| Conditions and order of declaration of war and use of the army force are regulated by the national legislation and the international law. However, Russia has failed to provide for “legal grounds” for her militaries and citizen soldiers fighting against Georgia, on the national and international level. The status of the Russian soldiers, included in the staff of CIS international forces intended for maintaining peace in the South Ossetia, was defined clearly. However, after the units of the 58th regular Army and of the citizen soldiers were involved in the active conflict, the doubts arose concerning legality of abroad staying of the Russian militaries not belonging to the peacemaking contingent. In democratic states, the questions of war and peace are referred traditionally to powers executed by the parliament. In a number of countries it is provided for direct accountability of government to MP’s, and debates are held concerning diplomatic issues. The logic of the Russian Constitution divides the competency of the questions of war and peace, also military operations abroad, between the head of state and the parliament. Despite that fact, during the war undeclared officially, none of the chambers got assembled so that to decide something, while the President did not feel obliged to ask for permission from the parliament to offer a resistance to the “Georgian aggression”. The international law considers any use of force violating the UNO Charter to be a sufficient pretext for declaring a war. According to Article 87 of the Constitution, the marshal law can be put in Russia on the grounds of aggression against the country or imminent threat of aggression. The Federal Constitutional law of 2002 titled “On Marshal Law” concretizes this term. Aggression is intrusion or attack by foreign militaries to the Russian territory, its occupation or annexation, blocking the ports or shores, bombing the territory or use of any weapons by foreign militaries against Russia, any attack made on our soldiers regardless their dislocation, sending by a foreign state the armed bands, groups, irregular forces or mercenaries, or providing the state’s territory to a third party as a springboard for attacking our country. The usual order of passing a bill is as to follow: State Duma, Federation Council, President. When it comes about declaration of war or using the Army in abroad, a bill must go a reverse way. The President announces general or partial mobilization, issues a decree (the text is to be published immediately in the media and by official bodies) about imposing a marshal law on the entire country’s territory or on its part. He immediately informs about that the Federation Council and the State Duma. Then the President gives order to the troops about conduct of the military operations, introduces the regulating acts of the wartime and forms the “wartime” bodies of the executive power; also advises the UNO and the Council of Europe about temporary restriction of the civil rights (for example, freedom of speech or freedom of assembly). The presidential decree is approved of by the Federation Council. The Upper Chamber of the Parliament is to sanction or to reject the decision of declaration of war, within 48 hours, unless emergency and unavoidable circumstances hinder that (then the question might be considered with a delay). The decision of approving of the decree is taken with the majority of votes (the number of senators is 187). In case the decree fails to be approved of due to disagreement between the President and senators (which is impossible in today’s Russia), then the decree gets ineffective. Similar way decided is the question of using the armed forces beyond the Russian territory Although our legal system is no precedent one, in both cases of the Chechen campaigns the Russian leadership managed to avoid announcing the national emergency. National emergency was put in Moscow in October 1993, but that was done before adoption of the current Constitution and had no relation to the practice of using its powers by the Federation Council. Only once, on 7 July 2006, the Upper Chamber allowed that-time President using the units of the Russian Armed Forces and special units beyond the country’s territory with the purpose of prevention of international terrorist activities intended against Russian Federation, Russian citizens or persons without citizenship residing on the Russian territory. Senators prudently did not restrict the term of using power abroad formulating it like “it comes into effect on the day of adoption and is effective within the entire period of solving the task of eliminating the threat”. The press service of the Federation Council has explained to us that events in the South Ossetia and Abkhazia do not come within the purview of that old regulation. Then, when getting approval from the senators the Representative of the President stated that it was special units of intelligence service, i.e. militaries, to carry out the operations and so it was not possible to do without Federation Council’s consent. That time there was no talking of the 58th Army or the Black Sea Fleet. So, unlike the situation about our peacemakers, no one has cared about the legal justification of presence of the Russian troops on the Georgian territory. This lack of arrangements and the doubtful bombing by Russian aviation causes many questions to rise. One of them relates to the status of the war prisoners. The matter is that international conventions about the “law of war” get effective after the war is declared officially or the “operation of coercion to peace” is sanctioned by the UN Security Council. It shall be reminded that Russia failed to get approval by this body. Sergei Mulin
observer of the Novaya Gazeta 25.08.2008 | 
