRW concluded that Russian forces supplied Abkhaz troops with at least some heavy weapons, transport, and fuel *89 , though it could not determine which Russian State organs were involved in this and at what level of command. *90 Nevertheless, under the law of state responsibility, the conduct of any state organ is regarded as an act of a state. *91 Thus, irrespective of the level of command, the acts of Russian military forces are principally attributable to Russia. *92

Hence, it appears that Russia bore direct responsibility for the conduct of its forces that were rearming Abkhaz secessionist troops. It was noted by the ICJ in the Nicaragua case that the provision of arms to separatist forces in another state would not reach the threshold for an armed attack against a state in terms of Article 51 of the UN Charter. *93 This has been disputed by many authoritative views. *94 In any case, Russia’s actions gravely violated Georgia’s sovereignty. Under Article 22 of the Articles on State Responsibility and in conformity with ICJ case law, Georgia was entitled to take proportionate countermeasures not involving the use of force under the terms of Article 2(4) of the UN Charter. *95

During the 1992–1993 conflict in Abkhazia, Russia’s overall control was reflected in financing and provision of training, logistics, and weapons to the armed groups. *96 It is not verified that Russia exercised direct control over the unmarked troops in Abkhazia. Possibly Russia only exercised overall control in respect of the troops that had no fixed distinctive emblem recognisable at a distance, mercenaries, irregulars, and volunteers during the Abkhazian conflict.

Nonetheless, in the first half of 1993, Russia also directly used force against Georgia when it carried out air raids on Sukhumi. Abkhazia’s capital, Sukhumi was at that time under effective control of the Georgian government. Yet hostilities continued between the conflicting sides. In February, Georgian forces attacked the former Soviet military laboratory in Novi Esher and raided weapons depots. *97 Allegedly, Russian troops were present at the laboratory so had the right to take self-defence measures if attacked.

In response, however, Russia launched bombings of civilian areas in Sukhumi from the air, which seems to fail to meet the conditions for lawful self-defence: immediacy, proportionality, and necessity. *98 The aerial bombings of Sukhumi marked direct Russian military intervention in the Abkhazian armed conflict. *99 They were commenced on 20 February 1993, subsequent to the incident in Novi Esher, and lasted at least until early April. *100 On 19 March 1993, Georgian forces downed an SU-27 fighter‑bomber that was piloted, according to independent UN military observers, by a Russian major. *101 Russian Defence Minister P. Grachev claimed that the raids were Russia’s response ‘in revenge’ *102 for the confrontation between Georgian and Russian forces in the military laboratory in February 1993.

The extensivebombings resulted in civilian casualties. *103 The retaliatory character of the attacks was further manifested in their political motives: Sukhumi as the target of the air raids did not have any connection with Novi Esher, where the initial confrontation had occurred. Therefore, this constituted a retaliatory campaign, which, as such, is not permitted under international law. *104 On the basis of this evidence, it follows that the Russian air raids in Abkhazia constituted unlawful use of force against Georgia.

4. Conclusion

The Abkhaz people in Georgia, similarly to the Russians who constitute the majority of the population in Crimea, did not have the right to external self-determination or remedial secession. The de facto statehood of Abkhazia that resulted from its 1999 declaration of independence violated the sovereignty of Georgia, and no state, including Russia prior to 26 August 2008, recognised Abkhazia’s statehood.

It was also established that, primarily because of the organisation of armed groups and the intensity of their fighting, the 1992–1993 conflict in Abkhazia meets the criteria for an armed conflict under Common Article 2 of the 1949 Geneva Conventions.

Russia acted in a demonstrably covert manner in the Abkhazian conflict, which bears resemblances to the annexation of Crimea and the recent conflict in eastern Ukraine. Yet Russia intervened in the conflict directly also, when it carried out air raids against the civilian population and Georgian forces stationed in Sukhumi in 1993. This effectively allows one to categorise the 1992–1993 Abkhazian war as an international armed conflict.