PARTLY DISSENTING OPINION OF JUDGE CHANTURIA

1. I voted with the majority as regards points 2-16 of the operative part of the judgment. The Court’s ruling in this respect carries particular historical and practical significance. It has finally, after a careful examination of all the relevant facts, given a definitive answer to one of the key questions associated with the impugned events of August 2008 (which have been nicknamed “a little war that shook the world” [214] ). This question is who the real victims of the Russo-Georgian war of August 2008 are.

2. The Court has found that the “little war” entailed the systematic killing of Georgian civilians and the torching and looting of houses in the Georgian villages situated in the conflict zone (point 3 of the operative part of the judgment); that Georgian civilians were routinely subjected to inhuman and degrading treatment during their unlawful detention in Tskhinvali in August 2008 (points 5 and 6); and that there was an administrative practice of Georgian prisoners being subjected to torture (point 8). Furthermore, under the relevant rules governing extraterritorial jurisdiction, the Russian Federation is responsible for the commission of all these crimes, since, as the Court has established, it is that State which has been exercising “effective control” over the conflict zones from the date of the ceasefire agreement of 12 August 2008 onwards (see points 2, 4, 7 and 9 of the operative part). The respondent State has a further international obligation to carry out an effective investigation not only into the events which occurred after the cessation of the hostilities but also into the events, including those relating to killings, that occurred during the active military operations in the period of 8 to 12 August 2008 (see point 12).

3. The Court has established the lasting inability of Georgian civilians to return to their homes in the Abkhazian and South Ossetian regions (see point 10 of the operative part and paragraphs 296-301 of the judgment), which constitutes judicial acknowledgment of the continuing factual situation of ethnic cleansing of the Georgian population from these regions. This finding has prompted the Court to remind the Russian Federation, “which has ‘effective control’ over those regions”, that it has “a duty to enable inhabitants of Georgian origin to return to their respective homes, pursuant to [its] obligations under the Convention” (see paragraph 298 of the judgment). The fact of the occupation of these two Georgian regions by the Russian State has been recognised by an international judicial body (see the sub-chapter entitled “Occupation phase after the cessation of hostilities” of the judgment, paragraphs 145-222, as well as paragraph 336).

4. However, where my and the majority’s views differ is in relation to point 1 of the operative part of the judgment, where the majority stated that the events which had taken place during the active phase of the Russo ‑ Georgian war (from 8 to 12 August 2008) did not fall within the jurisdiction of the Russian Federation.

5. I disagree with this finding for three reasons: (A) firstly, because the arguments put forward by the majority in this respect are not convincing and not consistent with the Court’s recent case-law; (B) secondly, because the majority resorted to a faulty methodology for examining the question of extraterritorial jurisdiction during the active phase of the military conflict; and (C) finally, because I believe that the majority have created a vacuum in the Convention system for the protection of human rights in Europe.

A. A closer look at the majority’s arguments

6. The majority mainly relied on the following five arguments to conclude that the respondent State did not have extraterritorial jurisdiction over the events that had taken place during the active phase of the hostilities:

1. Why Banković is no longer valid case-law on the question of extraterritorial jurisdiction

7. As regards the parallels drawn by the majority with the Banković and Others case, it is already a matter of common legal knowledge that the case-law on the question of extraterritorial jurisdiction has significantly evolved since the decision in that case. In particular, as stated by the Court in Al ‑ Skeini and Others v. the United Kingdom ([GC], no. 55721/07, § 137, ECHR 2011), “whenever the State, through its agents, exercises control and authority over an individual, and thus jurisdiction, the State is under an obligation under Article 1 to secure to that individual the rights and freedoms under Section I of the Convention that are relevant to the situation of that individual [in French: ‘ qui concernent son cas ’]. In this sense, therefore, the Convention rights can be ‘divided and tailored’”. The Court has also held, with reference to its own case-law, that “in certain circumstances, the use of force by a State’s agents operating outside its territory may bring the individual thereby brought under the control of the State’s authorities into the State’s Article 1 jurisdiction” (ibid., § 136).

8. In most of the cases that the Court has examined since its decision in Banković and Others (cited above), the Court has found that the decisive factor in establishing “State agent authority and control” over others outside the State’s territory in the context of arrest or detention was “the exercise of physical power and control over the person in question” (see Al-Skeini and Others , cited above, § 136 in fine ). In other cases concerning fire aimed by the armed forces of the States concerned, the Court has applied the concept of “State agent authority and control” over others to scenarios going even beyond physical power and control exercised over the persons in question in the context of arrest or detention (see, for example, Jaloud v. the Netherlands [GC], no. 47708/08, §§ 140-53, ECHR 2014; Solomou and Others v. Turkey , no. 36832/97, §§ 41-52, 24 June 2008; Andreou v. Turkey (dec.), no. 45653/99, 3 June 2008; Pad and Others v. Turkey (dec.), no. 60167/00, 28 June 2007; Isaak and Others v. Turkey (dec.), no. 44587/98, 28 September 2006; and Issa and Others v. Turkey , no. 31821/96, §§ 68, 71 and 74, 16 November 2004).

9. Thus, to give a few illustrative examples, in Andreou (cited above) the Court accepted that the victims fell within Turkey’s extraterritorial jurisdiction despite the fact that the shooting of the victims had occurred in Cyprus:

“In these circumstances, even though the applicant sustained her injuries in territory over which Turkey exercised no control, the opening of fire on the crowd from close range, which was the direct and immediate cause of those injuries, was such that the applicant must be regarded as ‘within [the] jurisdiction’ of Turkey within the meaning of Article 1 and that the responsibility of the respondent State under the Convention is in consequence engaged.”

10. In Issa and Others (cited above, § 71) the Court noted the following (emphasis added):

“Moreover, a State may also be held accountable for violation of the Convention rights and freedoms of persons who are in the territory of another State but who are found to be under the former State’s authority and control through its agents operating – whether lawfully or unlawfully – in the latter State ... Accountability in such situations stems from the fact that Article 1 of the Convention cannot be interpreted so as to allow a State party to perpetrate violations of the Convention on the territory of another State, which it could not perpetrate on its own territory (ibid.).”

11. What all the above-mentioned post- Banković cases have in common is the use of physical force by the State agents in question. The concept of State agent “authority and control” over others is to be viewed in the sense of “power” exercised by State agents over individuals, particularly through the use of physical force, whether in the context of arrest or detention or when targeting individuals in order to kill or wound them. In this connection, a few comparative-law parallels can be drawn. In its Alejandre v. Republic of Cuba decision, concerning the shooting down of two civilian aircraft by a Cuban military plane in international airspace, the Inter-American Commission on Human Rights concluded that, through those deliberate strikes, Cuba had acquired “control” of the members of the aircraft crew in question. As a result, the crew members fell within the jurisdiction of the respondent State, in accordance with Article 1 of the American Convention on Human Rights [215] , the wording of which is similar to that of Article 1 of the Convention.

12. Furthermore, in General Comment no. 36 on the right to life (Article 6 of the International Covenant on Civil and Political Rights), adopted on 30 October 2018, the United Nations Human Rights Committee stated as follows (emphasis added):

“63. ... In light of article 2 (1) of the Covenant, a State party has an obligation to respect and ensure the rights under article 6 of all persons who are within its territory and all persons subject to its jurisdiction, that is, all persons over whose enjoyment of the right to life it exercises power or effective control. This includes persons located outside any territory effectively controlled by the State whose right to life is nonetheless affected by its military or other activities in a direct and reasonably foreseeable manner ...”

13. Having regard to all the above considerations, I regret that the majority chose to base their findings on extraterritorial jurisdiction on the clearly outdated Banković and Others decision instead of relying on much more recent and relevant case-law such as Jaloud , Solomou and Others , Andreou , Pad and Others , Isaak and Others and Issa and Others (all cited above).

14. What the majority have done was not merely resuscitate the otherwise lifeless Banković precedent (for which the Court was heavily criticised, and probably rightly so, in the past [216] ); they took a step backwards by deviating from the spatial concept of extraterritorial jurisdiction introduced by the very same Banković case on which the majority themselves relied. In Banković and Others the Court at least attempted to justify its position by coming up with the “legal space” argument [217] . By contrast, in the present case the majority failed to give due consideration to the fact that the applicant and respondent States were both High Contracting Parties to the Convention at the material time of the events, and that the shelling and bombing during the active phase of the hostilities had clearly occurred within the legal space ( espace juridique ) of the Convention (see sub-heading C below).

2. Why the reference to the reality of an international armed conflict cannot be a valid excuse for not extending extraterritorial jurisdiction

15. As regards the majority’s reference to the reality of an international armed conflict as something peculiar to the extent that it does not warrant protection under the Convention, this argument is ill-fitting. It is true that all the relevant post- Banković cases that I have cited above (see paragraph 8 above) concerned matters such as operations for the protection of public order and isolated and targeted actions comprising an element of proximity. The active phase of hostilities which the Court was required to examine in the present case, on the other hand, concerned large-scale bombing and artillery shelling by Russian armed forces seeking to put the Georgian army hors de combat and establish control over areas forming part of Georgia.

16. However, while there is certainly a difference in scale between policing operations and large-scale military conflict, there cannot be any real difference in nature, and in practice it is impossible to draw a dividing line between targeted actions and larger-scale military operations. It also appears arbitrary and inconsistent with humanitarian considerations to consider that in the event of targeted policing operations, potential victims fall within the jurisdiction of the State in question, whereas this would not be the case with larger-scale military operations.

3. Why the practice of non-derogation under Article 15 of the Convention cannot possibly obstruct the exercise of extraterritorial jurisdiction

17. To say, as the majority seem to suggest in paragraph 139 of the judgment, that a High Contracting Party may be absolved from its international responsibility under Article 1 of the Convention for war crimes and other serious human rights violations committed during an international armed conflict provided that it has not requested a derogation under Article 15 is, in my view, inadequate.

18. I firmly believe that since Article 15 forms part of the Convention, this Article should be given practical effect by the Court. The aim of Article 15 is to allow States to derogate from the relevant Convention obligations in a situation of “war”, and thus of armed conflict, or in any “other public emergency threatening the life of the nation”, “to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with [their] other obligations under international law”. It is noteworthy that with regard to Article 2 of the Convention, Article 15 does not permit any derogation, “except in respect of deaths resulting from lawful acts of war”. There is therefore an express reference in the text of Article 15 to international law, and in particular to international humanitarian law as regards Article 2. Thus, although the Convention should so far as possible be interpreted in harmony with other rules of international law, I believe that the Convention is always to be applied as the primary legal source whenever no derogation has been made under Article 15. If a notice of derogation has been submitted, then it is only through the most meticulous application of Article 15 that the Court can achieve a harmonious interpretation of the provisions of the Convention with rules of international public law, in particular the correlation between the standards of protection under Article 2 and those contained in rules of international humanitarian law.

19. Not only has the majority’s above-mentioned argument undermined the derogation mechanism of the Convention – which arguably weakens the Convention as a whole – it also contradicts the Court’s previous case-law on this precise issue. It is to be recalled that in the landmark case of Hassan v. the United Kingdom ([GC], no. 29750/09, ECHR 2014), the absence of a formal derogation by the United Kingdom under Article 15 of the Convention did not in any manner hinder the establishment of the respondent State’s extraterritorial jurisdiction over the events which had occurred in south-east Iraq (ibid., §§ 74-80, 101 and 107-10).

4. Why the Court cannot hide behind difficulties associated with evidence-gathering

20. To rely, as the majority seem to suggest in paragraph 141 of the judgment, on a difficulty associated with evidence-gathering as an excuse for a court not to administer justice is not convincing either. This is particularly so when a number of proven procedural techniques relating to the task of fact-finding are at this Court’s disposal.

21. One such technique is, whenever there are a large number of alleged victims and contested incidents, to make a selection of a few “representative incidents” and to examine the selected incidents only. This was exactly how the European Commission of Human Rights proceeded in the first two Cyprus v. Turkey cases, where it indicated that in view of the sheer number of alleged violations, it had “to restrict its investigation of alleged violations and [had] tested only a limited number of cases selected as representative” (see Cyprus v. Turkey , nos. 6780/74 and 6950/75, Commission’s report of 10 July 1976, § 77; the Court, following the Commission, adopted the same approach to selected “illustrative cases” in its first inter-State judgment in Ireland v. the United Kingdom , 18 January 1978, § 93, Series A no. 25).

22. The same holds true in the present case. Having regard to the extent of the military operations undertaken and to the violations alleged, the Court chose, at a very early stage of the proceedings, to examine only four “representative incidents”: it shortlisted for scrutiny the alleged air attacks on the town of Gori and the villages of Karbi and Tortiza in the “buffer zone”, all three being situated outside of the South Ossetian region, and on the village of Eredvi in the part of the South Ossetian region which had been under Georgian control prior to the outbreak of the conflict (see paragraph 112 of the judgment). According to the information submitted by the applicant Government and set out in the various reports by international organisations, the chosen locations covered different conflict zones, and the town of Gori and the villages of Karbi and Tortiza were located in areas where the majority of the most intense fighting had taken place. Furthermore, the military operations carried out in the chosen four locations were particularly well documented.

23. To illustrate the fact that the Court had at its disposal more than enough evidence for a judicial assessment, I will now provide a very brief overview of the evidence available in the case file concerning the military actions conducted in the four above-mentioned “representative” settlements:

24. Furthermore, between 6 and 17 June 2016 the Court took evidence from witnesses in Strasbourg. Several key findings can be discerned from the verbatim record of the witness hearings.

25. A number of international reports containing relevant factual findings provided an additional and invaluable source of information. For instance, in its report “Human Rights in the war-affected areas following the conflict in Georgia” (see paragraph 63 of the judgment), the ODIHR/OSCE established the following facts with respect to Eredvi (on page 35 of the report):

“One of the worst hit villages was Eredvi. Several former residents of Eredvi provided similar accounts to the HRAM of their experiences there. The aerial bombardment began at noontime on 8 August. One resident reported seeing dead bodies in the street after the Russian planes passed over. Two residents separately reported seeing two aircraft bomb the village, resulting in at least six persons killed. The bombing was followed by a ground attack, during which the village sustained fire from small arms and Russian tanks. The Russians were joined by Ossetian militia, who also fired on the population. Once the troops were inside the village, some civilians were threatened with firearms.”

26. Human Rights Watch, in its report “Up in Flames: Humanitarian Law Violations and Civilian Victims in the Conflict over South Ossetia” (see paragraph 63 of the judgment), established the following facts with respect to Karbi (on pages 96-97 of the report):

“V[.]T[.], the village administrator, described to Human Rights Watch the aftermath of the second attack: ‘There were many wounded. I had to decide who had better chances of survival and stuff them into the ambulance. We buried the dead in the yards of houses and fled the village.’

According to V[.]T[.] and two other villagers, there was no Georgian military base in the village and there were no Georgian military forces present at the time of the attack. Two other villagers, interviewed separately, told Human Rights Watch that while there were no Georgian troops in the village itself, there was Georgian artillery in fields about three kilometers from the village.

The distance of the village from the Georgian artillery, combined with the fact that the village was hit twice in two separate attacks, suggests that the village may have been deliberately targeted, or at a minimum that the village was hit as part of an indiscriminate attack on the area, and the Russian forces failed to direct the attack solely at the military targets located at some distance from the populated areas. In either event the civilian casualties in Karbi appear to be the result of serious violations of humanitarian law.”

27. Human Rights Watch also established the following facts with respect to Tortiza (on pages 97-100 of the above-mentioned report):

“Tortiza is a small village situated several kilometers from a main road connecting Gori and Tskhinvali ... Many civilians fleeing bombing and shelling in other villages in the area went to Tortiza. Both Tortiza residents and those arriving from other villages reported to Human Rights Watch that they believed the village’s location away from the main road meant that it was of no strategic importance and that it therefore would not be targeted. However, on August 12, at around 9:45 a.m. Russian aircraft fired S-8 rockets at Tortiza, killing three civilians, injuring dozens, and damaging nearly every house in the village. ...

While it has not been possible to establish the total number of rockets Russian forces fired in their attack, villagers told Human Rights Watch that a demining organization had cleared 148 S-8 rockets, many of them unexploded, in Tortiza during the first weeks of October. L[.]M[.], 45, told Human Rights Watch, ‘In every house, they cleared stuff.’ Z[.]K[.], 72, told Human Rights Watch that four rockets fell in her house alone. She showed Human Rights Watch researchers the remaining craters and described the attack. ...

Villagers told Human Rights Watch that there were no Georgian military or police forces in the area. Human Rights Watch examined the damage to many houses in the village which, together with witness accounts, provided compelling evidence that Russian aircraft fired at civilian houses.

This direct attack on what appears to have been a purely civilian target constitutes a serious violation of humanitarian law and a war crime.”

28. The above-mentioned brief overview, which is just an example of the evidence that the Court had at its disposal in the case file, is meant to show that the majority’s argument about the lack of the evidentiary basis for reaching a judicial decision is difficult to comprehend. The proceedings in the present inter-State case were pending for some twelve years, and during this period plenty of relevant documents and information were collected by the Court. Had the majority established the extraterritorial jurisdiction of the Russian Federation over the events that took place during the active phase of the military conflict, I have no doubt that the Court could easily have established the fact of wanton and disproportionate use of military power by the Russian Federation, which caused numerous casualties amongst the civilian population, in breach of Article 2 of the Convention. I regret that the majority deprived the Court of an opportunity to carry out a proper assessment of the evidence available in the case file.

5. Why the alleged inability to interpret international humanitarian law was not a valid argument

29. In paragraphs 141-43 of the judgment, the majority seem to contend that the Court is not well suited for applying rules of international humanitarian law (IHL). Such a supposition, however, contradicts the Court’s previous case-law.

30. If in the landmark case of Hassan the Court was able to apply the relevant rules of IHL in conjunction with Article 5 of the Convention in relation to actions carried out by the United Kingdom authorities in south ‑ east Iraq (see Hassan , cited above, §§ 101-11), why then could the majority not do the same in the present case in relation to Article 2 as regards the use of military power by the Russian Federation?

31. It is true that it is not within the Court’s jurisdiction to interpret and apply international humanitarian law as such. However, the Court clearly has jurisdiction to interpret and apply the Convention, which is undoubtedly the only legal basis for its judicial assessment, while at the same time having regard to other rules of international law, including international humanitarian law, and this is true irrespective of the position of the respondent State (ibid., § 102). I believe that what the majority needed to do in the present case was not to determine the question of the legality under international law of the armed conflict conducted by the Russian Federation ( jus ad bellum ), but merely to establish – and this task fell squarely within the Court’s mandate under the Convention – whether the acts carried out by the Russian armed forces during the active phase of the conflict amounted to violations of Article 2 of the Convention, by applying Article 2, as would have been appropriate in the particular circumstances of the present case, either alone or in the light of international humanitarian law ( jus in bello ).

B. An issue with the approach to extraterritorial jurisdiction during an international armed conflict

1. Methodology

32. At the beginning of my opinion I mentioned that the majority had resorted to a questionable methodology for the assessment of extraterritorial jurisdiction as regards the active phase of the military conflict between the two Contracting States (see paragraph 5 above). I will now try to elaborate on this point further.

33. In my opinion, the fallacy of the methodology applied by the majority started with the separation of the active phase of the military conflict between Georgia and Russia from the subsequent period of occupation (see paragraph 83 of the judgment). The majority stated that “a distinction needs to be made” between the two periods but failed to explain why exactly that distinction was necessary. It is difficult to understand the logic for this approach and the unintended consequence of this separation appears to be an alteration of the scope of the inter-State application at stake.

34. It would have been more logical and compatible with the scope of the application as lodged by the applicant State to examine, for the purposes of determining the issues of jurisdiction, attributability and imputability, the active phase of the conflict not as a distinct, instantaneous event detached from the historical background but rather as a part of a continuing situation which included both the events that had occurred prior to the outbreak of the military conflict and those which happened afterwards. This “continuous” approach to the assessment of the military conflict of 8 to 12 August 2008 in conjunction with the preceding and subsequent events was exactly the method used by the EU Independent International Fact-Finding Mission in describing the conflict (see the structure of its report), as well as by Pre ‑ Trial Chamber I of the International Criminal Court (ICC), when the latter described the relevant factual situation in its decision of 27 January 2016 authorising the Prosecutor of the ICC to proceed with an investigation into the crimes allegedly committed in and around South Ossetia, Georgia, between 1 July and 10 October 2008 [219] . See, in particular, the following excerpt from the Chamber decision of the ICC of 27 January 2016 (emphasis added):

“In addition, the Chamber considers, at this stage, that there is sufficient indication that the Russian Federation exercised overall control over South Ossetian forces, meaning that also the period before the direct intervention of Russian forces may be seen as an international armed conflict .”

35. Most importantly, the inter-State application form was presented in a manner that directly requested the Court to apply the above-mentioned holistic approach to the facts of the case. Thus, the applicant Government explicitly and on numerous occasions requested the Court to take into account the jurisdictional situation affecting South Ossetia and Abkhazia prior to the outbreak of the active phase of the hostilities [220] .

36. The third-party intervener in the case, the Human Rights Centre of the University of Essex (see paragraph 80 of the judgment), advised the Court that in order to determine whether the violations allegedly committed during the armed conflict fell within the jurisdiction of the respondent State, the Court needed to ask itself the following questions (emphasis added):

“What was the nature of the control, if any, exercised by Russia in South Ossetia and Abkhazia prior to the armed conflict? ... Did the nature of the control exercised by Russia in South Ossetia and Abkhazia change upon the break of hostilities? ... After the end of the active hostilities , what was the nature of the control exercised by Russia in areas outside ... [and] within South Ossetia and Abkhazia?”

37. In the light of all the aforementioned factors, I believe that the only correct methodology in the present case for addressing the issues of jurisdiction, attributability and imputability during the active phase of the hostilities would have been for the Court to start its examination with the question of whether the respondent State had exercised effective control over South Ossetia and Abkhazia before the outbreak of the hostilities. In the affirmative, and coupled with the Court’s existing finding that the Russian Federation has remained the occupying power in the two regions after the end of the hostilities, it would have become evident that the direct military intervention by the Russian Federation in the period between 8 and 12 August 2008 was nothing else but an intensified form of the military support that had otherwise already been provided by the respondent State to the de facto authorities of the two breakaway regions for many years on an uninterrupted basis prior to the outbreak of the “little war”.

38. The main driving force behind the Russian military operation against Georgia was to consolidate Russia’s already existing effective control over the two regions of Georgia in issue and to extinguish any attempts by Georgia (be they political, diplomatic or economic) to claim back its right of sovereign control over those regions. A direct consequence of the respondent State’s decision to engage in a large-scale international conflict with the applicant State was an even further consolidation of its status as the occupying power. From a passive occupying power the respondent State became a belligerent occupying power. This is, by the way, exactly what differentiates the present inter-State case from the situation examined in Banković and Others (cited above), where the NATO forces’ narrowly tailored military operation in Belgrade never pursued any purpose of occupying territories of the then Yugoslavia.

39. Indeed, unlike NATO’s actions in the Banković case, during the five ‑ day war the Russian Federation did not limit its military intervention to aerial or artillery strikes only. What Russia did was carry out a full-scale intervention with all of its military might, including, most importantly, the advancement of its ground forces into Georgian territory by early 10 August 2010 at the very latest, a fact which was indirectly acknowledged by the majority as well [221] . In this connection, it should be borne in mind that the principle of “boots on the ground” always calls for very careful scrutiny by the Court, as intervention and occupation by the ground army is a sine qua non for either maintaining or establishing overall control over the foreign territory (compare, for instance, Chiragov and Others v. Armenia [GC], no. 13216/05, § 96, ECHR 2015).

2. Evidence in the case file

40. I would like to provide a very brief overview of the documentary evidence attesting to the nature of the control exercised by the respondent State over South Ossetia and Abkhazia prior to the hostilities. It should be noted that all the relevant documents formed part of the case file.

41. The Russian Federation exercised effective authority and control over South Ossetia and Abkhazia at all relevant times and prior to the conflict. The following facts are examples of such control/authority: appointment of high-ranking Russian civil servants and military officers to serve in the de facto governments of the two breakaway regions of Georgia, Russia’s continuous financial support for South Ossetia and Abkhazia, its role in securing the economy in the two regions, and the “passportisation” and visa-free movement secured by the Russian Federation for residents of South Ossetia and Abkhazia.

42. The level of control exercised by the Russian Federation was confirmed by the then leader of the de facto government of South Ossetia, Eduard Kokoity, who stated the following in an interview on 10 June 2006: “I wish to emphasise that South Ossetia is already de facto an entity of the Russian Federation because 95% of South Ossetians are Russian citizens ... Russian laws apply in the Republic of South Ossetia; the currency is the Russian rouble; .... South Ossetia is a de facto entity of the Russian Federation and we simply have to consolidate this legally.”

43. The EU Fact-Finding Mission confirmed all the above in the following findings (emphasis added):

“First, as the majority of people living in South Ossetia have acquired Russian citizenship, Russia can claim personal jurisdiction over them. From the point of view of Russian constitutional law, the legal position of Russian citizens living in South Ossetia is basically the same as the legal position of Russian citizens living in Russia.

Second – and still more importantly – Russian officials already had de facto control over South Ossetia’s institutions before the outbreak of the armed conflict, and especially over the security institutions and security forces . The de facto Government and the ‘Ministries of Defense’, ‘Internal Affairs’ and ‘Civil Defence and Emergency Situations’, the ‘State Security Committee’, the ‘State Border Protection Services’, the ‘Presidential Administration’ – among others – have been largely staffed by Russian representatives or South Ossetians with Russian citizenship that have worked previously in equivalent positions in Central Russia or in North Ossetia ... Even if South Ossetia was not formally dependent on any other state, Russian foreign influence on decision-making in the sensitive area of security issues was so decisive that South Ossetia’s claim to independence could be called into question.

To sum up, Russia’s influence on and control of the decision-making process in South Ossetia concerned a wide range of matters with regard to the internal and external relations of the entity. The influence was systematic, and exercised on a permanent basis. Therefore the de facto Government of South Ossetia was not ‘effective’ on its own .” [222]

44. At a press conference on 14 February 2008 the Russian President, Vladimir Putin, declared that if Kosovo was recognised as an independent State, the international community should grant South Ossetia and Abkhazia the same status.

45. On 21 March 2008 the Russian State Duma adopted a resolution calling on the Russian Government to consider “the expediency of recognising the independence” of South Ossetia and Abkhazia and calling for greater support to “Russian citizens” in both regions.

46. On 29 April 2008 the Russian Defence Ministry officially announced its decision to increase the number of its troops stationed in Abkhazia. On 8 May 2008 it stated that it had strengthened the Abkhaz contingent so that it comprised 2,542 Russian soldiers. Following this build ‑ up of troops and equipment, the European Parliament adopted a resolution on 5 June 2008 stating that Russian troops could no longer be considered neutral and impartial peacekeepers.

47. Between 15 July and 2 August 2008 the Russian Federation conducted large-scale military drills referred to as “Caucasus-2008” in the immediate vicinity of Georgia’s northern border. The Russian Defence Ministry claimed that the drills, involving over 8,000 troops and 700 pieces of military hardware, were aimed at preparing for, inter alia , “peace ‑ enforcement operations in Abkhazia and South Ossetia” [223] .

48. In August 2012 President Vladimir Putin conceded in a public interview that the military operation against Georgia in August 2008 had been planned well in advance: “It is not a secret that there had been a plan long before the August 2008 conflict ... We had trained the South Ossetian militia under this plan ... It proved more than effective.” [224]

49. The statements given to the Court by a former member of the Parliamentary Assembly of the Council of Europe, who was heard as a witness during the hearing of 9 to 17 June 2006, constitute a perfect description of the type (and methods) of the control exercised by the Russian State prior to the outbreak of the hostilities:

“[The witness] also stated that he agreed with Carl Bildt that the Russian activities in relation to South Ossetia were comparable to the annexation of Sudetenland by Nazi Germany, given that Russia had first distributed its passports to South Ossetians and had then invoked protection of its citizens as a pretext for its intervention in Georgia ...”

50. The above-mentioned very brief overview of the documentary evidence available in the case file proves that the respondent State had overwhelming military, economic and political control over Abkhazia and South Ossetia prior to the outbreak of the hostilities on 8 August 2008 (compare with IlaÅŸcu and Others v. Moldova and Russia [GC], no. 48787/99, §§ 388-94, ECHR 2004 ‑ VII). Of particular significance was the strength of the Russian military presence in the areas prior to the outbreak of the “little war” (see Loizidou v. Turkey (merits), 18 December 1996, §§ 16 and 56, Reports of Judgments and Decisions 1996 ‑ VI). It is consequently evident that the Russian Federation exercised control over those areas prior to the armed conflict.

51. Having regard to the latter finding, coupled with the majority’s own recognition of the fact that the respondent State has appeared to be the sole occupying power after the end of the active phase of the hostilities, I regret that the majority have failed to see what is obvious: that during the August 2008 war as well, the respondent State continued to provide military support, albeit in a much more intensified form, to the de facto authorities of the two breakaway regions of Georgia.

C. An unsage predecent

52. In conclusion, I would like to express a few thoughts on judicial ‑ policy considerations associated with such a delicate and unusual issue as an international armed conflict between two Contracting Parties to the Convention.

53. I believe that the main raison d’être of this Court is to contribute to the task of securing collective public order in Europe. As has been stated on numerous occasions, the Convention is a constitutional instrument of European public order (see Al-Skeini and Others , cited above, § 141). Indeed, an applicant State bringing an inter-State case is “not to be regarded as exercising a right of action for the purpose of enforcing its own rights, but rather as bringing before [the Court] an alleged violation of the public order of Europe” (see Austria v. Italy , no. 788/60, Commission decision of 11 January 1961, and Cyprus v. Turkey [GC], no. 25781/94, § 78, ECHR 2001-IV). Collective public order, however, cannot exist without peace reigning in the territories of the member States. How can this Court act as the guarantor of peace and public order in Europe if it turns its back on an armed conflict occurring within the member States’ legal space? Who else, if not the Court, should carry out supervision of human-rights protection during armed conflicts occurring on the European continent?

54. It goes without saying that human rights are universal. It should not, however, be forgotten that the Convention is first of all a regional European mechanism of human rights protection, and hence there is a compelling need to stay particularly vigilant with respect to armed conflicts occurring in Europe. The Court has not only a legal but also a moral obligation to stay active and exercise its duty of European supervision in the event of armed conflicts occurring within the legal space of the Convention, on pain of leaving individual victims of such military conflicts in a legal vacuum, which would amount to a denial of human-rights protection to those who most need it (see, as a recent authority, Güzelyurtlu and Others v. Cyprus and Turkey [GC], no. 36925/07, § 195, 29 January 2019, where the Grand Chamber emphasised the inappropriateness of leaving without the requisite human-rights protection individuals living in a territory forming part of the legal space of the Convention).

55. I am afraid that the majority’s ruling as regards the question of extraterritorial jurisdiction during the active phase of hostilities has given birth to such a vacuum, and this runs counter to the spirit of the Convention.

ANNEX

SUMMARY OF STATEMENTS

of witnesses heard by the Court

at the Witness hearing conducted in Strasbourg

from 6 June to 17 June 2016

LIST OF WITNESSES

A. Witnesses proposed by the Government of Georgia

1. W1, eyewitness to the military operation in Eredvi

2. W2, eyewitness to the military operation in Eredvi

3. W3, eyewitness to the military operation in Karbi

4. W4, eyewitness to the military operation in Karbi

5. W5, eyewitness to the military operation in Tortiza

6. W6, eyewitness to the military operation in Tortiza

7. W7, former prisoner of war

8. W8, former prisoner of war

9. W9, former prisoner of war

10. W10, former civilian detainee

11. W11, former civilian detainee

12. W12, former civilian detainee

13. W13, eyewitness to the killing of Ivane Lalashvili

14. W14, eyewitness to the killing of Natela Kaidarashvili

15. W15, eyewitness to looting and burning of houses in Vanati

B. Witnesses proposed by the Government of the Russian Federation

1. W16, Russian Armed Forces

2. W17, Russian Armed Forces

3. W18, Russian Armed Forces

4. W19, official of the de facto authorities of South Ossetia

5. W20, Russian official

6. W21, Russian Armed Forces

7. W22, Russian Armed Forces

8. W23, Russian Armed Forces

9. W24, official of the de facto authorities of South Ossetia

10. W25, official of the de facto authorities of South Ossetia

11. W26, Ossetian whose house was allegedly destroyed by unknown perpetrators during or immediately after the cessation of hostilities

12. W27, Ossetian whose house was allegedly destroyed by unknown perpetrators during or immediately after the cessation of hostilities

C. Witnesses proposed by the Court

1. W28, former Ambassador of the Netherlands

2. W29, former Commander of the Royal Netherlands Military Constabulary

3. W30, former member of the Parliamentary Assembly of the CoE

4. W31, former member of the Parliamentary Assembly of the CoE

5. W32, American Association for the Advancement of Science

6. W33, former member of the British Armed Forces, former Deputy Chief of UNOMIG and former British defence attaché in Russia and the South Caucasus

SUMMARY OF STATEMENTS

A. Active conduct of hostilities during the five days’ armed conflict (8 ‑ 12 August)

1. W1 , eyewitness to the military operation in Eredvi, born in 1969

He stated that on 6/7 August 2008 people started to leave Eredvi because of the shelling of nearby settlements and because of rumours that Eredvi would not escape the same fate [225] . On 7 August or in the morning of 8 August (the witness changed his account in the course of his examination) he took his two sisters and their husbands and children to Gori. He then immediately returned to Eredvi. On 8 August (the witness initially stated that it was in the morning, but later changed his account, stating that it was in the afternoon) he was standing in front of the village church together with many other people when two explosions took place. He lost consciousness, but shortly thereafter got up and tried to help others. He took Ms Nino Romelashvili, who was already dead, and 7 ‑ 8 severely injured people to hospital (which was 10-15 kilometres away). He then returned to Eredvi and took some other people to hospital. All of them were in civilian clothes. According to this witness, there were no soldiers in Eredvi at that time; there were only peacekeepers in the eastern outskirts of Eredvi (1-2 kilometres from the village church) in a former kolkhoz called MTS. All in all, two people, including Ms Nino Romelashvili, died and 15 people were severely injured as a result of the explosions in front of the village church, according to this witness. The witness was told that, while he was on his way to hospital, an aerial bombing of Eredvi had taken place, but he did not see that. At the end of the day, Eredvi was almost razed to the ground [226] . On 9 August 2008 he left Eredvi, but continued to work for the Eredvi Municipal Government until 2013 [227] .

2. W2 , eyewitness to the military operation in Eredvi, born in 1980

He stated that in Eredvi they could hear sounds of shelling on the evening of 7 August 2008. On 8 August at 4 or 5 p.m. he was standing in front of the village church together with many other people when a bomb fell, killing one lady and injuring 6-7 persons (the witness himself was injured in the neck). The bomb completely destroyed all the houses around. Shortly before the bomb fell, he had seen a green plane with a red star on the underside flying very low over their heads. A second bomb then fell in the centre of Eredvi. Eventually, the witness was taken to Tkviavi Hospital. According to this witness, there were no soldiers in Eredvi at that time.

3. W3 , eyewitness to the military operation in Karbi, born in 1940

He stated that the village of Karbi was struck on 9 August 2008 at about 6 a.m. and again at about 11 a.m. When the first attack occurred, the witness was at home, but he immediately went to the place of the attack. One person, Ms Dodo Unapkoshvili, was fatally injured (she died on the way to hospital). Seven persons were killed in the second attack and the witness was himself injured. When describing the attacks, he used the term “bombs”, although he expressly said that he had not seen planes. He added that those “bombs” had been different from other bombs as they had burst in the air, without leaving craters. They had discharged fragments which had hit him in the hand and in the foot. According to this witness, there were neither soldiers nor military equipment at the place of the attacks (not a single military vehicle). He stated that 5-6 houses had been totally destroyed as a result of the attacks [228] . On the same day, the witness was taken to hospital: first in Gori, then in Tbilisi. He returned to Karbi approximately one month later. Karbi was not much different from the time when he had left it. He even found almost all his pigs and cattle. Finally, he stated that the population of Karbi would have left the village before 9 August 2008 had they been warned of possible attacks.

4. W4 , eyewitness to the military operation in Karbi, born in 1979

He said that Karbi was hit on 9 August 2008 at about 6 a.m. and again at about 10 a.m. When the first attack occurred, the witness was at his cousin’s home, but he immediately went to the place of the attack. He said that Ms Dodo Unapkoshvili had been fatally injured (she had died on the way to hospital) and that around 15 houses had been totally destroyed [229] . He said that people had panicked since a bridge at the entrance to the village had been destroyed earlier by Russian planes (he later said that the bridge had in fact been bombed after that attack and that it had survived the bombing). Eight persons were allegedly killed in the 10 a.m. attack. When describing the 6 a.m. and 10 a.m. attacks, he used the term “bombs” although he expressly said that he had not seen planes. He added that those “bombs”, unlike other bombs, had not left craters. He also said that the “bombs” had wings and cables 1 to 1.5 metres long. According to this witness, there were neither soldiers nor military equipment at the place of the attacks. The witness left Karbi on 11 August 2008. He returned about one month later. On 8 September 2008 he allegedly took many photos of the post-war Karbi. He showed two photos at the witness hearing. He stated that one of them was a photo of a Russian bomb which had fallen on Karbi on 9 August at 6 a.m. and that the other one was a photo of houses damaged in the attack at 10 a.m. When asked how he could know that it was a Russian bomb when he had not seen the plane dropping it, he answered: “Could the Georgian side possibly have bombed us?” Lastly, the witness explained that the Georgian Government had provided compensation to villages, including Karbi, for reconstruction of houses. He had led that process for Karbi. He assessed the damage, together with experts, and distributed the Government funds as follows: if a house had been totally destroyed, he gave some money to its owner; if a house could be rebuilt, he paid local people to rebuild it. He also stated that some residents of Karbi had not been satisfied with the manner in which he had distributed the Government funds, which had led to tensions.

5. W5 , eyewitness to the military operation in Tortiza, born in 1962

He stated that three Russian planes, with five-pointed stars on the underside, had bombed the village of Tortiza on 12 August 2008 [230] at 9.15 a.m. According to this witness, five people were killed and five were injured; in addition, practically all buildings in the village were damaged (notably, the roofs and the windows). While he did not know whether bombs or rockets had been used, he was confident that this had been an aerial attack and not a shelling attack. He added that there had been no Georgian soldiers in the village on that day. Russian troops entered Tortiza on 15 August 2008, from the direction of Gori.

6. W6 , eyewitness to the military operation in Tortiza, born in 1976

She stated that her son had been hit in front of their family house in Tortiza on 12 August 2008. She said that something had fallen from the air, but she did not know which munition had been used (a bomb, a rocket, a missile or a shell). She took her son first to Gori and then, since the bombing of Gori Hospital had started, to Tbilisi. Her son died on the way to hospital. She added that there had been other similar attacks on Tortiza on the same day, killing two more persons, but she did not know the total number of houses damaged in the attacks. Lastly, she said that there had been no Georgian soldiers in the village on 12 August 2008.

7. W16 , Russian Armed Forces, born in 1969

According to this witness, his regiment entered the territory of South Ossetia on the night of 9 to 10 August 2008 in order to drive out the Georgian forces from Tskhinvali; on the way to Tskhinvali (via Java and Tamarasheni) they were under continuous fire from Georgian artillery; they reached the outskirts of Tskhinvali on the morning of 10 August and took control of the centre of Tskhinvali by 3 p.m.; in the evening they took positions on the nearby heights so as to prevent Georgian troops from taking back Tskhinvali; from those heights, he observed the village of Eredvi, which was about 1 kilometre away, and saw no destruction whatsoever; on the night of 10 to 11 August, his regiment was under persistent fire from Georgian artillery and suffered losses (10 killed and over 70 injured); as the Georgian artillery was not in Eredvi, his regiment did not need to fire at the village; however, Georgian shells fell on the village as a result of artillery errors (due to the fact that Georgian forces were shelling from unprepared positions, the Georgian positions were lower than the Russian positions and Georgian forces used imprecise artillery); on 11 August his regiment descended from the heights and passed through the village of Eredvi without any resistance; he saw dead bodies, fires, shell craters, but no traces of aerial bombardment; his regiment did not stay long in Eredvi, but continued progressing towards Tbilisi with a view to expelling Georgian forces from the conflict zone.

During his cross-examination, the witness emphasised on several occasions that the village of Eredvi had looked untouched on 10 August 2008 [231] and that it had been shelled for the first time on the night of 10 to 11 August 2008, by Georgian artillery. Those speaking of an attack on 8 August 2008 must be mixing up dates.

8. W17 , Russian Armed Forces, born in 1973

He was based in Java from 10 to 11 August 2008 and then in Tskhinvali from 11 to 15 August 2008.

He described the Iskander missile system produced and deployed by the Russian Federation (NATO reporting name SS-26 Stone) as follows: the angle at which the missile descends is 90 degrees; the cluster version of the missile releases submunitions and then its tail (about 400 kilograms) and head (about 225 kilograms) fall down at the speed of hundreds of metres per second; the submunitions explode at a height of 6-10 metres above the ground or another hard surface (such as a building); in August 2008 there were two modifications to the cluster version of the missile carrying 45 or 54 submunitions; the area affected by the submunitions was 7-11 hectares. He stated that he had seen photos purportedly showing fragments of an Iskander missile found in Gori (the head of such a missile found in the main square in Gori as well as the tail of such a missile found lying on a sofa in a flat in Gori). In his view, the photos were questionable for the simple reason that a fragment of such mass and such velocity would have penetrated much deeper. Notably, the tail of such a missile could not have been stopped by a sofa, but would have been found somewhere in the basement of the building, had it really fallen on that building, as it was claimed. Another reason why it was improbable that an Iskander missile had been used in Gori on 12 August 2008 was its price (123,000,000 roubles at that time [232] ) – it would be unreasonable to use such a missile in an area from which enemy soldiers had already withdrawn [233] . The witness also said that such type of weapon had never been tested in military conflicts, but only in training fields.

9. W18 , Russian Armed Forces, born in 1966

He stated that Russian air forces had started performing their combat task on 8 August 2008 at around 10 a.m. Moscow Daylight Time [234] . They made around 24 sorties on that day, but did not hit Eredvi. The mission of Russian forces was to expel Georgian forces from the conflict zone with as little harm to the civilian population as possible. Therefore, they strictly observed the 2-2.5 kilometre distance between the edge of populated localities and their targets. The closest to a populated locality they struck were parts of a Georgian military base in Gori (2.7 kilometres from the closest houses). The official flight log provided by Georgian authorities, purporting to prove a bombing of Eredvi on 8 August 2008 at about 6.30 a.m. Georgia Standard Time [235] , was questionable given the timing of the alleged attack (which had allegedly taken place before the actual start of the Russian air campaign) and its duration (according to the log, a Russian plane had spent 5-6 minutes over the target and normally it was up to 1.5 minutes). In the witness’s opinion, the flight log in question must have been falsified.

The witness also made comments on the photos provided by W4 purporting to prove two bombings of Karbi on 9 August 2008. As concerns the photo of debris, he said that the debris was made of duraluminium, which was not used in aviation munitions. Moreover, when a bomb explodes, it disintegrates into smaller pieces than those seen on the photo. As concerns the other photo, he stated that there were no craters, which were typical of aviation bombs and, more generally, that damage would have been different had a bomb fallen on the houses seen on the photo, or between them (notably, the walls of the houses would have fallen). However, he later said that the damage seen on the photo could have been caused by an aviation bomb which had fallen a few streets away.

As regards the photo published in the report August Ruins , p. 59, claiming to prove an aerial attack on Tortiza on 12 August 2008, he stated that the object seen on the photo was not an aerial missile, but rather a surface-to-surface rocket (more precisely, a rocket launched from a Grad multiple rocket launcher system).

As concerns satellite images purporting to show four bomb craters in and around Eredvi, he said that Russian military planes carried at least four bombs and they never flew out alone. Accordingly, if this were indeed a Russian aerial attack, there would have been more craters; they would also have been closer to each other (the distance between the craters seen on the images is 200-300 metres).

Lastly, the witness stated that Russian military planes flew at different levels, depending on their task and the terrain: if the terrain was flat, attack aviation flew at 1-1.2 kilometres, but if the terrain was mountainous, this could go up to 5 kilometres.

10. W22 , Russian Armed Forces, born in 1972

He said that his regiment had entered South Ossetia on 10 August 2008. Shortly thereafter, they had crossed into the “buffer zone” and occupied Meghvrekisi on 11 August, Karaleti on 12 August and Gori on 13 August at about 10 a.m. As Gori had been totally abandoned by then, they moved around freely and set up checkpoints in order to prevent looting. On the same day, the witness visited the main square in Gori; he stated that he had not seen any damage except for a couple of damaged cars. As to other parts of Gori, he said that he had seen only one building on fire (more precisely, the last two floors of a five-storey residential building in the south-eastern outskirts of Gori). As there was also a destroyed tank in the vicinity of the building (300-400 metres away), the witness suggested that the fire could have been caused by an exploding munitions cache inside the tank. The witness left Gori on 17 August and the conflict zone on 22 August 2008. According to him, there were no Russian airstrikes on Gori in the period of 11 to 13 August 2008 when he was moving towards Gori from the direction of South Ossetia. He did not know how Stan Storimans and others had been killed in Gori on 12 August 2008, as he had only entered Gori the day after.

11. W20 , Russian official, born in 1959

From September 2004 to October 2008 he was Commander of Joint Peacekeeping Forces in South Ossetia. In 2009 he left the Russian Armed Forces. He has been working as an adviser to the Minister of Foreign Affairs of the Russian Federation ever since.

He said that he had visited Eredvi, Karbi and Tortiza after the alleged bombing of the villages by Russian forces and that he had not seen any signs of recent bombing. He later clarified that it had been very dark when he had arrived in Eredvi, so he had not really paid attention to buildings. He had also accompanied Human Rights Watch during their fact-finding mission in Karbi. Inhabitants of Karbi had shown Human Rights Watch a building that had been damaged years before, but claimed that the building had been bombed in 2008. When some villagers said that bombs had been falling on them, the witness asked them to show Human Rights Watch where exactly they had fallen, but allegedly they could not do that. Some villagers said to Human Rights Watch that they had seen stars on the underside of planes. The witness said that this was impossible, given the height and the speed at which they flew. Some of those alleged villagers were, in his view, in fact Georgian intelligence officers. The witness concluded that the statements given to Human Rights Watch had clearly been staged.

When asked to comment on the report Human Rights in the War-Affected Areas Following the Conflict in Georgia , published by the OSCE in November 2008, according to which Eredvi was one of the worst hit villages, the witness said that the OSCE had not been able to visit Eredvi either during or after the August 2008 conflict.

When asked to comment on a public statement made by President Putin on 8 August 2012 that the Russian Federation had started to train South Ossetian militia long before the 2008 conflict, the witness said that he was not aware of any such military training. He added that if such training had indeed taken place, the OSCE would certainly have mentioned it in their contemporaneous reports on the situation in South Ossetia.

He further stated that, as Commander of Joint Peacekeeping Forces in South Ossetia, he had been answerable to the Joint Control Commission set up by the Sochi Agreement and not to the Russian Armed Forces. While it is true that, during his mandate, he was in contact with, among others, the Chief of the General Staff of the Russian Armed Forces (General Baluyevsky), he did not receive any orders from him.

Lastly, the witness explained why he thought that the Georgian side had provoked the conflict.

12. W28, former Ambassador of the Netherlands

He stated that the Dutch authorities had wished to establish the circumstances surrounding the death of a Dutch cameraman, Stan Storimans, in Gori on 12 August 2008. After fruitless requests to the Georgian and the Russian authorities for information, they decided to set up an investigative mission and asked him to head it, together with W29. They were assisted by a military expert, Colonel Stampers, and a secretary from the Ministry of Foreign Affairs. Before leaving for Georgia, they met Mr Akkermans, an eyewitness to the killing of Mr Storimans, who told them the following: he and Mr Storimans had been in Tbilisi on 11 August; having heard that the Georgian troops and almost all the inhabitants of Gori had left the town, they went there by taxi, together with an Israeli journalist [236] , on 12 August; first, they went to see residential buildings, close to military barracks, which had been hit before; when they arrived at the central square, they had seen a car accident and a number of onlookers, including some foreign journalists; Mr Storimans then went to take pictures of a statue of Stalin, which was in the centre of the square; at that moment, they had heard many explosions and Mr Storimans had fallen to the ground; Mr Akkermans himself, the Israeli journalist and the taxi driver were only injured.

The witness and his team arrived in Gori on 31 August 2008. At the central square, they saw a crater in the asphalt where the head of a missile had allegedly fallen, some smaller craters in the asphalt and many small holes in the walls all over the square and in the street leading to the square. The bullets found in the walls were only 5x5 millimetres wide and contained wolfram. Dutch experts examined them in the Netherlands and determined that they were similar to the bullet found in the body of Mr Storimans [237] . The witness and his team were also shown a flat into which the tail of the missile had allegedly fallen (the flat was ruined and there was a hole in the ceiling). The witness explained that, despite their requests, they had not been shown either the head or the tail of the missile; he later heard that the parts in issue had been taken by intelligence services of the United States [238] . The witness and his team saw, however, photos of those parts which had been provided by the Georgian authorities, CNN, Sky News and the HALO Trust, a non-governmental organisation. During his evidence, the witness was shown a photo of a part of a missile lying on a sofa, taken by a United States Navy photographer. He confirmed that similar photos had been given to them by the Georgian authorities and the HALO Trust, but he did not know the origin of their photos. He said that different photographers could have taken similar photos.

The witness and his team also interviewed a number of eyewitnesses and watched videos of the incident captured by Reuters and recorded by security cameras located on the square. All that evidence led them to conclude that Mr Storimans had been killed in a cluster attack, but they would not have been able to conclude that the Russian Federation was responsible, had they not had photos of the head of the missile showing a serial number characteristic of Iskander missiles (the photos were provided to them by the Georgian authorities, CNN and Sky News). The witness further stated that at least four other civilians had been killed in that attack and that there had been no military objectives on the central square itself (the closest military objective was military barracks, approximately 500 ‑ 1,000 metres away, which had already been bombed before).

After Georgia, the witness and his team met with Russian officials in Moscow who told them that they knew nothing about the attack in issue, but they confirmed that only the Russian Federation had Iskander missiles.

Lastly, he added that he had also seen residential buildings, close to military barracks, which had been severely damaged in an earlier attack on Gori.

13. W29, former Commander of the Royal Netherlands Military Constabulary

The testimony of this witness overlaps to a large extent with the testimony of W28. He added that Dutch experts had examined three bullets and found them to be identical (the bullet found in the body of Mr Storimans, a bullet taken from a taxi in Gori by Mr Akkermans on the day of the attack and a bullet taken from a wall in the central square in Gori by the witness and his team). He also stated that he and his team had talked to Mr Marc Garlasco of Human Rights Watch. During his examination, the witness confirmed that they had not verified the authenticity of the photos provided to them by the Georgian authorities, CNN and Sky News, although they were important evidence (they would not have been able to conclude that the Russian Federation was responsible, had they not had photos of the head of the missile showing a serial number characteristic of Iskander missiles, available to Russian forces only). Lastly, the witness said that he did not find it suspicious that the Georgian side had not been able to show them the parts of the impugned missile, rather than the photos.

B. Treatment of prisoners of war and detention and treatment of civilian detainees

14. W7 , former prisoner of war, born in 1972

In August 2008 he was a corporal in the Georgian Armed Forces. On 8 August 2008 he was deployed in the Shanghai settlement, Tskhinvali.

The witness said that he had been wounded in the shoulder during a Russian bombardment of the Shanghai settlement on 8 August 2008. Shortly thereafter, he was captured by South Ossetian forces. He described his treatment as follows. He was first held in the basement of one of the residential buildings at the Shanghai settlement. He was beaten there by, among others, Russian peacekeepers (they had the sign “MC” [239] on their uniforms, they spoke Russian and looked Russian). On 10 August he was moved to School No. 6 in Tskhinvali where he was again beaten by, among others, “Russians” (the witness was not certain as to whether they were Russian soldiers or simply fighters from the Russian Federation). On the way to the school, he was first made to walk and then taken by a vehicle from one location to another and beaten by local people. During his stay in the school, two prisoners of war were killed – Sopromadze, because he had been a tank driver, and Khubuluri, because he was an ethnic Ossetian. The witness did not see the actual killing of Sopromadze, but he heard a shot and was made to remove his body. As to Khubuluri, he was taken out one day and never came back. On 12 August 2008, the witness was taken to Tskhinvali police station. There, he was not only beaten as before, but also interrogated and tortured by, among others, the Federal Security Service of the Russian Federation (they tied his hands behind his back with wire for a period of time without giving him water and then untied his hands and poured very cold water into his throat; they also used bayonets and hammers and burnt his hands with lighted cigarettes). On 17 August 2008 he was transferred to a Russian military base. He was finally released on 19 August 2008. He received medical treatment for the first time after his release.

15. W8 , former prisoner of war, born in 1976

In August 2008 he was a corporal in the Georgian Armed Forces. On 9 August 2008 he was deployed in the Shanghai settlement, Tskhinvali.

The witness said that he had been shot in the knee and captured by South Ossetian forces in the Shanghai settlement on 9 August. He described his treatment as follows. He was first held in the basement of one of the residential buildings at the Shanghai settlement. He was beaten there by South Ossetians. While Russian soldiers were present at the premises, they did not beat him. On 10 August he was moved to School No. 6 in Tskhinvali. As he could not walk (because of his wounded knee), he was carried by other Georgian prisoners of war. On the way to the school as well as in the school, he was beaten by, among others, Russian soldiers. In the school, he was also beaten by officials of the Federal Security Service of the Russian Federation in order to force him to declare that he had seen many dead civilians in Tskhinvali and that United States soldiers had been fighting on the Georgian side. During his stay in the school, a Georgian prisoner of war called Sopromadze had been taken out of the room and killed because he was a tank driver. The witness did not see the actual killing, but he heard a shot. On 13 August he was moved first to a Russian military hospital in Tskhinvali and then to a hospital in Vladikavkaz, the Russian Federation, for medical treatment. While in the Russian military hospital in Tskhinvali, he was again beaten by officials of the Federal Security Service of the Russian Federation. He was finally released on 19 August 2008.

Lastly, the witness stated that he had seen Russian planes flying not too high and bombing Georgian positions on 8 August 2008. They dropped general-purpose and cluster bombs.

16. W9 , former prisoner of war, born in 1983

In August 2008 he was a lieutenant in the Georgian Armed Forces. He was deployed in the Georgian port of Poti on 18 August 2008.

On 18 August he and 21 other soldiers were captured by Russian forces in Poti and taken to Senaki. Ten of them were released already the next day. After four days in Senaki, he and the remaining 11 soldiers were relocated to a Russian peacekeepers’ base in Chuburkhindji, in the Gali region of Abkhazia. Upon their arrival, they were interrogated and subjected to various forms of ill-treatment by Russian soldiers, including punching, kicking, beating of the soles of the feet and electric shocks. All twelve of them were then placed in a small toilet for four days. There was no light, they could not move, they had to take turns to sit down and, for the first two days, they were given neither food nor water. In addition, during the night, drunken Russian soldiers kicked the door of the toilet, threatening to kill them and verbally assaulting them, but their guards did not let those soldiers enter the toilet.

During his cross-examination, the witness stated that he did not know why this story did not feature in any of the reports of non-governmental organisations on the conflict.

17. W10 , former civilian detainee, born in 1977

At the beginning of the 2008 conflict the witness was in his village of Tamarasheni. On 8 and 9 August the village was bombarded. On 10 August, after the bombardment was over, he, his mother and an 85-year-old neighbour left for Achabeti. On the way, they saw Russian soldiers who were looting and burning Georgian houses. Upon arrival in Achabeti, they were taken by South Ossetian fighters to Tskhinvali and put in the basement of the “Ministry of Internal Affairs of South Ossetia”. There were nine cells in the basement, all of them dark, dirty and hot. His cell measured some six square metres and he had to share it with thirteen other persons. There were all together around 200 civilians detained in that basement: mostly elderly people, but also a small number of young people and children. Initially, men and women were kept separately; but very soon, since the cells were small, dirty and hot, the doors of the cells were opened and they were all mixed. The witness stated that he had been beaten up by both Russian and South Ossetian soldiers on the first day because he had not obeyed an order of Mr Mikhail Mindzayev, the “Minister of Internal Affairs of South Ossetia”, to urinate on a Georgian flag. On the second day, while he was cleaning the detention facility, W25, in charge of civilians detained at the basement of the “Ministry” [240] , had kicked him in the nose and broken it. The witness further said that he had been interrogated by Russian officers on the second floor of the building, first around 16 August and again later. The Russian officers had made him put on a Georgian uniform and read something in front of a camera. They had threatened to kill him if he refused to do so. However, his statement has never been broadcast. Lastly, the witness said that he had been forced to move 17 bodies of dead Georgians from the streets of Tskhinvali to the Shanghai settlement. While moving around Tskhinvali, he noted that there were no women and children in the town and South Ossetians in uniforms were looting and burning houses. He was finally released on 27 August.

During his cross-examination, the witness said that there was no contradiction between his claim that his nose had been broken while in detention and his medical report of 29 August 2008, since the report mentioned “a scar with rough edges in the right area of the forehead and crown”. He further specified that Russian forces had not been present in the building of the “Ministry” before 16 August, but that they had been around the building, guarding it.

18. W11 , former civilian detainee, born in 1977

At the beginning of the 2008 conflict, the witness was in his village of Zemo Achabeti. After Russian and South Ossetian forces had taken his village, and looting and burning had begun, he went to Tskhinvali. On 11 August he was captured there by South Ossetian forces and put in the basement of the “Ministry of Internal Affairs of South Ossetia”. There were about 160 people in that basement. He was amongst the last ones taken there. They were guarded by South Ossetian forces, which were in the building of the “Ministry” itself, and by Russian forces, outside the building. Throughout his detention, he was taken out to clear up destroyed buildings and to collect bodies of dead soldiers from the streets of Tskhinvali and the nearby village of Khetagurovo. He collected about 45 bodies, including one in School No. 6 [241] , and dumped them somewhere in the Shanghai settlement. The witness said that he had preferred doing this to staying in the filthy basement. Moreover, he received better food when he was outside (canned meat and Lavash bread instead of only brown bread and tea). He was often verbally assaulted by South Ossetians while working, but he was beaten only once (someone hit him in the leg with the butt of a gun). However, some other people were beaten up: David Dzadzamia (the witness did not give any details); a young boy was hit in the shoulder with the butt of a gun; and an 85-year old man was beaten in the face with the butt of a gun. The witness also stated that at the outset they had been given water from the nearby river, but later on the Red Cross had provided them with mineral water. He was finally released on 27 August.

During his examination, the witness said that it was possible that they had been detained in the building of the “Ministry” for their own safety, but it was more likely, in his opinion, that they had been held there in order to clean the town and then to be exchanged.

19. W12 , former civilian detainee, born in 1960

At the beginning of the 2008 conflict, the witness was in her village, Tamarasheni. Having first bombed it, in the morning of 10 August Russian forces entered the village and started pillaging and burning. They told South Ossetian fighters to take the witness, her mother and some other villagers to Tskhinvali. On arrival in Tskhinvali, they were placed in the basement of the “Ministry of Internal Affairs of South Ossetia”. Initially, there were ten of them; but in three days their number grew to 160 (including a 12- or 14 ‑ year-old boy with his father). The witness had to share a 15-square-metre cell with around 40 women. At the outset, men and women were kept separately; but later the doors of all the cells were opened and they were all mixed. For the first two days, they were provided only with water from the nearby river and no food. She said that young male detainees had been tortured, but she did not provide any details. She also said that a 95-year-old man had been beaten up by a soldier before being brought to the detention facility and that a 23-year-old woman, called Shorena, had been repeatedly raped by South Ossetian and Russian soldiers [242] . Lastly, the witness added that she had been forced to clean offices and sleeping quarters on the second floor of the building of the “Ministry”. While doing this, she came across both Russian and South Ossetian soldiers. She had been released after twelve days.

20. W19 , official of the de facto authorities of South Ossetia, born in 1976

In August 2008 he was the “Human Rights Ombudsman of South Ossetia” and participated in the armed conflict as part of the South Ossetian forces. Between 2012 and 2015 he was the “Minister of Foreign Affairs of South Ossetia”. He is currently an adviser to the “President of South Ossetia” and a member of the delegation of the de facto authorities of South Ossetia at the Geneva International Discussions [243] .

He stated that the Georgian attack on Tskhinvali from the villages around Tskhinvali (such as Tamarasheni, Kekhvi, Kurta and Eredvi) in August 2008 had caused animosity towards ethnic Georgians from those villages and the collapse of law and order (as police officers had either been killed or had been busy with protecting their own families). In order to ensure their safety, the de facto authorities of South Ossetia provisionally had to put ethnic Georgians from those villages in the building of the “Ministry of Internal Affairs of South Ossetia”. As the detention facility was overcrowded (between 160 and 180 detainees), some detainees volunteered to carry out outdoor work, such as collecting bodies and cleaning the streets of Tskhinvali. In his view, no one was forced to do that. As regards the involvement of Russian forces, the witness said that they had provided humanitarian assistance but they had not been involved in the setting up and the administration of the detention facility. He did not know whether detainees had been informed of the official reason for their detention (that is, their own safety), but they must have understood it, given the overall situation in South Ossetia at that time. Lastly, the witness acknowledged that the staff of the detention facility had never received training in international humanitarian law.

In response to a question about why detainees had been allowed to go out of the detention facility in order to work, if it was indeed dangerous for them to move around Tskhinvali, he said that the detainees had always been guarded. In response to a question about whether it was true that Mr Mindzayev, the “Minister of Internal Affairs of South Ossetia” during the armed conflict in August 2008, was actually an officer in the Russian Armed Forces, the witness said that he did not know.

21. W20 , Russian official, born in 1959 [244]

The witness stated that the Georgian attack on Tskhinvali in August 2008 had caused strong animosity towards ethnic Georgians. On 8 August 2008 Mr Mindzayev, the then “Minister of Internal Affairs of South Ossetia”, came to his office and said that it had been decided to put the ethnic Georgians from Tskhinvali and the neighbouring villages in the basement of the “Ministry of Internal Affairs of South Ossetia” to prevent their victimisation. Between 21 and 28 August 2008 all those civilians were transferred to the territory under the control of the Georgian Government . The witness was present during the first transfer on 21 August when around 60 persons, mostly 20-65 year-old men, were transferred [245] . He did not inspect the detention facility, as it was not his responsibility, but the detainees who were released that day did not seek medical help. The witness could not recall whether Mr Hammarberg [246] , who was also present during that transfer, had made any complaints. The witness ruled out the possibility that Russian peacekeepers had participated in ill-treatment of Georgian civilians or prisoners of war: first, they all received training in international humanitarian law and, moreover, they were not in contact with any such captives. Had they indeed committed any crimes, the witness would have been informed and they would have been prosecuted. The witness acknowledged that some crimes could have been committed by people in Russian uniforms, but such uniforms had been available in shops in South Ossetia and many people had worn them. He also acknowledged that Russian investigators had interviewed detainees in the building of the “Ministry of Internal Affairs of South Ossetia”, in order to verify whether any Russian officials had committed war crimes, but they had not been under his command. The witness emphasised that the interviews had not been carried out in the detention facility itself, which was in the basement of the “Ministry”, but in a different part of that building. The witness added that he had enquired whether civilian detainees could be put in a better facility, but Mr Mindzayev, mentioned above, had replied that all other public buildings had been either damaged or occupied by displaced persons. As concerns the work performed by civilian detainees, such as cleaning the streets of Tskhinvali, the witness said that he did not know whether any of the detainees had been forced to do that.

When asked to comment on the report Up in Flames: Humanitarian Law Violations and Civilian Victims in the Conflict over South Ossetia , published by Human Rights Watch in 2009, according to which the Russian Federation exercised effective control over Tskhinvali from 9 August 2008, the witness said that Russian troops had in fact arrived in Tskhinvali on 10 August and that they had not exercised effective control over South Ossetian forces even after their arrival, let alone before.

Lastly, he said that the Russian peacekeeping forces had been reinforced after the Georgian attack on Tskhinvali (450-480 troops passed the Roki Tunnel on 8 August at about 0.30 a.m. and arrived in Tskhinvali on 10 August 2008). Their mandate continued until 8 October 2008.

C. Post-war situation after the cessation of hostilities

22. W13 , eyewitness to the killing of Ivane Lalashvili, born in 1958

During the armed conflict in August 2008, the witness remained in his village of Tirdznisi. He said that bombardment had begun on 9 August and that ground troops had taken control of the village on 10 August. Shortly thereafter, looting and burning began. He could not tell whether the marauders were Russians or Ossetians, but he presumed that they acted under Russian control and referred to them as “Russians”. He further said that on 14 August, two people in uniforms got out of a Niva car and started shouting and shooting at Ivane Lalashvili and himself. He managed to run away, but Ivane Lalashvili was killed. Ivane Lalashvili had been shot so many times from a Kalashnikov rifle that his body was practically dismembered. The witness could not tell whether their attackers were Ossetians or Russians.

During his examination, the witness was asked about Georgian cluster munitions that fell on Tirdznisi (a reference was made to the report A Dying Practice: Use of Cluster Munitions by Russia and Georgia in August 2008 , published by Human Rights Watch in April 2009, p. 57). He said that many cluster munitions had indeed fallen on Tirdznisi. When asked if Ivane Lalashvili had actually been killed by Georgian cluster munitions and if he had been instructed now to blame Ossetians or Russians, he replied “no”.

23. W14 , eyewitness to the killing of Natela Kaidarashvili, born in 1968

He said that the bombardment of his village, Tirdznisi, had begun around 8 August. He had immediately taken his wife and children to a safe place and returned to Tirdznisi to take care of his mother. Shortly thereafter, Russian forces had taken control of Tirdznisi. They encircled it and did not let anyone in; they could also be seen inside the village. In mid ‑ August the witness had left Tirdznisi and went to Mtshketa [247] . As soon as he had learned that his house had been looted and burnt, he returned to Tirdznisi. He sneaked into the village, avoiding Russian forces, and arrived at the village church. At 50-60 metres from the church, in the direction of the village school, he saw a group of Russian soldiers and Ossetian militias (wearing white arm bands) beating Natela Kaidarashvili, who was 60-70 years old and deaf. She died shortly thereafter. The witness then continued to his house, which was still smouldering. Nothing was left of it. His mother and other villagers told him that Russians and Ossetians had looted and burnt it, as they had done with many other houses in the village. The witness added that his house has not yet been repaired.

When asked to comment on a statement made by Tamar Razmadze (see the report August ruins , published by Georgian NGOs in 2009, p. 75), according to which Natela Kaidarashvili had been beaten up by eight Ossetians, the witness stuck to his version that Russian soldiers had also taken part in the beating of Natela Kaidarashvili. He did not see Tamar Razmadze at the scene of the incident, although she claimed in that statement that she had intervened to try to stop the beating of Natela Kaidarashvili.

When asked whether he knew the war-time village administrator of Tirdznisi, who had said to Human Rights Watch: “it was Ossetians, not Russians, who set houses on fire” ( Up in Flames: Humanitarian Law Violations and Civilian Victims in the Conflict over South Ossetia , p. 165), he answered that he did, and that his first name was Temur. According to the report, the war-time village administrator of Tirdznisi was in fact a woman and her name was Zaira Tetunashvili [248] .

When asked about victims of Georgian cluster munitions in Tirdznisi, he replied that Mikheil Kaidarashvili had stepped on unexploded ordnance and died as a result. The witness did not know if he was a relative of Natela Kaidarashvili, but they had lived in the same house.

When asked if he knew Alexander Zerekhidze, who had been seriously injured by Georgian cluster munitions in Tirdznisi on 9 August 2008 according to Human Rights Watch ( Up in Flames: Humanitarian Law Violations and Civilian Victims in the Conflict over South Ossetia , p. 67), he said that he did not.

24. W15 , eyewitness to looting and burning of houses in Vanati, born in 1965

He said that his village of Vanati had been bombed from an adjacent Ossetian village on or around 7 August 2008. According to him, there were no Georgian forces in the village at that time. Between 7 and 9 August, Ossetian militias came to the village on several occasions and burnt altogether about five buildings, including some public buildings. The witness said that they also killed a certain Valiko Jojishvili, a school teacher. The witness’s father went missing during that period. The witness therefore decided to stay, although many other villagers had left. However, as it was unsafe to stay in the village itself, he hid in the nearby forest, around 150 metres from the village, and observed the village with military binoculars. On 9 or 10 August Russian forces took control of Vanati, by closing all the entrances to the village. Looting and burning on a massive scale then began. According to the witness, every morning Russian forces would let Ossetian militias into the village, who would loot and then burn 10-15 houses and leave. Since they were not allowed into the village during the night, the witness went to the village every night to search for his father until he found him 4-5 days later; they managed to leave the area on 21 August with the help of the Georgian Church. By that date, all the houses in the village had been looted and then burnt by Ossetian militias. One house, belonging to a certain Emzar Jojishvili, was looted and then burnt by Russian soldiers. Only the houses with white markings, belonging to relatives of Ossetian militias, were left intact. His house was looted and then burnt on or around 15 August. According to the witness, there had not been a single day without looting and burning until his departure on 21 August. He added that houses belonging to ethnic Ossetians had also been looted and burnt, if they did not have white markings (Ossetian militias were probably adding the markings themselves, but only on the houses belonging to their relatives).

When asked how he could differentiate between Russians, Ossetians and North Caucasians, he said that Ossetians and North Caucasians had worn white bands on their sleeves (one for the Ossetians and two for North Caucasians).

Lastly, he was asked to comment on his statement to Georgian authorities of 24 July 2009, in which he had said, unlike today, that Russian soldiers had looted and burned four houses, belonging to Nodar and Gogia Jojishvili, Emzar Jojishvili, Shota Jojishvili and Viktor Jojishvili; that he had been going to the village also during the day, whenever a house had been set on fire; and that one day, probably on 15 August, Russian forces had not let Ossetian militias into the village. The witness replied that he had not said anything like that. When asked whether he had signed that statement and whether he had read it before signing, he said “yes”.

25. W30 , former member of the Parliamentary Assembly of the CoE

As a co-rapporteur of the Monitoring Committee of the Parliamentary Assembly for Georgia, he participated in fact-finding visits to Georgia and Russia in the immediate aftermath of the hostilities: among other places, he visited Gori in the period of 18-21 August as well as South Ossetia and the “buffer zone” adjacent to South Ossetia on 25 September 2008. In addition, he took part in the drafting of the following reports: The consequences of the war between Georgia and Russia (Doc. 11724, October 2008); Implementation of Resolution 1633 (2008) on the consequences of the war between Georgia and Russia (Doc. 11800, January 2009); Follow-up given by Georgia and Russia to Resolution 1647 (2009) (Doc. 11876, April 2009).

He said that at the time of his visit to Gori in August 2008, the town had still been controlled by Russian forces. Therefore, he had to cross a Russian checkpoint on the way from Tbilisi to Gori. In the main square in Gori, he saw several looted banks and many damaged buildings. He also tried to go to Tskhinvali during that visit, but he was not permitted. He thus visited Tskhinvali only on 25 September 2008. What he found there was a ghost city. As regards the liability of the Russian Federation, he said that the ethnic cleansing of Georgian villages had clearly been committed by Ossetian militias and gangs; while Russian forces had not taken part in those crimes, being the occupying power, they had a duty to prevent them and had failed in their duty. He arrived at that conclusion on the basis of many elements, but he underlined his meeting with a Russian General, whose name was perhaps Popov, who had acknowledged that Russian forces had managed to prevent such crimes for 24 hours, but had then decided to stop doing so for political reasons. The witness also stated that he agreed with Carl Bildt [249] that the Russian activities in relation to South Ossetia were comparable to the annexation of Sudetenland by Nazi Germany, given that Russia had first distributed its passports to South Ossetians and had then invoked the protection of its citizens as a pretext for its intervention in Georgia. Lastly, he did not think that the return of ethnic Georgians to South Ossetia was possible without a political solution, but in his view the responsibility of the Russian Federation for the inability of ethnic Georgians to return to South Ossetia was greater than that of Georgia.

During his examination, he said that he had visited several other villages in the “buffer zone” adjacent to South Ossetia, but he could not remember which ones.

26. W31 , former member of the Parliamentary Assembly of the CoE

As a co-rapporteur of the Monitoring Committee of the Parliamentary Assembly for Russia, he participated in fact-finding visits to Georgia and Russia in the immediate aftermath of the hostilities. Among other places he visited South Ossetia, and the “buffer zone” adjacent to South Ossetia, on 25 September 2008. In addition, he took part in the drafting of the following reports: The consequences of the war between Georgia and Russia (Doc. 11724, October 2008); Implementation of Resolution 1633 (2008) on the consequences of the war between Georgia and Russia (Doc. 11800, January 2009); Follow-up given by Georgia and Russia to Resolution 1647 (2009) (Doc. 11876, April 2009).

He said that he had visited Tbilisi, Tskhinvali and 6-7 villages in South Ossetia in September 2008. The situation in South Ossetia was terrible: burnt houses, people in a state of shock, much pillaging and hostage-taking by South Ossetian militias and gangs. In his view, the fact that many ethnic Georgians were expelled from South Ossetia and have not been allowed to go back amounted to ethnic cleansing. While there is no proof that Russian forces took part in ethnic cleansing, being the occupying power they had a duty to prevent it, and failed in their duty. He also confirmed that he had been told by the Office of the Prosecutor General of the Russian Federation in March 2009 that crimes allegedly committed by Russian forces or civilians against Georgians would not be investigated. Lastly, he said that there had been tensions in the area since the 1990s and that the best solution was a political one, a global one, which should take into consideration also the persons displaced in the 1990s. However, any solution must be based on certain standards, such as the principle of sovereignty, and there should be no preconditions for negotiations, such as the request that Georgia renounce the use of force against South Ossetia.

27. W23 , Russian Armed Forces, born in 1978

He said that his unit of 520 soldiers had been engaged in active fighting in the period of 10 ‑ 12 August. They were then ordered to search for remaining Georgian troops and equipment throughout the “buffer zone” in the period of 12-22 August. Every day at 6 or 7 a.m. they would go to another locality and would return to their military base near Tskhinvali at 8 p.m. On 13 August they thus went to Tkviavi and on 14 August to Tirdznisi. He said that during their visits they had always been received favourably by the few civilians who had remained in those villages, and that they had provided them with bread baked in a military bakery in Tskhinvali. He further said that during their visits he had never seen or heard of any cases of looting and burning. While it is true that they found some burnt houses in Tirdznisi, they had burnt down before, possibly during the period of active fighting, and were no longer on fire. When asked to comment on allegations that a resident of Tirdznisi had been killed there by Ossetian militias on 14 August, he replied that this was impossible as they had controlled the area at that time and their specific task had been to prevent such incidents and protect the local population. The witness had returned to the Russian Federation on 26 August 2008.

During his examination, the witness said that Chechens in his unit had worn white bands on their uniforms, precisely on the left arm, to show that they belonged to Russian forces. He also said that South Ossetian militias had been fighting alongside Russian forces in and around Tskhinvali, but that they had not been deployed in the “buffer zone”. Lastly, he underlined that orders to prevent looting, burning and other crimes against the local population in the “buffer zone” had been issued to him every day in writing during the period of 12-15 August and that a copy of those orders could still be obtained. Accordingly, had he seen or heard of any such case, he would have stopped it and punished the perpetrators severely.

28. W21 , Russian Armed Forces, born in 1960

He said that in the night of 7 to 8 August 2008 Georgian forces attacked Khetagurovo and then Tskhinvali. The Headquarters of the Joint Peacekeeping Forces in Tskhinvali were hit on several occasions on 8 August. As a result, eight or nine peacekeepers were killed and many, including the witness himself, were injured. The peacekeeping post in Tamarasheni, north of Tskhinvali, was also struck on 8 August and burnt down; the personnel were evacuated to a nearby reserve post. The peacekeeping post in Kekhvi, in that same area, was abandoned as it had come under fire from Russian forces in the north and Georgian forces in the south. All other peacekeeping posts continued to operate. Shortly after the cessation of hostilities, the peacekeeping posts on the “border” between South Ossetia and the “buffer zone” were strengthened and new peacekeeping posts were set up in the “buffer zone”. About 300 peacekeepers altogether were stationed at those posts. Their principal task was to ensure that there was no movement of troops across that “border” and in the “buffer zone” (neither South Ossetian nor Georgian forces were allowed into that zone). In addition, 10 teams of 7-8 peacekeepers were patrolling the “buffer zone”. Their main task was to ensure the safety of the remaining local population. However, given the size of that zone, they were not able to prevent every incident. As to the witness himself, his main task was to ensure that all the peacekeepers, those patrolling and those stationed at the peacekeeping posts, had everything they needed to do their job. He thus travelled all over the “buffer zone”. In the course of his missions, he did not come across any cases of looting, but he saw some burning houses. Peacekeepers assisted the remaining ethnic Georgians in the “buffer zone” in different ways: they brought them food, water and glass for windows; helped them to put out fires; and helped them to reach an area controlled by the Georgian Government. As to the peacekeepers’ uniforms, the witness described them as follows: an inscription “Peacekeeping Forces” and the blood type above the left pocket; an inscription “Peacekeeping Forces” on the left arm; and green helmets with a blue stripe and an inscription “MC” in yellow. The witness also underlined on several occasions that peacekeepers should be distinguished from regular Russian forces.

29. W22 , Russian Armed Forces, born in 1972 [250]

He said that his regiment of 800 soldiers (two battalions) had been posted in Gori during the period of 13-17 August 2008. Its key task was to prevent looting and burning. Marauders from both ethnic communities tried to get into Gori, but they were arrested and handed over to the authorities of Georgia (ethnic Georgians) or South Ossetia (ethnic Ossetians). On 17 August one of the battalions was posted at the front line to prevent the incursion of Georgian forces (notably, the unit that had returned from a mission to Iraq) into the “buffer zone”. The witness stated that he had not had enough men to protect the many villages in the “buffer zone”. He could not have obtained reinforcements, as all of the Russian forces in the conflict zone had been busy with other tasks. On 22 August 2008 the entire regiment moved to the “border” between the “buffer zone” and South Ossetia (close to the villages of Ditsi and Kordi). It returned to the Russian Federation on 26 August 2008.

When asked to comment on reports of ethnic cleansing in the “buffer zone”, he replied that there was no ethnic cleansing in his area of responsibility (that is, the town of Gori). While he could not guarantee this for other areas, he considered that Russian forces, in general, had done everything possible in order to prevent crimes against the local population.

30. W20 , Russian official, born in 1959 [251]

He said that after the cessation of hostilities on 12 August 2008 the peacekeeping forces had no longer been responsible for South Ossetia, but only for the “buffer zone” adjacent to that region; law and order in the Georgian villages in South Ossetia had been the responsibility of regular Russian forces after 12 August. He went on to say that there were, all in all, about 460-480 peacekeepers in the “buffer zone”. About 380 of them were stationed at the peacekeeping posts on the “border” between South Ossetia and the “buffer zone” and all over that zone. Their main task was to ensure that neither South Ossetian nor Georgian forces entered the “buffer zone”. The remaining peacekeepers were divided into about 10 patrolling teams and 2 or 3 technical teams. The main task of the patrolling teams was to ensure the safety of the remaining local population. They patrolled different areas every day, depending on the general situation and individual complaints – they acted upon each and every individual complaint within half an hour. Peacekeepers caught over 140 marauders in the “buffer zone” and handed them over to the authorities of Georgia (ethnic Georgians) or South Ossetia (ethnic Ossetians). As the area under the responsibility of the peacekeeping forces was large and contained 200 or so settlements, it was simply impossible to prevent all acts of looting and burning. However, the peacekeeping forces did all they could to protect the local population, even putting their own lives at risk. For example, on 3 October a peacekeeper died while acting to prevent the theft of a car in the village of Ditsi, in the “buffer zone”, because a bomb had been planted under the car. The witness said that it was not an option to transfer other Russian forces to peacekeeping tasks as they had been busy with other military tasks and, in any event, they would have needed special training which would have taken months. While it is true that regular Russian forces sometimes acted to protect the local population if they came across marauders, this was not their principal task; they did not patrol villages. As to the technical teams of the peacekeeping forces, they dealt with unexploded ordnances. He acknowledged that munitions from cluster weapons had been found in the “buffer zone”, but he could not tell to which party they belonged. The mandate of peacekeeping forces had ended on 8 October 2008.

When asked to comment on the report Up in Flames: Humanitarian Law Violations and Civilian Victims in the Conflict over South Ossetia , published by Human Rights Watch in 2009, according to which on 12 August Human Rights Watch researchers had witnessed looting and burning of Georgian villages in South Ossetia by South Ossetian militias in the presence of Russian forces (p. 132), the witness replied that Human Rights Watch could not possibly have been there on that date.

The witness was also asked to comment on the passage from that report (p. 124), according to which on 13 August, Russian forces had set up checkpoints at both ends of a road connecting the town of Java to Tskhinvali, thus significantly reducing looting and burning in the Georgian villages along that road (Tamarasheni, Zemo Achabeti, Kvemo Achabeti, Kurta, and Kekhvi), but about a week later, without any explanation, they had removed the checkpoints and the pillaging and destruction had resumed. He replied that Russian forces had gradually withdrawn from the conflict zone pursuant to the ceasefire agreement. He further reiterated that Human Rights Watch could not possibly have been there on those dates.

When asked to comment on the report Human Rights in the War-Affected Areas Following the Conflict in Georgia , published by the OSCE in November 2008, and the report of the EU ‑ backed Independent International Fact-Finding Mission on the Conflict in Georgia, published in September 2009, according to which there was ample evidence of systematic looting and burning of ethnic Georgian villages in South Ossetia and the “buffer zone” adjacent to South Ossetia, the witness said that those organisations had visited South Ossetia and the “buffer zone” only after the withdrawal of the Russian forces (that is, after 8 October). He said again that there had been no systematic campaign of looting and burning; only individual cases with which they had dealt to the best of their ability.

Lastly, when asked about the participation of Cossacks in the conflict in Georgia, he said that he had never seen any Cossacks there. In his opinion, the whole story about Cossacks during that conflict was a fairy tale.

31. W26 , Ossetian whose house was allegedly destroyed by unknown perpetrators during or immediately after the cessation of hostilities, born in 1956

She said that she had lived with her husband in the village of Ksuisi, in South Ossetia, from 1976 until 1991. In 1991 her husband was killed and all ethnic Ossetians were expelled from that village. An ethnic Georgian family lived in their house in Ksuisi from 1991 until 2008. In 2008 the house was burnt down by unknown perpetrators. The witness also said that she had not yet received her husband’s mortal remains.

32. W27 , Ossetian whose house was allegedly destroyed by unknown perpetrators during or immediately after the cessation of hostilities, born in 1965

He said that his father had lived in the village of Disevi, in South Ossetia, until 7 August 2008. On that date he had left the village, together with all ethnic Ossetians. Only ethnic Georgians stayed in Disevi. In the period of 7 ‑ 12 August 2008, practically all the houses in Disevi burnt down (about 300 houses), including his father’s house. The village has not been reconstructed yet.

When asked to comment on reports that only 7 houses in the village of Disevi had been left, all of them belonging to ethnic Ossetians, and that Ms Nato Okropiridze had burnt to death in one of the houses, he replied that those were lies.

33. W32 , American Association for the Advancement of Science [252]

The witness was employed at the American Association for the Advancement of Science which produced the report High-Resolution Satellite Imagery and the Conflict in South Ossetia in October 2008. The Oak Foundation financed the project. At the request of Amnesty International, she and her team carried out a damage assessment of the region of Tskhinvali during the August 2008 conflict. Since all commercial satellites had been fully booked, preventing the American Association for the Advancement of Science from ordering new satellite imagery over their area of interest for the entire duration of the conflict, they were forced to rely upon imagery ordered by other entities (such as the United States Government ). The available dates were 10 and 19 August 2008. She emphasised that this had not had any impact on the outcome of their research, as they had purchased raw imagery which they had then processed themselves. The satellites utilised were: Ikonos, run by GeoEye [253] , for 10 August; WorldView, run by DigitalGlobe [254] , and EROS-B, run by ImageSat [255] , for 19 August. They also purchased from DigitalGlobe, as “before images”, imagery for July 2005 and July 2007 (the satellite utilised was QuickBird). All of the satellite imagery that they used was high-resolution imagery (the spatial resolution of all of the images was less than one metre). She explained that if a satellite had a resolution of, for example, 40 centimetres, something would have to be 40 centimetres by 40 centimetres in order for the satellite to see it.

The witness said that the most helpful graphic was probably the one on page 28 of the report which clearly showed that the town of Tskhinvali had sustained the most damage up to the morning of 10 August, whereas the nearby villages had sustained the most damage between the morning of 10 August and the morning of 19 August. However, it is impossible to determine the exact dates on which the damage was sustained, as no satellite imagery is available for other dates. The report also demonstrated that most of the pre-10 August damage had been caused by shelling and bombing, whereas most of the post-10 August damage had been caused by burning. The witness explained that a burnt house looked very different to a bombed house on satellite images: while fire would usually not knock down its exterior and interior walls, a shell or a bomb would. As to shelled and bombed buildings, she added that because of the nature of satellite imagery (generally looking straight down), damage to the sides of a building was not necessarily shown.

The witness further referred to the table on page 9 of the report which showed the number of damaged buildings on 10 August and on 19 August in Tskhinvali and 23 nearby villages. In the village of Eredvi, for example, there were 9 damaged buildings on the former date and a further 54 (that is, 63 in total) on the latter date. Another example was in the village of Karbi, no damaged buildings on the former date and 4 damaged buildings on the latter date.

During her examination, the witness confirmed that neither she nor her staff had a military background, but in her opinion such a background was not necessary for a trained satellite imagery analyst to determine whether a building had been damaged. When asked whether the American Association for the Advancement of Science had analysed satellite imagery in relation to any other conflict, she mentioned Syria, Iraq, Sudan and South Sudan. Lastly, she stated that the American Association for the Advancement of Science was a non ‑ governmental organisation and that none of its employees was paid by the United States Government. While the US Government had funded in the past some projects run by the American Association for the Advancement of Science, the project regarding South Ossetia was not one of them.

34. W25 , official of the de facto authorities of South Ossetia, born in 1976 ( heard in relation to detention and treatment of civilian detainees )

As the head of the detention centre at the “Ministry of Internal Affairs of South Ossetia”, he was in charge of all Georgian civilians held there in August 2008. The centre was, and still is, located in the basement of the “Ministry”.

He stated that Georgian civilians had been placed there, at the request of the then “Minister of Internal Affairs of South Ossetia” – Mr Mikhail Mindzayev – for their own safety. The first civilians arrived on 11 or 12 August and the last ones left on 26 August 2008. Less than a third of the detainees were women. The youngest one was between 12 and 14 years old. He was with his father. As he was afraid, the witness and others did all they could to calm him down. The witness denied that a female detainee had been ordered to clean his room at the “Ministry”; that a female detainee by the name of Shorena had been raped at the centre; and that he had kicked W10 in the nose [256] . As to the role of Russian forces, he said that they had never entered the detention centre. While it is true that Russian forces questioned detainees in the building of the “Ministry”, this did not take place in the centre itself. Russian forces also supplied water and food (such as tinned meat, porridge and soup) for the detainees, but deliveries took place outside the building. The witness acknowledged that the “Prosecutor of South Ossetia” had ordered that the streets of Tskhinvali be cleaned by Georgian detainees. However, there was no need to force anyone to do it. The detention facility was so overcrowded that there were always 10-20 volunteers. As to the conditions of detention, he confirmed that the detention centre had not been designed for so many people. There were seven cells of different sizes, two toilets and some common premises for more than 160 detainees; there were enough beds for half of the detainees only. However, there had simply not been any better place to keep them (for example, the prison had been destroyed and the schools would have been difficult to guard).

During his examination, the witness confirmed that the detainees had always been guarded and had not been allowed to leave the detention centre, but he repeated that this had been done to protect them from Ossetians. He added that Georgians who had stayed in the area of Tskhinvali had not had any other choice but to come to the detention centre, pending a transfer to the area controlled by the Georgian Government. The witness also said that the detainees had been told why they had been detained. As regards uniforms, he said that the guards in the detention centre had worn camouflage uniforms of various types, but always with white armbands in order to be distinguishable from Russian forces. While there were only three guards in the detention centre at any moment, the detention centre was in the building of the “Ministry of Internal Affairs” with many other people working there. All in all, one doctor, three nurses, eight guards and ten other officials were working at the detention centre at the relevant time.

35. W33 , former member of the British Armed Forces, former Deputy Chief of UNOMIG [257] and former British defence attaché in Russia and the South Caucasus

He was one of the military experts of the Independent International Fact ‑ Finding Mission on the Conflict in Georgia set up by the European Union in December 2008. The Mission issued its report in September 2009.

He said that South Ossetia’s geographic position, unlike Abkhazia’s, was such that it was not able to survive on its own. After the 1991/92 conflict it only survived because of the Ergneti Market. However, when the Georgian Government closed it in 2005 , it had no other choice but to rely almost entirely on the Russian Federation for economic support, which then led to Russian effective control of South Ossetia. He also said that long before the 2008 conflict, the Russian Federation had equipped and trained the South Ossetian (and Abkhazian) forces to enable them to defend what they regarded as their territory in case of a Georgian attack. At the start of the 2008 conflict, there had been few Russian forces in the conflict zone, but their number swelled during the conflict. The witness could not tell their exact number, but the figure indicated in the Mission’s report (that is, 25,000-30,000) was, in his view, far too high. He explained that while experts (including himself) had contributed their observations, a so-called core team had compiled the report; he thus did not necessarily agree with each and every conclusion in that report. In any event, in view of the size of the enemy forces and the fact that the best-trained brigade had just returned from a mission to Iraq, the Georgian Armed Forces were in no fit state to counter-attack effectively.

The witness said that Russian forces had not exercised effective control of the local forces in South Ossetia and Abkhazia (therefore, they had not let Abkhazian forces enter the “buffer zone” and the Kodori Gorge). Russian forces had their own objectives in mind. They did not attempt to leave forces that they needed in the front line behind to control local forces and, in the opinion of the witness, they did not really care what was going on behind them. He therefore agreed with the conclusion of the Mission that the Russian and the South Ossetian authorities failed overwhelmingly to take measures to maintain law and order and ensure the protection of the civilian population as required under international humanitarian law as well as human rights law.

As to the alleged use of cluster munitions by Russian forces, the witness said that he had not seen any forensic evidence in this connection, but he added that cluster munitions had been available to Russian forces. The witness emphasised that one should be careful with regard to that issue, as there were various types of cluster munitions and they could be mixed with other munitions in order to achieve a specific tactical objective. He mentioned in this regard that neither Georgia nor Russia were parties to the Convention on Cluster Munitions [258] .

Lastly, he stated that he did not deal with the allegations of burning and looting of houses and ill-treatment of civilians and prisoners of war, but that he would not be surprised if these things had indeed happened, in view of the ill-disciplined nature of the local forces that the Russian Federation had failed to control, and their thirst for revenge.

D. Freedom of movement of displaced persons

36. W24 , official of the de facto authorities of South Ossetia

The witness was the “Minister of Foreign Affairs of South Ossetia” from 1998 to 2012. He is now a member of the delegation of the de facto authorities of South Ossetia at the Geneva International Discussions.

He said that South Ossetia had been independent since 20 September 1990: it is recognised by a number of States and, most importantly, by its own people. While South Ossetia certainly has very friendly relations with the Russian Federation, it is not under Russian control. Until the 1991/92 conflict, all of the villages in South Ossetia had been mixed; during that conflict, the Georgian Government had taken control of many villages around Tskhinvali and ethnically cleansed them. He added that the number of terrorist attacks in South Ossetia, orchestrated by Georgia, had increased after the election of Mr Saakashvili as President of Georgia in 2004. During the 2008 conflict, many ethnic Georgians had fled South Ossetia and many houses, both Georgian and Ossetian, had been ruined. The witness emphasised, however, that there had never been any official policy of ethnic cleansing of Georgians from South Ossetia; many ethnic Georgians indeed still lived in South Ossetia, according to this witness. For example, in the Leningori district [259] , 6 out of 11 secondary schools (117 pupils in total) used Georgian as the teaching language at the end of the 2015/16 academic year. The witness was aware that South Ossetian officials had made hostile statements directly after the conflict (notably, that ethnic Georgians would not be allowed to return to their homes), but he said that they had simply been sentimental and euphoric. As to reports of ethnic cleansing of Georgians by South Ossetian forces, he said that Western organisations had always been biased against South Ossetia. He restated that while there had, of course, been incidents against ethnic Georgians, there had never been any official policy of ethnic cleansing.

The following forces took part on the South Ossetian side in the 2008 conflict: armed forces under the “Ministry of Defence of South Ossetia”; police forces, such as OMON [260] , under the “Ministry of Internal Affairs of South Ossetia”; and “defenders” or militias formed from the general population in time of war. The witness said that their forces, unlike Georgian forces which had been trained by the United States and NATO, had not been trained by any foreign power.

As to the question of return, he said that about 3,000 ethnic Georgians had already returned to the Leningori district. This did not pose any problems because there were no hostilities in that area in 2008 and, according to the witness, not a single house was destroyed there. The situation is completely different with regard to the villages around Tskhinvali. The witness said that ethnic Georgians from those villages had been hostile towards ethnic Ossetians for many years prior to the 2008 conflict (when those villages had been under the control of the Georgian Government). He added that Tskhinvali had been shelled from those villages in the night of 7 to 8 August 2008. During the conflict, intense fighting had taken place there causing a lot of destruction and casualties. Therefore, the de facto authorities of South Ossetia are not able to ensure their safe return, unless a global solution to the issue of displaced persons, including over 100,000 ethnic Ossetians who fled their homes in the 1990s, is found. The Georgian authorities have thus far refused to engage in negotiations with the authorities of South Ossetia in this connection, according to this witness. He added that ethnic Georgians had left those villages in August 2008 either voluntarily or pursuant to instructions received from the Georgian Government; moreover, all the men in those villages had been armed by the Georgian Government.

The witness said that the ethnic Georgians who had returned to the Leningori district and a small number of other villages (such as Sinaguri and Karzmani in the west of South Ossetia), were able to choose whether they wished to obtain South Ossetian nationality or to keep their Georgian nationality (double nationality is not an option for Georgian nationals). Those who have decided to keep their Georgian nationality, which is the majority, have received special passes allowing them to enter and leave South Ossetia every day (7 a.m. to 8 p.m.). Georgian nationals who live in undisputed Georgian territory cannot enter South Ossetia; the authorities of South Ossetia insist that a “bilateral treaty” first be signed with Georgia in this regard, which Georgia refuses as it considers South Ossetia to be part of its territory. Nevertheless, some entries are allowed exceptionally in respect of those attending funerals or weddings, minors visiting their grandparents during summer holidays, shepherds coming for summer pastures, school teachers commuting to the Leningori district, and so on.

The witness further stated that double nationality was accepted in respect of Russian nationals and that about 90% of South Ossetians were Russian citizens. As to the official languages, he said that while Ossetian and Russian are the only official languages at the “State” level, the Georgian language is the official language in the ethnic Georgian villages.

Lastly, he confirmed that the “border” between South Ossetia and undisputed Georgian territory had been reinforced, sometimes with razor wire, in order to stop terrorist attacks and illegal crossings. That “border” is guarded jointly by the Federal Security Service of the Russian Federation and local forces under the “Agreement between the Russian Federation and the Republic of South Ossetia on joint efforts in protection of the state border of the Republic of South Ossetia” of 30 April 2009. He did not know the size of the local forces which guarded the “border” between South Ossetia and undisputed Georgian territory together with the Russian forces. He added that another “Agreement” (namely, the “Agreement between the Russian Federation and the Republic of South Ossetia on alliance and integration” of 18 March 2015) applied to the border between South Ossetia and the Russian Federation.

37. W19 , official of the de facto authorities of South Ossetia, born in 1976 [261]

The witness stated that ethnic Georgians from the Leningori district had the right to return to their homes; about 3,000 have indeed returned. They are, nonetheless, still considered as displaced persons by the Georgian Government and still receive all the social benefits provided to displaced persons. The ethnic Georgians who live in that district, as well as those who live in several villages in the west of South Ossetia (such as Sinaguri), have received special passes allowing them to enter and leave South Ossetia every day (7 a.m. to 8 p.m.).

As concerns around 20,000 ethnic Georgians who had lived in the villages around Tskhinvali until the 2008 conflict, he said that their situation was different. According to this witness, there is a long history of inter-ethnic violence in that area. The killing of 33 ethnic Ossetians by ethnic Georgians from the villages of Kekhvi and Kurta on 20 May 1992, when the villages were under the control of the Georgian Government, is still remembered. Therefore, their return is not only a humanitarian issue, as portrayed by the Georgian Government, but also a political one. He added that the de facto authorities of South Ossetia were simply not able to ensure their safe return, unless a global solution was found for all of the displaced persons, including over 100,000 ethnic Ossetians who had fled their homes in the 1990s. In any event, not a single ethnic Georgian from the villages around Tskhinvali has so far requested the de facto authorities of South Ossetia to allow their return to South Ossetia. The witness acknowledged, however, that no procedure for return to those villages existed.

As concerns the “border” between South Ossetia and undisputed Georgian territory, the witness said that it had been reinforced in order to stop terrorist attacks and illegal crossings. That “border” is guarded jointly by Russian forces (from the military base no. 4) and local forces as envisaged by the “Agreement between the Russian Federation and the Republic of South Ossetia on joint efforts in protection of the state border of the Republic of South Ossetia” of 30 April 2009. The witness did not know the size of the border forces, either Russian or local, but he said that their number was sufficient to protect the “border”. In the case of illegal crossings, the sanction is administrative (a fine and expulsion) and only in the case of multiple illegal crossings is a criminal sanction imposed. The witness confirmed that Russian legislation applied in that field, as in many other fields, pursuant to a 1992 law of the “Supreme Council of South Ossetia” providing for the application of Russian legislation pending the enactment of local legislation. He also said that the de facto authorities of South Ossetia were not able to ease the border regime until Georgia had undertaken in a legally binding document that it would not use force against South Ossetia. In his opinion, political statements by the Georgian authorities are not sufficient as they are not legally binding and they are regularly followed by bellicose statements about the need to ensure the territorial integrity of Georgia. What is more, the President of Georgia, Mr Saakashvili, publicly gave assurances that South Ossetia would not be attacked on 7 August 2008, but nevertheless attacked it on the same evening.

Lastly, the witness underlined that South Ossetia was an independent State, despite the fact that it had a number of “bilateral treaties” with the Russian Federation in the military, social and other areas.

[1] . A detailed description of the facts appears under each aspect of the application that the Court is being required to examine.

[2] . Volume I and extracts from volume II of the report of the EU Fact-Finding Mission are annexed to the admissibility decision . The full report is available only in English and can be consulted on the Internet.

[3] . The terms “Abkhazia” and “South Ossetia” refer to the regions of Georgia which are currently outside the de facto control of the Georgian Government.

[4] . The wording of the relevant provisions of each of these instruments or a reference thereto appear below in respect of each aspect of the application which the Court is required to examine.

[5] . Russia ratified the Regulations on 27 November 1909 . Georgia is not a party to this treaty, but its provisions are considered to embody rules of customary international law (see International Court of Justice, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory , Advisory Opinion, ICJ Reports 2004, p. 172, § 89) . As such, they are also binding on Georgia.

[6] . This Convention came into force on 14 September 1993 with regard to Georgia and on 10 May 1954 with regard to the Russian Federation.

[7] . This Convention came into force on 14 September 1993 with regard to Georgia and on 10 May 1954 with regard to the Russian Federation .

[8] . This Convention came into force on 14 September 1993 with regard to Georgia and on 10 May 1954 with regard to the Russian Federation.

[9] . The Additional Protocol came into force on 14 September 1993 with regard to Georgia and on 29 September 1989 with regard to the Russian Federation.

[10] . In its admissibility decision the Court found as follows: “the present application concerns the impugned events that started in South Ossetia and in Abkhazia on 7 August 2008”. As this is an application against the Russian Federation and not against Georgia, it should be noted that the intervention by the Russian armed forces began on 8 August 2008.

[11] . 20,000 from South Ossetia and 3,000 from Abkhazia.

[12] . Some of these reports appear in the annex to the admissibility decision in this case .

[13] . See, however, the disclaimer in this report (Volume I, p. 8 ):

“In summary, it should be noted that the factual basis thus established may be considered as adequate for the purpose of fact-finding, but not for any other purpose . This includes judicial proceedings such as the cases already pending before International Courts as well as any others.”

[14] . Military and Paramilitary Activities in and against Nicaragua ( Nicaragua v. United States of America ), Judgment, ICJ Reports 1986, pp. 62-63, §§ 109-10.

[15] . Application of the Convention on the Prevention and Punishment of the Crime of Genocide ( Bosnia and Herzegovina v. Serbia and Montenegro ), Judgment, ICJ Reports 2007, p. 205, §§ 392-93.

[16] . Military and Paramilitary Activities in and against Nicaragua ( Nicaragua v. United States of America ), Judgment, ICJ Reports 1986, pp. 64-65, §§ 115-16.

[17] . See also the arguments set out above (paragraphs 78-79).

[18] . Agreement signed on 18 March 2015.

[19] . See also paragraphs 32-33 and 108 above.

[20] . First Geneva Convention 1949, Article 5; Second Geneva Convention, Article 6; Third Geneva Convention, Article 5; Fourth Geneva Convention, Article 6; Additional Protocol (I) of 1977, Article 3 (amending Article 6 of the Fourth Geneva Convention).

[21] . Loizidou v. Turkey (merits), and Cyprus v. Turkey , both cited above. The question of the scope of each of these obligations raises a different issue (see Al-Skeini and Others , cited above, § 168).

[22] . A dud rate is the percentage of submunitions that do not explode.

[23] . See the summary of witness statements in the Annex (W is the abbreviation of “witness”).

[24] . Annex 78 submitted by the respondent Government in their observations on the merits.

[25] . See, for example, E. Benvenisti, The International Law of Occupation (Oxford: Oxford University Press, 2012), p. 43; Y. Arai-Takahashi, The Law of Occupation: Continuity and Change of International Humanitarian Law, and its Interaction with International Human Rights Law (Leiden, Martinus Nijhoff Publishers, 2009), pp. 5-8; Y. Dinstein, The International Law of Belligerent Occupation (Cambridge, Cambridge University Press, 2009), at pp. 42-45, §§ 96-102; and A. Roberts, “Transformative Military Occupation: Applying the Laws of War and Human Rights”, American Journal of International Law , vol. 100:580 (2006), pp. 585-86.

[26] . Most experts consulted by the International Committee of the Red Cross in the context of the project on occupation and other forms of administration of foreign territory agreed that “boots on the ground” are needed for the establishment of occupation – see T. Ferraro, “Expert Meeting: Occupation and Other Forms of Administration of Foreign Territory” (Geneva: ICRC, 2012), pp. 10, 17 and 33; see also E. Benvenisti, cited above, pp. 43 et seq., and V. Koutroulis, Le début et la fin de l’application du droit de l’occupation (Paris: Éditions Pedone, 2010), pp. 35-41.

[27] . T. Ferraro, cited above, at pp. 17 and 137, and Y. Dinstein, cited above, p. 44, § 100.

[28] . Third Geneva Convention of 1949, Article 21.

[29] . Fourth Geneva Convention of 1949, Articles 41, 42 and 78.

[30] . Fourth Geneva Convention of 1949, Article 78.

[31] . Миротворческие силы – peacekeeping forces in Russian .

[32] . Rectified on 29 January 2021. The text previously read: “... since it has been established that the prisoners of war fell within the jurisdiction of the Russian Federation on account of the ‘strict control’ that it exercised over the South Ossetian forces, it was also responsible for the latter’s actions ...”

[33] . See the Fourth Geneva Convention of 1949, Article 49 (occupied territories), for international armed conflicts, and Additional Protocol (II) of 1977, Article 17, for non ‑ international armed conflicts.

[34] . Fourth Geneva Convention of 1949, Article 50.

[35] . See the analysis set out in the ICRC study of customary international law: J. ‑ M. Henckaerts and L. Doswald-Beck, Customary International Humanitarian Law , International Committee of the Red Cross, Cambridge, 2005, Rule 158.

[36] . In that connection the Public Commission to Examine the Maritime Incident of 31 May 2010 (Turkel Commission) considered that war crimes justified an investigation , while other violations justified “some form of examination ” (ibid., p. 99).

[37] . Isayeva and Others v. Russia , nos. 57947/00 and 2 others, § 208, 24 February 2005, and Al-Skeini and Others , cited above, §§ 163 and 164: “The Court has held that the procedural obligation under Article 2 continues to apply in difficult security conditions, including in a context of armed conflict.”

[38] . See Al-Skeini and Others , cited above, § 168.

[39] . Parliamentary Assembly of the Council of Europe, “The implementation of Resolution 1633 (2008) on the consequences of the war between Georgia and Russia”, Doc. 11800, 26 January 2009, § 50.

[40] . United Nations Human Rights Committee, Concluding Observations: Russian Federation, 24 November 2009, UN Doc. CCPR/C/RUS/Q/6, paragraph 13.

[41] . Human Rights Watch, World Report 2011 , p. 460.

[42] . See also Guidelines on investigating violations of international humanitarian law: law, policy and good practice , published in 2019 by the International Committee of the Red Cross and the Geneva Academy of International Humanitarian Law and Human Rights.

[43] See, for example, John Dugard, “The Human Rights Clauses in the United Nations Charter and South African Law” (1980), 13 De Jure 297, at pp. 297-98.

[44] See, for example, Maya Hertig Randall, “The History of the Covenants: Looking Back Half a Century and Beyond”, in Daniel Moeckli, Helen Keller and Corina Heri, The Human Rights Covenants at 50: Their Past, Present, and Future (Oxford University Press, 2018), pp. 10-14.

[45] See, for example, A.W. Brian Simpson, Human Rights and the End of Empire: Britain and the Genesis of the European Convention (Oxford University Press, 2004), pp. 686-87 and 690-705.

[46] See “Death of Mr. Claude Pilloud” (1984), 24 International Review of the Red Cross 341, at p. 342.

[47] See Boyd van Dijk, “Human Rights in War: On the Entangled Foundations of the 1949 Geneva Conventions” (2018), 112 American Journal of International Law 553, p. 555.

[48] See Claude Pilloud, “La Déclaration universelle des Droits de l'homme et les Conventions internationales protégeant les victimes de la guerre” (1949) 31 Revue Internationale de la Croix-Rouge et Bulletin Internationale des Sociétés de la Croix-Rouge 252, at p. 252. This is my own translation from the original French into English.

[49] See van Dijk, cited above, p. 555.

[50] There has been a comparable trend with respect to the International Covenant on Civil and Political Rights, as to which see the United Nations Human Rights Committee’s Statement on derogations from the Covenant in connection with the COVID-19 pandemic, 24 April 2020.

[51] The spirit of the second sentence of Article 29 § 2 was perhaps somewhat disregarded in the present case (see paragraph 15 of the judgment and compare Certain Iranian Assets (Islamic Republic of Iran v. United States of America), Preliminary Objections, Judgment, ICJ Reports 2019, pp. 46-50, §§ 1-9 (joint separate opinion of Judges Tomka and Crawford)).

[52] One could of course also argue that the Court’s inherent jurisdiction is in principle as extensive in inter-State cases as it is in others (see paragraph 18 of my partly dissenting opinion in T.K. and S.R. v. Russia , nos. 28492/15 and 49975/15, 19 November 2019, pending before the Grand Chamber).

[53] See Helen Keller and Sebastian Bates, “Article 18 ECHR in Historical Perspective and Contemporary Application” (2019) 39 Human Rights Law Journal 2, 9.

[54] In addition, the second sentence of Article 2 § 1 is now to be read in conjunction with Protocols Nos. 6 and 13 to the Convention (see A.L. (X.W.) v. Russia , no. 44095/14, §§ 63 ‑ 66, 29 October 2015).

[55] On the notion of “plain meaning” and its critique, see Myres S. McDougal and Richard N. Gardner, “The Veto and the Charter: An Interpretation for Survival” (1951), 60 Yale Law Journal 258, at pp. 262-66.

[56] While it follows from my position on derogation in international armed conflict, expressed at paragraphs 19-21 below, that I need not come to a definite view on this issue, the respondent State’s forces were not engaged in a mission of arrest or detention and the hostilities, which did not take place on Russian territory, cannot be described as a “riot” or “insurrection”. The respondent Government invoked the applicant State’s international responsibility for its allegedly wrongful conduct vis-à-vis South Ossetia, but “unlawful violence” of this character can hardly be equated with that which has predominated in the Court’s case-law (see, for example, Finogenov and Others v. Russia , nos. 18299/03 and 27311/03, §§ 156-61 and 218, ECHR 2011 (extracts)).

[57] See Severin Meier, “Reconciling the Irreconcilable? – The Extraterritorial Application of the ECHR and Its Interaction with IHL” (2019), 9 Goettingen Journal of International Law 395, at pp. 405-06.

[58] See Bart van der Sloot, “Is All Fair in Love and War? An Analysis of the Case Law on Article 15 ECHR” (2014), 53 Military Law and the Law of War Review 319, at p. 334.

[59] That more recent material would be of limited utility is underscored by the absence of the term “war” from Article 4 of the International Covenant on Civil and Political Rights, Article 15’s counterpart (but see the discussion of armed conflict in the United Nations Human Rights Committee’s General Comment No. 29 of 2001).

[60] That the Court’s role can be extended further with respect to consenting States is reflected in Article 29 of the Convention on Human Rights and Biomedicine (the “Oviedo Convention”).

[61] See Anna-Lena Svensson-McCarthy, The International Law of Human Rights and States of Exception: with Special Reference to the Travaux Préparatoires and Case-Law of the International Monitoring Organs (Martinus Nijhoff 1998), at p. 630.

[62] See Adil Ahmad Haque, “Turkey, Aggression, and the Right to Life Under the ECHR” ( EJIL: Talk! , 21 October 2019) (accessed 26 August 2020).

[63] See, for example, Corina Heri, “Loyalty, Subsidiarity, and Article 18 ECHR: How the ECtHR Deals with Mala Fide Limitations of Rights” (2020), 1 European Convention on Human Rights Law Review 25, at pp. 45-46.

[64] See, for example, Daniel Bethlehem, “When is an Act of War Lawful?”, in Lawrence Early, Anna Austin, Clare Ovey and Olga Chernishova, The Right to Life Under Article 2 of the European Convention on Human Rights: Twenty Years of Legal Developments Since McCann v. the United Kingdom: In Honour of Michael O’Boyle (Wolf Legal Publishers 2016), p. 237.

[65] See Ryan Goodman, Christof Heyns and Yuval Shany, “Human Rights, Deprivation of Life and National Security: Q&A with Christof Heyns and Yuval Shany on General Comment 36” ( Just Security , 4 February 2019) (accessed 26 August 2020).

[66] That the Court’s jurisdiction corresponds to the scope of the States’ obligations under the Convention may be supported by Article 19 of the Convention, and as William A. Schabas argues ( The European Convention on Human Rights – A commentary , New York, 2015, at p. 93), “the scope of the obligations under the Convention is identical to the jurisdiction of the Court”.

[67] See Article 32 of the Convention; inter alia , Blečić v. Croatia [GC], no. 59532/00, § 67, ECHR 2006-III; Slivenko and Others v. Latvia (dec.) [GC], no. 48321/99, §§ 56 et seq., ECHR 2002-II; Sejdić and Finci v. Bosnia and Herzegovina [GC], nos. 27996/06 and 34836/06, § 27, ECHR 2009; and Mutu and Pechstein v. Switzerland , nos. 40575/10 and 67474/10, § 63, 2 October 2018. See also, concerning the “notion of complaint” and its determination, Radomilja and Others v. Croatia [GC], nos. 37685/10 and 22768/12, §§ 110-27, 20 March 2018.

[68] On inherent or implied powers of international courts and tribunals, see Chester Brown, “The Inherent Powers of International Courts and Tribunals”, The British Yearbook of International Law, 2005, vol. 76, Oxford, 2006, at pp. 195 et seq.; Paola Gaeta, “Inherent Powers of International Courts and Tribunals”, in Lal Chand Vohrah, Fausto Pocar, Yvonne Featherstone, Olivier Fourny, Christine Graham, John Hocking and Nicholas Robson (eds.), Man’s Inhumanity to Man – Essays on International Law in Honour of Antonio Cassese , The Hague, London, New York, 2013, at pp. 353 et seq.; Krzysztof Skubiszewski, “Implied Powers of International Organizations”, in Yoram Dinstein and Mala Tabory (eds.), International Law at a Time of Perplexity. Essays in Honour of Shabtai Rosenne , Dordrecht, Boston, London, 1989, at pp. 855 et seq.; Dinah Shelton, “Inherent and Implied Powers of Regional Human Rights Tribunals”, in Carla M. Buckley, Alice Donald and Philip Leach (eds.), Towards Convergence in International Human Rights Law. Approaches of Regional and International Systems , Leiden, Boston, 2017, at pp. 454 et seq.; Jan Klabbers, An Introduction to International Institutional Law , Cambridge, 2002, at pp. 67 et seq . and pp. 75 et seq.; and Nigel D. White, The law of international organisations , 2 nd ed., Manchester, 2005, at pp. 83 et seq. and 87 et seq.

[69] On the capacity of the principle of effectiveness not only as a method of interpretation but also as a norm of international law, see Georgios A. Serghides, “The Principle of Effectiveness in the European Convention on Human Rights, in Particular its Relationship to the Other Convention Principles”, in Hague Yearbook of International Law, 2017, vol. 30, 1 et seq.; concurring opinion of Judge Serghides, §§ 15 and 22, in S.M. v. Croatia [GC], no. 60561/14, 25 June 2020; concurring opinion of Judge Serghides, § 19, in Obote v. Russia , no. 58954/09, 19 November 2019; and concurring opinion of Judge Serghides, §§ 15-16, in Muhamm ad and Muhammad v. Romania [GC], no. 80982/12, 15 October 2020.

[70] See, for “an appropriate, effective, and fair interpretation of the notion of ‘jurisdiction’”, in the context of extraterritorial armed attacks with extensive devastating consequences, Daniel Rietiker, Humanization of Arms Control – Paving the Way for a World Free of Nuclear Weapons , London, New York, 2018, at pp. 183-84.

[71] See, for instance, Johnston and Others v. Ireland , 18 December 1986, §§ 57-58, Series A no. 112. For more on this principle, see, inter alia , John G. Merrills, The Development of International Law by the European Court of Human Rights , 2 nd ed., Manchester, 1993, at pp. 72 et seq.; Bernadette Rainey, Elizabeth Wicks, and Clare Ovey (eds.), Jacobs, White, and Ovey: The European Convention on Human Rights , 7 th ed., Oxford, 2017, at pp. 69 et seq.; Daniel Rietiker, “The Principle of ‘Effectiveness’ in the Recent Jurisprudence of the European Court of Human Rights: Its Different Dimensions and its Consistency with Public International Law – No Need for the Concept of Treaty Sui Generis ”, in Nordic Journal of International Law , 2010, vol. 79, 245, at pp. 271 et seq. ; Céline Braumann and August Reinisch, “ Effet Utile ”, in Joseph Klingler, Yuri Parkhomenko and Constantinos Salonidis (eds.), Between the Lines of the Vienna Convention? Canons and Other Principles of Interpretation in Public International Law , Alphen aan den Rijn, 2019, at pp. 47 et seq.

[72] See, inter alia , Case “relating to certain aspects of the laws on the use of languages in education in Belgium” , 23 July 1968, p. 24, § 4, and p. 31, §§ 3 in fine and 4, Series A no. 6; Wemhoff v. Germany , 27 June 1968, p. 23, § 7, Series A no. 7; Artico v. Italy, 13 May 1980, § 33, Series A no. 37; and İzzettin Doğan and Others v. Turkey , [GC], no. 62649/10, § 114, 26 April 2016. See more on this principle, inter alia , in Alexander Orakhelashvili, The Interpretation of Acts and Rules in Public International Law , Oxford, 2008, repr. 2013, at p. 414; Hersch Lauterpacht, “Restrictive Interpretation and the Principle of Effectiveness in the Interpretation of Treaties”, British Yearbook of International Law , 1949, vol. XXVI, 48, at pp. 51-52 and 59; Sir Hersch Lauterpacht, The Development of International Law by the International Court , London, 1958, at p. 227; Mustafa Kamil Yasseen, “L’interprétation des traités d’après la Convention de Vienne sur le droit des traités”, 151, Recueil des Cours (1976-III), 1, at p. 72; and Daniel Rietiker, “The Principle of ‘Effectiveness’”, op. cit. , at p. 259.

[73] See Oliver Wendell Holmes, The Autocrat of the Breakfast-Table: Every Man his own Boswell , Boston, 1891, at p. 110.

[74] Ergi v. Turkey , 28 July 1998, § 79, Reports of Judgments and Decisions 1998-IV,.

[75] Ibid., § 79. This criterion mirrors literally Article 57 § 2 (a) (ii) of Protocol Additional to the Geneva Convention of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts, 8 June 1977 (“Protocol I”).

[76] In international armed conflicts, the duty of each party to the conflict to take all feasible precautions to protect the civilian population and civilian objects under its control against the effects of attacks is set forth in Article 58 (c) of Protocol I. Protocol Additional to the Geneva Convention of 12 August 1949, and relating to the Protection of Victims of Non ‑ International Armed Conflicts, 8 June 1977 (“Protocol II”), does not explicitly require precautions against the effects of attacks, but in Article 13 § 1 it requires that “the civilian population and individual civilians shall enjoy general protection against the dangers arising from military operations”. The requirement to take precautions against the effects of attacks has, moreover, been included in more recent treaty law applicable in non ‑ international armed conflicts, namely the Second Protocol to the Hague Convention for the Protection of Cultural Property.

[77] Ergi , cited above, § 81.

[78] Ahmet Özkan and Others v. Turkey , no. 21689/93, § 297, 6 April 2004.

[79] Ibid., § 306.

[80] See Articles 50, 51, 57 § 1 and 58 of Protocol I and Article 13 of Protocol II.

[81] Isayeva v. Russia , no. 57950/00, 24 February 2005. Paragraph 176 repeats the doctrine of Ergi , cited above, § 79.

[82] Isayeva , cited above, § 191. The exact same argument was used in Kerimova and Others v. Russia , nos. 17170/04 and 5 others, § 253, 3 May 2011.

[83] The findings of Isayeva are reiterated explicitly in Abuyeva and Others v. Russia , no. 27065/05, §§ 199-203, 2 December 2010.

[84] See also, for a similar legal error, Abuyeva and Others , cited above, § 199; Kerimova and Others , cited above, § 253; and Finogenov and Others v. Russia , nos. 18299/03 and 27311/03, §§ 584 and 588, 20 December 2011.

[85] Article 51 § 4 (b) and (c) of Protocol I.

[86] Isayeva, Yusupova and Bazayeva v. Russia , nos. 57947/00 and 2 others, 24 February 2005.

[87] Ibid., § 178.

[88] See also Isayeva, Yusupova and Bazayeva , cited above, § 177, and Damayev v. Russia , no. 36150/04, § 60, 29 May 2012.

[89] Isayeva, Yusupova and Bazayeva , cited above, § 199.

[90] Varnava and Others v. Turkey [GC], nos. 16064/90 and 8 others, ECHR 2009.

[91] Varnava and Others , cited above, § 185. It is important to stress that this statement was reiterated in the admissibility decision delivered in the present case (see Georgia v. Russia (II) (dec.), no. 38263/08 § 72, 13 December 2011).

[92] International Court of Justice, “Legality of the Threat or Use of Threat of Nuclear Weapons”, Advisory Opinion, ICJ Reports 1996, 8 July 1996, § 25.

[93] Human Rights Committee, General Comment no. 31, The nature of the general legal obligation imposed on States Parties to the Covenant, 26 May 2004, § 11.

[94] Inter-American Commission on Human Rights, Coard et al. v. United States , report no. 109/99, 29 September 1999, § 39.

[95] Finogenov and Others , cited above, § 211.

[96] Ibid., § 232.

[97] Tagayeva and Others v. Russia , nos. 26562/07 and 6 others, § 481, 13 April 2017. In spite of the disturbing language used by the Court in this case, it ultimately applied the absolute necessity test (ibid., § 605) to the large-scale anti-terrorist operation mounted by the Russian army in the Beslan school siege, criticising, among other things, the indiscriminate use of weapons aimed at the school while the terrorists and the hostages were intermingled.

[98] Esmukhambetov and Others v. Russia , no. 23445/03, § 146, 29 March 2011.

[99] Kerimova and Others , cited above, § 248. See also Khamzayev and Others v. Russia , no. 1503/02, § 180, 3 May 2011.

[100] Compare and contrast Ergi , cited above, § 79, with Nakayev v. Russia , no. 29846/05, § 80, 21 June 2011, and Udayeva and Yusupova v. Russia , no. 36542/05, § 78, 21 December 2010.

[101] Al-Skeini v. United Kingdom [GC], no. 55721/07, ECHR 2011.

[102] As envisaged by the Preamble itself to the Convention.

[103] The Court has acknowledged that the procedural obligation under Article 2 applies in the context of armed conflict (see the admissibility decision in the present case, cited above, § 72, and the case-law cited therein). Since the derogation from Article 2 only encompasses lawful acts of war, procedural obligations regarding military operations outside an armed conflict, such as anti-terrorist operations, must be assessed under the standard Article 2 rules.

[104] See paragraph 4 of the separate opinion of Judge Martens in Brannigan and McBride v. United Kingdom , 26 May 1993, Series A no. 258-B. His illuminating interpretation is the only one that sits well with the letter and the spirit of Article 15.

[105] See, among many other authorities, McCann and Others v. the United Kingdom , 27 September 1995, §§ 148-49, Series A no. 324; Nachova and Others v. Bulgaria [GC], nos. 43577/98 and 43579/98, § 94, ECHR 2005-VII; and Giuliani and Gaggio v. Italy [GC], no. 23458/02, §§ 175-76, ECHR 2011 (extracts).

[106] Inter-American Commission on Human Rights, Report on Terrorism and Human Rights, 2002, § 109.

[107] Hassan v. the United Kingdom [GC], no. 29750/09, ECHR 2014.

[108] Ibid., § 107.

[109] See, for example, Khlaifia and others v. Italy [GC] , no. 16483/12, § 88, 15 December 2016 (“Sub-paragraphs (a) to (f) of Article 5 § 1 contain an exhaustive list …”). Compare and contrast with Article 6 § 1 of the International Covenant on Civil and Political Rights, Article 4 § 1 of the American Convention on Human Rights and Article 4, third sentence, of the African Charter on Human and People’s Rights, which do not contain a list of exceptions.

[110] See the dissenting opinion in Hassan , cited above. It is to be noted that on 10 June 2015 Ukraine derogated from Article 5 in the context of its armed conflict with Russia. This happened after the publication of Hassan , which shows that changing Convention obligations on the basis of alleged State practice was a very imprudent interpretative manoeuvre, to say the least.

[111] The respondent State in Hassan put forward the following argument: the Convention should be disapplied or, more euphemistically, “displaced” in times of armed conflict because international humanitarian law is then the lex specialis and therefore prevails over the Convention ( Hassan , cited above, § 71).

[112] Hassan , cited above, § 105.

[113] See paragraphs 49 and 87 of the present judgment.

[114] Hassan , cited above, § 102.

[115] See the admissibility decision in the present case, § 73.

[116] See the admissibility decision in the present case, § 71.

[117] Banković and Others v. Belgium and Others (dec.) [GC], no. 52207/99, ECHR 2001 ‑ XII.

[118] Judge Bonello used this adjective in paragraph 5 of his opinion in Al-Skeini and Others v. the United Kingdom , no. 55721/07, ECHR 2011. Not much has changed since then, unfortunately.

[119] M.N. and Others v. Belgium (dec.) [GC], no. 3599/18, § 112, 5 March 2018.

[120] See paragraphs 124 and 135 of the present judgment.

[121] Cyprus v. Turkey (I) and (II), nos. 6780/74 and 6950/75 , Commission decision of 26 May 1975, Decisions and Reports (DR) 2, p. 125, § 8.

[122] Loizidou v. Turkey (preliminary objections), 23 March 1995, § 62, Series A no. 310, reiterated in Loizidou v. Turkey (merits), 18 December 1996, § 52, Reports of Judgments and Decisions 1996-VI, and Cyprus v. Turkey (merits) [GC], no. 25781/94, § 76, ECHR 2001-IV.

[123] Loizidou v. Turkey (merits), cited above, § 56, and Cyprus v. Turkey (merits), cited above, §§ 76 and 77. The fundamental character of the military presence was also stressed in the case of the Moldovan Republic of Transdniestria in Ilaşcu and Others v. Moldova and Russia [GC], no. 48787/99, ECHR 2004-VII. During the Moldovan conflict in 1991 to 1992, forces of the USSR Fourteenth Army, stationed in Transdniestria, had fought with and on behalf of the Transdniestrian separatist forces. Even after 5 May 1998, when the Convention came into force in respect of Russia, the Russian army was still stationed in Moldovan territory.

[124] Loizidou v. Turkey (merits), cited above, § 56, and Cyprus v. Turkey (merits), cited above, §§ 76 and 77.

[125] Ibid.

[126] Banković and Others , cited above, § 59.

[127] The present Article 56 corresponds to Article 63 of the original version of the Convention. In Tyrer v. United Kingdom (25 April 1978, § 38, Series A no. 26), the Court admitted that “the system established by Article 63 was primarily designed to meet the fact that, when the Convention was drafted, there were still certain colonial territories whose state of civilisation did not, it was thought, permit the full application of the Convention”.

[128] The Preamble to the Convention refers to “the universal and effective recognition and observance” of fundamental human rights.

[129] Freda v. Italy , no. 8916/80, Commission decision of 7 October 1980, DR 21, p. 254.

[130] Reinette v. France , no. 14009/88, Commission decision of 2 October 1989, DR 63, p. 192.

[131] Sánchez Ramirez v. France , no. 28780/95, Commission decision of 24 June 1996, DR 86-B, p. 155.

[132] Inter-American Commission of Human Rights, Alexandre v. Cuba , Report no. 86/99, 29 September 1999, § 25. This opinion was universally confirmed in paragraph 63 of General Comment no. 36 on the right to life (Article 6 of the International Covenant on Civil and Political Rights), adopted on 30 October 2018 by the United Nations Human Rights Committee.

[133] As Judge Loucaides put it in “Determining the Extra-territorial Effect of the European Convention: Facts, Jurisprudence and the Bankovic case”, in 2006 EHLRR 395.

[134] Issa v. Turkey , no. 31821/96, § 74, 16 November 2004.

[135] Ibid., § 71. This argument was reiterated in Isaak v. Turkey (dec.), no. 44587/98, 28 September 2006, with the identification of its source, namely the views adopted by the Human Rights Committee on 29 July 1981 in the cases of Lopez Burgos v. Uruguay and Celiberti de Casariego v. Uruguay , nos. 52/1979 and 56/1979, at §§ 12.3 and 10.3 respectively. In Solomou and Others v. Turkey (no. 36832/97, § 45, 24 June 2008) the same argument was put forward again, this time without mentioning its source.

[136] Öcalan v. Turkey [GC], no. 46221/99, § 91, ECHR 2005-IV.

[137] Pad and Others v. Turkey (dec.), no. 60167/00, § 54, 28 June 2007.

[138] Isaak , cited above.

[139] Solomou and Others , cited above, §§ 48-49. The Court did not take a final position as to the territory on which the killing had taken place, since it considered that “in any event the deceased was under the authority and/or effective control of the respondent State through its agents (see, mutatis mutandis , Isaak (dec.), cited above)” (ibid., § 51).

[140] Andreou v. Turkey , no. 45653/99, § 25, 27 October 2009.

[141] Medvedyev v. France [GC], no. 3394/03, § 64, ECHR 2010-III.

[142] Al-Skeini and Others , cited above.

[143] Ibid., § 142. The Court explicitly rejected the idea that “jurisdiction under Article 1 of the Convention can never exist outside the territory covered by the Council of Europe member States”.

[144] Ibid., § 149. This purposely convoluted paragraph is the source of the future disarray in the Court’s case-law. See the United Kingdom’s position in Hassan , cited above, § 70.

[145] See Al-Skeini and Others , cited above, concurring opinion of Judge Bonello, § 14.

[146] Compare and contrast Al-Skeini and Others (cited above, § 137) with Banković and Others (cited above, § 73), and later Assanidze v. Georgia ([GC], no. 71503/01, §§ 141-42, ECHR 2004-II), which both stand for the indivisible nature of Article 1 jurisdiction: it cannot be “divided and tailored”. As Banković and Others had pointed out (§ 40), “the applicant’s interpretation of jurisdiction would invert and divide the positive obligation on Contracting States to secure the substantive rights in a manner never contemplated by Article 1 of the Convention”.

[147] Pisari v. the Republic of Moldova and Russia , no. 42139/12, 21 April 2015.

[148] Jaloud v. Netherlands [GC], no. 47708/08, ECHR 2014.

[149] Chiragov and Others v. Armenia [GC], no. 13216/05, ECHR 2015. See paragraph 34 of my separate opinion in this case.

[150] Al-Skeini and Others , cited above, §§ 143-48.

[151] Ibid., § 139.

[152] Compare and contrast Chiragov and Others , cited above, § 180, and Banković and Others , cited above, § 70.

[153] R. (Al-Skeini) v. Secretary of State for Defence (2007) UKHL 26 at 83, conscientiously referred to in Al-Skeini and Others , cited above, § 87. It is also very instructive to read the opinion of an insider (Clare Ovey, “Application of the ECHR during international armed conflicts”, in Katja Ziegler and others (eds.), The UK and European Human Rights: A strained relationship? , Hart, 2015, p. 230).

[154] Saddam Hussein v. Albania and Others (dec.), no. 23276/004, 14 March 2006.

[155] This was, and continues to be, the position of the United Kingdom (see Hassan , cited above, § 72: “bipartite or joint control was not sufficient to establish jurisdiction for the purposes of Article 1”).

[156] Paragraphs 124 and 135 of the present judgment.

[157] M.N. and Others v. Belgium , cited above, § 112.

[158] Ilias and Ahmed v. Hungary [GC], no. 47287/15, 21 November 2019.

[159] N.D. and N.T. v. Spain [GC], nos. 8675/15 and 8697/15, 13 February 2020.

[160] Abdullahi Elmi and Aweys Abubakar v. Malta , nos. 25794/13 and 28151/13, 22 November 2016, paragraph 4 of my concurring opinion.

[161] As noted by the CPT, the possibility of leaving for Serbia was practically excluded (CPT/Inf (2018) 42, §§ 28 and 32).

[162] I cannot understand how the Court could formulate the evidently irreconcilable statements in paragraphs 165 and 223 of the Ilias and Ahmed judgment (cited above).

[163] CJEU judgment of 14 May 2020, Joined Cases C-924/19 PPU and C-925/19 PPU, §§ 226-31, ruling that being held in the Röszke transit zone amounts to detention under Directive 2013/33/EU, Reception Conditions Directive, Article 2(h).

[164] CPT/Inf (2018) 42, § 42, with its findings after the visit to the transit zones at Röszke and Tompa in 2017.

[165] United Nations Working Group on Arbitrary Detention, Opinions adopted by the Working Group on Arbitrary Detention at its eighty-seventh session, 27 April–1 May 2020, Opinion No. 22/2020 concerning Saman Ahmed Hamad (Hungary), 5 June 2020, § 70.

[166] Ilias and Ahmed , cited above, § 213.

[167] To put it in the words of the United Nations Working Group on Arbitrary Detention: “The Working Group cannot accept that an individual who must either agree to remain in the transit zones or lose the possibility of lodging an asylum application could be described as freely consenting to stay in the transit zones” (Opinion no. 22/2020, cited above, § 69).

[168] As I had advocated in my separate opinion in M.A. and Others v. Lithuania , no. 59793/17, 11 December 2018.

[169] N.D. and N.T. v. Spain , cited above, § 209.

[170] The Court simply discarded the evidence put forward by the United Nations High Commissioner for Refugees, the Office of the High Commissioner of Human Rights, the Council of Europe Commissioner for Human Rights and a group of civil-society institutions, as third party interveners, concluding that the various reports were “not conclusive” ( N.D. and N.T. v. Spain , cited above, § 218).

[171] I insist on my reading of the Convention in the light of this right, which I have already set out in one of my first separate opinions at the Court (see Hirsi Jamaa and Others v. Italy [GC], no. 27765/09, ECHR 2012). The fact that I must go back to that same point at the end of my term of office is a sign that the Court has not moved forward.

[172] Hirsi Jamaa and Others , cited above.

[173] Ibid., § 184.

[174] Berisha and Haljiti v. “the former Yugoslav Republic of Macedonia” (dec.), no. 18670/03, ECHR 2005-VIII.

[175] Dritsas v. Italy (dec), no. 2344/02, 1 February 2011.

[176] N.D. and N.T. v. Spain , cited above, § 200.

[177] The ad hominem language of the Court is telling: “the conduct of persons who cross a land border in an unauthorised manner, deliberately take advantage of their large numbers and use force, is such as to create a clearly disruptive situation which is difficult to control and endangers public safety” (see N.D. and N.T. v. Spain , cited above, § 201).

[178] The use of the word “storming” in the judgment, most importantly in paragraph 231, is equivocal, because it confuses the use of force with the mass arrival of people. Moreover, the available video evidence of the events does not prove any use of force.

[179] N.D. and N.T. v. Spain , cited above, § 210.

[180] Parliamentary Assembly, Recommendation 2161 (2019) on pushback policies and practice in Council of Europe member States.

[181] 2015 Annual Report by the Commissioner for Human Rights, Nils Muižnieks, 14 March 2016, § 41.

[182] Special Representative of the Secretary General on migration and refugees, Report of the fact-finding mission to Spain, 18-24 March 2018, SG/Inf(2018)25, 3 September 2018.

[183] United Nations, Report of the Office of the United Nations High Commissioner for Human Rights (OHCHR), HRC/WG.6/35/ESP/2, 18 November 2019. See also the 2014 “Recommended Principles and Guidelines on Human Rights at International Borders”, which call upon States to “respect, promote and fulfil human rights wherever they exercise jurisdiction or effective control, including where they exercise authority or control extraterritorially” and “ensure that all border governance measures taken at international borders, including those aimed at addressing irregular migration ..., are in accordance with the principle of non-refoulement and the prohibition of arbitrary and collective expulsions”.

[184] UN Committee on the Rights of the Child, D.D. v Spain , Views concerning Communication No. 4/2016, 15 May 2019.

[185] UN Human Rights Council, Report of the Working Group on the Universal Periodic Review, Spain, A/HRC/29/8, 13 April 2015, §§ 131.166 and 131.182.

[186] UN Subcommittee on Prevention of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT OP), Visit to Spain undertaken from 15 to 26 October 2017: observations and recommendations addressed to the State party, 2 October 2019, CAT/OP/ESP/1, § 93.

[187] CEDAW, Concluding Observations on the 7th and 8th report of Spain, CEDAW/C/ESP/CO/7-8 (2015), §§ 36-37.

[188] I have already had occasion to regret this in my opinion joined to C orreia de Matos v. Portugal [GC], no. 56402/12, 4 April 2018.

[189] M.N. and Others v. Belgium , cited above.

[190] Banković and Others , cited above, § 75.

[191] M.N. and Others v. Belgium , cited above, § 112.

[192] N.D. and N.T. v. Spain , cited above, §§ 212, 214 and especially 228.

[193] Ibid., § 209.

[194] M.N. and Others v. Belgium , cited above, § 123, following the most unfortunate Abdul Wahab Khan v. the United Kingdom (dec.), no. 11987/11, § 27, 28 January 2014. The Court did not even care to consider that the appeal procedure in the Abdul Wahab Khan case had concerned the withdrawal of leave to remain, decided on the basis of a finding that the applicant posed a threat to national security, and the exclusively extraterritorial impact of the contested decision had not been attributable to the United Kingdom but to the applicant, on account of his activities and his decision to return to Pakistan. To sum up, this is a totally different factual situation from that of the Syrian applicants in the Belgian case.

[195] This kind of apocalyptical narrative of fear of an invasion of Europe by foreigners is frequently used in the field of migration law, as has been demonstrated in my separate opinions in S.J. v. Belgium (striking out) [GC], no. 70055/10, 19 March 2015; De Souza Ribeiro v. France [GC], no. 22689/07, ECHR 2012 ,, and M.A and Others v. Lithuania , cited above, § 17.

[196] See my separate opinion in M.A and Others v. Lithuania , cited above, § 7.

[197] Subsequent case-law proves the point I am making. In the recent judgment in Asady and Others v. Slovakia (no. 24917/15, 24 March 2020), the majority did not say a word regarding the lack of legal avenues for the applicants, who had entered the Slovakian territory irregularly, to ask for international protection at Slovakian diplomatic missions or consulates abroad. The violation of the applicants’ right under Article 4 of Protocol No. 4 is further compounded by a simulacrum of an individualised examination of the applicants’ situation by the Slovakian authorities. No genuine and effective opportunity was given to them to submit arguments against their expulsion.

[198] The expression used by Judge Bonello in his separate opinion in Al-Skeini and Others (cited above) has already been quoted above.

[199] See my separate opinions in Hirsi Jamaa and Others , cited above; De Souza Ribeiro , cited above; and M.A and Others v. Lithuania , cited above, §§ 3-8.

[200] For the Inter-American Court of Human Rights, the acts of diplomatic officials regarding a person who enters the embassy of a foreign State to seek protection automatically fall under the jurisdiction of that State (Advisory Opinion OC-25/18 of 30 May 2018, The institution of asylum and its recognition as a human right in the Inter ‑ American system of protection (Interpretation and scope of Articles 5, 22.7 and 22.8 in relation to Article 1 § 1 of the American Convention on Human Rights), §§ 188, 192 and 194). The Inter-American Court was inspired by the former European Commission of Human Rights in M. v. Denmark , no. 17392/90, Commission decision of 14 October 1992, DR 73, p. 193, and by the United Nations Human Rights Committee, Mohammad Munaf v. Romania , Communication No. 1539/2006, UN Doc. CCPR/C/96/D/1539/2006, 21 August 2009, §§ 14.2 and 14.5. It is true that the Danish case involved acts of force over the alien, but neither the Romanian case nor the Advisory Opinion set as a condition for jurisdiction that the acts of diplomatic officials must involve physical control over the alien by the diplomatic officials or other persons at the request of diplomatic officials.

[201] See my opinion in Hirsi Jamaa and Others , cited above.

[202] According to the Inter-American Court of Human Rights, there is an obligation to respect the principle of non-refoulement in diplomatic missions (Advisory Opinion OC ‑ 25/18, cited above, §§ 192 and 194), which implies positive and negative obligations for the State, namely the obligation to carry out an assessment of whether there would be a real risk of refoulement if the person were to leave the embassy and, if such a risk is determined, the obligation to adopt all necessary diplomatic measures, including requesting the State on whose territory the diplomatic mission is located to arrange safe passage for the person (ibid., §§ 194-98).

[203] See paragraph 137 of the present judgment. The argument is copied from the position of the United Kingdom in Hassan , cited above, § 71.

[204] Hassan , cited above, §§ 101 and 107-10.

[205] See paragraph 139 of the present judgment.

[206] See paragraph 141 of the present judgment.

[207] This technique had already been adopted in Cyprus v. Turkey , nos. 6780/74 and 6950/75, Commission’s report of 10 July 1976, § 77.

[208] See paragraph 141 of the present judgment.

[209] See paragraphs 196-99, 235-37, 266-67, 290-91 and 310-11 of the present judgment.

[210] Hassan , cited above, § 76.

[211] Ibid., § 77.

[212] To use the wording of paragraph 140 of the present judgment.

[213] Among multiple authorities, it is worth mentioning the Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States in accordance with the Charter of the United Nations, adopted by United Nations General Assembly Resolution 2625 (XXV) of 24 October 1970 (“the Friendly Relations Declaration”), and two Council of Europe instruments: the Framework Convention for the Protection of National Minorities and the European Charter of Local Self-Government, the latter of which is implemented by the Congress of Local and Regional Authorities of the Council of Europe.

[214] Ronald D. Rasmus, A Little War That Shook the World: Georgia, Russia, and the Future of the West , St. Martin’s Press, 11 January 2010.

[215] Armando Alejandre Jr., Carlos Costa, Mario de la Pena y Pablo Morales v. Republica de Cuba , Case 11.589, Report No. 86/99, OEA/Ser.L/V/II.106 Doc. 3 rev. at 586 (1999).

[216] See, in that connection, among many others: R. Lawson, “Life after Banković: On the Extraterritorial Application of the European Convention on Human Rights”, in F. Coomans and M. Kamminga (eds.), Extraterritorial Application of Human Rights Treaties (2004); O. De Schutter, “Globalization and Jurisdiction: Lessons from the European Convention on Human Rights”, 6 Baltic Yearbook of International Law (2006) 183; A. Orakhelashvili, “Restrictive Interpretation of Human Rights Treaties in the Recent Jurisprudence of the European Court of Human Rights”, 14 EJIL (2003) 529; R. Wilde, “Triggering State Obligations Extraterritorially: The Spatial Test in Certain Human Rights Treaties”, 40 Israel Law Review (2007) 503.

[217] “It is ... difficult to contend that a failure to accept the extraterritorial jurisdiction of the respondent States would fall foul of the Convention’s ordre public objective, which itself underlines the essentially regional vocation of the Convention system ... In short, the Convention is a multilateral treaty operating … in an essentially regional context and notably in the legal space ( espace juridique ) of the Contracting States. The [Federal Republic of Yugoslavia] clearly does not fall within this legal space. The Convention was not designed to be applied throughout the world, even in respect of the conduct of Contracting States. Accordingly, the desirability of avoiding a gap or vacuum in human rights protection has so far been relied on by the Court in favour of establishing jurisdiction only when the territory in question was one that, but for the specific circumstances, would normally be covered by the Convention” (see Banković and Others , cited above, § 80).

[218] The same fact was confirmed by the report of the EU Fact-Finding Mission (Volume I, p. 20).

[219] The ICC’s decision can be consulted here: https://www.icc-cpi.int/CourtRecords/CR2016_00608.PDF

[220] See, for instance, (1) pages 6-23 and 60-62 of the original application form lodged with the Court by the Georgian Government, as well as (2) pages 13-23 of the Georgian Government’s subsequent observations on the merits of the case.

[221] This fact was further confirmed by the report of the EU Fact-Finding Mission (Volume II, p. 210).

[222] Ibid., Volume II, p. 133.

[223] Roger N. McDermott, “Russia’s Conventional Armed Forces and the Georgian War”, U.S. Army War College Quarterly: Parameters , 39, no. 1 (2009).

[224] https://www.rt.com/politics/putin-ossetia-war-plan-168/

[225] According to the Georgian Government, Eredvi was shelled by South Ossetian forces in the late afternoon of 6 August 2008 and again on 7 August 2008 (see the application filed in the Court by the Georgian Government on 6 February 2009, footnote 60 and paragraph 78).

[226] According to the report High-Resolution Satellite Imagery and the Conflict in South Ossetia made in October 2008 by the American Association for the Advancement of Science (p. 9), in Eredvi, there were only 9 damaged buildings observed in the morning of 10 August 2008 and 63 on 19 August 2008 (see statement no. 33 below).

[227] According to an official document of 26 January 2017, submitted to the Court by the Georgian Government, the witness worked for the Eredvi Municipal Government from November 2006 until March 2014.

[228] According to the report High-Resolution Satellite Imagery and the Conflict in South Ossetia made in October 2008 by the American Association for the Advancement of Science (p. 9), in Karbi, no damaged buildings were observed in the morning of 10 August 2008 and 4 damaged buildings were observed on 19 August 2008 (see statement no. 33 below).

[229] See footnote no. 4 above.

[230] According to another resident of Tortiza, the attack had occurred on 10 August (see her victim testimonial of 22 August 2008; Annex 306 to the Observations of the Georgian Government of December 2014).

[231] See footnote no. 2 above.

[232] Approximately 3,000,000 euros.

[233] The Government of the Russian Federation claimed in their observations of December 2014 that the strike had been carried out at that specific place and time because a large number of Georgian soldiers and reservists had assembled there the day before; it had been thought that the same place would be used as a gathering point on the day of the strike.

[234] 10 a.m. Georgia Standard Time or 8 a.m. Central European Summer Time.

[235] 6.30 a.m. Moscow Daylight Time or 4.30 a.m. Central European Summer Time.

[236] Mr Zadok Yehezkeli.

[237] It would appear from an autopsy report, made by the Dutch authorities and submitted to the Court by the Russian Government, that the body of Mr Storimans had arrived in the Netherlands on 18 August 2008. In the meantime, it had been kept and embalmed by unknown persons.

[238] According to a diplomatic note of the United States of 2 May 2018 submitted by the Georgian Government, parts of the missile had indeed been taken to the United States in several shipments beginning in August 2008.

[239] Миротворческие силы – peacekeeping forces in Russian.

[240] See his statement no. 34 below.

[241] According to statements nos. 14 and 15 above, Georgian prisoners of war were held in School No. 6 from 10-12 August 2008 and two of them were killed there.

[242] In her victim testimonial of 25 August 2008 (Annex 460 to the Observations of the Georgian Government of December 2014), Ms Shorena B. said that she had been raped by Ossetian men on the road between Gori and Tskhinvali on 13 August 2008. She was placed in the basement of the “Ministry of Internal Affairs of South Ossetia” on 14 August 2008. She did not claim that she had been raped again in the building of the “Ministry”. See also the report Up in Flames: Humanitarian Law Violations and Civilian Victims in the Conflict over South Ossetia , published by Human Rights Watch in 2009 (pp. 159-61), referring most likely to the same incident – a rape of a young Georgian woman by Ossetian men on the road between Gori and Tskhinvali on 13 August 2008 and her subsequent transfer to the “Ministry of Internal Affairs of South Ossetia” (in the report, the victim was referred to as “Mariam” in order to protect her identity).

[243] The Geneva International Discussions are international talks, launched in October 2008, to address the consequences of the 2008 conflict in Georgia. Co-chaired by the Organisation for Security and Co-operation in Europe, the European Union and the United Nations, the Geneva process brings together representatives of the participants of the conflict – Georgia, the Russian Federation and the de facto authorities of Abkhazia and South Ossetia – as well as the United States.

[244] This is the second statement of this witness (see also his statement no. 11 above).

[245] According to the report Up in Flames: Humanitarian Law Violations and Civilian Victims in the Conflict over South Ossetia , published by Human Rights Watch in 2009 (p. 181), South Ossetian forces released one group of 61 detainees, including most of the elderly and all of the women, on 21 August. Other civilians were released on subsequent days, including a final group of 81 civilians on 27 August.

[246] The Council of Europe Commissioner for Human Rights from 1 April 2006 to 31 March 2012.

[247] Mtshketa is a city close to Tbilisi, around 80 kilometres from Tirdznisi.

[248] However, according to an official document of 26 January 2017, submitted to the Court by the Georgian Government, the war-time village administrator of Tirdznisi was Mr Temur Tetunashvili.

[249] Minister for Foreign Affairs of Sweden at that time (from 2006 until 2014).

[250] This is the second statement of this witness (see also his statement no. 10 above).

[251] This is the third statement of this witness (see also his statements nos. 11 and 21 above).

[252] At the end of July 2016 the witness left the American Association for the Advancement of Science to take up a position at the US State Department.

[253] GeoEye is a commercial company incorporated in the United States.

[254] DigitalGlobe is a commercial company incorporated in the United States. In 2013 it purchased GeoEye.

[255] ImageSat is a commercial company incorporated in Israel.

[256] See his statement no. 17 above.

[257] . UNOMIG was established in August 1993 to verify compliance with the ceasefire agreement between the Government of Georgia and the de facto authorities of Abkhazia. UNOMIG’s mandate was expanded following the signing by the parties of the 1994 Agreement on a Ceasefire and Separation of Forces. UNOMIG came to an end in June 2009 due to a lack of consensus among UN Security Council members on mandate extension.

[258] . The Convention on Cluster Munitions is an international treaty of more than 100 States that addresses the humanitarian consequences of cluster munitions through a categorical prohibition and a framework for action.

[259] . The Georgians call it Akhalgori.

[260] . OMON (Отряд мобильный особого назначения) was a system of special police units within the Russian, and previously Soviet, Ministry of Internal Affairs. It was created in 1988 and then played a major role in several armed conflicts during and following the dissolution of the Soviet Union. OMON units continue to exist in some post-Soviet states. As concerns the Russian Federation, the functions of OMON have recently been taken over by the newly established National Guard of Russia.

[261] . This is the second statement of this witness (see also his statement no. 20 above).