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49 Stanford Journal of International Law 176 (2013)


One might expect massed armor crossing an international frontier to constitute the paradigmatic example of aggression — a case perfectly fit to analyze with the rules of jus ad bellum — and in the first flush and shock of the Georgian War in 2008, this is exactly how Western leaders described Russia’s actions. Yet that August, a constellation of circumstances combined to produce an anomalous outcome: an international war without any aggressor or any wrongful violation of territorial integrity. In theory — in doctrine — this is not supposed to happen.

The key to this puzzle is the special regime created by the 1992 Sochi Agreement, which functioned as an internationalized mechanism regulating the internal conflict between Georgia and South Ossetia by creating a new territorial status within Georgia’s sovereignty. Once we view Sochi in this way, the performance of the various actors in August 2008 looks rather different: Rather than aggressors, Russian tanks are a responsive mechanism designed to stop Georgian incursions in violation of the Sochi regime — a mechanism, moreover, that actually worked as it was supposed to. Understanding the Georgian War in this way leads us to confront our present, dualistic approaches to sovereignty: Under international law, it is definitionally impossible for Georgia to aggress against itself or violate its own territorial integrity, and it is only because of the Sochi regime that we can describe Georgia’s actions as wrongful.

In some ways, the 2008 war looks like part of a rising phenomenon: the effort to regulate the resort to violence within states. Indeed, the Sochi regime suggests a far better mechanism than some of the current proposals, since it creates a new category of protectable territory, rather than identifying levels of harm that trigger a reaction; this may be particularly useful in self-determination disputes, in which separatists challenge the very fact of the state’s sovereignty. Still, seeing the Georgian War in this way is not necessarily a source of optimism. Sochi was the product of a specific context, and there is no reason to suppose it is generalizable. But the greatest source of pessimism concerns the rhetorical reactions to the war: Western leaders resorted to the vocabularies of the jus ad bellum in ways that distracted them from the actual operation of the very mechanism regulating the underlying conflict. It seems we remain enchanted by categories, ill-equipped to recognize the real logic of our own imperfect efforts to regulate internal wars.