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October 23, 2008

Russia, Georgia Take War To Rights Court

by Claire Bigg

Since the first rocket hit South Ossetia on the night of August 7, a steady stream of complaints has been flowing from Georgia's separatist region to the French city of Strasbourg.

The European Court of Human Rights says it has received more than 3,000 applications from South Ossetians complaining of illegal treatment at the hands of Georgia after Moscow and Tbilisi fought a brief war over the Georgian breakaway province.

Georgian authorities, in turn, have sued Russia in the same court on charges that its forces committed war crimes, including ethnic cleansing.

The avalanche of complaints represents a massive increase in the workload of the court, already snowed under by applications from Russia.

It also creates an unprecedented quandary for the court and the body overseeing it -- the Council of Europe, of which both countries are members.

"The Council of Europe is in an impossible situation. This is the first armed conflict between two members of the Council of Europe, and that already puts the system under fantastic strain," says Bill Bowring, a professor of international human rights law at the University of London's Birkbeck College who regularly helps Russian citizens take their cases to Strasbourg. "It's a massive problem for the Council of Europe because when states sign up to the council, they undertake legally binding obligations to resolve differences by peaceful means."

Suspension Threat

Ever since the war broke out, Moscow and Tbilisi have traded mutual recriminations over who provoked the fighting and who violated international law on the use of weapons.

Human rights groups, for their part, blame both sides for rights abuses during and after the hostilities.

The Council of Europe says both Russia and Georgia breached their obligations by going to war in the first place. Terry Davis, the council's secretary-general, has warned that the two countries could be suspended from the 47-member grouping unless they do more to prevent ongoing abuses in the war-battered areas.

It would mark the first time Europe's top human rights body has suspended a country. The furthest the council has gone so far in punishing a member state was to temporarily revoke Russia's voting rights in the council's assembly eight years ago over atrocities committed in Chechnya.

The current legal battle waged by the two countries in Strasbourg is also drawing some criticism.

"These complaints are clearly politically motivated," says Aleksei Malashenko, a Caucasus expert at the Carnegie Center in Moscow. "These applications have political undertones, they are a means of mutual pressure. Both South Ossetia and Russia on one side, and Georgia on the other, are trying to prove their complete innocence, to show they are as pure as doves."

Moscow's About-Face

Russia's sudden enthusiasm for the European Court of Human Rights, in particular, has raised eyebrows.

Russian Foreign Minister Sergei Lavrov said last month that authorities would help all South Ossetians -- most of whom hold Russian citizenship -- wanting to lodge complaints against Georgia at the court.

His comments mark a dramatic departure from Moscow's customary criticism of the European court -- whose frequent guilty rulings have angered the Kremlin -- sparking speculation that the string of complaints from South Ossetia are part of a coordinated effort to overwhelm the court with applications.

Russian authorities may also have done more than just assist South Ossetians wishing to take action against Georgia -- some local residents have reported being actively encouraged to lodge cases against the Georgian government.

But Akhshar Kochiyev, a former prosecutor-general for South Ossetia, insists that is not the case and that South Ossetians are spontaneously turning to the rights court.

"I was here myself during the bombings; it was hell on earth. It was even worse than hell, because in hell at least you know what you're being punished for, while here it was just because we're Ossetian," Kochiyev says. "So there are more than enough grounds to lodge complaints at the Strasbourg court."

Long Wait

The complaints won't yield verdicts any time soon -- the overburdened court can take up to 10 years to process cases.

They nonetheless represent a major challenge for the European Court of Human Rights, both in terms of workload and delicacy of the cases.

But should it rise to this challenge, the court could turn the Russian-Georgian legal standoff into a rare chance to assert its authority.

"I think this situation actually benefits the court. It gives it an opportunity to show its professionalism by distinguishing real crimes from ideological, political applications," Malashenko says. "I think the court will gain very valuable experience, even if the process is painful and difficult."
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