Georgia/Russia Human Rights Watchs Report on the Conflict in South Ossetia Case Study
Order ID 53563633773 Type Essay Writer Level Masters Style APA Sources/References 4 Perfect Number of Pages to Order 5-10 Pages
A. Qualification of the conflict and applicable law
How do you qualify the conflict? How does Human Rights Watch (HRW) qualify it? Do you think that one should regard the situation as encompassing several parallel conflicts which should be analysed separately? In such situations, do you think that one should apply a different body of law for each conflict, even though they occur simultaneously? According to HRW, what law applies? What law is actually cited in the substantive part of its report? (GC I- IV, Art. 2; P I, Art. 1; P II, Art. 1)
If you consider the conflicts separately, how do you qualify the fighting between Georgian forces and South Ossetian forces? Between Georgian forces and volunteer militias? Between Georgian forces and North Ossetian voluntary fighters? Does it matter whether the fighting occurred in disputed or in undisputed Georgian territory? (GC I-IV, Art. 2; P I, Art. 1; P II, Art. 1)
How could the IHL of international armed conflicts apply to the fighting between Georgian and South Ossetian forces even if this fighting is classified separately?
(Paras  and )
Do you agree with HRW that Art. 3 common to the Conventions applies to everyone? Do you think that common Art. 3 also applies during international armed conflicts? [See United States, Hamdan v. Rumsfeld]
Is a violation of Art. 3 a grave breach of the Geneva Conventions? [See ICJ, Nicaragua v. United States; ICTY, The Prosecutor v. Tadic]
If the IHL of non-international armed conflicts applies, does it matter for the application of common Art. 3 that the persons detained by Russian and South Ossetian forces had not participated in the hostilities and had not taken up arms against Russian and Ossetian forces?
B. Qualification of the territory
(Paras - and ) What is the test used by HRW to determine which parts of Georgian territory were occupied by Russia? Should one consider South Ossetia as part of Georgias territory? How do you define occupation? Does HRW give a definition of occupation? (HR, Art. 42)
(Paras  and ) Do you agree with HRW that the situation was one of occupation because the Russian Federation did not have the consent or agreement of Georgia? Does the mere fact that a State agrees to the presence of foreign troops on its own territory preclude the qualification of the situation as one of occupation? Even though the foreign forces exercise effective control over that part of the territory?
(Paras , -,  and ) Can South Ossetia be considered an occupied territory even though Georgia agreed to the presence of Russian troops in the Sochi agreement and in the August 16 ceasefire?
C. Qualification of the persons
Were the Russian peace-keepers in South Ossetia legitimate targets of Georgian attacks? What additional information would you need to answer? [See The International Criminal Court, Part A., The Statute, Arts 8(2)(b)(iii) and 8(2)(e)(iii)]
(Paras - and ) How do you qualify the groups of South Ossetian forces fighting the Georgian forces? According to IHL, under what circumstances would they be entitled to combatant status? Are they allowed to resist the Georgian forces? Is any South Ossetian civilian allowed to resist the Georgian forces? What law applies to South Ossetian civilians taking up arms?
How do you qualify the North Ossetian voluntary fighters who joined South Ossetian militias? What law applies to them?
(Paras -) Do you agree with HRW that Convention IV applies to South Ossetian detainees? Are they protected persons? If one applies the nationality requirement of Art. 4 of Convention IV? If one applies the allegiance criterion of the Tadic case [See ICTY, The Prosecutor v. Tadic]? Is the application of Convention IV consistent with HRWs assertion (para. ) that the conflict between Georgian forces and South Ossetian forces was of a non-international character? According to you, what law should apply here? What rules should apply to the South Ossetian detainees mentioned in the report? Are they entitled to all the rights mentioned in para. ? Does it matter for the legality of the treatment of those detainees described in the report whether they were protected by Convention III, Convention IV or Protocol II?
(Para. ) Do you agree with HRW that South Ossetian militia fighters are non-privileged combatants? What does such a status entail? Is it recognized by IHL? When are members of militias POWs? In what circumstances could the members of the South Ossetian militias be considered POWs? Is this qualification by HRW consistent with its assertion in para.  that the conflict between Georgian forces and South Ossetian militias was a non-international armed conflict? According to you, what law applies here? What is the status of the militia fighters detained by Georgian forces? According to which rules should they be treated?
(Para. ) How does HRW differentiate between non-privileged combatants and armed civilians? Do those statuses exist in IHL? Is it possible to draw a line between civilians taking up arms to fight and civilians taking up arms to defend their property? Does it depend on what the latter defend their property against? Should they be treated differently if detained?
(Para. ) According to you, what was the status of the Georgian civilians detained by Ossetian and Russian forces? Does it make a difference that the Russian forces were also involved in their detention? Would the status of the Georgian civilians have changed if they had been detained by Ossetian forces only?
(Paras -) How do you qualify Georgian military servicemen detained by Ossetian forces? How does HRW justify their qualification as POWs? Do you agree? Were they already POWs before their transfer to Russian forces? If they had been detained only by Ossetian forces, would they have been granted POW status only because they were being detained in a territory occupied by Russia?
D. Conduct of hostilities
(Paras -) Was the village of Khetagurovo a military target? Why? If yes, did that turn every house located in the village into a military target? (P I, Arts 51(5)(a) and 52(2))
(Paras -) Was School No. 7, which was attacked by Russian forces, a military target? Can such a building become a military target? If yes, in what circumstances? Are there indications that the principle of proportionality was not respected during the attack? (P I, Art. 52; CIHL, Rules 8-10)
(Paras -) Were the South Ossetian militiamen driving the cars legitimate targets? If they were only trying to flee or to get their relatives out of the conflict zone? Even if they were wearing uniforms or camouflage? Could the mere fact that they belonged to an armed group fighting against Georgia make them legitimate targets? [See Israel, The Targeted Killings Case] (GC I-IV, Art. 3; P I, Art. 50; P II, Art. 13(3))
(Paras -) Was Gori Military Hospital a military target? Does it make a difference whether a hospital is taking care of both civilians and wounded combatants or only of combatants? What protection do hospitals enjoy under IHL? Can they become military targets? If yes, under what conditions? (GC I, Arts 19 and 21; GC IV, Arts 18 and 19; P I, Arts 12 and 13; P II, Art. 11; CIHL, Rule 28)
(Paras -) Were the attacks on Khetagurovo by the Georgian forces indiscriminate? What constitutes an indiscriminate attack? (P I, Art. 51(4))
(Paras  and ) Do you agree with HRW that the attacks in Tskhinvali may have been disproportionate? How do you measure proportionality? Should the proportionality test be applied to the overall attack against Tskhinvali or to every single building attacked? (P I, Art. 51(5))
(Paras -) Is it necessarily disproportionate to fire at buildings harbouring fighters when the buildings are also sheltering civilians? What are the elements to take into account? Do you think that the attacks by Georgian ground forces against buildings in Tskhinvali were disproportionate? (P I, Art. 51(5))
(Paras -) What were Georgias obligations regarding the precautions to be taken against the effects of attacks in the present case? (P I, Art. 58; CIHL, Rule 23) Is it always possible to avoid locating military targets in populated areas? Is this a strict obligation under IHL?
(Paras -) What were the South Ossetian forces obligations regarding precautions in attack? What kind of warning could have been given? (P I, Art. 57; CIHL, Rules 15-21)
(Paras , - and ) Do you think that Grad rocket launchers are lawful weapons? What rules are they subject to? Is it necessarily prohibited to use them in densely populated areas? (P I, Arts 35, 51(4) and 57(2)(a)(ii); CIHL, Rule 17)
(Paras - and -) Were cluster munitions prohibited during the conflict? Under what circumstances may a State use cluster munitions? Do you agree with HRW that the expected civilian harm caused by an attack also encompasses casualties and harm over time (Para. )? Why should the use of cluster munitions lead to a presumption that an attack is disproportionate? Should there not rather be a presumption that all feasible precautions in the choice of means and methods have not been taken? (P I, Arts 35, 51(5)(b) and 57(2)(a)(ii); CIHL, Rule 17)
Which of the attacks mentioned in the report can be qualified as war crimes? Can any of them be qualified as grave breaches? (GC I-IV, Arts 50/51/130/147 respectively; P I, Arts 11(4), 85(3) and (4))
E. Protection of persons
(Paras  and ) What does IHL say about pillaging and destruction of private property? To whom do the prohibitions apply? Do they apply to South Ossetian forces in the same way as they apply to common criminals or Russian forces? (HR, Arts 28 and 47; GC IV, Art. 33(2); CIHL, Rule 52)
(Para. ) Does IHL prohibit ethnic cleansing as such? Which rules of IHL could the South Ossetian forces be said to have violated if HRWs allegations of ethnic cleansing were well-founded?
(Paras - and -) Does Convention IV apply to the acts of pillage committed by South Ossetian militia members? Does it apply if, as HRW asserts, Russian forces did not take part in their commission, but did not try to stop them either? Similarly, does Convention IV apply to the acts of rape and abductions committed by South Ossetian forces and militias? What law should apply to these acts?
(Paras -) What does IHL say about the return of civilians to their homes after the end of hostilities? When should they be allowed to return? (GC IV, Art. 49)
When may a State party to a conflict detain civilians? In the present case, do you think that the civilians detained by South Ossetian and Russian forces were lawfully detained? What grounds did the parties invoke to justify the detentions? Do they seem valid? (GC IV, Arts 43 and 78)
What are the rules governing the conditions of detention of civilians? Regarding the place of detention? Regarding working conditions? (GC IV, Arts 43 and 78)
Are prisoner exchanges a recognized and legitimate process to facilitate repatriation or is there a unilateral obligation to repatriate detainees at the end of active hostilities? What does IHL say about the release of civil internees? When should they have been released? (GC IV, Arts 45(2), 132(2) and 134)
Is the Russian Federation responsible for every incident of ill-treatment of detainees in territories it occupies?
(Paras -) What are the rules governing the conditions of detention of POWs and their treatment during detention? Which rules of IHL seem to have been violated here? Can the Russian Federation allow South Ossetian forces to detain a Georgian POW who fell into Russian hands? (GC III, Arts 12-16 and 22)
F. State responsibility
(Paras - and ) What are the obligations of an Occupying Power regarding public order? What does the obligation to ensure ( ) public order and safety mean? (HR, Art. 43)
(Paras -) Can the Russian Federation be held accountable for the violations of IHL committed by the South Ossetian forces? Do we have enough information to conclude that the Russian Federation was exercising a level of control over the South Ossetian forces sufficient to engage its responsibility? Can the Russian Federation be held accountable for South Ossetian acts merely on the grounds that it was occupying the territory where the violations occurred and therefore was exercising some control over it?
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