Georgia was the first to shoot and in this way started the conflict, while Russia fuelled separatist movements, poked constantly at Tbilisi, particularly after 2001, and used the Georgian Government’s massive artillery attack on South Ossetia to further its own interests and occupy the breakaway territories of Abkhazia and South Ossetia. These are the main conclusions of the 1,100-page European Union-commissioned report into the causes and course of the Russian-Georgian war of August 2008 – known as the “Five Day War” – released on September 30 in Brussels. 

The document was prepared under the direction of Swiss Ambassador Heidi Tagliavini and it involved some thirty specialists who had been at work since December 2008. The report's publication has been delayed since last July.

Seemingly, the report does not openly blame any parties for what happened because it was not assigned with the task of doing so. But it is not difficult to draw a conclusion on the basis of the document's 1,100 pages of facts and analysis. Although a more thorough analysis will take much longer, the report is not ambiguous as to who was first to pull the trigger. Georgia did. But Russia also played its part and is as much responsible, for different reasons, as the Georgian leadership. 

For years, Moscow laid the ground for such a scenario, and used Georgian President Mikheil Saakashvili's impulsiveness – and miscalculation – to move into not only South Ossetia but also Abkhazia. This conclusion, among others, is not sensational. It is however of note to say that the report does not mention the personal contribution to these events of the political leaders of Georgia and Russia.

At the political level, it is clear that no matter what the report's conclusions are both sides are trying to twist them top serve their best interests. Tagliavini is a bit naïve when she writes in the report that the results of the research should contribute to the resolution of the conflict. Russia did not want to resolve the conflict before the war and is even more adamantly sticking to its goal of annexing the two territories now. However the authors do deserve praise, for they have done all they can to gather and analyse the existing facts as much as possible, resist drawing biased conclusions, abstain from searching for culprits and assess the tragic events without emotion.

It is still necessary to analyse the details of the report, but judging from the main conclusions it provides an adequate amount of circumstantial evidence from which any honest analyst can conclude that Moscow was spoiling for a fight or had every intention of goading Georgia into a fight. The report has refuted Russia’s main argument that Georgia – Saakashvili more specifically – unleashed the conflict. It is clear enough from the report that the bulk of the impetus behind the conflict was Russia’s obstinate pursuit of “imposing its influence upon its ‘near abroad’” and Georgia’s goal of integrating more fully with the West and becoming a member of North Atlantic Treaty Organisation (NATO). 

The problem with the publication of such a report is that most people are likely to pay heed only to the report’s headlines and conclude that Georgia’s responsibility is a little bit more than Russia’s. The result of this may be to dampen even further Brussels’ and Washington’s inclination to provide Tbilisi with substantial security means with which to face its northern bully. The main consequence will be to embolden Russia in its continuing violations of the Sarkozy-Medvedev ceasefire agreement. 

Also, the West will continue to turn a blind eye to Russia’s outlaw behaviour in progressively annexing South Ossetia and Abkhazia into Russia’s “near abroad.” Some European countries follow a very strange logic in their foreign policy. When the US “invaded” Iraq in 2003, France and Germany were up in arms for years, denouncing American “imperialism” and “lawless” behaviour. Five years later, Russia invades Georgia and, after a few months of expressing “concerns,” Paris and Berlin opt for “business as usual.”  

One encouraging conclusion for Georgia is the clear mention in the report of war crimes. The commission cites many serious attacks on Georgian civilians by South Ossetia militia. Members of the militia, mostly young men, looted and burned down several villages inhabited by Georgians, beat civilians and murdered more than a dozen Georgians. According to the Hague Convention on Land Warfare, the Russian occupying force was obligated to reestablish public order. But it did almost nothing to prevent the atrocities, which a commission dossier classifies as “war crimes.” Georgia could and should bring these cases to the International Criminal Court (ICC). 

We know that, since September 2009 the ICC prosecutor has been gathering information about possible war crimes committed during this conflict. The court can automatically exercise jurisdiction over crimes committed in the territory of states party to the Rome Statute of the International Criminal Court or by nationals of party states. Georgia is one such party state, and the Tagliavini report concludes that such crimes have been committed on its territory.

The ICC came into being on 1 July 2002, when the Rome Statute of the International Criminal Court entered into force. The Rome Statute was adopted at a diplomatic conference in Rome on 17 July 1998. The official seat of the court is in The Hague, Netherlands, but its proceedings may take place anywhere. As of 1st June 2008, 108 countries are party to the Rome Statute of the International Criminal Court: 30 are African, 14 are Asian, 16 are from Eastern Europe, 23 from Latin America and the Caribbean, and 25 from Western European and elsewhere.

The creation of the ICC was originally aimed at preventing impunity being granted in violent conflicts, preventing crimes and promoting peace, security and reconciliation together with international justice. It is argued that it contributes to peace by means of exercising a deterrent effect on both states and perpetrators. It encourages states to exercise jurisdiction themselves, investigating and prosecuting those responsible for grave crimes pursuant to the basic requirements of the Rome Statute, by means of independent and impartial judicial proceedings, aimed at bringing the person concerned to justice and not at avoiding criminal responsibility, with no unjustified delay. 

The principle of complementarity which informs its operations implies that the ICC is a court of last resort and its intervention is admissible only where states are unwilling or unable to genuinely investigate and prosecute crimes under their jurisdiction. A complaint has now been received by this court alleging that ethnic cleansing has been carried out by the Abkhazian Government, in what is legally part of Georgia, against ethnic Georgians. Georgia cannot investigate this in practical terms. The court has stated in a letter to the Georgian State Minister for Conflict Resolution that an investigation committee started looking into this in 2004 and has been requesting further information. However, a formal investigation has not yet been opened. 

The court only has jurisdiction over events that have taken place since its founding in 2002. But now is the time to strike hard by seeking the prosecution of the August War crimes committed by Russians and South Ossetians.

Richard Rousseau is Assistant Professor and Director of the Masters Programme in International Relations (richardr@kimep.kz) at the Kazakhstan Institute of Management, Economics & Strategic Research (KIMEP)