PARTLY DISSENTING OPINION OF JUDGE DEDOV

11. My voting against some of the conclusions of the majority was based on the lack of evidence, and on the lack of impartiality of those who provided evidence against the Russian Federation. I think that the whole political context of the present case is not fair, and I see systemic problems with the clarity and effective implementation of public international law in the sphere of self-determination and local governance.

12. Let me first explain my position on the question of jurisdiction and control during the phase of hostilities. I believe that control cannot be established in relation to the time when both parties are fighting for such control using their military resources against each other, and when their forces are relatively equal. Effective control and authority can be exercised only if overwhelming force is applied. Therefore, the issue of control in the present case arose during the first hours when the Georgian army started to engage in artillery shelling of the peacefully sleeping city of Tskhinvali and the headquarters of the Russian peacekeepers in the night of 7 to 8 August 2008. There was no military resistance equal to the Georgian army. That part of the events was not examined by the Court as it fell outside the scope of its examination, and Georgia thus remains responsible for killing ordinary citizens.

13. Similarly, the active phase in the present case should be distinguished from the Banković case ( Banković and Others v. Belgium and Others (dec.) [GC], no. 52207/99, ECHR 2001-XII), where the NATO air forces organised the bombing of a civilian object – the Radio-Television Serbia headquarters in Belgrade – and the bombing was carried out without any tangible military resistance, even outside the territory of the respondent States. Therefore, the Court had to examine the merits of the complaints, and the respondent Governments in the Banković case bore the burden of proving that there had been circumstances allowing military force to be applied to a civilian object under international humanitarian law or that there were other reasons justifying the use of lethal force under Article 2 of the Convention. I am not surprised that the Banković decision was heavily criticised by experts, although for different reasons.

14. The political context in the present case is quite controversial; it makes it very difficult for the Court to examine the case in a safe manner. From the very beginning, when the new State of Georgia was acknowledged by the Western international community, the Georgian government immediately decided to revoke the ethnic autonomy which Abkhazia and South Ossetia had enjoyed during their centuries-old history. Such an action, incompatible with the principles of international law (self ‑ determination, self-governance, regional and ethnic autonomy), was not criticised by the Western international community. Although the above principles have been developed by international organisations including the Council of Europe [213] , at that time there was no reaction, even after the 1991 ‑ 92 war launched by the Georgian government. This is hard to believe, because the European Charter of Local Self-Government had been adopted in 1985, just five years beforehand. The Charter contains important safeguards to protect the right to local self-governance. In particular, Article 5 of the Charter provides that changes in local authority boundaries cannot be made without prior consultation of the local communities concerned, possibly by means of a referendum where this is permitted by statute.

15. There was no tangible reaction notwithstanding that that war ended with inter-ethnic violence, hundreds killed and wounded, and thousands of displaced persons and destroyed houses. Such a policy (arbitrary deprivation of ethnic autonomy), violating the principles of international law, provoked inter-ethnic tensions in that region for a long time. The policy was not officially criticised by the international community, which presumed the integrity of the territory of Georgia; on the contrary, the Georgian government was provided with financial, military and other assistance to modernise and reinforce its military machinery and to prepare for a new war, which became inevitable in 2008. Immediately after the Georgian invasion into South Ossetia, the international community contributed to the media support for the Georgian government, claiming that it was Russia that had attacked Georgia. In fact, the Georgian government was encouraged to take control over the rebel regions by military means, notwithstanding that many innocent lives would be taken in order to achieve this task.

16. Such a policy may change the whole concept of democracy, since democracy now appears to be compatible with military aggression aimed at suppressing self-determination and self-governance, and to allow persecution of ethnic minorities who quite naturally want to enjoy their autonomy. This new concept undermines modern democracy. It proves that force (prepotency) remains a decisive criterion for the decision-making process, and that peace, solidarity and dialogue are not priorities for democratic regimes in their relations with their ethnic autonomous communities. I would not be surprised to know that many ordinary people are now disappointed in democracy.

17. Although there are many international documents aimed at supporting regional or ethnic autonomy, they are not effective enough as they do not provide any comprehensive criteria or thresholds for establishing autonomy (safeguarding human rights, maintaining good governance, keeping control over corruption, and so on) and then for gradually expanding regional powers in various fields, including local taxes and budgetary relations. Such guidelines would help to avoid many regional conflicts and tensions between regional and central authorities. The Parliamentary Assembly of the Council of Europe has recognised that the positive experience of autonomous regions can act as a source of inspiration for conflict resolution in Europe and that territorial self-government arrangements may play an important role for the effective protection of the rights of national minorities (see Resolutions 1334 (2003) and 1985 (2014)).

18. In the present case, the international support for the anti-ethnic actions of the Georgian government objectively made the conduct of independent and impartial fact-finding missions impossible. In fact, the reports examined by the Court gave the impression that their authors were aiming to acquit the Georgian government (by saying that Georgia’s military actions did not cause a lot of damage) and to blame the Russian government (by saying that its actions caused much more damage and other negative consequences) for the results of the 2008 war, ignoring the fact that the attack was committed by the Georgian government without declaring war, in violation of the Hague Convention (III) of 1907 on the Opening of Hostilities. Today, international law is applied selectively, and a second Tokyo War Crimes Trial would not be possible. Instead, the inter-State application against the Russian government, which waged a just war ( jus ad bellum ), was declared admissible. In my view, the difficulty of the present case before the Court was that there were no reliable sources of information on almost all issues raised by the applicant Government, except the OSCE report, which was written in an impartial tone. Unlike other reports, the OSCE concentrated on the facts without making any assessment of a political nature and without reaching conclusions on human rights violations which might prejudice the conclusions of the Court. In particular, the European Union Fact-Finding Mission reached conclusions on every aspect of the present case (jurisdiction during occupation, effective control, effective investigation, ill ‑ treatment and others), which put the Court under political pressure.

19. My conclusion is that the Georgian government, and indirectly those States which provided any political, financial or military support (either through action or inaction) for its plans to gain control over South Ossetia by means of military intervention in violation of the principle of ethnic autonomy, should share responsibility for provoking inter-ethnic violence, the displacement of civilians and other atrocities. This becomes even more evident if we take into account the fact that Russian agents were not involved in atrocities against civilians, and made efforts to protect victims from both sides, but their control over the territory was very limited as they had to concentrate on the task of preventing and countering any new military operations by the Georgian army, rather than creating an administration on the occupied territories. Owing to the conflict of interests, those efforts were not noticed or adequately evaluated.