Chronology of the Procedure
In its Application, Georgia, referring to Article 36, paragraph 1, of the Statute, relied on Article 22 of CERD to found the jurisdiction of the Court and also reserved the right to invoke Article IX of the Convention on the Prevention and Punishment of the Crime of Genocide of 9 December 1948 as an additional basis for jurisdiction.
For the Russian Federation: H.E. Mr. Kirill Gevorgian,
H.E. Mr. Roman Kolodkin,
Mr. Samuel Wordsworth,
Mr. Alain Pellet,
Mr. Andreas Zimmermann.
For Georgia: Ms Tina Burjaliani,
Mr. Paul S. Reichler,
Mr. Payam Akhavan,
Mr. James R. Crawford,
Mr. Philippe Sands.
"The Republic of Georgia, on it own behalf and as parens patriae for its citizens, respectfully requests the Court to adjudge and declare that the Russian Federation, through its State organs. State agents, and other persons and entities exercising governmental authority, and through the South Ossetian and Abkhaz separatist forces and other agents acting on the instructions of or under the direction and control of the Russian Federation, has violated its obligations under CERD by:
(a) engaging in acts and practices of 'racial discrimination against persons, groups of persons or institutions’ and failing 'to ensure that all public authorities and public institutions, national and local, shall act in conformity with this obligation’ contrary to Article 2 (1) (a) of CERD;
(b) 'sponsoring, defending and supporting racial discrimination’ contrary to Article 2 (1) (b) of CERD;
(c) failing to 'prohibit and bring to an end, by all appropriate means, including legislation as required by circumstances, racial discrimination’ contrary to Article 2 (1) (d) of CERD;
(d) failing to condemn 'racial segregation’ and failing to 'eradicate all practices of this nature’ in South Ossetia and Abkhazia, contrary to Article 3 of CERD;
(e) failing to 'condemn all propaganda and all organizations... which attempt to justify or promote racial hatred and discrimination in any form’ and failing 'to adopt immediate and positive measures designed to eradicate all incitement to, or acts of, such discrimination’, contrary to Article 4 of CERD;
(f) undermining the enjoyment of the enumerated fundamental human rights in Article 5 by the ethnic Georgian, Greek and Jewish populations in South Ossetia and Abkhazia, contrary to Article 5 of CERD;
(g) failing to provide 'effective protection and remedies’ against acts of racial discrimination, contrary to Article 6 of CERD.
The Republic of Georgia, on it own behalf and as parens patriae for its citizens, respectfully requests the Court to order the Russian Federation to take all steps necessary to comply with its obligations under CERD, including:
(a) immediately ceasing all military activities on the territory of the Republic of Georgia, including South Ossetia and Abkhazia, and immediate withdrawing of all Russian military personnel from the same;
(b) taking all necessary and appropriate measures to ensure the prompt and effective return of IDPs to South Ossetia and Abkhazia in conditions of safety and security;
(c) refraining from the unlawful appropriation of homes and property belonging to IDPs;
(d) taking all necessary measures to ensure that the remaining ethnic Georgian populations of South Ossetia and the Gali District are not subject to discriminatory treatment including but not limited to protecting them against pressures to assume Russian citizenship, and respect for their right to receive education in their mother tongue;
(e) paying full compensation for its role in supporting and failing to bring to an end the consequences of the ethnic cleansing that occurred in the 1991-1994 conflicts, and its subsequent refusal to allow the return of IDPs;
(f) not to recognize in any manner whatsoever the de facto South Ossetian and Abkhaz separatist authorities and the fait accompli created by ethnic cleansing;
(g) not to take any measures that would discriminate against persons, whether legal or natural, having Georgian nationality or ethnicity within its jurisdiction or control;
(h) allow Georgia to fulfil its obligations under CERD by withdrawing its forces from South Ossetia and Abkhazia and allowing Georgia to restore its authority and jurisdiction over those regions; and
(i) to pay full compensation to Georgia for all injuries resulting from its internationally wrongful acts."
"On the basis of the evidence and legal argument presented in this Memorial, Georgia requests the Court to adjudge and declare:
1. that the Russian Federation, through its State organs. State agents and other persons and entities exercising governmental authority, and through the de facto governmental authorities in South Ossetia and Abkhazia and militias operating in those areas, is responsible for violations of Articles 2 (1) (a), 2 (1) (b), 2 (1) (d), 3 and 5 of the 1965 Convention by the following actions: (i) the ethnic cleansing of Georgians in South Ossetia; (ii) the frustration of the right of return of Georgians to their homes in South Ossetia and Abkhazia; and (iii) the destruction of Georgian culture and identity in South Ossetia and Abkhazia ;
2. that the Russian Federation is responsible for the violation of the Court’s Order on Provisional Measures of 15 October 2008 by the following actions: (i) acts of discrimination, including by violence, against Georgians in South Ossetia and Abkhazia; (ii) the frustration of the right of return of Georgians to their homes in South Ossetia and Abkhazia ; (iii) the destruction of Georgian culture and identity in South Ossetia and Abkhazia; and (iv) the obstruction of access to humanitarian assistance;
3. that the Russian Federation is under an obligation to cease all actions in contravention of its obligations under Articles 2 (1) (a), 2 (1) (b), 2 (1) (d), 3 and 5 of the 1965 Convention and the Court’s Order on Provisional Measures, including all acts of discrimination as well as all support, defence, sponsorship of, or efforts to consolidate, such discrimination, and to provide appropriate assurances and guarantees that it will refrain from all such acts in the future;
4. that the Russian Federation is under an obligation to re-establish the situation that existed before its violations of Articles 2 (1) (a), 2 (1) (b), 2 (1) (d), 3 and 5 of the 1965 Convention, in particular by taking prompt and effective measures to secure the return of the internally displaced Georgians to their homes in South Ossetia and Abkhazia;
5. that the Russian Federation is under an obligation to compensate for the damage caused by its violations of Articles 2 (1) (a), 2 (1) (b), 2 (1) (d), 3 and 5 of the 1965 Convention and of the Court’s Order on Provisional Measures with such compensation to be quantified in a separate phase of these proceedings."
"For the reasons advanced above, the Russian Federation requests the Court to adjudge and declare that it lacks jurisdiction over the claims brought against the Russian Federation by Georgia, referred to it by the Application of Georgia of 12 August 2008."
In the written statement of its observations and submissions on the preliminary objections, the following submissions were presented on behalf of the Government of Georgia:
"For these reasons Georgia respectfully requests the Court:
1. to dismiss the preliminary objections, presented by the Russian Federation;
2. to hold that it has jurisdiction to hear the claims presented by Georgia, and that these claims are admissible."
On behalf of the Government of the Russian Federation,
at the hearing of 15 September 2010:
"The Russian Federation requests the Court to adjudge and declare that it lacks jurisdiction over the claims brought against the Russian Federation by Georgia, referred to it by the Application of Georgia of 12 August 2008."
On behalf of the Government of Georgia,
at the hearing of 17 September 2010:
"Georgia respectfully requests the Court:
1. to dismiss the preliminary objections presented by the Russian Federation;
2. to hold that the Court has jurisdiction to hear the claims presented by Georgia and that these claims are admissible."
"Any dispute between two or more States parties with respect to the interpretation or application of this Convention, which is not settled by negotiation or by the procedures expressly provided for in this Convention, shall, at the request of any of the parties to the dispute, be referred to the International Court of Justice for decision, unless the disputants agree to another mode of settlement."
CERD entered into force between the Parties on 2 July 1999.
1. The meaning of "dispute"
"In contrast to Article 11, where the term 'dispute' is carefully avoided, there are some six references to 'States parties to the dispute' in Article 12. This cannot be inadvertent — the parties evidently wished to distinguish between the communication and adjustment of a non-crystallized matter, and the point at which that matter had been escalated via a five-stage process such that it could then, but only then, be properly characterized as a dispute."
The same distinction, says the Russian Federation, between the non-crystallized "matter" and the "dispute" is reflected in the relevant parts of the Committee's Rules of Procedure. Article 16 also uses both terms in establishing that the provisions of CERD "concerning the settlement of disputes or complaints shall be applied without prejudice to other procedures for settling disputes or complaints" laid down in other instruments. The reference to "complaints" in that provision is explained, according to the Russian Federation, by the drafting history which shows that the term "complaint" was the term originally used for "matter" in Article 11. The wording, confirmed by the drafting history, in the Russian Federation's submissions, leads to the conclusion that:
"as a matter of the interpretation of the word 'dispute' in Article 22 in its relevant context, a specific degree of crystallization is required for there to be a 'dispute' at all. And, even on Georgia's case on the relevant facts, that degree of crystallization is manifestly absent."
2. The evidence about the existence of a dispute
3. Relevant agreements and Security Council resolutions
"Reaffirming its commitment to the sovereignty and territorial integrity of the Republic of Georgia, and the right of all refugees and displaced persons affected by the conflict to return to their homes in secure conditions, in accordance with international law and as set out in the Quadripartite Agreement,
Stressing the crucial importance of progress in the negotiations under the auspices of the United Nations and with the assistance of the Russian Federation as facilitator and with the participation of representatives of the Conference on Security and Co-operation in Europe (CSCE) to reach a comprehensive political settlement of the conflict, including on the political status of Abkhazia, respecting fully the sovereignty and territorial integrity of the Republic of Georgia, based on the principles set out in its previous resolutions,
2. Calls upon the parties to intensify their efforts to achieve an early and comprehensive political settlement under the auspices of the United Nations with the assistance of the Russian Federation as facilitator and with the participation of representatives of the CSCE, and welcomes the wish of the parties to see the United Nations continue to be actively involved in the pursuit of a political settlement;
3. Commends the efforts of the members of the CIS directed towards the maintenance of a cease-fire in Abkhazia, Republic of Georgia, and the promotion of the return of refugees and displaced persons to their homes in accordance with the Agreement signed in Moscow on 14 May 1994 in full co-operation with the United Nations High Commissioner for Refugees (UNHCR) and in accordance with the Quadripartite Agreement;
4. Welcomes the contribution made by the Russian Federation, and indications of further contributions from other members of the CIS, of a peace-keeping force, in response to the request of the parties, pursuant to the 14 May Agreement, in co-ordination with UNOMIG... and in accordance with the established principles and practices of the United Nations;
9. Reaffirms its support for the return of all refugees and displaced persons to their homes in secure conditions, in accordance with international law and as set out in the Quadripartite Agreement …"
Similarly, in resolution 1036 (1996), the Security Council:
"Stressing the need for the parties to intensify efforts, under the auspices of the United Nations and with the assistance of the Russian Federation as facilitator, to achieve an early and comprehensive political settlement of the conflict, including on the political status of Abkhazia, fully respecting the sovereignty and territorial integrity of Georgia,
Reaffirming also the right of all refugees and displaced persons affected by the conflict to return to their homes in secure conditions in accordance with international law and as set out in the Quadripartite Agreement of 14 April 1994,
Noting that the Moscow Agreement of 14 May 1994 on a Cease-fire and Separation of Forces (S/1994/583, Annex I) has generally been respected by the parties with the assistance of the Commonwealth of Independent States (CIS) peacekeeping forces and the United Nations Observer Mission in Georgia (UNOMIG),
Expressing its satisfaction with the close co-operation and coordination between UNOMIG and the CIS peace-keeping force in the performance of their respective mandates and commending the contribution both have made to stabilize the situation in the zone of conflict,
3. Reaffirms its full support for the efforts of the Secretary-General aimed at achieving a comprehensive political settlement of the conflict, including on the political status of Abkhazia, respecting fully the sovereignty and territorial integrity of Georgia, as well as for the efforts that are being undertaken by the Russian Federation in its capacity as facilitator to intensify the search for a peaceful settlement of the conflict, and encourages the Secretary-General to continue his efforts, with the assistance of the Russian Federation as facilitator, and with the support of the Organization for Security and Co-operation in Europe (OSCE), to that end;
8. Calls upon the parties to improve their co-operation with UNOMIG and the CIS peace-keeping force in order to provide a secure environment for the return of refugees and displaced persons and also calls upon them to honour their commitments with regard to the security and freedom of movement of all United Nations and CIS personnel and with regard to UNOMIG inspections of heavy weapons storage sites;
9. Welcomes the additional measures implemented by UNOMIG and the CIS peace-keeping force in the Gali region aimed at improving conditions for the safe and orderly return of refugees and displaced persons, and all appropriate efforts in this regard."
As appropriate, the Court refers back to these standard paragraphs and highlights particular elements later in this part of the Judgment.
4. Documents and statements from the period before CERD entered into force between the Parties on 2 July 1999
"That notwithstanding, I appeal once again to Boris Nikolaevich Yeltsin, to the United Nations Security Council and Mr. Boutros-Ghali, to the entire progressive and democratic Russian nation and to all the peoples of the world: do not allow this monstrous crime to be committed, halt the execution of a small country and save my homeland and my people from perishing in the fires of imperial reaction. The world must not condone the annihilation of one of its most ancient nations, the creator of a great culture and heir to exalted spiritual traditions." (United Nations doc. S/26472.)
Given that appeal and the reference in the letter to Abkhazia being "the fuse with which [the Abkhaz separatists] intend to blow up not only Shevardnadze's Georgia but also Yeltsin's Russia", the Court does not consider that this letter can be read as Georgia making a claim regarding racial discrimination against the Government of the Russian Federation.
"Despite long-standing negotiations between the sides participating in the conflict of Abkhazia under the auspices of the UN and mediated by Russia, the intransigent stand of separatists obstructed compromise on the questions of the repatriation of hundreds of thousands of refugees and the determination of the status of Abkhazia within the territory of Georgia. The separatist regime uses every means to strengthen its military potential, to set up independent state structures and attributes, to distort history, and to spread misanthropic racist ideology. The CIS Heads of States decisions taken in Almaty, Minsk and Moscow are not implemented. The separatists with the support of external forces purposefully and unilaterally violate these agreements. Peacekeeping forces, designated by Russia in agreement with the CIS and the UN, to this day are unable to fulfill their function. They failed to secure the safety of the population, to prevent ethnic cleansing and genocide of the Georgian population, to render a real assistance to return refugees and internally displaced people to their homes."
The Parliamentary resolution referred to the Russian Federation "as an interested side", along with the United Nations, and not as a participant in the conflict. The only other references to the Russian Federation were to the mandate and to the withdrawal of the peacekeeping forces:
"As the Russian peacekeeping forces under the CIS mandate cannot provide the safe return of internally displaced persons and refugees and the protection of their lives and dignity, and in the event that the current mandate is retained and Georgian proposals are not considered in a new mandate, then the peacekeeping operations shall be considered as having no prospects and peacekeeping forces shall be withdrawn within two month's time."
Again there is no claim regarding the Russian Federation's compliance with its obligations relating to the elimination of racial discrimination. Rather, the claim is that the peacekeeping forces are unable to fulfil their functions. Accordingly, the Court sees this Parliamentary resolution as having no legal significance for the purposes of the present case.
5. Documents and statements from the period after CERD entered into force between the Parties and before August 2008
"Georgia unreservedly condemns any policy, ideology or practice conducive to racial hatred or any form of 'ethnic cleansing' such as that practised in the Abkhaz region of Georgia following the armed conflict of 1992-1993. Hundreds of thousands of displaced persons, a large majority of whom are women, elderly persons and children, lost their homes and means of survival and became exiles in their own country. Such has been the outcome of the policy pursued by the authorities of the self-proclaimed 'Republic of Abkhazia', the aim of which has been to 'cleanse' the region of Georgians and — in many cases — representatives of other nationalities as well. Georgia firmly believes that a policy founded on racial hatred is a fundamental infringement of human rights and should be unconditionally proscribed, condemned and eliminated." (United Nations doc. CERD/C/369/Add.l.)
The Court observes that this passage — the only one invoked by Georgia — directs no criticism against the Russian Federation, nor was such criticism made by the Georgian representative before the Committee, by any member of the Committee or by the Committee in its concluding observations (United Nations docs. CERD/C/SR.I453, CERD/C/304/ Add.120, CERD/C/SR.I454). Indeed, the Georgian representative before the Committee said that her Government was currently involved in negotiations to resolve the complicated situation and that the Russian Federation might have an important part to play in that regard.
"Under this article of the Convention, it must be reiterated that, owing to the continuing political crisis in Abkhazia and South Ossetia, during the reporting period Georgia was not in a position to protect citizens of these regions from criminal acts. In this connection, it should be stressed that Georgia does not absolve itself of responsibility for the situation in this part of its territory, which includes its responsibility to safeguard human rights and freedoms." (United Nations doc. CERD/C/46l/Add.l.)
Again, the Court observes that the passage directs no criticism against the Russian Federation, nor did the Georgian representative appearing before the Committee or any member of the Committee or the Committee itself (United Nations doc. CERD/C/SR.1706).
"A particular problem arose in Abkhazia, where Russian peacekeepers were in some instances aiding or abetting criminal separatists and were thereby, actively or by omission, contributing to human rights violations in the region. Most of the human rights violations in the territory affected ethnic Georgians, and the de facto authorities in Abkhazia bore a heavy responsibility for such violations."
Although there was some criticism of the Russian Federation here, this did not amount to an allegation against the Russian Federation regarding the latter's compliance with its obligations relating to the elimination of racial discrimination under CERD.
"While discussing the possibility of withdrawal of peacekeeping forces from Abkhazia, the Russian side was expressing a clearly negative attitude. However, it has been pointed out many times that if there is relevant request from the Georgian side, the Russian peacekeeping forces will leave the territory of Georgia. According to the statement of Russia, if the 'blue helmets' are pulled out of Abkhazia, the UN observers will also leave the region. The Russian colleagues expressed doubt about how the Georgian party would be able to control the situation independently and avoid the threat of renewing the hostilities."
This is an exchange between parliamentarians and no claim of racial discrimination against the Russian Federation appears in that exchange. Accordingly, the Court can give it no legal significance for the purposes of the present case.
"It is primarily the issue of our relations with Russia. The Russian generals are in command there, they have a military contingent there which played a very negative role... [M]ost of the population there is ethnically Georgian or was ethnically Georgian. Those people were thrown out by Russian troops and local separatists and we need to change the situation."
Georgia submits that this statement directly accused the Russian Federation and its forces of complicity in ethnic cleansing against ethnic Georgians in Abkhazia. While there may be some force in that contention, the President-elect immediately followed the passage emphasized by Georgia by saying that "primarily the way to change that [the situation in Abkhazia] is peaceful talks, offering them [the people in Abkhazia] better alternatives in terms of Georgian economic development, Georgia's integration into Europe". He said of Abkhazia "[b]asically that is a lawless place... it's really a black hole... Of course Russia doesn't want to give up the control over it so we have to talk to them and make them realise that we're an independent state... But on the other hand we want to be on good terms with them." The statement has to be seen in the immediate context of the wide-ranging and informal character of the interview and in the broader context of the relationship between the two countries in relation to Abkhazia. Security Council resolution 1524 (2004) adopted two weeks after the interview contained the standard paragraphs commonly included in Security Council resolutions, relating among other things to the various roles of the Russian Federation (see paragraphs 48 and 71). Further, the record does not include any specific follow-up by the new President or under his instructions to whatever claim might have been made against the Russian Federation in the interview.
"It seems that the Russian-led peacekeeping operation has, in fact, exhausted its potential and the only effective way is to have a full-scale international, I would underline — truly international — United Nations-led peacekeeping operation.
The Georgian leadership is firmly committed to a peaceful settlement of the conflict on its territory, weighing ethnic inclusiveness and integration, safeguarding human rights and freedoms. Despite all of the above-mentioned we still believe that there is no military solution — on the contrary, we are confident that it is counter-productive. Our policy of proactive engagement has long-term goals to get Abkhaz society out of isolation, to expose them to democratic values and beliefs, recognizing fundamental human rights of internally displaced persons and refugees, first of all the right to return to their homes, regardless of their ethnicity, to establish an environment of trust and mutual respect." (United Nations doc. S/2005/678.)
The Court is unable to see in this letter any claim against the Russian Federation by the Georgian Government of breaches of obligations under CERD.
"One of the members of the Security Council, member of the Group of Friends and the facilitator of the peace process — namely the Russian Federation —, suddenly has decided to disassociate itself from supporting the basic principle — principle of territorial integrity of Georgia within its internationally recognized borders... That is why for the first time in the history of Security Council deliberations we have no draft resolution prepared by the Group of Friends.
This change of position of one of the prominent members of P5 is not just a slight shift or correction. Renouncement of the principle of determining the status of Abkhazia within the State of Georgia does mean the following: support of the secessionism as a phenomenon; endorsement of ethnic cleansing of more than 300,000 citizens of Georgia; questioning the basic principle of the modern world architecture — the principle of territorial integrity and inviolability of internationally recognized borders.
I am representing the people who were forcefully expelled from their homes and are not allowed to return. I am representing the people who count every day of their exile and who look with a hope to this Council for its work and resolutions. I am representing the community which follows very closely every move in the peace process in Abkhazia, Georgia."
The Court observes that the reference to "ethnic cleansing" does not include an allegation that the Russian Federation participated in, or facilitated, that action. After some delay, at the end of March 2006, the Security Council, with a Georgian representative present and without debate (United Nations doc. S/PV.5405), adopted resolution 1666 (2006) including standard paragraphs about the CIS peacekeeping forces and the role of the Russian Federation as facilitator, as well as a reaffirmation of the territorial integrity of Georgia.
"Instead of demilitarization, the drastic increase of military potential of those armed forces under subordination of de facto authorities of Abkhazia and the former Autonomous District of South Ossetia, drastic activation of terrorist and subversive actions, complete collapse of security guarantees for peaceful population, permanent attempts to legalize the results of ethnic cleansing the fact of which had been repeatedly recognized by the international community, massive violation of fundamental human rights and ever-increasing international criminal threats so characteristic of uncontrolled territories — this is a reality brought about as a result of peacekeeping operations."
The resolution then said that the rejection by the Russian Federation of a peace plan "can be assessed as support for separatists and as a permanent attempt to annex Georgia's territory". The Parliament resolved to entrust the Government of Georgia with the task of launching necessary procedures to immediately suspend the so-called peacekeeping operations and to have the armed forces of the Russian Federation withdrawn.
"It is crystal clear that the Russian peacekeeping force is not an impartial, nor international, contingent. It failed to carry out the main responsibilities spelled out in its mandate — to create a favourable security environment for the return of ethnically cleansed hundreds of thousands of Georgian citizens. It became the force that works to artificially alienate the sides from one another."
Georgia in its submissions cites this statement as raising the dispute again — the Court presumes that this means the dispute about racial discrimination by the Russian Federation — but the Permanent Representative's next sentence was this:
"The Russian political leader's statements and actions once again make clear that what we are dealing with is not a fundamentally ethnic conflict, but rather one stemming from Russia's territorial ambitions against my country."
Particularly taking into account this clarification by the Permanent Representative, the Court concludes that it cannot give any legal significance to the statement made at the press conference for the purposes of the present case.
"The story of Abkhazia, where up to 500,000 men, women, and children were forced to flee in the 1990s, is of particular relevance — one of the more abhorrent, horrible and yet forgotten ethnic cleansings of the twentieth century. In the time since Russian peacekeepers were deployed there, more than 2,000 Georgians have perished and a climate of fear has persisted." (United Nations doc. A/62/PV.7.)
Near the end of his address, he stated that "[t]he only obstacle to the integration of South Ossetia [into Georgia] is a separatist regime that basically consists of elements from security services from neighbouring Russia that have no historical, ethnic or cultural links to the territory". In respect of Abkhazia he had earlier said that "these disputes are no longer about ethnic grievances".
The second statement contains this passage:
"The Georgian side expresses its extreme concern about this fact [the identity of a militant who had been killed], proving that separatist illegitimate armed forces are constantly receiving support from a party which is supposed to be a facilitator of the conflict resolution process. Regretfully, we have been witnessing such a pattern of behaviour for 14 years. At the same time high-ranking Russian officials consider [sic] ordinary support and training to so-called anti-terrorist units, which in reality by nature are illegitimate military formations of the de facto Abkhaz regime, and are responsible for ethnic cleansing that took place in Abkhazia, Georgia.
The Georgian Government once again reminds all States of paragraph 8 of Security Council resolution 876 (1993), in which the Council called on all States to prevent the provision from their territories or by persons under their jurisdiction of all assistance, other than humanitarian assistance." (United Nations doc. S/2007/589.)
Again the reference to ethnic cleansing is not stated as a claim against the Russian Federation regarding compliance with its obligations under CERD.
"Free Economic Zone will be created in the territory of Gali and Ochamchire Districts of Abkhazia, where the population is practically absent at present. Mixed Georgian-Abkhazian administrations and mixed Georgian-Abkhazian law enforcement organs will be created in both districts. Safe and dignified return of refugees and IDPs to Gali and Ochamchire Districts will be organized. The Georgian side undertakes to provide social welfare fully for the population of these districts.
The parties to the conflict could also conclude a separate agreement about non-use of force and return of IDPs and refugees to the entire territory of Abkhazia, Georgia."
An additional proposal was for the continuation of the peacekeeping operation of the CIS with a reviewed mandate. The Georgian President proposed that the Russian Federation be one of the guarantors of the agreements which he was to negotiate in line with these proposals.
"In this situation, frankly speaking it is difficult to imagine, for example, the creation of joint Georgian-Abkhaz administration or law-enforcement organs in any district of Abkhazia. It is also apparently untimely to put the question of the return of refugees in such a categorical manner. Abkhazs perceive this as a threat to their national survival in the current escalated situation and we have to understand them.
Because of this, I propose to concentrate on the initial and most important for today — the real measures directed towards decreasing the tensions and restoration of trust that will allow resuming the process of Georgian-Abkhaz regulation which was ceased in July 2006."
He then went on to address other matters in the Georgian list, and concluded with reference to two of them in this way:
"We are also ready to discuss your proposal regarding the creation of a Russian-Georgian intergovernmental commission on the issues of economic rehabilitation of Abkhazia. As far as I understand that would mean the cancellation of the sanction introduced in January 1996 on the basis of the Decision of the CIS Heads of States on the Sanctions against Abkhazia. By the way, in terms of directions, this would have been consonant with the measures taken by the Russian side within the framework of the April Order of the President of the Russian Federation.
And of course we will welcome Georgia to join the process of preparation for the 2014 Olympic Games in Sochi.
In sum, quite a specific and positive agenda of our joint actions is emerging."
"a sustained Georgian artillery attack struck the town of Tskhinvali. Other movements of the Georgian armed forces targeting Tskhinvali and the surrounding areas were under way, and soon the fighting involved Russian, South Ossetian and Abkhaz military units and armed elements. It did not take long, however, before the Georgian advance into South Ossetia was stopped. In a counter-movement, Russian armed forces, covered by air strikes and by elements of its Black Sea fleet, penetrated deep into Georgia, cutting across the country's main east-west road, reaching the port of Poti and stopping short of Georgia's capital city, Tbilisi. The confrontation developed into a combined inter-state and intra-state conflict, opposing Georgian and Russian forces at one level of confrontation as well as South Ossetians together with Abkhaz fighters and the Georgians at another." (Report, Vol. 1, para. 2.)
(1) non-use of force; (2) the absolute cessation of hostilities; (3) free access to humanitarian assistance; (4) withdrawal of the Georgian armed forces to their permanent positions; (5) withdrawal of the Russian armed forces to the line where they were stationed prior to the beginning of hostilities; pending the establishment of international mechanisms, the Russian peacekeeping forces will take additional security measures; (6) an international debate on ways to ensure security and stability in the region.
"that Russian troops, Russian tanks that moved in, into South Ossetia on their way expelled the whole ethnically Georgian population of South Ossetia. This morning they've committed the ethnic cleansing in all areas they control in South Ossetia, they have expelled ethnic Georgians living there. Right now they are trying to set up the ethnic cleansing of ethnic Georgians from upper Abkhazia — Kodori Gorge."
On the following day, 10 August 2008, the Georgian representative, at a meeting of the Security Council called at Georgia's request, in his initial statement referred to "the process of exterminating the Georgian population", but the first explicit reference to racial discrimination came in the initial statement by the representative of the Russian Federation:
"What legal terms can be used to describe what has been done by the Georgian leadership? Can we use 'ethnic cleansing', for example, when, over a number of days, nearly 30,000 of the 120,000 people of South Ossetia have become refugees who have fled to Russia: more than a quarter of the population. They went across the border from South Ossetia to the North at great risk to their lives. Is that ethnic cleansing or is it not?" (United Nations doc. S/PV.5953, 10 August 2008, p. 8.)
The Georgian representative responded that "[w]e cannot [turn a blind eye] now because that is exactly Russia's intention: to erase Georgian statehood and to exterminate the Georgian people" (ibid., p. 16). The representative of the Russian Federation in the next statement in the debate countered that "the intention of the Russian Federation in this case is to ensure that the people of South Ossetia and Abkhazia not fear for their lives or for their identity" (United Nations doc. S/PV.5953, 10 August 2008, p. 17). The Court observes that civilians in regions directly affected by ongoing military conflict will in many cases try to flee — in this case Georgians to other areas of Georgia and Ossetians to the Russian Federation.
"According to the reliable information held by the Ministry of Foreign Affairs of Georgia, Russian servicemen and separatists carry out mass arrests of peaceful civilians of Georgian origin still remaining on the territory of the Tskhinvali region and subsequently concentrate them on the territory of the village of Kurta.
Georgia appeals to the International Red Cross and other humanitarian and international organizations and the international community as a whole to immediately take decisive and effective measures for the evacuation of this population from the conflict zone."
"And what was left of upper Abkhazia has been bitterly attacked for the last two days. And right now, as we speak, there is an ethnic cleansing of the whole ethnic Georgian population of Abkhazia taking place by Russian troops. I directly accuse Russia of ethnic cleansing there. And it's happening now.
The other thing is that, if you go down to South Ossetia, where also being held from half of the South Ossetia, which we always controlled, they fully expelled a couple of days ago the whole Georgian population. Russian troops have moved first to occupy the town of Gori, which is around 40 kilometres from Tskhinvali, the original capital of South Ossetia."
"A couple of days after [US Secretary of State] Rice had urgently asked me not to use such expressions, Mr. Saakashvili... claimed hysterically that the Russian side wanted to annex the whole of Georgia and, in general, he did not feel shy of using the term ethnic cleansings, although, true, it was Russia that he accused of carrying out those ethnic cleansings."
"Any dispute between two or more States Parties with respect to the interpretation or application of this Convention, which is not set-tied by negotiation or by the procedures expressly provided for in this Convention, shall, at the request of any of the parties to the dispute, be referred to the International Court of Justice for decision, unless the disputants agree to another mode of settlement."
2. Whether Article 22 of CERD establishes procedural conditions for the seisin of the Court
(b) Travaux préparatoires
3. Whether the conditions for the seisin of the Court under Article 22 of CERD have been fulfilled
Georgia further alleges that the evidence which it submitted demonstrates the existence and subsequent failure of high-level bilateral negotiations between Georgia and the Russian Federation relating to various aspects of the present dispute.
"Russian troops, Russian tanks that moved in, into South Ossetia on their way expelled the whole ethnically Georgian population of South Ossetia. This morning they've committed the ethnic cleansing in all areas they control in South Ossetia, they have expelled ethnic Georgians living there. Right now they are trying to set up the ethnic cleansing of ethnic Georgians from upper Abkhazia — Kodori Gorge."
"So how can we describe this action by the Georgian leadership? It has been said that aggression is only when one party attacks another. But if the aggression is carried out against your own people, is that in any way better? What legal terms can be used to describe what has been done by the Georgian leadership? Can we use 'ethnic cleansing', for example, when, over a number of days, nearly 30,000 of the 120,000 people of South Ossetia have become refugees who have fled to Russia: more than a quarter of the population? They went across the border from South Ossetia to the North at great risk to their lives. Is that ethnic cleansing or is it not? Should we describe that as genocide or not? When out of that population of 120,000, 2,000 innocent civilians die on the first day, is that genocide or is it not? How many people, how many civilians must die before we describe it as genocide?"
"As a matter of fact, it will be no exaggeration to say that the talk is about ethnic cleansings, genocide and war crimes [committed by Georgia].
Mr. Saakashvili... claimed hysterically that the Russian side wanted to annex the whole of Georgia and, in general, he did not feel shy of using the term ethnic cleansings, although, true, it was Russia that he accused of carrying out those ethnic cleansings."
"As to Georgia, we have always treated and continue to treat the Georgian people with deep respect. We continue to want to live with them in friendship and harmony and are convinced that the Georgian people will yet display their wisdom."
Lapse of the Court’s Order of 15 October 2008
For these reasons,
(1) (a) By twelve votes to four,
Rejects the first preliminary objection raised by the Russian Federation;
in favour: President Owada; Judges Al-Khasawneh, Simma, Abraham, Keith, Sepúlveda-Amor, Bennouna, Cancado Trindade, Yusuf, Greenwood, Donoghue; Judge ad hoc Gaja;
against: Vice-President Tomka; Judges Koroma, Skotnikov, Xue;
(b) By ten votes to six,
Upholds the second preliminary objection raised by the Russian Federation;
in favour: Vice-President Tomka; Judges Koroma, Al-Khasawneh, Keith, Sepúlveda-Amor, Bennouna, Skotnikov, Yusuf, Greenwood, Xue;
against: President Owada; Judges Simma, Abraham, Cancado Trindade, Donoghue; Judge ad hoc Gaja;
(2) By ten votes to six,
Finds that it has no jurisdiction to entertain the Application filed by Georgia on 12 August 2008.
in favour: Vice-President Tomka; Judges Koroma, Al-Khasawneh, Keith, Sepúlveda-Amor, Bennouna, Skotnikov, Yusuf, Greenwood, Xue;
against: President Owada; Judges Simma, Abraham, Cancado Trindade, Donoghue; Judge ad hoc Gaja.
Done in English and in French, the English text being authoritative, at the Peace Palace, The Hague, this first day of April, two thousand and eleven, in three copies, one of which will be placed in the archives of the Court and the others transmitted to the Government of Georgia and the Government of the Russian Federation, respectively.
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