Payam Akhavan: Seeking justice for Georgia

Payam Akhavan, at the International Court of Justice in The Hague, with Georgian Deputy Minister Tina Burjaliani. / Photo: AP Images/Evert-Jan Daniels
Payam Akhavan, at the International Court of Justice in The Hague, with Georgian Deputy Minister Tina Burjaliani. / Photo: AP Images/Evert-Jan Daniels

McGill professor takes on the Russian giant

By Pascal Zamprelli

In telling a war story, it’s rare to focus on the lawyers.

But McGill law professor Payam Akhavan is playing a critical role in the conflict over a pair of breakaway regions few people had heard of before August. That’s when he found himself in the midst of an international incident, having to make decisions about how to take the Russian Federation to court even as their tanks were rolling in South Ossetia and Abkhazia.

Akhavan’s client? Georgia. The task? To take Russia to the International Court of Justice (ICJ) – the first time anyone had ever done so – to prove it had been, and still was, complicit in ethnic cleansing of Georgians by separatist militias in South Ossetia. To top it off, Akhavan had only three weeks to prepare the case.

“I was asked to immediately file an application with the ICJ on Aug. 10, two days after the war had begun,” Akhavan said, “and I wasn’t even sure if there would still be a government to represent once I did.”

On Aug. 15, South Ossetian (separatist) President Edouard Kokoity told the Moscow-based newspaper Kommersant his soldiers had flattened all the Georgian villages in South Ossetia thereby establishing the boundaries of his republic. Kokoity was adamant: no Georgians would ever be allowed to return to their homes.

The statement was an ominous warning for displaced Georgians, and the international community heard confirmation that the Russian military complex, largely believed to be playing puppet master to the South Ossetian militia, was back with a vengeance.

What Akhavan heard, however, was a stunning admission of guilt – a self-incriminating statement that would become a key piece of evidence in his case.

Akhavan and his colleagues were seeking a court order to put an end to what they believed was the systematic and violent expulsion of ethnic Georgians from South Ossetia and Abkhazia. Kokoity’s statement “was one of the most incriminating pieces of evidence we had,” Akhavan said, “and we used it with great success at the court, together with witness testimony and satellite imagery” that gave credence to claims of systematic ethnic cleansing.

A brewing conflict boils over

There remains international disagreement as to who is responsible for initiating the August conflict. As is often the case, there is no clear-cut answer. The brief war was the result of years of escalating tension and mounting rhetoric.

Russia has never been comfortable with the fact South Ossetia and Abkhazia have legally been in Georgian territory since the collapse of the Soviet Union, and began to support and assist separatist factions in those areas immediately following the empire’s breakup. Over the ensuing decade and a half, ethnic Georgians have been intimidated or forcibly expelled from the breakaway regions, shifting demographics so as to ensure they became the minority.

More recently, the widespread recognition by the international community of Kosovo’s independence in February, with which Russia disagreed, coupled with the negotiations that seemed to be leading toward Georgian membership in NATO, which Russia had vowed to do everything to prevent, led Vladimir Putin, who was then still President of Russia, to act. He declared his country would move to recognize the independence of South Ossetia and Abkhazia, and began making its presence felt in those regions.

That’s what first compelled Georgian President Mikheil Saakashvili, in June, to ask Akhavan to provide his views on how the situation could be resolved through international law. The two had met over 15 years earlier at a conference on ethnic conflict, and had stayed in touch. Having watched his friend appear as counsel before international courts and tribunals, advise the UN, and become an internationally recognized expert on human rights, Saakashvili knew Akhavan was the person to call.

But Akhavan’s mandate changed dramatically a few weeks later, when South Ossetian militias began shelling Georgian villages. Georgia began planning its response, and Russia seemed primed to involve itself. For Akhavan, the motives behind Russia’s military buildup were clear: “The armed conflict was in the making some time before, and the Ossetian militia who were operating immediately adjacent to the bases of so-called Russian peacekeepers were clearly provoking Georgia into some sort of response, which would then justify a Russian invasion.”

Building the case against Russia

Georgia’s case rested on the claim that the Russians were in “direct,” or at least “effective,” control of South Ossetian actions. The historical ties between Russia and South Ossetia, illustrated by the number of Russian officials heading South Ossetian government ministries, suggested this was the case.

The Russians contended they were not taking sides, but merely keeping the peace and protecting civilians in the wake of Georgian attacks. Furthermore, Akhavan knew the ICJ, more accustomed to hearing boundary disputes between states than allegations of violent acts, would be reluctant to get involved.

As soon as the case was filed, Akhavan and his team rushed to the Georgian capital of Tbilisi to gather evidence, mainly from refugees in internally displaced persons camps. Over three intensive weeks, 300 testimonies were whittled down to 10 statements providing the most detailed and compelling proof.  They wanted “people who had actually seen the Russian forces come into their village, who had seen the Ossetians burning homes in concert with the Russians.”

The evidence showed “that the Russian forces worked with Ossetian militia, that Ossetian villages and Ossetian homes in Georgian villages were completely untouched, that Georgian homes and villages were specifically targeted, and that soldiers told Georgians, including the elderly, women and children, that if they did not leave they would be killed.”

United Nations satellite imagery corroborated the testimony, confirming that only Georgian villages and homes in South Ossetia had been systematically destroyed. “It indicated clearly that the Georgians had conducted themselves quite well in focusing on military targets, whereas the Russian/Ossetian forces had engaged in ethnic cleansing.”

More jaw-jaw, less war-war

On Oct. 15, the ICJ ruled narrowly in favour of Georgia’s request for emergency provisional measures, diplomatically calling on both sides to abide by their international obligations and ensure the security of all persons. There will be more court dates and arguments as the case is further debated on its merits, but the benefits of taking action are already being felt in other ways, revealing the positive effects formal legal action can have on continuing violent conflict.

The day after Kokoity’s ill-advised statement, the Russian Foreign Minister, aware a case had been filed at the ICJ, claimed Kokoity was just emotional and didn’t really mean what he had said. This suggested the Russians were in fact pulling Kokoity’s strings, and, as important, that the court case was having some desired effect. Kokoity’s tone changed dramatically, and in a complete turnabout at a subsequent UN meeting, he claimed all Georgian refugees would be allowed to return on a non-discriminatory basis. These new statements, says Akhavan, “sounded almost as if they were written by a human-rights lawyer.”

And as the legal and diplomatic processes gradually unfold, the violence has significantly subsided. “We think that there was some effect on behaviour on the ground as well,” Akhavan said, “by virtue of the fact that the Court was engaged and that Russian conduct would be scrutinized and exposed.”