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

The hostilities in South Ossetia in the summer of 2008 and the subsequent events 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 he 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 warrants of arrest. 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 these 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 (II) 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 (II), its Grand Chamber ordered Russia on 28 April 2023 to pay compensation in respect of non-pecuniary damage suffered by thousands of victims of the war. On 9 April 2024, the European Court of Human Rights delivered a further judgment, this time in the case of Georgia v. Russia (IV), finding an ‘administrative practice’ of multiple human rights violations as a result of the process of ‘borderisation’ of the occupation line ongoing since 2008.

In front of a Jury – consisting of Professor Sassòli, and Teaching Assistant Revaz Tkemaladze who coordinated this exercise and coached the students – two person teams of students (whose roles were attributed randomly) pleaded on IHL issues that arose during this armed conflict, in particular:

• 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

LLM student Michele Scolari commented, ‘Working on the pleadings with my teammate, starting from the creation of the written outline to the oral simulation, was definitely one of the highlights of the year. The most challenging aspect was probably finding alternative positions grounded in both legal principles and factual evidence to defend our side while anticipating potential counter-arguments from the opposing side. To this end, the teamwork and division of the tasks proved essential to tackle effectively all the documents and the material. The best part was the oral simulation where we were not only able to express our position, but also delve into the nuances of the conflict and its legal complexities during the Q&A.’

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 on 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 excellent marks. The fact that each group formed by the lot among students from very diverse backgrounds, coming from all around the world, receives a common grade for its pleading and the answers given to questions asked by the jury obliged them to coordinate and to help each other. This is a crucial preparation for teamwork necessary in professional life. They all met this challenge. 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.

LLM student Zoe Anastassiades explained, ‘The pleadings provided us with an opportunity to apply the IHL knowledge we had learnt throughout the year within a real-world context, whilst working closely with a fellow classmate. Adapting to the role of a State involved not only the correct application and interpretation of the law to the facts, but a careful manoeuvre of persuasive techniques to support the position of our allotted State. It was often challenging to maintain our State’s position and then subsequently defend that position when questioned by the Tribunal, but it was exciting to commit to the role and rebut allegations from the opposing team during question time.’

Our Teaching Assistant, Revaz Tkemaladze made sure that the students received sufficient preparation in the process. He made suggestions, together with Professor Sassòli, on their written outlines and provided guidance on how to enhance their legal writing and oral advocacy skills.

‘This Pleading exercise, like the previous one, pertained to a complex set of factual and legal issues ranging from the law of occupation to the conduct of hostilities. A further layer of complexity was that it dealt with the issue of proxy warfare. The students took the exercise so seriously that it no longer felt like a moot court: they dug deeply into various sources to the level of carrying out their own fact-finding, always differentiating between different territorial units or time-frames. Despite a large number of court decisions now available concerning the conflict, they do not address every IHL issue forming part of our Pleadings. Even on IHL issues that had been already given legal qualifications for example by the ICC Prosecutor, students went beyond and offered additional legal arguments on questions such as the status of territory and classification of persons. They made effective use of alternative submissions demonstrating both their awareness of how the law differs in diverse scenarios and skills of strategic advocacy.’ said Revaz Tkemaladze.

LLM student Usama Altisheh commented, ‘Pleading was an extraordinary experience to advance legal competencies through submitting arguments and applying the legal tests to the facts. It is useful for international lawyers interested in the enforcement of IHL before domestic and international tribunals’

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.