LLM Students Address IHL Issues Arising from the 2008 Armed Conflict in South Ossetia

25 May 2023

Half of the class of our LLM in International Humanitarian Law and Human Rights – 20 students – pleaded on Sunday 20 May at Villa Moynier on the 2008 South Ossetia armed conflict between Russia and Georgia.

This pleading exercise forms part of the core course on international humanitarian law (IHL) given by Professor Marco Sassòli and follows a previous one on Gaza.

The August 2008 one-week-long hostilities in South Ossetia left lives, homes, and communities devastated and gave rise to numerous allegations of violations of international humanitarian law (IHL).

In January 2016, the International Criminal Court (ICC) authorized the opening of a formal investigation by the Office of the Prosecutor into the situation. On 10 March 2022, the ICC Prosecutor announced that it had reasonable grounds to believe that war crimes of torture and inhuman treatment, unlawful confinement, hostage-taking and unlawful transfer occurred and applied for three arrest warrants. On 30 June 2022, based on the Prosecutor’s application, the ICC Pre-Trial Chamber delivered three arrest warrants and found that there were reasonable grounds that three suspects bear responsibility for war crimes.

On 21 January 2021, the European Court of Human Rights (ECtHR) rendered a controversial judgment on human rights violations committed by Russia during this conflict in the case Georgia v. Russia no.2 and, on 5 October 2021, it delivered two other controversial decisions in the cases Bekoyeva and others v. Georgia and Shavlokhova and others v. Georgia. In the case Georgia v Russia no. 2, its Grand Chamber ordered the respondent State on 28 April 2028 to pay the compensation in respect of non-pecuniary damage suffered by thousands of victims of the war.

In front of a Jury – consisting of Professor Sassòli, our Teaching Assistant Revaz Tkemaladze who coordinated this exercise and coached students, and Lizaveta Tarasevich, Teaching Assistant at the Law Faculty of the University of Geneva – teams of two students (whose roles were attributed by the lot) pleaded on all the relevant IHL issues that arise during an armed conflict, including:

• The classification of the conflict and applicable law
• Classification of persons and territory
• Killing and destruction of property of ethnic Georgians and allegations of ethnic cleansing
• The use of weapons and precautionary measures during ground and air offensives
• The targeting of persons.

The task given to the students was complex and nuanced, as they had to address different territorial units, actors involved, and types of conflicts. It also challenged them on many important international law issues such as the standard of attribution of the conduct of organized groups to states, the obligations to ensure respect for violations of IHL by third parties, and the obligation to protect law and order in areas where states exercise control.

‘This time, students argued on a much less well-known conflict than the one in Gaza, which the other half of the class had argued over four weeks ago. Nevertheless, their grasp of the facts was admirable, and their arguments were committed and forceful while remaining professional and polite to the other side. Several groups achieved full marks. The fact that the majority of the groups were as good or better at answering the jury's questions –which they could not have anticipated –, than in their actual pleadings that they intensely prepared, deserves special mention. From the point of view of the necessary neutrality in the implementation of IHL, it was also remarkable that no one refused to argue on behalf of Russia, although its conduct in Ukraine currently appears indefensible’ says Professor Sassòli.

Our Teaching Assistant, Revaz Tkemaladze made sure that the students received sufficient preparation and training from the moment they received the attribution of their roles until the final pleading.

After providing them with the pleading material, he guided them on the scope of the questions and made suggestions, together with Professor Sassòli, on their written outlines, as well as on how they could improve to come well-prepared for this oral exercise. Students also received guidance on how to enhance their legal writing and oral advocacy skills through the methodology sessions organized for each pleading group.

‘As someone who is new to this field, I was intimidated at first by the idea of pleading and applying IHL. However, the amount of research and preparations that went into this truly helped me better understand IHL norms and gain confidence in discussing them. It definitely helped that my partner and I divided the workload equally, prepared a thorough background document summarizing the required readings and practised our presentations together multiple times, timing ourselves and providing constructive criticism to one another’ underlines Marielle Al Hayek.

‘Students approached this exercise very seriously and excelled in presenting their arguments. On multiple occasions, they extrapolated information from less-known sources and demonstrated in-depth research. The presentations were dense, persuasive, and logically structured. These pleadings, in a way, pushed the boundaries of the law, as students had to seek a delicate balance between what is favourable for the party they represent and what is realistic. They lived up to our expectations: their submissions were well-reasoned and sound, both factually and legally. The topics included issues ranging from the law of occupation to the conduct of hostilities, and the pleadings demonstrated a good grasp of the relationship between the two. They also successfully tackled challenging questions coming from the jury and offered informed views, which again points to the great deal of preparation they invested in the exercise’ says Revaz Tkemaladze.

At the end of the day, a reception allowed all LLM students to celebrate the successful completion of a demanding period that required substantial work and time commitment.