Non-Corrigé
Uncorrected
CR 2008/22
International Court Cour internationale
of Justice de Justice
THHEAGUE LAAYE
YEAR 2008
Public sitting
held on Monday 8 September 2008, at 10 a.m., at the Peace Palace,
President Higgins presiding,
in the case concerning Application of the International Convention on
the Elimination of All Forms of Racial Discrimination
(Georgia v. Russian Federation)
________________
VERBATIM RECORD
________________
ANNÉE 2008
Audience publique
tenue le lundi 8 septembre 2008, à 10 heures, au Palais de la Paix,
sous la présidence de Mme Higgins, président,
en l’affaire relative à l’Application de la convention internationale
sur l’élimination de toutes les formes de discrimination raciale
(Géorgie c. Fédération de Russie)
____________________
COMPTE RENDU
____________________ - 2 -
Present: Presieitgins
Vice-PresiKntasawneh
Judges Ranjeva
Shi
Koroma
Buergenthal
Owada
Simma
Tomka
Abraham
Keith
Sepúlveda-Amor
Bennouna
Skotnikov
Judge ad hoc Gaja
Registrar Couvreur
⎯⎯⎯⎯⎯⎯ - 3 -
Présents : Mme Higgins,président
Al-Kh.vsce-prh,ident
RanMjev.
Shi
Koroma
Buergenthal
Owada
Simma
Tomka
Abraham
Keith
Sepúlveda-Amor
Bennouna
Skjoteiskov,
jugeGaja,. ad hoc
Cgoefferr,
⎯⎯⎯⎯⎯⎯ - 4 -
The Government of Georgia is represented by:
Ms Tina Burjaliani, First Deputy-Minister of Justice,
H.E. Ms Maia Panjikidze, Ambassador of Georgia to the Kingdom of the Netherlands,
as Agents;
Mr. Payam Akhavan, Professor of International Law, McGill University,
as Co-Agent and Advocate;
Mr. James R. Crawford, S.C., LL.D., F.B.A., Whewell Professor of International Law, University
of Cambridge, Member of the Institut de droit international, Barrister, Matrix Chambers,
Mr. Paul S. Reichler, Foley Hoag LLP, Washington D.C., Member of the Bars of the United States
Supreme Court and the District of Columbia,
as Advocates;
H.E. Mr. Nika Gvaramia, Minister of Justice,
Mr. Ekaterine Zguladze, First Deputy-Minister of the Interior,
Mr. Archil Giorgadze, Head of Human Rights Unit, Office of the Prosecutor-General,
Mr. Philippe Sands, Professor of Law, University College London, Member, Matrix Chambers,
Mr. Zachary Douglas, Barrister, Matrix Chambers, Lecturer, Faculty of Law, University of
Cambridge,
Ms Stephanie Ierino, Barrister & Solicitor, Supreme Court of Tasmania, Research Associate,
Lauterpacht Centre for International Law, University of Cambridge,
Mr. Lawrence H. Martin, Foley Hoag LLP, Member of the Bars of the United States Supreme
Court, the District of Columbia and the Commonwealth of Massachusetts,
Mr. Andrew B. Loewenstein, Foley Hoag LLP, Member of the Bar of the Commonwealth of
Massachusetts,
Ms Clara E. Brillembourg, Foley Hoag LLP, Member of the Bars of the District of Columbia and
New York,
as Advisers.
The Government of the Russian Federation is represented by:
Mr. Roman Kolodkin, Director, Legal Department, Ministry of Foreign Affairs of the Russian
Federation,
H.E. Mr. Kirill Gevorgian, Ambassador of th e Russian Federation to the Kingdom of the
Netherlands,
as Agents; - 5 -
Le Gouvernement de Géorgie est représenté par :
Mme Tina Burjaliani, premier vice-ministre de la justice,
S. Exc. Mme Maia Panjikidze, ambassadeur de Géorgie auprès du Royaume des Pays-Bas,
comme agents;
M. Payam Akhavan, professeur de droit international à l’Université McGill,
comme coagent et avocat;
M. James R. Crawford, S.C., LL.D., F.B.A., prof esseur de droit international à l’Université de
Cambridge, titulaire de la chaire Whewell, avocat, Matrix Chambers,
M. Paul S. Reichler, cabinet Foley Hoag LLP, W ashington D.C., membre des barreaux de la Cour
suprême des Etats-Unis d’Amérique et du district de Columbia,
comme avocats ;
S. Exc. M. Nika Gvaramia, ministre de la justice,
Mme Ekaterine Zguladze, premier vice-ministre de l’intérieur,
M. Archil Giorgadze, chef du département des drotis de l’homme au bureau du procureur général,
M. Philippe Sands, professeur dedroit au University College de Londres, avocat, Matrix Chambers,
M. Zachary Douglas, avocat, Matrix Chambers, chargé de cours à la faculté de droit de l’Université
de Cambridge,
Mme Stephanie Ierino, avocat et Solicitor à la Cour suprême de Tasmanie, Research Associate au
Lauterpacht Centre for International Law de l’Université de Cambridge,
M. Lawrence H. Martin, cabinet Foley Hoag LLP, membre des barreaux de la Cour suprême des
Etats-Unis d’Amérique, du district de Columbia et du Commonwealth du Massachusetts,
M. Andrew B. Loewenstein, cabinet Foley Hoag LLP, membre du barreau du Commonwealth du
Massachusetts,
Mme Clara E. Brillembourg, cabinet Foley Hoag LLP, membre des barreaux du district de
Columbia et de New York,
comme conseillers.
Le Gouvernement de la fédération de Russie est représenté par :
M. Roman Kolodkin, directeur du département des affaires juridiques du ministère des affaires
étrangères de la Fédération de Russie,
S. Exc. M. Kirill Gevorgian, ambassadeur de la Fédération de Russie auprès du Royaume des
Pays-Bas,
comme agents ; - 6 -
Mr. Alain Pellet, Professor at the University Paris Ouest, Nanterre-La Défense, member and former
Chairman of the International Law Commission, associate member of the Institut de droit
international,
Mr. Andreas Zimmermann, LL.M. (Harvard), Professor of Law at the University of Kiel, Directo
r
of the Walther-Schückling Institute, Member of the Permanent Court of Arbitration,
Mr. Samuel Wordsworth, member of the English Bar, member of the Paris Bar, Essex Court
Chambers,
as Counsel and Advocates;
Mr. Dmitry Ognev, Solicitor, Egorov Puginsky Afanasiev and Partners, Moscow,
Mr. Khristofor Ivanyan, Managing Partner, Ivanyan and Partners law firm, Moscow,
as Advocates;
Mr. Nikolay Uvarov, Lieutenant General, Ministry of Defence of the Russian Federation,
Mr. Ilya Tiatkin, Major General, Ministry of Defence of the Russian Federation,
Mr. Elbrus Kargiev, Principal Counsellor, Ministry of Foreign Affairs of the Russian Federation,
Mr. Grigory Lukyantsev, Counsellor, Permanent Mission of the Russian Federation to the United
Nations, New York,
Mr. Maksim Musikhin, First Secretary, Embassy of the Russian Federation in the Kingdom of the
Netherlands,
Mr. Ivan Volodin, Acting Head of Division, Legal Department, Ministry of Foreign Affairs of the
Russian Federation,
Ms Maria Zabolotskaya, Second Secretary, Perm anent Mission of the Russian Federation to the
United Nations in New York,
Mr. Pavel Kornatskiy, Second Secretary, Embassy of the Russian Federation in the Kingdom of the
Netherlands,
Ms Svetlana Shatalova, Attaché, Legal Department, Ministry of Foreign Affairs of the Russian
Federation,
Ms Diana Taratukhina, Attaché, Legal Department, Ministry of Foreign Affairs of the Russian
Federation,
Ms Anastasia Tezikova, Attaché, Legal Department, Ministry of Foreign Affairs of the Russian
Federation,
Mr. Christian J. Tams, LL.M., Ph.D. (Cambridge), Walher-Schückling Institute, University of Kiel,
Ms Alina Miron, Temporary Lecturer and Research Assistant, University Paris Ouest-La Défense,
Researcher, Center for International Law of Nanterre (CEDIN), - 7 -
M. Alain Pellet, professeur à l’Université de Pari s Ouest, Nanterre-La Défense, membre et ancien
président de la Commission du droit internatio nal, membre associé de l’Institut de droit
international,
M. Andreas Zimmermann, LL.M. (Harvard), professeur de droit à l’Université de Kiel, directeur de
l’Institut Walther-Schücking, membre de la Cour permanente d’arbitrage,
M. Samuel Wordsworth, membre des barreaux d’Angleterre et de Paris, Essex Court Chambers,
comme conseils et avocats ;
M. Dmitry Ognev, Solicitor, cabinet Egorov Puginsky Afanasiev & Partners, Moscou,
M. Khristofor Ivanyan, associé gérant, cabinet Ivanyan & Partners, Moscou,
comme avocats ;
M. Nikolay Uvarov, général de corps d’armée au ministère de la défens e de la Fédération de
Russie,
M. Ilya Tiatkin, général de division au ministère de la défense de la Fédération de Russie,
M. Elbrus Kargiev, conseiller principal au mini stère des affaires étrangères de la Fédération de
Russie,
M. Grigory Lukyantsev, conseiller à la mission pe rmanente de la Fédération de Russie auprès de
l’Organisation des Nations Unies à New York,
M. Maksim Musikhin, premier secrétaire à l’ambassade de la Fédération de Russie aux Pays-Bas,
M. Ivan Volodin, chef de division par intérim du département des affaires juridiques du ministère
des affaires étrangères de la Fédération de Russie,
Mme Maria Zabolotskaya, deuxième secrétaire à la mission permanente de la Fédération de Russie
auprès de l’Organisation des Nations Unies à New York,
M. Pavel Kornatskiy, deuxième secrétaire à l’ambassade de la Fédération de Russie aux Pays-Bas,
Mme Svetlana Shatalova, attaché au département des affaires juridiques du ministère des affaires
étrangères de la Fédération de Russie,
Mme Diana Taratukhina, attaché au département de s affaires juridiques du mi nistère des affaires
étrangères de la Fédération de Russie,
Mme Anastasia Tezikova, attaché au département d es affaires juridiques du ministère des affaires
étrangères de la Fédération de Russie,
MC. hristian . ams, LL.M., docteur en dr oit de l’Université de Cambridge, Institut
Walther-Schücking de l’Université de Kiel,
Mme Alina Miron, attaché temporaire d’enseignement et de recherche à l’Université de
ParisOuest, Nanterre-La Défense, chercheur au centre de droit international de Nanterre
(CEDIN), - 8 -
Mr. Sergey Usoskin, Lawyer, Egorov Puginsky Afanasiev and Partners,
Ms Elena Krotova, Lawyer, Egorov Puginsky Afanasiev & Partners,
Ms Tatiana Tolstaya, Lawyer, Egorov Puginsky Afanasiev and Partners,
Ms Anna Shumilova, Junior Lawyer, Egorov Puginsky Afanasiev and Partners,
Ms Oxana Gogunskaya, Junior Lawyer, Egorov Puginsky Afanasiev and Partners,
as Advisers. - 9 -
M. Sergey Usoskin, juriste, cabinet Egorov Puginsky Afanasiev & Partners,
Mme Elena Krotova, juriste, cabinet Egorov Puginsky Afanasiev & Partners,
Mme Tatiana Tolstaya, juriste, cabinet Egorov Puginsky Afanasiev & Partners,
Mme Anna Shumilova, juriste junior, cabinet Egorov Puginsky Afanasiev & Partners,
Mme Oxana Gogunskaya, juriste junior, cabinet Egorov Puginsky Afanasiev & Partners,
commc eonseillers. - 10 -
The PRESIDENT: Please be seated. The sitting is open. The Court meets today under
Article74, paragraph3, of the Rules of Court, to hear the observations of the Parties on the
Request for the indication of provisional me asures submitted by Georgia in the case concerning
Application of the International Convention on the Elimination of All Forms of Racial
Discrimination (Georgia v. Russian Federation).
Judge Parra, for reasons explained to the Court, will not sit in the present case.
*
* *
As the Court does not include upon the Bench a judge of Georgian nationality, Georgia has
availed itself of the right conferred upon it by Article31, paragraph2, of the Statute, to choose a
judge ad hoc. It has chosen Mr. Giorgio Gaja. No twithstanding that Mr. Gaja has been a
judge ad hoc and made a solemn declaration in different previous cases, Article 8, paragraph 3, of
the Rules of Court provides that he must make a further solemn declaration in the present case.
Article 20 of the Statute provides that “[e]very Member of the Court shall, before taking up
his duties, make a solemn declaration in open court that he will exercise his powers impartially and
conscientiously”. Pursuant to Article 31, paragraph 6, of the Statute, that same provision applies to
judges ad hoc.
In accordance with custom, I shall first say a few words about the career and qualifications
of Mr. Gaja before inviting him to make his solemn declaration.
Mr. Giorgio Gaja, of Italian na tionality, is Professor at the Facu lty of Law at the University
of Florence and a former Dean of that Faculty. He has held numerous other teaching posts around
the world including the European University Institu te, the University of ParisI and the Graduate
Institute of International Studies in Geneva, a nd has also taught at the Hague Academy of
International Law. Mr. Gaja has been a member of the International Law Commission since 1999
and is a member of the Institut de droit international. He has represented his Government on a
number of occasions including as delegate to the Vienna Conference on the Law of Treaties - 11 -
between States and International Organizations and between International Organizations. Mr. Gaja
has appeared before this Court as counsel to the Italian Government in the Elettronica Sicula S.p.A.
(ELSI) case. He was also chosen as judge ad hoc in one of the cases concerning Legality of Use of
Force, namely in the Serbia and Montenegro v. Italy case, in the case concerning Territorial and
Maritime Dispute between Nicaragua and Honduras in the Caribbean Sea (Nicaragua v.
Honduras) and in the case concerning the Territorial and Maritime Dispute (Nicaragua v.
Colombia). Mr. Gaja has published numerous works and articles in diverse fields of international
law, from European human rights law to international criminal law.
I shall now invite Mr. Gaja to make the sole mn declaration prescribed by the Statute and I
ask all those present to stand.
GMArJ.A:
“I solemnly declare that I will perform my duties and exercise my powers as
judge honourably, faithfully, impartially and conscientiously.”
The PRESIDENT: Thank you. Please be seated. I take note of the solemn declaration made
by Judge Gaja and note that he is duly installed as judge ad hoc in the case concerning Application
of the International Convention on the Elimin ation of All Forms of Racial Discrimination
(Georgia v. Russian Federation).
*
* *
The proceedings in the present case were instituted on 12August 2008 by the filing in the
Registry of the Court of an Application by Georgia of the same date against the Russian
Federation. To found the jurisdiction of the Cour t, Georgia invokes Article 22 of the International
Convention on the Elimination of All Forms of Racial Discrimination of 21December 1965, to
which the two States are parties.
In its Application, Georgia contends that: - 12 -
“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 ac ting on the instructions of, and under the
direction and control of the Russian Federation, is responsible for serious violations of
its fundamental obligations under the Intern ational Convention on the Elimination of
All Forms of Racial Discrimination, including Articles 2, 3, 4, 5 and 6”,
committed, it is said, during three distinct phases of interventions by the Russian Federation in
South Ossetia and Abkhazia in the period from 1990 to August 2008.
In its Application, Georgia requests the C ourt 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 the Internationa l Convention on the Elimination of All Forms of
Racial Discrimination, in particular, by engagi ng in acts and practices of “racial discrimination
against persons, groups of persons or institution s” and failing “to ensure that all public authorities
and public institutions, national and local, shall act in conformity with this obligation”; by
sponsoring, defending and supporting racial discrimination; by failing to “prohibit and bring to an
end, by all appropriate means, including legi slation as required by circumstances, racial
discrimination”; by failing to condemn “racial seg regation” and failing to “eradicate all practices
of this nature” in South Ossetia and Abkhazia; by failing to “condemn all propaganda and all
organizations . . . which attempt to justify or prom ote racial hatred and discrimination in any form”
and by failing “to adopt immediate and positive measures designed to eradicate all incitement to, or
acts of, such discrimination”; by undermining the enjoyment of the e numerated fundamental
human rights in Article 5 of the Convention by the ethnic Georgian, Greek and Jewish populations
in South Ossetia and Abkhazia; and by failing to provide “effective protection and remedies”
against acts of racial discrimination.
Georgia also requests the Court to order the Ru ssian Federation to take all steps necessary to
comply with its obligations under the Internationa l Convention on the Elimination of All Forms of
Racial Discrimination and “to pay full compensati on to Georgia for all injuries resulting from its
internationally wrongful acts”.
On 14August 2008, Georgia, referring to Article 41 of the Statute of the Court, and to
Articles73, 74 and 75 of the Rules of Court, filed in the Registry a Request for the indication of - 13 -
provisional measures, dated 13August 2008. In its Request for the indication of provisional
measures, Georgia refers to the basis of jurisd iction of the Court invoked in its Application,
namely, Article22 of the International Conventi on on the Elimination of All Forms of Racial
Discrimination, and to the facts and historical context set out in its Application.
In its Request for the indication of provisi onal measures, Georgia requests that the Court
indicate provisional measures in order to preserve its “rights . . . under the International Convention
on the Elimination of All Forms of Racial Discrimination . . . to protect its citizens against violent
discriminatory acts by Russian armed forces, acti ng in concert with separatist militia and foreign
mercenaries”. Georgia contends that “[the] continuation of these violent discriminatory acts
constitutes an extremely urgent threat of irre parable harm to Georgia’s rights under [the
International Convention on the Elimination of All Forms of Racial Discrimination] in dispute in
this case”.
Georgia claims that, on 8 August 2008, th e Russian Federation “launched a full-scale
military invasion against Georgia in support of ethnic separatists in South Ossetia and Abkhazia”,
which has resulted in “hundreds of civilian deaths, extensive destruction of civilian property, and
the displacement of virtually the entire ethnic Ge orgian population in South Ossetia”. Georgia
further claims that the Russian Federation’s military operations have continued beyond South
Ossetia into territories under the control of the Georgian Government and have involved ethnic
cleansing and the pillage and extensive destruction of villages adjacent to South Ossetia. Georgia
contends that Russian military operations have also extended to Abkhazia and beyond.
In its Request for the indication of provisi onal measures, Georgia requests the Court, as a
matter of utmost urgency, to order the Russian Federation to give full effect to its obligations under
the International Convention on the Eliminatio n of All Forms of Racial Discrimination;
immediately to cease and desist from any and all conduc t that could result, directly or indirectly, in
any form of ethnic discrimination by its armed forces, or other organs, agents, persons and entities
exercising elements of governmental authority, or through separatist forces in South Ossetia and
Abkhazia under its direction and control, or in te rritories under the occupation or effective control
of Russian forces; and to immediately cease and desist from discriminatory violations of the
human rights of ethnic Georgians, including attack s against civilians and civilian objects, murder, - 14 -
forced displacement, denial of humanitarian assist ance, extensive pillage and destruction of towns
and villages, and any measures that would render pe rmanent the denial of the right to return of
internally displaced persons, in South Ossetia a nd adjoining regions of Ge orgia, and in Abkhazia
and adjoining regions of Georgia, and any othe r territories under Russian occupation or effective
control.
Immediately after the Application and the Request for the indication of provisional measures
were filed, the Deputy-Registrar, in accordance with Article38, paragr aph4, and Article73,
paragraph2, of the Rules of Court, transmitted certified copies thereof to the Government of the
Russian Federation. The Secretary-General of the United Nations was duly notified of the filing of
the Application and the Request for the indication of provisional measures.
According to Article74 of the Rules of Cour t, a request for the indication of provisional
measures shall have priority over all other cases. The date of the hearing must be fixed in such a
way as to afford the parties an opportunity of being represented at it. Consequently, on
15August2008, the Registrar informed the Parties that the President of the Court, in accordance
with Article 74, paragraph 3, of the Rules of C ourt, had fixed 8 September 2008 as the date for the
opening of the oral proceedings.
On 15 August 2008, the President, acting under Article74, paragraph4, of the Rules of
Court, also addressed an urgent communication to the Parties, drawing their attention to the need to
act in such a way as to enable any Order the Court might make on the request for provisional
measures to have its appropriate effects.
On 25 August 2008, Georgia filed in the Registry of the Court an “Amended Request for the
Indication of Provisional Measures of Protection submitted by the Government of Georgia”. A
copy of the amended Request was immediately transmitted to the Government of the Russian
Federation. The Secretary-General of the United Nations was also notified of the filing of the
amended Request.
Introducing the document, Georgia explains that, “[i]n view of the rapidly changing
circumstances in Abkhazia and South Ossetia, th e Republic of Georgia respectfully files this
Amended Request for Provisional Measures”. In its amended Request Georgia states that “[t]he
Russian Federation has now assumed control over all of South Ossetia and Abkhazia, as well as - 15 -
adjacent areas within the territory of Georgia, following its invasion commencing on 8 August 2008”.
Georgia contends,inter alia, that, by its acts and omissions, the Russian Federation
“is threatening the right of ethnic Georgian s to be secure in their persons, to be
protected from violence resulting in death and bodily harm, to be protected against
hostage-taking and detention based on their ethnicity, and to continue to reside in their
homes and villages, and it is frustrating or rendering impossible the exercise of their
right of return to their homes of origin”.
I now ask the Registrar to read out the passage from the amended Request specifying the
provisional measures which the Government of Georgia is asking the Court to indicate.
The REGISTRAR:
“Georgia respectfully requests the Court as a matter of urgency to order the
following provisional measures, pending its determination of this case on the
merits . . :
(a) the Russian Federation shall take all n ecessary measures to ensure that no ethnic
Georgians or any other persons are subject to violent or coercive acts of racial
discrimination, including but not limited to the threat or infliction of death or
bodily harm, hostage-taking and unlawful dete ntion, the destruction or pillage of
property, and other acts intended to expel them from their homes or villages in
South Ossetia, Abkhazia and/or adjacent regions within Georgia;
(b) the Russian Federation shall take all ne cessary measures to prevent groups or
individuals from subjecting ethnic Georgians to coercive acts of racial
discrimination, including but not limited to the threat or infliction of death or bodily
harm, hostage-taking and unlawful detention, the destruction or theft of property,
and other acts intended to expel them fromtheir homes or villages in South Ossetia,
Abkhazia and/or adjacentregions within Georgia;
(c) the Russian Federation shall refrain fr om adopting any measures that would
prejudice the right of ethnic Georgians toparticipate fully and equally in the public
affairs of South Ossetia,Abkhazia and/or adjacentregions within Georgia.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(d) the Russian Federation shall refrain from taking any actions or supporting any
measures that would have the effect of denying the exercise by ethnic Georgians
and any other persons who have been expelled from South Ossetia, Abkhazia,
and adjacent regions on the basis of their ethnicity or nationality, their right of
return to their homes of origin;
(e) the Russian Federation shall refrain from taking any actions or supporting any
measures by any group or individual that obs tructs or hinders the exercise of the
right of return to South Ossetia, Ab khazia, and adjacent regions by ethnic
Georgians and any other persons who have been expelled from those regions on the
basis of their ethnicity or nationality; and - 16 -
(f) the Russian Federation shall refrain fr om adopting any measures that would
prejudice the right of ethnic Georgians to participate fully and equally in public
affairs upon their return to South Ossetia, Abkhazia, and adjacent regions.”
The PRESIDENT: I note the presence before the Court of the Agents and counsel of the two
Parties. The Court will hear Georgia, which has submitted the Request for the indication of
provisional measures, this morning until 1 p.m. It will hear the Russian Federation this afternoon
at 3 p.m. For purposes of this first round of oral arguments, each of the Parties will have available
to it a full three-hour sitting. The Parties will then have the possibility to reply, if they deem it
necessary; Georgia at 4.30 p.m. tomorrow and th e Russian Federation at 4.30 p.m. on Wednesday
10September. Each of the Parties will then have a maximum time of one-and-a-half hours in
which to present its reply.
Before calling upon Her Excellency the Agent of Georgia, I shall draw the attention of the
Parties to Practice Direction XI, which states, inter alia, that:
“Parties should in their oral pleadings thereon limit themselves to what is
relevant to the criteria for the indicatioof provisional measures as indicated in the
Statute, Rules and jurisprudence of the Court. They should not enter into the merits of
the case beyond what is strictly necessary for that purpose.”
In that context, the Court will find the assistance of the Parties particularly helpful in
identifying the situation as it presently is. I now call upon the Agent of Georgia.
BMURs JALIANI:
1. INTRODUCTION AND SCHEME OF ORAL PLEADINGS
1. Madam President, distinguished Members of the Court, I am Tina Burjaliani, the First
Deputy-Minister of Justice of Georgia. It is a great honour for me to appear before the
International Court of Justice as the Agent of the Government of Georgia.
2. Madam President, Georgia is appearing befo re the principal judicial organ of the United
Nations to plead the present case at a time of great distress in its history, a time when hundreds of
thousands of its nationals are persecuted and displaced from their homes only because they are
Georgians. - 17 -
3. My country has been invaded and occupied by the respondent State in a flagrant violation
of international law, but this is not what th is case is about. This case is initiated under the
International Convention on the Elimination of A ll Forms of Racial Discrimination and concerns
the ongoing discrimination against hundreds of thou sands of ethnic Georgians by the respondent
Government and the forces under its control.
4. When the International Convention on the Elimination of All Forms of Racial
Discrimination was adopted by the United Nati ons General Assembly in 1965, humankind was
confronted with the scourge of colonial dominati on and racial segregation. Little did the world
imagine then that the horrors of military aggression and ethnic cleansing would afflict the European
continent; that racial hatred and violence w ould once again become an instrument by which
powerful nations subjugate their neighbours and dismember their territory.
5. Sadly, despite the United Nations Char ter and value of human rights introduced in
instruments such as the Convention on Racial Discrimination, Georgia still lives under the shadow
of a vastly more powerful neighbour that seeks to undermine its independence through a policy of
“divide and conquer”, a policy that has ripped ap art its delicate multi-ethnic fabric and brought
great suffering to its victims.
6. Georgia is a multi-ethnic society with a long history of peaceful coexistence of different
ethnic groups in its territory. We are proud of ou r diversity and multi-ethnic culture. In 2005, in
considering Georgia’s country report under the Convention, the Committee on the Elimination of
Racial Discrimination(CERD) expressed its sa tisfaction at measures taken “to strengthen the
participation of ethnic minorities in its political institutions and noted approvingly Georgia’s policy
of reconciliation and peaceful reintegration” 1. At the same time, the Committee acknowledged that
the conflicts in South Ossetia and Abkhazia had resulted in systematic discrimination “including a
large number of internally displaced persons and refugees” 2.
7. At that point in time, the Georgian Constitution already embraced the Autonomous
Republic of Abkhazia, under the chairmanship of Abkhaz leader MalkhazAkishbaia. The
1
Concluding Observations of the Committee on the Elimination of Racial Discrimination, Georgia,
CERD/C/GEO/CO/3(27 March 2007), para. 5.
2Ibid. - 18 -
following year, in 2006, as an initial step leading to reintegration, this Government began to
administer the remote Kodori Gorge of Upper Abkh azia, populated by ethnic Georgians. In the
following year, on 10 May 2007, the Government of Georgia appointed former Ossetian separatist
leader DimitrySanakoev as the head of the Pr ovisional Administration on the Territory of the
former South Ossetian Autonomous Region.
8. This was a time of great promise for Georgia ⎯ prominent Ossetian and Abkhaz leaders
opposed to ethnic separatism sought a peaceful outcome.
9. Together with their fellow citizens of Georgian descent, they shared a vision of a
multi-ethnic democracy in which their respective co mmunities could live in peace. In the case of
Abkhazia, President Saakashvili went so far as to offer “unlimited autonomy, wide federalism, and
very serious representation in the central governmental bodies of Georgia” with international
guarantees. The Constitution was to be amended to stipulate that the President of Abkhazia would
be the Vice-President of Georgia ex officio. Abkhaz representatives in the Parliament and the
Government of Georgia would have veto power on any decision affecting their community, as well
as the territorial arrangement of the country. For the Russian Federation, the peaceful reintegration
of these territories and the consolidation of a prosperous multi-ethnic democracy in Georgia was an
outcome to be prevented.
10. Madam President and Members of the Cour t, Georgia has no other purpose here but to
invoke the fundamental rights and obligations under the Convention on the Elimination of All
Forms of Racial Discrimination. At the presen t time there are approxima tely 450,000Georgians
who have been expelled from thei r homes and villages and forced to seek refuge elsewhere in
Georgia. They are known as “internally displaced persons” or IDPs in international law, but that
designation does little to convey the circumstances of their displacement. More than 150,000 of
them have been forcibly displaced by occupy ing Russian forces and separatist militias under their
control in the past 30days. Those ethnic Geor gians remaining in Gali district of Abkhazia,
Akhalgori and Gori districts of Eastern Georgia now live in constant fear of violent attacks and
expulsions. The ethnic Georgian population in these districts is diminishing every day: they are
being forced out of their homes by a campaign of harassment and persecution. In the ten days from
25 August to 5 September, the number of displaced Georgians increased by approximately 10,000. - 19 -
Last week a group of ethnic Georgians fled from the Gori district villages of Meghvrekisi and
Karaleti, which are under the effective control of the Russian military. The number of IDPs from
Akhalgori is increasing every day as well, even though, in this region of Georgia, the ethnic
Ossetians have lived in peace with Georgians for many years before the military interference of the
respondent State.
11. The continuing ethnic cleansing of the Georgian population in these areas has been
documented by independent international bodi es, such as Human Rights Watch and Amnesty
International. International media sources have also reported ethnically motivated violence and the
destruction of Georgian villages.
12. Due to the real and imminent threat to the ethnic Georgian population in Gali, Akhalgori
and Gori districts under the effective control of the respondent State, Georgia is seeking the urgent
assistance of this Court in the form of provisional measures ⎯ to protect the rights of Georgia and
ethnic Georgians under Articles 2 and 5 of the Convention from irreparable harm.
13. Madam President, the reasons why the spec ific provisional measures that Georgia has
requested should be ordered by the Court will be given by our distinguished counsel.
14. First, Professor James Crawford will e xplain how the obligations under the Convention
on Racial Discrimination are engaged in this case and then address the existence of the Court’s
prima facie jurisdiction.
15. Second, Professor Payam Akhavan will describe the evidence of recent and continuing
violations of the Convention on Racial Discrimination that form the basis of this Request for
provisional measures.
16. Third, Mr.Paul Reichler will demonstrate that the legal standards for the indication of
provisional measures have been fully met and that the provisional measures requested by Georgia
are both fully justified and urgently required to prevent the irreparable loss of the rights guaranteed
by the Convention on Racial Discrimination.
17. Thank you, Madam President and Members of the Court. I now ask you to allow
Professor James Crawford to continue with the oral argument of Georgia.
The PRESIDENT: Thank you, Minister Burjaliani. I now call Professor Crawford. - 20 -
CMRA. WFORD:
2. THE P RECONDITIONS FOR PROVISIONAL M EASURES ARE M ET
Introduction
1. Madam President, Members of the Court, it is an honour to represent Georgia in this
matter.
2. This case is about the ethnic cleansing of Georgians and ethnic Georgians and other
minorities from regions within Georgian territory and in particular, for present purposes, regions of
Abkhazia, South Ossetia and the adjacent Gori dist rict. This is an extreme form of racial
discrimination, and is contrary to the Convention on the Elimination of All Forms of Racial
Discrimination, the text of which you will find at tab1 of your folders. I stress that under the
Convention the term “racial discrimin ation” is broadly defined, it includes distinctions “based on
race, colour, descent, or national or ethnic origin” (see Article 1
(1)).
3. As Georgia’s Application to the Court makes clear, this is not a dispute that had its genesis
in August of this year. Ethnic Georgians have been targeted, and forcibly expelled from these
regions in great numbers and denied the right to re turn over the course of more than a decade. The
international community has repeatedly characterized this conduct as ethnic cleansing but little has
been done to alleviate the suffering of the ethni c Georgians who have been displaced from their
homes and places of origin in Abkhazia and Sout h Ossetia. In 1994, the OSCE expressed “deep
concern over ‘ethnic cleansing’, the massive e xpulsion of people, predominantly Georgian, from
3
their living areas and the deaths of large numbers of innocent civilians”. In 1996 the OSCE
“condemn[ed] the ‘ethnic cleansing’ resulting in mass destruction and forcible expulsion of the
4
predominantly Georgian population in Abkhazia” . In 1999, the OSCE reiterated its “strong
condemnation . . . of the ‘ethnic cleansing’ resultin g in mass destruction and forcible expulsion of
the predominantly Georgian population in Abkhazia, Georgia, and of the violent acts in May 1998
3OSCE, Budapest Summit 1994, Budapest Document “Towards a GenuinPartnership in a New Era”,
21 December 1994, available at http://www.osce.org/documents/mcs/1994/12/4048_en.pdf.
4OSCE, Lisbon Summit 1996, Lisbon Document, 3 December 1996, para. 20, availableat
http://www.osce.org/documents/mcs/1996/12/4049_en.pdf. - 21 -
in the Gali region” . In 2001, 2005 and 2007 the Committee on Racial Discrimination ⎯ under the
acronym of CERD ⎯ expressly recognized that ethnic discrimination is an aspect of the conflicts
in South Ossetia and Abkhazia, that question of characterization is one to which I will return.
4. The discrimination against the ethnic Geor gian communities in Abkhazia, South Ossetia
and the Gori district gained momentum following 8 August this year. There have been burning of
houses, murders of civilians, looting of property and forced expulsions on a scale that surpasses the
darkest moments of the civil war of 1991-1992. In the last month, more than 158,000ethnic
Georgians have been added to the number of internally displaced persons in Georgia. In total, this
means that 10 per cent of the Georgian population is now living in exile in their own country. This
is not taking into account the real and present danger to the ethnic Georgians who remain in South
Ossetia, Abkhazia and the neighbouring Gori district, which is the focus of these provisional
measures.
The requirements for provisional measures
5. Georgia’s Request for provisional measures is directed specifically at the protection of
three ethnic Georgian populations who are now at grave risk of imminent violence against their
person and property. These are the communities in the Gali district of Abkhazia, the Akhalgori
districts of South Ossetia and the adjacent Gori di strict. And my colleague will show you on the
map precisely where these districts are.
6. The Court has by now clarified the requirements for the exercise of its power to indicate
provisional measures pursuant to Article41, paragraph1, of the Statute. There are three such
requirements:
(a) First, the Court’s jurisdiction must be established on a prima facie basis.
(b) Second, there must be “a risk of irreparable prejudice to rights in issue before the Court”
(Aegean Sea Continental Shelf (Greece v. Turkey), Interim Protection, Order of
11 September 1976, I.C.J. Reports 1976, p. 11, para. 33).
(c) Third, there must be urgency.
5OSCE, Istanbul Summit 1999, Istanbul Summit Declaration, par1a3., available at
http://www.osce.org/documents/mcs/1999/11/4050_en.pdf. - 22 -
7. I will address the question of jurisdiction and show you that Georgia has rights in issue
before the Court under the 1965Convention. My co lleagues will, between th em, deal with what
might be described as the second half of the requirements for provisional measures.
8. Before I do that, however, I need to make some observations on the object and purpose of
the 1965Convention, and of its relevance to situ ations such as those referred to in Georgia’s
Application and Request.
The object and purpose of the Convention on racial discrimination
9. Madam President, Members of the Court, it is no exaggeration to say that the Convention
on Racial Discrimination was the first universal human rights treaty ⎯ it preceded by a year the
two Covenants of 1966; it came into force more th an a decade before they did. The Convention
was opened for signature on 21 December 1965; it entered into force on 4 January 1969. And that
is no accident ⎯ it reflected a deliberate priority of th e international community as a whole to
suppress racial discrimination, including racially motivated violence: the term race being broadly
defined as I have said. The earliest categories ⎯ including the categories of this Court ⎯ of
universal ⎯ we would now say, peremptory ⎯ norms of international law included the principle of
racial non-discrimination, first incorporated in the 1965 Convention (see, e.g., Barcelona Traction,
Light and Power Company, Limited, Second Phase, Judgment, I.C.J. Reports 1970, p. 32, para. 34).
10. In 1960, South African police killed 69 peaceful protesters in Sharpeville. This and other
outrages elicited a strong response from the Sub-Commission on Prevention of Discrimination and
Protection of Minorities, which adopted a resolution condemning these manifestations as violations
6
of principles of the Charter and the Universal Declaration of Human Rights . At its 1961 session,
the Sub-Commission suggested that the Genera l Assembly should prepare an international
convention which would impose specific legal obligations on the parties to prohibit the
manifestation of racial, national and other hatreds 7.
6Report of the Twelfth Session of the Sub-Commission on Prevention of Discrimination and Protection of
Minorities (1960), United Nations, doc. E/CN.4/800, paras. 163 et seq.
7Report of the Thirteenth Session of the Sub-Commison on Prevention of Discrimination and Protection of
Minorities (1960), United Nations, doc. E/CN.4/815, paras. 176,185. - 23 -
11. At the Seventeenth Session of the General Assembly in 1962, a number of African
States, later joined by others, proposed in the Third Committee the adoption of a resolution to
prepare an international convention on the elim ination of racial discrimination and religious
intolerance. The Seventeenth S ession eventually concluded that two separate declarations and
conventions should be prepared, and that the Declaration and Convention “on the elimination of all
8 9
forms of racial discrimination” should receive priority .
12. The particular issue of apartheid is em phasized in the preamble and the text of the
Convention itself ⎯ apartheid is the only specific form of racial discrimination to which a specific
article is devoted. Apartheid can be defined as the coercive suppression of a racial or ethnic group
as such, their forced ejection as members of their society on grounds of their race or ethnicity 10. It
includes ethnically-motivated violence exercised by a State against a group defined in terms of its
race or ethnicity and aimed at their suppression or virtual or actual expulsion. In the case of South
Africa, as is well known, that expulsion eventual ly took the form of the Bantustans, ethnically
constructed pseudo-States which the world refused to recognize 11. Although the 1965 Convention
was aimed at eliminating racial discrimination in “all its forms and manifestations”, a primary
focus— as this history shows— was racial discrimination in the construction of the State itself,
and of the territorial community it represents.
13. A similarly broad emphasis has been ev ident in the practice of the Committee on the
Elimination of All Forms of Racial Discriminati on. This has been ev ident in the Committee’s
practice concerning southern Africa, but not only there. In Europe, for example, the Committee
has expressed concern as to the possible discriminat ory effects of citizenship laws passed by the
Baltic States since 1991. In the 2001 Concluding Observations on Latvia, the Committee observed:
8General Assembly resolution 1780 (XVII), 7 Dec. 1962.
9
Report of the Third Committee, United Nations, doc. A/5305, 22 Nov. 1962; Official Records of the General
Assembly, Seventeenth Session, 1165th-1171st meetings of the Third Committee, 156-204.
10
International Convention on the Suppression and Punishment of the Crime of Apartheid, New York 1973, 1015
UNTS 243, in force 18 July 1976, Art. II.
11
See General Assembly resolution 2775E (XXVI), 29 N ov. 1971; General Assembly resolution 3411D (XXX),
28 Nov.1975, para.3; J. Crawford, The Creation of States in International Law (2nd ed., OUP, 2006), pp.338 et seq;
C. O. Quaye, Liberation Struggles in International Law (Temple University Press, 1991), pp. 147 et seq.; M.F. Witkin,
“Transkei: an analysis of the practice of recognition— political or legal?”, 18 Harvard International Law Journal 605,
1977; M. Pomerance, Self-determination in Law and in Practice (Martinus Nijhoff publishers, 1982), p.27; D.Rai č,
Statehood and the Law of Self-determination (Kluwer Law International, 2002), pp. 140-141. - 24 -
“12.... only such persons who were citizens of Latvia before 1940 and their
descendants have automatically been grante d citizenship. Therefore, more than
25 per cent of the resident population, many of them belonging to non-Latvian ethnic
groups, have to apply and are in a discriminatory position . . .
13. The Committee draws attention to the situation of persons who do not
qualify for citizenship under th e Citizenship Law and who are also not registered as
residents... Concern is expressed that such persons are not protected... under
12
article 5 of the Convention.”
14. In its Concluding Observations on Lithuania in 2006, the Committee
“stressing that deprivation of citizenship on the basis of national or ethnic origin is a
breach of the obligation to ensure non-di scriminatory enjoyment of the right to
nationality, urge[d] [Lithuania] to refrain from adopting any policy that directly or
13
indirectly leads to such deprivation . . .” .
I should say immediately that these criticisms, voiced over a number of years, have had some
considerable effect, resulting in changes to the legislation in those countries.
15. To summarize, the principle of non-discrimination on racial, including ethnic, grounds
has been broadly applied and is a fundamental prin ciple of international public policy. It is
concerned not merely with discrimination agains t individuals but with collective discrimination
against communities and with fundamental issues relating to the composition of territorial
communities, including the granting and withdrawal of nationality. Forced nationalization on
racial or ethnic grounds is as repugnant as forced de nationalization. Faced with this peremptory
principle there is no reserved domain.
Jurisdiction
16. Madam President, Members of the Court, against this background I turn to the Court’s
jurisdiction over this case under the 1965 Convention.
17. To indicate provisional measures, the Court must be satisfied on a prima facie basis—
and, of course, without prejudice— that it has jurisdiction ratione personae over the respondent
State and that it has jurisdiction ratione materiae over the merits of the claims as described in the
application ( Application of the Convention on the Prevention and Punishment of the Crime of
Genocide (Bosnia and Herzegovina v. Yugoslavia), Provisional Measures, Order of 8April1993,
I.C.J. Reports 1993, p.12, para.14). The requirements of jurisdiction ratione loci and ratione
12
CERD/C/304/Add.79.
1United Nations, doc. CERD/C/LTU/CO/3, para 23. - 25 -
temporis may be subsumed in some cases under the discussion of the other forms of jurisdiction but
I propose to deal with them separately.
The title of jurisdiction
18. We start, of course, with the specific title of jurisdiction invoked by Georgia, Article 22
of the Convention. It provides:
“Any dispute between two or more States Parties with respect to the
interpretation or application of this Conven tion, 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.”
Jurisdiction ratione personae
19. As to jurisdiction ratione personae , Georgia was admitted to the United Nations on
31 July 1992 and it is of course a party to the Statute. It deposited an instrument of accession to the
Convention on Racial Discrimination on 2 June 1999.
20. The Russian Federation remains an original Member of the United Nations by virtue of
14
its continuation of the State personality of the USSR , and of course it is a party to the Statute of
the Court. In 1991 the Russian Federation also affirmed that it would continue the rights and
responsibilities of the USSR under all other intern ational treaties including the 1965Convention,
which was ratified by the USSR on 6 March 1969.
21. Neither Party maintains any reservation to Article 22 of the Convention.
Jurisdiction ratione materiae
22. Article22 confers on this Court jurisdicti on over “any dispute... with respect to the
interpretation or application of this Convention”.
23. The Court’s jurisdiction is stipulated in broad terms. Article22 refers to “ any dispute”
(emphasis added) which concerns either “interpret ation or application” of the Convention. This
juxtaposition is significant: it gives the Court jurisdiction to pronounce on the scope of the rights
and responsibilities set out in the Convention but also upon the consequences of breach of those
1Letter of President of the Russian Federation to the United Nations Secretary-General of 24 Dec. 1991, United
Nations, doc. 1991/RUSSIA, App. 24 Dec 1991, 31 ILM 138. - 26 -
rights and responsibilities. A dispute concerning the “application” of treaty obligations of a State
party entails the adjudication of its international responsibility for any breach of the treaty ( Factory
at Chorzów, Jurisdiction, Judgment No. 8, 1927, P.C.I.J., Series A, No. 9, pp. 20-21).
Jurisdiction ratione loci
24. The next issue is jurisdiction ratione loci. In addressing the extraterritorial aspects of the
present dispute, it is necessary to distinguish be tween two categories of claims advanced by
Georgia in its Application. First, there are cl aims founded upon the acts or omissions of Russia’s
State organs within Russia itself. Second, ther e are claims founded upon the acts or omissions of
persons exercising Russia’s governmental authority or other persons acting on the instructions or
under the control of Russia within Georgian territo ry, particularly in Abkhazia and South Ossetia,
as well as other areas of Georgia under de facto occupation by Russian military forces.
25. In respect of the first category of claims, no question concerning the spatial scope of the
obligations under the Convention arises. For exam ple, the resolution adopted by a Russian State
organ that supports a policy of racial discrimination maintained by de facto governmental
authorities in Abkhazia and South Ossetia may constitute a breach of the Convention by its support
of racial discrimination or its failure to condemn it. The locus of such a breach is within the
territory of the Russian Federation.
26. In relation to the second category of claims, the spatial scope of the obligations under the
Convention does fall to be considered, and the Cour t needs to be satisfied on a prima facie basis
that Russia’s obligations under the Convention extend to acts and omissions attributable to Russia
which have their locus within Georgia’s territory and in particular in Abkhazia and South Ossetia.
27. It is a striking feature of the Convention that it does not contain
a general provision
imposing a spatial limitation on the obligations it creat es. In this respect it may be contrasted with
other international human rights instruments negotiated within the United Nations system.
28. For instance, the International Covenant on Civil and Political Rights, which was being
drafted at the same time as the 1965 Convention, pr ovides in Article2, paragraph1, that: “Each
State Party to the present Covenant undertakes to resp ect and to ensure to all individuals within its
territory and subject to its jurisdiction the rights recognized in the present Covenant...” This - 27 -
language recalls Article1 of the European Convention on Human Rights and Fundamental
Freedoms, which requires States to accord “to everyone within their jurisdiction the rights and
freedoms defined in Section I of this Conventio n”. The Torture Convention of 1984, to take
another example, contains a similar provision in Article 2, paragraph 1.
29. By contrast with these international human rights instruments, the Convention on Racial
Discrimination contains no general provision restrict ing the spatial scope of its obligations. The
States parties to the Convention agreed to limit th e scope of their obligations only in respect of
Articles 3 and 6.
30. The particular rights under the Convention th at are in issue before this Court for the
purposes of the Amended Request for preliminary measures are contained in Articles 2 and 5.
There is no stipulation in those Articles or in the remaining text of the Convention that could be
interpreted as placing a spatial limitation on the obligations on the State parties under Articles 2
and 5. The specific words employed in Article s 3 and 6 to limit the spatial scope of those
obligations would be superfluous if the same limita tions were to be implied with respect to other
provisions of the Convention.
31. It must follow that the Court has prima facie jurisdiction over the rights in issue under
Articles 2 and 5 for the purposes of this Request for provisional measures. The Court does not
have to consider the limiting words in Articles 3 and 6 at this stage in the proceedings.
32. But I note in passing that even if the Convention were to be construed as containing a
general limitation limiting the spatial scope of its obligations, this would not preclude the claims
asserted by Georgia in this Application and in this Request. For example, Article3 of the Racial
Discrimination Convention undoubtedly applied to attempts by South Africa to impose apartheid in
South West Africa (Namibia), and did so even after the General Assembly revoked the mandate for
South West Africa in 1967.
33. As to the limitation contained in Article2, paragraph1, of the International Covenant,
the Human Rights Committee has interpreted this provision in General Comment No. 31: - 28 -
“This means that a State party must respect and ensure the rights laid down in
the Covenant to anyone within the power or effective control of that State Party, even
if not situated within the territory of the State Party.” 15
34. In the present case, Abkhazia and South Osse tia have been within the power or effective
control of Russia since Georgia lost control over those regions following the hostilities. The
Russian invasion and deployment of additional military forces within Abkhazia and South Ossetia
last month has only served to consolidate further its effective control over those regions.
35. I would respectfully refer the Court to the case of Ilaşcu v. Moldova and Russia , where 16
the European Court held that the applicants, who alleged violations of their human rights by the
separatist authorities in Transdniestria in Moldova, came within the jurisdiction of Russia from the
time that Moldova lost control over that region during the conflict in 1991-1992.
36. Unlike the Human Rights Committee, CERD has not issued a recommendation to clarify
the spatial scope of obligations under the 1965 Co nvention. CERD has, however, rejected the
possibility of a territorial limitation to the scope of Article3, which refers to “jurisdiction”, in its
reports on individual countries. For instance, in relation to Israel’s re port submitted pursuant to
Article 9 of the Convention, it was stated:
“The Committee underlined that, in accordance with article 3 of the
Convention, Israel’s report needed to encompass the entire population under the
jurisdiction of the Government of Israel . The report under consideration, which
described the situation only within the State of Israel itself, was, in that respect,
incomplete. Members also wished to ha ve specific information on the economic,
social and educational conditions prevailing in the occupied territories, as well as to
know whether the Geneva Convention relative to the Protection of Civilian Persons in
17
Times of War was in force in the occupied territories.”
37. To summarize: (1) there is no general provision limiting the scope ratione loci of the
obligations contained in the Convention; (2) th ere are specific limitati ons in relation to the
obligations in Articles 3 and 6 only; (3) these obligations of Russia and the corresponding rights of
Georgia are not in issue for the purposes of this Request for provisional measures, which relies
only upon Articles 2 and 5; (4) even if a general sp atial limitation were to be transposed into the
1965 Convention, this requirement would be satisfied in the present case.
15
General Comment No. 31, Nature of the General Legal Obligation Imposed on State Parties to the Covenant,
26/05/2004, CCPR/C/21/Rev.1/Add.13.
16
(Dec.) [GC], No. 48787/99.
17Report of the Committee on Racial Discrimination, Official Records of the Ge neral Assembly, Forty-Sixth
Session, Supplement No. 18 (A/46/18), 1992, para. 368. - 29 -
Attribution
38. I should say a word on attribution. These remarks on the spatial scope of the obligations
under the Convention are of course without prejudice to the question of attribution. When the time
comes ⎯ Madam President, we understand entirely it has not come yet ⎯ when the time comes for
the Court to decide upon the merits of Georgia’s claims under the Convention, it will be incumbent
on Georgia to demonstrate that th e acts and omissions of which we complain can be attributed to
Russia. The evidence already av ailable indicates on a prima facie basis that acts and omissions
which form the basis of Georgia’ s complaint have been committed ⎯ and continue to be
committed ⎯ by persons for whose conduct Russia is r esponsible. Different rules of attribution
may need to be invoked by Georgia in relation to di fferent categories of actors. But all that has to
be shown now is that there is an apparent or prima facie case of attribution, which there plainly is.
How could one say otherwise. The rest is a matter for the merits.
Jurisdiction ratione temporis
39. I turn to jurisdiction ratione temporis. Certain aspects of the present dispute as indicated
in the Application predate Georgia’s accession to the 1965 Convention, which, as I have said,
occurred on 2June 1999. There is, however, no question of ratione temporis jurisdiction in
relation to what we have described as the “Third Phase of Russia’s Intervention in South Ossetia
and Abkhazia”, which commenced in August of this year. The rights in issue which form the basis
for the present Request for provisional measures are rights under the Convention that Georgia
submits have been, and continue to be, violated by Russia during this third temporal phase of the
dispute. This explains the urgency of the measures requested. Any question relating to the Court’s
jurisdiction over earlier issues may be reserved to a subsequent phase of the proceedings.
MadamPresident, Members of the Court, subject to the question of characterization, what I have
said establishes on a prima facie basis your jurisdiction over this dispute.
The rights in dispute before this Court
40. But I turn now to my second task, the rights in dispute before the Court.
41. There can, Madam President, Members of the Court, be no doubt that the dispute which
is submitted to this Court by Georgia is a dispute “with respect to the interpretation or application - 30 -
of” the Convention. CERD has expressly recognized that ethnic discrimination is a key aspect of
the conflicts in South Ossetia and Abkhazia. It did so in three reports from 2001 onwards. In its
report of 2001, the Committee stated:
“the situations in South Ossetia and Abkh azia have resulted in discrimination against
people of different ethnic origins, including a large number of internally displaced
persons and refugees. On repeated occasions, attention has been drawn to the
obstruction by the Abkhaz authorities of the voluntary return of displaced populations,
and several recommendations have been issu ed by the Security Council t18facilitate
the free movement of refugees and internally displaced persons.”
42. Almost identical statements can be found in the Committee’s reports on Georgia in 2005
19
and 2007 . The Committee’s 2007 report, by way of illustration, is tab 2 in your folders.
43. At the heart of this dispute is the Russi an Federation’s direct involvement in these ethnic
conflicts and its essential support for the separatist de facto authorities and militias in South Ossetia
and Abkhazia. As a result of Russia’s actions, ethnic Georgians have been denied their
fundamental rights under Article5 of the Conventio n, and denied them solely on the grounds of
their ethnicity as referred to in Article1. Those who have survived the conflicts are now, solely
because of their ethnic origin, internally displaced persons within their own country of Georgia.
They have an unconditional right of return to their homes under Article5 of the Convention, and
the possibility of exercising that right, in fact, depends squarely upon the actions of the Russian
Federation. Georgia’s Request to this Court urgently requests its intervention to secure the
preservations of the rights of the remaining citi zens under the Convention, rights which are now
being denied and which are apparently intended to be denied in the coming weeks and months.
44. It is not only CERD that has recognized this situation; the General Assembly has done
so. In its resolution 62/249 of 29 May 2008, which is tab 3 in your folders. The Assembly
“1. Recognizes the right of return of all refugees and internally displaced
persons and their descendants, regardless of ethnicity, to Abkhazia, Georgia;
2. Emphasizes the importance of preserving the property rights of refugees and
internally displaced persons from Abkhazia, Georgia, including victims of reported
‘ethnic cleansing’, and calls upon all Memb er States to deter persons under their
1CERD/C/304/Add.120, 27/04/2001, Conc luding Observations on the Committee on the Elimination of Racial
Discrimination, para. 4.
1CERD/C/GEO/CO/3, 01/11/2005, Concluding observations on the Committee on the Elimination of Racial
Discrimination, para.5; CERD/C/GEO/CO/3, 27/03/ 2007, Concluding Observations on the Committee on the
Elimination of Racial Discrimination, para. 5. - 31 -
jurisdiction from obtaining property within the territory of Abkhazia, Georgia, in
violation of the rights of returnees; and
3. Underlines the urgent need ⎯ the urgent need ⎯ for the rapid development
of a timetable to ensure the prompt voluntary return of all re fugees and internally
displaced persons to their homes in Abkhazia, Georgia.”
That was before August of this year.
45. The ethnic conflicts have escalated si nce August2008. The situation concerning
internally displaced persons in the affected regions has significantly deteriorated. There can be no
question that the rights in issue before this Court are rights guarantee
d and protected by the
Convention on Racial Discrimination.
46. Madam President, Members of the Court, in the present case jurisdiction is based on a
general treaty provision (as distinct from a special agreement). In such circumstances, as the Court
will know only too well, respondent States have quite often argued that, if the dispute is
characterized in another way, it falls outside the four corners of the treaty provision conferring
jurisdiction on the Court. Such arguments have not been successful. Fo r instance, in the case
concerning Oil Platforms (Oil Platforms (Islamic Republic of Iran v. United States of America),
Preliminary Objection, Judgment, I.C.J. Reports 1996(II) , p.803), the United States objected to
the Court’s jurisdiction because “Iran’s claims raise issues relating to the use of force, and these do
not fall within the ambit of the Treaty [of Amity , Economic Relations and Consular Rights] of
1955” (ibid., pp. 810-811, para. 18) 2. You rejected this argument in the following words:
“The Treaty of 1955 imposes on each of the Parties various obligations on a
variety of matters. Any action by one of the Parties that is incompatible with those
obligations is unlawful, regardless of th e means by which it is brought about. A
violation of the rights of one party under the Treaty by means of the use of force is as
unlawful as would be a violation by administrative decision or by any other means.
Matters relating to the use of force are therefore not per se excluded from the reach of
the Treaty of 1955.” 21 (Ibid., pp. 811-812, para. 21.)
And that was in response to a claim under a bilateral treaty of amity.
20“les demandes de l’Iran soulèvent des questions relatives à l'emploi de la force, et ces questions n'entrent pas
dans le champ d’application du traité [d’amitié, de commerce et de droits consulaires] de 1955”.
21 “Le traité de 1955 met à la charge de chacune des Parties des obligations diverses dans des
domaines variés. Toute action de l’une des Parties incompatible avec ces obligations est illicite, quels que
soient les moyens utilisés à cette fin. La violation, par l’emploi de la force, d’un droit qu’une partie tient
du traité est tout aussi illicite que le serait sa violation par la voie d'une décision administrative ou par tout
autre moyen. Les questions relatives à l'emploi de la force ne sont donc pas exclues en tant que telles du
champ d’application du traité de 1955.” - 32 -
47. In the present case, Georgia advances cl aims against Russia based upon obligations
contained in the Convention on Racial Discriminat ion. A Convention articulating a fundamental
policy of the international community. Each cause of action on which we rely is founded upon an
obligation in the Convention. The means by whic h Russia has apparently breached its obligations
under the Convention are irrelevant to the Court’s jurisdiction. By application a fortiori of your
decision in Oil Platforms . The “Third Phase” of Russi a’s intervention commenced on
8August2008 with military action. During this Third Phase, the means by which Russia has
apparently acted in violation of its obligations under the Convention has included, inter alia, the
use of force, the use of military force. In its Application, Georgia does not invoke as a cause of
action any claim that that force is unlawful under ot her instruments; it is pursuing remedies based
on claims arising in relation to Russia’s apparent breaches of this Convention.
48. I stress of course, and again, that in saying this it is by no means necessary for Georgia to
prove, or still less for the Court to find, that violations are actua lly occurring. The questions are
twofold: (1) are rights and obligations under the Convention engaged, and (2) does the apparent or
prima facie disregard of those rights and obliga tions by persons, for whose conduct the respondent
State may be responsible, create a situation of urgent need for provisional measures. The former
cannot be doubted. My colleagues will address the latter point.
The reference to negotiation and procedures under the Convention in Article 22
49. I turn to another issue concerning the admissibility of the present request, which is raised
by the opening sentence of Article 22 of the Convention. I remind the Court that it reads:
“Any dispute between two or more States Parties with respect to the
interpretation or application of this Conven tion, which is not settled by negotiation or
by the procedures expressly provided for in this Convention . . .”
50. Respondents before this Court have frequently raised a preliminary objection based upon
the alleged deficiency of negotiations preceding the in stitution of judicial proceedings. It is not an
objection that has enjoyed much success; indeed it has been repeatedly rejected both by the
Permanent Court and by yourself. I refer to Mavrommatis Palestine Concessions (Judgment No. 2,
1924, P.C.I.J., Series A, No. 2, pp. 13-15), South West Africa (Ethiopia v. South Africa; Liberia v.
South Africa) (Preliminary Objections, Judgment, I.C.J. Reports 1962, pp. 319, 346), United States - 33 -
Diplomatic and Consular Staff in Tehran (United States of America v. Iran) (Judgment, I.C.J.
Reports 1980, p. 27, para. 51), Applicability of the Obligation to Arbitrate under Section 21 of the
United Nations Headquarters Agreement of 26 June 1947 (Advisory Opinion, I.C.J. Reports 1988 ,
pp. 33-34, para. 55) and Questions of Interpretation and Application of the 1971 Montreal
Convention arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v. United
Kingdom) (Preliminary Objections, Judgment, I.C.J. Reports 1998 , p.17, para.21); Questions of
Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at
Lockerbie (Libyan Arab Jamahiriya v. United States of America) (Preliminary Objections,
Judgment, I.C.J. Reports 1998 , p.122, para.20) and Military and Paramilitary Activities in and
against Nicaragua (Nicaragua v. United States of America), Jurisdiction and Admissibility
(Judgment, I.C.J. Reports 1984, pp.428-429, para.83) 22cases. Nicaragua is particularly
instructive on the effect of a reference to negotiation in a compromissory clause. As you pointed
out there:
“In the view of the Court, it does not necessarily follow that, because a State has
not expressly referred in negotiations with another State to a particular treaty as
having been violated by conduct of that other State, it is debarred from invoking a
compromissory clause in that treaty . . . It would make no sense to require Nicaragua
now to institute fresh proceedings based on the Treaty, which it would be fully entitled
to do.”
51. Judge Sir Robert Jennings in his separate opinion had this to say:
“In the present case, the United States claims that Nicaragua has made no
attempt to settle the matters, the subject of the application, by diplomacy. But the
qualifying clause in question merely requires that the dispute be one ‘not satisfactorily
adjusted by diplomacy’. Expressed thus, in a purely negative form, it is not an exigent
requirement. It seems indeed to be cogently arguable that all that is required is, as the
clause precisely States, that the claims have not in fact already been ‘adjusted’ by
diplomacy. In short it appears to be inte nded to do no more than to ensure that
disputes that have already been adequately dealt with by diplomacy, should not be
22 “De l’avis de la Cour, parce qu’un Etat ne s’est pas expressément r, dans des négociations
avec un autre Etat, à un traité particulier qui aurait été violé par la conduite de celui-ci, il n’en découle pas
nécessairement que le premier ne serait pas admis à invoquer la clause compromissoire dudit traité. Les
Etats-Unis savaient avant l’introduction de la préte instance que le Nica ragua affirmait que leur
comportement constituait une violation de leurs obligat ions internationales; ils savent maintenant qu’il
leur est reproché d’avoir violé des articles précis du traité deIl n’y aurait aucun sens à obliger
maintenant le Nicaragua à entamer une nouvelle pro cédure sur la base du traité - ce qu'il aurait
pleinement le droit de faire.” - 34 -
23
reopened before the Court.” (Military and Paramilitary Activities in and against
Nicaragua (Nicaragua v. United States of America), Jurisdiction and Admissibility
(Judgment, I.C.J. Reports 1984; separate opinion of Judge Sir Robert Jennings,
p. 556.)
52. Similarly, Article 22 of our Convention, th e 1965 Convention refers to a dispute “which
is not settled by negotiation”. The question, and if Nicaragua is followed, the only question for the
Court is: has the present dispute been settled by negotiation? The answer is transparently no and
that ends the matter.
53. I should say that the reference to “procedures expressly provided for in this Convention”
is stipulated as an alternative to negotiations. By parity of reasoning, it is not a condition precedent
for the Court’s jurisdiction. Again, it raises a question of fact as to whether the procedures set out
in PartII of the Convention have been successf ully employed to achieve a settlement of the
dispute. There is no indication in the Convention that all the procedures in Part II are to be
exhausted before recourse is made to this Court. Indeed, Article 16 of Part II explicitly provides to
the contrary.
54. The meaning of Article 16 seems clear: th e procedures are not designed to be exclusive
or compulsory in respect of disputes concerning the subject-matter of the Convention.
55. In this context, I should, however, refer the Court to the Congo v. Rwanda case, and in
particular your discussion of Article29 of the 1979 Convention on the Elimination of
24
Discrimination against Women, which is in si milar terms to Article22 of the 1965 Convention
In the Congo v. Rwanda case you said:
“as regards the requirement of the existence of a dispute between the DRC and
Rwanda for purposes of Article29 of the Conv ention, that Article requires also that
any such dispute be the subject of negotia tions. The evidence has not satisfied the
Court that the DRC in fact sought to commence negotiations in respect of the
23
“Dans la présente espèce, les Etats-Unis objectent que le Nicaragua n’a rien fait pour régler par la
voie diplomatique les questions qui f ont l’objet de sa requête. Cependa nt, le traité de 1955 se contente
d’exiger que le différend n’ait pas été “réglé d'une ma nière satisfaisante par la voie diplomatique”. Ainsi
exprimée, sous une forme purement négative, ce n’est pas là une condition très stricte. On pourrait même
soutenir, semble-t-il, que tout ce qui est requis est que, comme le texte le dit avec précision, les reproches
entre les parties n'aient pas d'ores et déjà été “réglés” par la voie diplomatique. Bref, il semble que les
rédacteurs du traité aient seulement voulu éviter que les différends déjà réglés de façon satisfaisante par la
voie diplomatique ne soient rouverts devant la Cour.”
241249 UNTS 513. - 35 -
interpretation or application of the Convention.” 25 (Armed Activities on the Territory
of the Congo (New Application: 2002) (Democratic Republic of the Congo v.
Rwanda), Jurisdiction of the Court and Admissibility of the Application , Judgment of
3 February 2006, para. 91.)
56. Congo v. Rwanda was a very different case. There, the Applicant invoked no less than
11separate bases of jurisdiction, all of which you ultimately rejected; I think 11 is the Court’s
record. It is not too much to say that in its e fforts to find a possible basis for jurisdiction, it threw
as many Conventions at the wall of the Court as it could think of in the hope that one of them
would stick! Yet no one had prev iously thought to characterize Rwanda’s military involvement in
the Congo as one raising issues of discrimination ag ainst women. There was no consideration of
that situation by CEDAW at any time. By contr ast, as I have noted, CERD has already recognized
on a number of occasions that the situation in South Ossetia and Abkhazia involves discrimination
and denial of fundamental human rights on grounds of ethnicity. The same is true of General
Assembly resolution 62/249.
57. Not only has the dispute been character ized by competent bodies in terms which are
relevant to the 1965 Convention; there have also been extensive bilateral contacts between the
parties. I refer for example to the Secretar y-General’s Report to the Security Council on
9 April 2003, where Secretary-General Annan stated:
“The period under review was also marked by increased bilateral activity
between the Russian Federation and Georgia at the highest level. During the informal
summit of the Heads of State of Commonwealth of Independent States (CIS) in Kyiv
on 28 and 29 July 2003, President Vladimir Putin and President Eduard Shevardnadze
discussed... the return of internally di splaced persons. On 6 and 7 March during a
meeting in Sochi, the two Presidents agr eed to create working groups that would
address the return of refugees and internally displaced persons initially to the Gali
26
district . . ..”
58. The Security Council, in resolution 1494 of 30 July 2003 noted that Russia and Georgia
had conducted bilateral meetings in order to advance the peace process as agreed by the two
Presidents in their meeting in March 2003 and also in the initial high-level meeting of the Parties
on 15 July 2003. These meetings included discussion of the issue of the return of internally
2“… au regard de l’exigence de l’existence d’un différend entre la RDC et le Rwanda aux fins de
l’article29 de la Convention, cet article requieégalement qu’un tel différend fasse l’objet de
négociations. Les éléments de preuve présentés à la Cour n’ont pas perm is d’établir à sa satisfaction que
la RDC ait en fait cherché à entamer des négociations relatives à l’interprétation ou l’application de la
Convention.”
2S/2003/412, para. 5. - 36 -
displaced persons, displaced in previous episodes of ethnic cleansing 27. Reports of the
Secretary-General to the Security Council in 2004 and 2005 document ongoing meetings of the
Sochi Working Group on the Return of Refugees and Internally Displaced Persons 28.
59. I should also mention the Quadripartite Agreement on Voluntary Return of Refugees and
Displaced Persons signed on 4 April 1994, the Prot ocol of the talks between the governmental
delegations of the Republic of Georgia and the Russian Federation, 9 April 1993 and other
documents included in the “Contribution by the Russian Federation” under the heading of
“Documents of the negotiating process”, which also evidence negotiations between Georgia and
the Russian Federation. In these and other documents the Russian Federation is engaged as a party
principal; it is not simply as an interlocutor or a disinterested third party.
60. For these reasons, even if Article22 of the 1965 Convention were considered to lay
down a condition precedent for seising the Court, that condition is satisfied here.
International humanitarian law as a lex specialis
61. Madam President, Members of the Court, fi nally in this catalogue of possible objections,
I should refer to the issue of the relation between the Convention as a human rights instrument and
the rules of international humanitarian law. It is well known that the Russian armed forces invaded
Georgia on 8 August 2008 and have conducted military operations within Georgia’s territory since
that date.
62. You have several times pronounced upon the question whether international
humanitarian law displaces the otherwise applicable international human rights law in the context
of an armed conflict. Your answer to this question has been an emphatic “no”. For example, in the
Advisory Opinion on the Legal Consequences of the Construction of a Wall in the Occupied
Palestinian Territory you said:
“[T]he Court considers that the protection offered by human rights Conventions
does not cease in case of ar med conflict, save through the effect of provisions for
27
S/RES/1494 (2003), para. 9.
2See S/2003/751, para. 30; S/2004/570, para. 7; S/2005/452, para. 5. - 37 -
derogation of the kind to be found in Article 4 of the International Covenant on Civil
29
and Political Rights.” (I.C.J. Reports 2004, p. 178, para. 106.)
63. You came to the same conclusion in your earlier Advisory Opinion on Nuclear Weapons,
(I.C.J. Reports 1996, p. 240, para. 2) and in DRC v. Uganda (Armed Activities on the Territory of
the Congo (Democratic Republic of the Congo v. Uganda), Judgment, I.C.J. Reports 2005 ,
pp. 69-70, paras. 215-217).
64. In this respect it is important to emphasize that, unlike the International Covenant on
Civil and Political Rights, the Convention on Racial Discrimination does not contain any provision
allowing the States parties to derogate from their obligations in a time of public emergency. The
reason for this omission is clear: racial discrimin ation cannot be justified by States on the basis of
any type of exigency, even when the life of the nation is threatened in case of armed conflict.
Indeed, the derogation provision in Article4, para graph1, of the International Covenant on Civil
and Political Rights is careful itself to preserve the universal prohibition of racial discrimination,
whatever the exigencies of the em ergency confronting the State parties. One of the conditions for
derogation on Article 41 is that the measures “do not involve discrimination solely on the ground of
race, colour, sex, language, religion or social origin”.
65. That settles the question as to whether th e obligations under the Convention continue to
apply in a situation of armed conflict. But I woul d also refer, by way of conclusion, to the Human
Rights Committee’s General Comment No. 31 where the Committee said:
“[T]he Covenant applies also in situat ions of armed conflict in which the rules
of international humanitarian law are app licable. While, in respect of certain
Covenant rights, more specific rules of international humanitarian law may be
specifically relevant for the purposes of the interpretation of the Covenant rights, both
spheres of law are complementary, not mutually exclusive.” 30
And that conclusion applies a fortiori to the 1965 Convention.
66. In short, there can be no conceivable justification for departing from this principle in
relation to the 1965 Convention on Racial Discrimi nation. Given the absence of a derogation
2“[L]a Cour estime que la protection offerte par les Conven tions régissant les droits de l’homme ne cesse pas en
cas de conflit armé, si ce n'est par l'effet de clauses dérogatoires du type de celle figurant a l’article 4 du pacte
international relatif aux droits civils et politiques.”
3Human Rights Committee, General Comment No. 31, Nature of the General Legal Obligation Imposed on
States Parties to the Covenant, 26.5.2004, CCPR/C/21/Rev.1/Add.13, para. 11. - 38 -
provision in the Convention, the application of its obligations in situations of armed conflict is
more comprehensive than in the case for the obligations under the International Covenant of 1966.
Conclusions
67. Madam President, Members of the Court, let me conclude. There have been great
advances in the legal protection of racial and ethnic groups from discrimination in the past
50 years. Many countries have passed laws with increased standards to promote the equality of all
members of society regardless of race and religion. In some parts of the world, the focus has
happily shifted from the prevention of ethnic violen ce, which was at the heart of the initial impulse
for the Convention, to guarantees of equal employment opportunities ⎯ what one might call civil
discrimination. But we should not forget that the Convention on Racial Discrimination was the
result of international concern ⎯ it is not too much to say outrage ⎯ at some of the more extreme
and sinister forms of racial discrimination; in particular, practices of violent discrimination against
ethnic groups by States and persons sponsored by States, to achieve political ends ⎯ practices
implicating the constitution and composition of territorial communities. The Convention on Racial
Discrimination expresses in emphatic terms the fundamental international norm of
non-discrimination in that fundamental matter. It remains the last line of defence against a State
that has traversed the limits of acceptable conduct in its differential and unjustified treatment of
ethnic groups.
68. Turning to this case, the obligations under the Convention are evidently engaged in
relation to Russia’s treatment of ethnic Georgian s in Abkhazia, South Ossetia, and other areas of
Georgia under Russian control. For the purposes of this request for provisional measures, the
rights at issue before this Court are the fundame ntal human rights of ethnic Georgians guaranteed
under Article5 of the Convention, including the right not to be expelled from and if necessary to
return to their homes. Georgia has the right to insist, pursuant to Article 2, that Russia refrain from
sponsoring, defending or supporting racial or ethnic discrimination by any persons or
organizations.
69. The Court has prima facie jurisdiction unde r Article22 of the Convention in respect of
Georgia’s claims based upon these obligations. I have addressed each aspect of the Court’s - 39 -
jurisdiction and in doing so I have attemptedto anticipate possible objections to the Court’s
exercise of that jurisdiction. Russia and Georgia are parties to the Court’s Statute and to the
Convention and neither has made any reservation to Article 22. The subject-matter of the present
dispute falls within the four corners of the C onvention as I have demonstrated. The provisional
measures relate to the immediate crisis in Abkhazi a, South Ossetia and the Gori district and hence
this part of the dispute arose years after Georgia’ s ratification of the Convention. Having regard to
the consistent jurisprudence of the Court any ques tion in relation to a more onerous requirement of
negotiations or the application of humanitarian law as a lex specialis must fail.
Madam President, Members of the Court, thank you for your attention.
Madam President, this would be a convenient moment for the break, after which I would ask
that you call upon Professor Akhavan.
The PRESIDENT: Thank you, Professor Crawford. The Court will now rise briefly.
The Court adjourned from 11.15 to 11.40 a.m.
The PRESIDENT: Please be seated. Professor Akhavan.
AMKr. AVAN:
3.O VERVIEW OF THE FACTS BEARING ON THE URGENT NEED FOR PROVISIONAL MEASURES
1. Madam President, distinguished Members of the Court, it is an honour and privilege to
appear before you on behalf of Georgia. In my presentation, I shall set forth the factual basis of
Georgia’s Request for provisional measures, which is before the Court today. I will deal only with
the factual issues that relate directly toprovisional measures phase. The broader issues ⎯
including the important historical material and background to the events of last mont⎯ are
referred to in the Application but are properly for the merits phase.
The ethnic Georgian populations at imminent risk
2. There are currently some 158,000 interna lly displaced ethnic Georgians who have been
expelled from South Ossetia, the adjacent Gori dist rict and Abkhazia, over the course of the past
month. Together with the estimated 300,000 pers ons displaced during the conflicts of the 1990s, - 40 -
they account for some 10 per cent of Georgia’s total population. Their plight has been recognized
in United Nations Security Council and General Assembly resolutions and documented in the
successive reports of human rights organizations. The continuing violation of their rights under
Articles 2 and 5 of the Convention on Racial Disc rimination will be a central concern of Georgia’s
case on the merits.
3. The principal focus of the Request for provisional measures today, however, is upon those
ethnic Georgians who remain in Georgian territori es in South Ossetia, Gori district and Abkhazia,
under Russian control. This population faces an imminent danger of violence against their person
and property and expulsion from their homes in direct violation of their rights under the
Convention. The urgent intervention of this Cour t is necessary to prevent further irreparable harm
to the rights of these thousands of ethnic Georgian s, whose very survival has become precarious as
a result of a campaign of sustained and violent discrimination being wage d against them. The
executors of this ongoing campaign are Russian sold iers and separatist militias under their control.
There is no sign that the Russian Federation and the de facto separatist authorities in South Ossetia
and Abkhazia intend to cease this campaign before its objective has been achieved. That objective
is the creation of two territories that are cleansed of ethnic Georgians and placed under the
authority of separatists loyal to the Russian Fede ration. The violent discrimination has continued
since the so-called “ceasefire”, since Georgia f iled its Application, and since the Request for
provisional measures was put before the Court. It continues today. The Court has an important
role to play to help ensure it does not continue tomorrow.
4. With your permission, Madam President, I would like to refer you to a map of Georgia to
explain the location of the ethnic Georgian populations that are particularly exposed to risk of
further ethnic cleansing in direct violation of their rights under Articles 2 and 5 of the Convention.
5. The map before you is contained at tab 16 of the judges’ folder. It indicates the location
of the Autonomous Republic of Abkhazia to the west of Georgia, and the territory of the former
autonomous region of South Ossetia to the north.
6. The following map, at tab17 of the judges’ folder, is a close-up of South Ossetia. The
capital of this region is situated in Tskhinvali, in the region’s southernmost extremity. As I shall - 41 -
discuss, after the Russian invasion of 8 August, the Georgian villages in the immediate vicinity of
Tskhinvali were ethnically cleansed and systematically destroyed.
7. Immediately below Tskhinvali is Gori Di strict, which was under Georgian Government
control prior to the 8August invasion. Russia has declared the northern part of this district as a
so-called “buffer zone”. The shaded grey line on the map indicates the approximate extent of the
current Russian zone of occupation in Gori district . As I shall discuss, most Georgian villages in
this portion of Gori have also been d estroyed, but a scattered population estimated
at 3,000-4,000 remains.
8. In South Ossetia, the remaining ethnic Georgian population is concentrated in the
Akhalgori district. Turning again to the close-up map before you, the location of Akhalgori can be
seen in the eastern part of this region. This di strict was also under Georgian Government control
prior to the 8 August invasion. There are some 9,000 ethnic Georgians still in this area.
9. In Abkhazia, the only remaining territory where ethnic Georgians continue to live is the
Gali district, where the Georgian population numbers some 42,000. The map before you, contained
at tab 18 of the judges’ folder, indicates the locati on of Gali district in the south-western extremity
of Abkhazia, separated from the rest of Georgia by the Enguri river. Before the recent attacks on
Georgian villages in the Kodori Gorge, there was also a community of 3,000 Georgians in that area
of UpperAbkhazia, to the north of Galidistrict . Those who survived these ethnically motivated
attacks fled their homes and have joined the hundr eds of thousands of internally displaced persons
living in temporary shelters elsewhere in Georgia.
The pattern of violence against ethnic Georgians over the past weeks
10. To appreciate the imminent risk of continued violent discrimination against the ethnic
Georgian populations in the Akhalgori, Gori, and Gali districts, it is sufficient to focus on the
pattern of ethnic cleansing during the past days. With your permission, I would like to direct the
Court to some recent examples.
11. Human Rights Watch, in its report entitled “Georgian Villages in South Ossetia Burnt,
Looted”–– that is located at tab7 of the judges’ folder–– stated that on 12August2008, its
researchers had: - 42 -
“witnessed terrifying scenes of destruction in four villages that used to be populated
exclusively by ethnic Georgians. Accordi ng to the few remaining local residents,
South Ossetian militias that31ere moving along the road looted the Georgian villages
and set them on fire . . .”
12. A separatist official told Human Right s Watch: “These old people shouldn’t be
32
complaining ⎯ they should be happy they weren’t killed.”
13. On 22 August 2008, Amnesty International reported that “[t]hose who remained in South
Ossetia and in parts of western Georgia where fi ghting has taken place... remain vulnerable to
33
ethnically motivated attacks” . This report may be found at tab 6 of the judges’ folder.
14. This pattern of ethnic violence continues. On 28 August ⎯ just 11 days ago ⎯ Human
Rights Watch concluded in a report found at tab8 of the judges’ folder that although “Russia is
obligated to ensure the safety and well being of civilians in the areas under its de facto control . . .
civilians are clearly not being protected” 34.
15. United Nations agencies and other international organizations also confirm this ongoing
pattern of ethnic violence in what Russia proclaim s to be its “buffer zone”. Two weeks ago, on
26August, the United Nations High Commissioner for Refugees “expressed concern over reports
of new forcible displacement caused by marauding militias north of the Georgian town of Gori near
the boundary line with the breakaway region of South Ossetia” 35. I stress the words “new forcible
displacement”. This report may be found at tab 4 of the judges’ folder.
16. Madam President, Members of the Court, the violent discrimination against ethnic
Georgians is continuing. According to UNHCR, this group of newly displaced persons consisted
of:
“elderly people who had remained in their homes throughout the conflict, but had now
been forced to flee by armed groups. The newly displaced said that some had been
beaten, harassed and robbed, and that thr ee persons had reportedly been killed. The
31“Georgian Villages in South Ossetia Burnt, Looted”, Human Rights Watch, 13 Aug.t 2008 (Ann. 5 to Georgia’s
observations).
32Ibid.
33“Continuing Concern for Civilians After Hostilities in Ge orgia”, Amnesty International, 22 Aug. 2008 (Ann. 6
to Georgia’s observations).
34“EU: Protect Civilians in Gori District, Securitof Civilians Should Be Central to Summit Discussions on
Russia”, Human Rights Watch, 28 Aug. 2008 (Ann. 2 to Georgia’s observations).
35
“Reports of lawlessness creating ne w forcible displacement in Geor gia”, UNHCR, 26Aug.2008 (emphasis
added) (Ann. 9 to Georgia’s observations). - 43 -
marauders were reportedly operating in the so called buffer zone established along the
36
boundary line with South Ossetia.”
17. On 25August, speaking in his capacity as OSCE Chairman, the Foreign Minister of
Finland, AlexanderStubb, stated that in Gori district he had personally witnessed how “Russian
emergency troops brought in two lorries full of elderly people” from “southern Ossetia who had
37
been torn away from their homes” . His conclusion was unambiguous: they “are clearly trying to
empty southern Ossetia of Georgians” 38. He was not referring to some obscure historic event.
Foreign Minister Stubb is talking about events taking place now.
Russia’s control over the de facto separatist authorities
in South Ossetia and Abkhazia
18. Madam President, Members of the Court, as Professor Crawford has stated, the question
of attribution is one for the merits, and I need say very little on this matter. What I shall say
supports our case that provisional measures directed to Russia can have re al, positive effects:
Russia exercises significant control over the Georgi an territories under its occupation, and also
controls the separatist régimes in Abkhazia and S outh Ossetia. As such, it has the power to stop
ongoing acts of discrimination.
19. I will focus on South Ossetia. The preponderance of the key positions in the de facto
Government of South Ossetia is now occ upied by current or former Russian
military and intelligence officers. The South Ossetian Minister of Internal Affairs,
MikhailMairamovichMindzaev, is a colonel of the Russian police force. For many years he
served at the Ministry of Internal Affairs of the North Ossetian Autonomous Republic in the
Russian Federation. Anatoly Konstantinovich Brankevich, the Secretary of the Security Council of
South Ossetia, is a colonel in the Russian army who served for four years as the First Deputy
Military Commissioner of Chechnya; immediately prior to his appointment in South Ossetia he
was the Deputy Military Commissioner of Stavropol Krai, a territorial unit of the Russian
3Ibid.
37
S. Ossetia “emptied of Georgians”, BBC News, 25 Aug. 2008 (Ann. 19 to Georgia’s observations).
3Ibid. - 44 -
Federation. BorisMazhitovichAtoev, the Chai rman of the State Security Committee of South
39
Ossetia, served for many years in the Soviet KGB and in the Federal Security Service in Moscow .
20. In short, these and other key officials of the separatist authorities in South Ossetia and
Abkhazia are in the employ of the Russian Federation and remain under its direct control. Indeed
many of them are concurrently employed by its military and intelligence services, and they control
the paramilitary forces that the United Nations Hi gh Commissioner for Refugees has referred to as
“marauding militias” 40.
The ethnic basis of the targeted discrimination and violence
21. I have referred to the reports of intern ational organizations and NGOs over the last few
weeks to demonstrate the system atic nature of the ongoing violent discrimination inflicted by
Russian forces upon ethnic Georgians in South Ossetia, Gori district, and Abkhazia. It is the most
recent testimony of individual Georgians, how ever, that provides the most compelling and
disturbing evidence of the ethnic basis for this viol ence. I refer the Court to the witness statements
that have been provided in the observations of Ge orgia submitted last week. Again, we are not
concerned now with historical material ⎯ although the history sheds grim light on what is
happening today. We are concerned with wh at is happening now, today, to show that
discrimination is continuing, that it is violent, and that it threatens to cause irreparable damage.
This testimony exposes the gravity of the situa tion that faces the remaining Georgians in the
Akhalgori district of South Ossetia, the adjacent Gori district, and the Gali district of Abkhazia.
This testimony leaves no doubt that these remaini ng Georgians are at a real risk of violence
because of their ethnicity and nothing but their ethnicity.
22. The witness testimony of JimsherBabutsize is at tab11 of the judges’ folder.
Mr. Babutsize is 59 years old and lived in the village of Achebeli close to Tskhinvali until he fled
on 10August2008. He recounts his meeting with the Russian forces when they arrived in his
village:
39
Georgian Ministry of Foreign Affairs, “Russian Officials in Georgia Separatist Govern ments” (undated)
(Ann. 39 to Georgia’s observations).
40“Reports of lawlessness creating new forcible displa cement in Georgia”, UNHCR, 26 Aug. 2008 (Ann. 9 to
Georgia’s observations). - 45 -
“The Russian soldiers then told us, ‘[ i]f you are Georgian and want to survive,
run away from here’ because we would die if we didn’t leave. He said ‘You see what
41
is happening here. Do you want to die?’”.
23. Like many among the historically mixed population of South Ossetia, Klara Khetaguri is
an ethnic Ossetian married to an ethnic Georgian. She explains in her witness statement, at tab 12
of the judges’ folder, that “[m]y village was occupied by the Russian army and the Ossetian militia
for several days. The Ossetians looted and burned the houses in the village, and the Russian army
did not try to stop them.” 42 She asked a Russian officer “why the Russians were allowing the
Ossetian militia to burn down the Georgians’ houses” 43. Her testimony regarding the Russian
officer’s response is revealing:
“He told me that they didn’t have an y right to stop the Ossetians. The Russian
soldiers tied pieces of white cloth to the buildings they were staying in. Because I was
very afraid that my house would be burned down, the officer told me to tie a white
cloth on my house to indicate to the Ossetians that my house, like the buildings where
the Russian[s] . . . were staying, should not be burned. The officer told me that these
buildings, includ44g my house, would not be burned as long as the Russians remained
in the village.”
24. This instruction was followed by the Ossetian militia. Quoting again from her statement,
“The Ossetians burned down all the houses in the village except the houses where the Russians
45
were staying and my house.”
25. There are several other examples confirming the ethnic basis of this violence. Tab 13 in
the judges’ folder contains the w itness statement of Ana Datashvili, a 73-year-old resident of the
village of Tamarasheni. She testifies that “Russian soldiers returned to the village, together with
Cossacks and Chechens and other North Caucasus bandits” and “began looting and burning
46
Georgian houses on a massive scale” . She recounts a “Russian soldier” who:
“started yelling in a loud voice with me but I could not understand what he was saying
since I don’t know Russian. Afterwards an Os setian explained to me in Georgian that
the Russian soldier had ordered me to leave the house since they were going to burn it
down. I asked them why they [were] doing this, since we were relatives. I explained
that I was half Ossetian and that my mother was Ossetian. Despite my explanation,
41Ann. 26 to Georgia’s observations.
42
Ann. 33 to Georgia’s observations.
43
Ibid.
44Ibid.
45Ibid.
46Ann. 27 to Georgia’s observations. - 46 -
they told me that I was Georgian and had no place with them. They said that
Georgians will never live on this land anymore.” 47
26. To quote from her statement, “[t]he Russian soldier forced me by physical abuse to leave
the house”, whereupon, she recounts, an Ossetian soldier “threw an object resembling a bomb on
48
the first floor of my house, setting the house ablaze” .
27. The statement of 71-year-old Zaira Khetagashvili, at tab14 of the judges’ folder,
provides similar testimony concerning the destruction of the village of Kekhvi. She explains that
three Ossetians entered her house, stole a television set and other household goods, and “told me to
49
leave immediately or else they would kill me” . She testifies that her attackers said they would
“exterminate the whole Georgian ethnicity and kill everybody” and that all “Georgians should
50
leave the area because it is Ossetian territory” . Her statement indicates that the Ossetian
separatists “forced the population out of our houses and shouted to leave this place. They
immediately started searching and robbing our houses and then burnt them.” 51 She further testifies
that when the houses of Kekhvi were being burned “a 90-year-old man . . . could not escape from
52
the fired house and was burned up inside it” .
Risk of imminent harm against Georgians in Akhalgori, Gori, and Gali
28. I shall now describe for the Court the acts of discrimination being perpetrated today
against ethnic Georgian populations remaining in A khalgori, Gori, and Gali districts. The events
over recent weeks demonstrate a real risk that the discrimination in Georgian territories under
Russian control will continue and lead to the furthe r physical harm or death of Georgian civilians
and their forced expulsion from these regions of Georgia.
29. The 42,000Georgians in the Gali district of Abkhazia are the last impediment to the
creation of an ethnically homogeneous Abkhazia unde r Russian control. When the most recent
conflict broke out in August, the Russian forces closed the only bridge across the Enguri river
47
Ibid.
48
Ibid.
49
Ann. 32 to Georgia’s observations.
50Ibid.
51Ibid.
52
Ibid. - 47 -
linking Gali to the rest of Georgia. The ethnic Georgian population is now completely isolated and
the Georgian Government has no means of protecting them 53.
30. Joni Mishvelia, the Chair of the Local Municipality of Ganmukahuri, a village in Zugdidi
district immediately adjacent to Gali, has provide d a declaration that appears at tab15 of the
judges’ folder. He testifies that on the day the Russians and Abkhazian separatists occupied his
village, a representative of the separatist authoriti es “told the population that Georgian passports
were useless and if they wanted to live in their villages, they should accept the passports of Russian
citizens” 54. Mr. Mishvelia further states that, as far as he is aware, “the population of Ganmukhuri
55
refused this proposal, and as a result, they were forced to leave their families and hide . . .” . The
occupying forces do not allow them to return, which is causing economic devastation, particularly
since the villagers cannot complete their harvest.
31. The estimated 9,000 ethnic Georgians in the Akhalgori district claimed by separatists as
part of South Ossetia also face acts of discrimination. Like the Georgians in Gali, they are the last
impediment to an ethnically homogeneous South O ssetian territory under Russian control. On
27August, the French Foreign Minister, Bernard Kouchner, reported that “Russian forces are
sweeping through [Akhalgori town] pushing Georgians out and over the border. It’s ethnic
56
cleansing, creating a homogeneous South Ossetia.” This article may be found at tab10 of the
judges’ folder. In the coming days, independ ent reports by the press further confirmed
Mr. Kouchner’s statement.
32. An article published on 31August, in the Telegraph of London, reported that
“Akhalgori’s residents must register at paramilitary checkpoints, giving details that are passed on to
57
the town police station” . It further reported that: “At a compulsory interview a new Russian
appointed chief of police gives people a stark and simple choice: take a Russian passport, or leave
53
Declaration of Zaza Gorozia, Ann. 30 to Georgia’s observations.
54Ann. 36 to Georgia’s observations.
55Ibid.
56“Russia: Kouchner claims ethnic cleansing in Georgia”, Euronews.net (27 August 2008) (Ann. 17 to Georgia’s
observations).
57
“South Ossetian police tell Geor gians to take a Russian passport, or leave their homes ”, Telegraph
(31 Aug. 2008), Ann. 14 to Georgia’s observations. - 48 -
58
the town.” The article quoted an Akhalgori resident as saying “The Russians are telling everyone
in the town they must take a Russi an passport . . . One came to me and explained that if I did not
59
take it, my safety could not be certain. I was scared, so I am leaving.” The article further
indicates that the population of Akhalgori town “whi ch was estimated at 6,800 before the conflict,
is believed to have halved in a week. . . . Hundr eds have fled to Georgia rather than accept a new
life as Russians.” 60
33. The gravity and urgency of the situation confronting the ethnic Georgian communities of
Gali, Akhalgori, and Gori are demonstrated by the maps that I shall shortly put before the Court.
Before doing so, I would like to draw your attenti on to a statement by the so-called “President” of
the de facto authority in South Ossetia, Eduard Kokoity, found at tab 21 of the judges’ folder. On
15August2008, shortly after the systematic destru ction of Georgian villages in the vicinity of
Tskhinvali, Mr. Kokoity gave an in terview to the Russian publication Kommersant. He was asked
the following question by the journalist: “After the Tskhinvali and Ossetian villages were
liberated, the hostilities were then conducted in Georgian enclaves. What is going on there
61
now?” Mr.Kokoity simply responded: “ Nothing, we have flattened everything there . The
boundaries of South Ossetia have been defined .”62 And indeed, Mr.Kokoity was right. The
ethnic-based boundaries of the separatist republic are being literally burned onto the map.
34. I would now like to draw the Court’s attention to the satellite imagery contained at tab 19
of the judges’ folders. The images you will see come from the United Nations Institute for
Training and Research Operational Satellite Applications Programme (UNOSAT), which
conducted a damage assessment of the area to the north of Tskinvali from 19 August. According to
a 29 August Human Rights Watch report, these UNOSAT images
“confirm the widespread torching of ethnic villages inside South Ossetia... The
damage shown in the ethnic Georgian villa ges is massive and concentrated. In
Tamarasheni, UNOSAT’s experts counted a total of 177buildings destroyed or
severely damaged, accounting for almost all the buildings in town. In Kvemo
58Ibid.
59
Ibid.
60
Ibid.
61Republic of South Ossetia New Agency, press conferen ce conducted in the International Press Centre of
Tskhinvali (26 Aug. 2008), Ann. 40 to Georgia’s observations.
62Ibid. (Emphasis added.) - 49 -
Achabeti, there are 87 destroyed and 28 severely damaged buildings... in Kekhvi,
63
109 destroyed and 44 severely damaged buildings . . .”
35. The Court will recall that the village of Kekhvi is the location where 71-yearold
ZairaKhetagashvili testified that Ossetian militia expelled the Georgian population and
systematically burnt homes. The image before you now, contained at tab 19 of the judges’ folders,
is a UNOSAT image of Kekhvi taken after the attack. If you look closely, you will see house after
house destroyed by fire, as evidenced by the absence of roofs.
36. The next UNOSAT image before you, also at tab 19, places red and orange squares, with
red indicating buildings that have been destroyed and orange indicating buildings that have been
severely damaged. These dots, and the underlying analysis they represent, come not from Georgia,
but from UNOSAT itself. The images and analysis are publicly available at the UNOSAT website.
37. The next image I will show you is also from UNOSAT and is a composite representing
the entire area to the north of Tskinvali. You will Kekhvi in the upper left corner of the image,
together with a number of other Georgian villages referenced in the witness testimony submitted to
the Court. As is apparent from the heavy concentration of red and orange dots, the devastation in
areas under Russian control is widespread and follows a distinct pattern, encompassing virtually all
the Georgian villages north of Tskhinvali. This stands in sharp contrast to Ossetian villages such as
Mamita, situated at the right-hand side of the same image. You will see that the UNOSAT analysis
did not find any destroyed buildings whatsoever in this village.
38. In order better to illustrate the broader pattern of ethnic-based destruction, I would now
draw your attention to a sketch-map projected on the screen behind me, and included at tab 20 of
the judges’ folders. This map reflects the ethnic composition of South Ossetia prior to the events of
August 2008. Ethnic Georgian villages are repres ented by red circles and ethnic Ossetian villages
by blue circles. The circles correspond to the size of the population in each location. As in prior
maps, the Russian zone of control is depicted by a dark grey line.
39. The next image is a close-up of the region in the immediate vicinity of Tskhinvali
reflecting the ethnic composition of that area prior to August. The next image depicts the Georgian
villages that have been destroyed. These destroyed villages are depicted by white circles. If I may,
6Human Rights Watch, Human Rights News: “Georgia: Satellite Images Show Destruction, Ethnic Attacks.
Russia Should Investigate, Prosecute Crimes” (29 Aug. 2008) (Ann. 1 to Georgia’s observations). - 50 -
I will illustrate once again the transformation of th e red circles representing Georgian villages into
white circles representing those that have been destro yed. First, before the events of August, then,
after Russian occupation of these territories after the 8August invasion. You will see that the
Georgian villages surrounding Tskhnivali have all been ethnically cleansed. You will also see that
the Georgian villages in Gori district have also b een systematically destroyed. It may be recalled
that Russia has declared this area to be a “buffer zone”. As the image reflects, there are still a
number of populated ethnic Georgian villages inside the Russian zone of occupation. In addition,
there are also some ethnic Georgian individuals left behind in the destroyed villages. This
remaining Georgian population is currently subjected to continuing acts of ethnic violence and each
day more displaced persons arrive in Tbilisi and other locations from Gori district.
The PRESIDENT: Could I just interrupt to have some clarification as to the provenance of
this map. Do I rightly understand that the co lourings and designations on the map have been
prepared by the Georgian Government on the b asis of other materials you are showing us to
illustrate the overall picture that you are making? Have I got that right?
Mr. AKHAVAN: Yes, Madam President, the maps are based on statistics which reflected
the ethnic composition prior to the conflict and th e sketch of the destroyed villages is based on
information that has been arriving, literally until th e day that we have appeared before this Court,
and we would be pleased to provide that to the Court, should you so deem.
The PRESIDENT: Thank you.
Mr. AKHAVAN:
40. Madam President, there can be little doubt th at the intention of the separatists is not
merely the expulsion of all Georgians, but also to render such displacement permanent. In the
Kommersant Moscow interview that I have already refe rred to, the leader of the South Ossetian
separatists, Mr.Kokoity, was asked: “Will Georgian civilians be allowed to return?” 64 He
6Republic of South Ossetia New Agency, press conference conducted in the International Press Centre of
Tskhinvali (26 Aug. 2008) (Ann. 40 to Georgia’s Observations). - 51 -
answered: “We do not intend to let anybody in here anymore.” 65 Several days after the interview,
the Economist quoted a South Ossetian intelligence officer as follows: “We burned these houses.
We want to make sure that they [the Georgians] can’t come back, because if they do come back,
66
this will be a Georgian enclave again and this should not happen.” Based upon this unmistakable
pattern of conduct, there is a very serious risk that the remaining Georgian population in the
Akhalgori district in South Ossetia will suffer th e same fate as the ethnic Georgians elsewhere in
that territory. As depicted in the next map, contained at tab20 of the judges’ folders, the ethnic
Georgian population of Akhalgori in the east of South Ossetia is the largest remaining obstacle to
the realization of the separatist’s campaign to create an ethnically “pure” State.
41. As set forth in my presentation, there are compelling indications that the expulsion of
ethnic Georgians in Akhalgori district is currently under way. I have also set forth facts
demonstrating that the risk of discriminatory vi olence applies with equal force to the estimated
3,000-4,000 Georgians remaining in the northern portion of Gori district under Russian occupation,
as well as the remaining Georgian population of Gali district in Abkhazia, the last population of
Georgians in the entire region.
42. Madam President, distinguished Members of the Court, the facts are unambiguous: the
violent discrimination against ethnic Georgians h as not stopped, it is continuing and it is having
devastating and irreparable human consequences. The evidence before the Court also makes it
clear that Russia has the power to stop these violen t, discriminatory acts. Yet Russia continues to
support the continuing programme of ethnic cleansing.
43. That, Madam President, concludes my submission. With your permission, I would ask
that the Court now call on Mr. Reichler.
The PRESIDENT: Thank you, Professor Akhavan. And the Court does now call
Mr. Reichler.
65
Ibid.
6A Caucasian journal, The Economist, 21 Aug. 2008. - 52 -
RMEr. HLER:
4. THE PROVISIONAL MEASURES REQUESTED BY GEORGIA ARE MERITED
1. Madam President, distinguished Members of the Court, it is always a special honour for
me to appear before you, and I am particularly honoured today to appear in this case on behalf of
Georgia.
2. It is my role today to demonstrate that the criteria established by the Court for the
indication of provisional measures have been me t, and that the particular provisional measures
requested by Georgia should be indicated by the Court. The criteria for the indication of
provisional measures are well established. There must be “a risk of irreparable prejudice to rights
in issue before the Court”; and there must be “urgency”. In its most recent statement on the
subject, on 13 July 2008, in the Request for Interpretation of the Judgment of 31 March 2004 in the
Case concerning Avena and Other Mexican Nationals (Mexico v. United States of America)
(Mexico v. United States of America), the Court said in its Order:
“the power of the Court to indicate provisional measures under Article 41 of its Statute
‘presupposes that irreparable prejudice sha ll not be caused to rights which are the
subject of a dispute in judicial proceedings’” ( Request for Interpretation of the
Judgment of 31 March 2004 in the Case concerning Avena and Other Mexican
Nationals (Mexico v. United States of America) (Mexico v. United States of America),
Provisional Measures, Order of 16 July 2008, p. 16, para. 65 (quoting LaGrand
(Germany v. United States of America) , Provisional Measures, Order of
3 March 1999, I.C.J. Reports 1999 (I), p. 15, para. 22)).
On the subject of “urgency ,” the Court has said in Great Belt and other cases, that this must exist
“in the sense that action prejudicial to the rights of either party is likely to be taken before”
(Passage through the Great Belt (Finland v. Denmark), Provisional Measures, Order of
29 July 1991, I.C.J Reports 1991, p. 12, 17, para. 23; Request for Interpretation of the Judgment of
31 March 2004 in the Case concerning Avena and Other Mexican Nationals (Mexico v. United
States of America) (Mexico v. United States of America), Provisional Measures, Order of
16 July 2008, p. 16, para. 666) the Court’s final decision is given. More recently, in the Pulp Mills
case, the Court has suggested that the test of urgenc y is met if the risk of irreparable injury is
67
“c’est-à-dire s’il est probable qu'une action préjudiciable aux droits de l'une ou de l'autre Partie sera commise
avant qu'un tel arrêt définitif ne soit rendu”. - 53 -
“imminent” ( Pulp Mills on the River Uruguay (Argentina v. Uruguay), Provisional Measures ,
Order of 13 July 2006, p. 18, para. 73).
3. Madam President, Members of the Court, my presentation today has three parts. In the
first part, I will demonstrate that the particular rights which Georgia seeks to protect by means of
its Request for provisional measures are rights which ar e at the very heart of this dispute. In the
second part, I will demonstrate that these very rights are at real risk of irreparable prejudice, such
that intervention by the Court, in the form of an indication of provisional measures, is necessary to
protect them against irreversible loss or impairment during the pendency of these proceedings. In
the third and last part, I will show that the par ticular provisional measures requested by Georgia to
protect these rights are urgently required.
The rights Georgia seeks to protect are rights in dispute
4. I begin with the requirement that, in the Court’s words, “rights sought to be made the
subject of provisional measures [must be] the subj ect of the proceedings before the Court on the
merits of the case” ( Arbitral Award of 31 July 1989 (Guinea-Bissau v. Senegal), Provisional
Measures, Order of 2 March 1990, I.C.J. Reports 1990, p. 70, para. 26 68). In its amended Request
for provisional measures of 25August, at para graph16, Georgia invoked Articles 2 and 5 of the
Convention on Elimination of All Forms of Raci al Discrimination, and requested provisional
protection of the following rights thereunder:
“the right of ethnic Georgians to be free from discriminatory treatment, in particular
violent or otherwise coercive acts, including but not limited to the threat or infliction
of death or bodily harm, hostage-taki ng and detention based on ethnicity, the
destruction and pillage of property, and other acts intended to expel them from their
homes in South Ossetia, Abkhazia, and adjacent regions located within Georgian
territory”69.
5. Georgia’s amended Request for provisional measures, at paragraph18, also seeks the
Court’s protection, under Articles 2 and 5 of the Convention, for “the exercise by ethnic
Georgians . . . who have been expelled from Sout h Ossetia, Abkhazia, and adjacent regions on the
basis of their ethnicity or nationality, their right of return to their homes of origin”.
68
“les droits allégués dont il est demandé qu'ils fassent l'objet de mesures cons ervatoires ne sont pas l'objet de
l'instance pendante devant la Cour sur le fond de l'affaire”.
69Amended provisional measures Request, 25 Aug. 2008, para. 16. - 54 -
6. These are precisely the same rights under the 1965 Convention that Georgia has invoked
in its Application of 12 August, at paragraph 81.
7. As Professor Crawford has explained, the rights for which Georgia seeks protection both
in its amended Request for provisional measures and in its Application are the specific rights
guaranteed by Articles 2 and 5 of the Conve ntion. Under Article2, paragraph1 (a) and (b),
Georgia has a right to have Russia, as a State party to the Convention, “engage in no act or practice
of racial discrimination against persons, groups of persons or institutions” and to undertake “not to
sponsor, defend or support racial discriminati on by any persons or organizations”. Under
paragraph 1 (d) of Article2, Georgia also has the right to have Russia “prohibit and bring to an
end, by all appropriate means... racial discrim ination by any persons, gr oup or organization”.
The specific rights protected by Article5 are: first, the right under Article5 (b) “to security of
person and protection by the State against vi olence or bodily harm, whether inflicted by
government officials or by any individual group or institution”; second, the right under
Article 5 (d) (i) “to freedom of movement and residence w ithin the border of the State”; third, the
right under Article5 (d)(ii) “to return”; fourth, the right under Article5 (d)(iii) “to nationality”;
and fifth, the right under Article 5 (d) (v) “to own property”. These are the very rights that Georgia
has invoked in its Application of 12August, at paragra ph81, and in its amended Request for
provisional measures of 25 August, at paragraphs 16 and 18.
The rights in dispute are at risk of irreparable prejudice
8. I turn to my second point: the same rights that I have just described are now, today, at risk
of irreparable prejudice. In addressing this subject, I refer to the evidence described by
Professor Akhavan. We appreciate that the Court will not look at the merits at this stage. We have
no intention of arguing the merits here. We ra ise the evidence only to show that acts that are
apparently inconsistent with Articles2 and 5 are co ntinuing to occur, that they are likely to keep
occurring, and that as a result, the rights at issue in this dispute are at real risk of irreparable
prejudice. In fact, this evidence suggests that each of the Articles 2 and 5 rights that is the subject
of Georgia’s amended Request for provisional meas ures is subject to widespread violation on a
continuing basis. The risk is not only of irre parable injury or impairment, but of complete - 55 -
extinction of these rights, in real and practical term s, long before the final decision is taken in this
case.
9. As Professor Crawford has explained, it is not Georgia’s burden, or its place, at this stage
of the case to establish either that the Convention has been violated or that the violations are
attributable to the respondent State. What is Georgia’s role, is to show that there is a risk of
irreparable injury to the rights at issue, and that th ere is an urgent need to protect them. This, of
course, necessitates a recitation of some very r ecent events, coupled with a demonstration that
recent or current acts or omissions that may be interpreted as giving rise to violations are
continuing, or are likely to recur.
10. As Professor Akhavan has mentioned, the evidence of risk of irreparable harm to rights
in dispute includes independent reports of reputable international and non-governmental
organizations. These reports catalogue the ongoing, wi despread and systematic abuses of rights of
ethnic Georgians under the Convention in all areas of Georgia presently occupied by Russian
forces. I highlight, in particular, what these ne utral and objective observers have said about the
continuing exposure of the ethnically-targeted population and its urgent need for immediate
protection. The United Nations High Commissioner for Refugees, in its report of 26August, at
tab4 of the judges’ folder, advises that the current crisis has already generated at least
158,000displaced persons within Georgia. It is significant that UNHCR further expresses its
“concern over reports of new forcible displace ment caused by marauding militias north of the
Georgian town of Gori near the boundary line with the breakaway region of South Ossetia...”,
and UNHCR concludes that there is now an immediate need “to contain further outbreaks of
70
lawlessness which could contribute to additional displacement” .
11. The vulnerability of the ethnic Georgians remaining in Russian-controlled territory, and
the need for their immediate protection, is furt her described by the International Committee of the
Red Cross, in its report of 17 August, at tab 5 of the judges’ folder:
“[I]t is not only the displaced who are in need. Equally worrying is the fact that
in all the villages from which people have fl ed, there are others who could not leave
because of sickness, disability or simply old age. With access to humanitarian
7United Nations Commissioner for Refugees, UNHCR press release, “Reports of lawlessness creating new
forcible displacement in Georgia” (26 Aug. 2008). - 56 -
agencies blocked to rural areas b71ause of poor security, their situation is becoming
more precarious by the day.”
The same warning was issued by Amnesty International on 22August— this is at tab6 of the
judges’ folder: “Those who remained in South Ossetia and in parts of western Georgia where
fighting has taken place are also in need of humani tarian assistance. They also remain vulnerable
72
to ethnically motivated attacks.” To the same effect is the report of Human Rights Watch on
13August, at tab7 of the judges’ folder: “The remaining residents of these destroyed ethnic
Georgian villages are facing d esperate conditions, with no means of survival, no help, no
73
protection, and nowhere to go . . .”
12. According to another Human Rights Watch report, dated 28August, at tab8 of the
judges’ folder:
“Georgian villages in the border have become a no man’s land, with civilians at
the mercy of Ossetian militias and armed crimin als . . . Russia is obligated to ensure
the safety and well-being of civilians in the area of its de facto control, but civilians
are clearly not being protected . . . [T]his issue cannot wait for a political solution to
the conflict. Addressing this situation should be a top priority . . .” 74
13. This evidence is compelling and unequivo cal. It shows that ethnic Georgians who
remain today in South Ossetia, Abkhazia and ot her parts of Georgia currently under Russian
occupation are at imminent risk of violent att ack and forced expulsion by what UNHCR has called
“marauding militias”. It also identifies the acts and omissions of the Russian authorities that
exacerbate this risk, indicating that measures ordere d by this Court can have a real effect on those
who are contributing to the risk or turning a blind eye. The evidence is deeply disturbing. It shows
a present failure, and a risk of continuing failure, on the part of the Russian authorities to ensure
that rights for ethnic Georgians under the Conventio n are respected, particularly those Georgians
who still live in South Ossetia and other regions of Georgia presently occupied by Russian forces,
and those who wish to return to their homes in those regions. The evidence of Russian
involvement and of continued abuse is clear and immediate. As the Foreign Minister of France
71
International Committee of the Red Cross, ICRC feature, “Georgia: uncertainty about the future haunts the
displaced” (17 Aug. 2008).
72Amnesty International, Amnesty International News and Updates, “Continuing concern for civilians after
hostilities in Georgia” (22 Aug. 2008).
73Human Rights Watch, Human Rights News, “Georgian Villages in South Ossetia Burnt, Looted”
(13 Aug. 2008).
74Human Rights Watch, Human Rights News, “EU: Protect Civilians in Gori District. Security of Civilians
Should Be Central to Summit Discussion on Russia” (28 Aug. 2008). - 57 -
reported at the end ofAugust— at tab10 of th e judges’ folder: “Ru ssian troops are sweeping
through [Akhalgori] pushing Georgians out and over the border. It’s ethnic cleansing, creating a
homogeneous South Ossetia.” 75
14. Also in imminent danger, and equally in need of protection, are the rights of
approximately 42,000ethnic Georgians living in the Gali district of Abkhazia. They are the last
remaining Georgians in Abkhazia, a region where Ge orgians formerly constituted the majority of
the population. The approximately 3,000Georgians who lived in the Kodori Gorge area of
Abkhazia have been forcibly expelled since the filing of Georgia’s Application. Those presently
living in the Gali region are especially vulnerable becau se they are all that is left of the Georgian
community in Abkhazia, and they are surrounded by Russian forces and allied separatist militias,
and cut off from contact with the rest of Georgia.
15. The witness statements that have been submitted provide further evidence of the real risk
of continued ethnic cleansing by Russian military forces and separatist militias operating behind
Russian lines, especially in those areas that still have significant Georgian populations. The
witness statements are consistent with and corrobor ate the reports of respected international and
non-governmental organizations like UNHCR, ICRC, Human Rights Watch, and Amnesty
International, and together with these reports c onstitute a consistent body of evidence mutually
reinforced by multiple sources. These statements , by the victims themselves, merit the Court’s
careful attention, not to prove what has happened in the past but to indicate what is likely to happen
in the very near future if the Court does not act . Professor Akhavan has read from some of these
statements. They constitute particularly compelli ng evidence of the ongoing and recurrent risk of
violent attack and forced expulsion confronting ethnic Georgians in Russian-controlled territory,
and of irreparable loss of the rights at issue in this case.
16. Also at risk of irreparable and irreversible loss is the right of return of the 158,000 ethnic
Georgians who have been violently expelled fro m South Ossetia and Abkhazia within the past
30days alone, and who have not been permitted to return, even though the right of return is
expressly guaranteed by Article5 of the Convention. In stark contrast with the plight of these
75
Euronews.net, “Russia: Kouchner claims ethnic cleansing in Georgia” (27 Aug. 2008). - 58 -
displaced ethnic Georgians, thousands of ethnic Ossetians have been permitted to exercise their
right of return to South Ossetia. It appears that this is a deliberate policy of the de facto authorities
in South Ossetia. At tab 21 of the judges’ folder is an interview with the separatist leader of South
Ossetia who was asked, on 15August: “Will Georgian civilians be allowed to return?” He
responded: “We do not intend to let anybody in here anymore. More than 18,000 Ossetian
refugees from Georgia are currently in North Ossetia . They are to be returned to South Ossetia.” 76
Not so for ethnic Georgians. In fact, as the Ag ent of Georgia said this morning, the number of
ethnic Georgians forcibly displaced from Georgi an territory under Russian control increased by
approximately 10,000 in the ten-day period that ended Friday last, on 5 September. And with each
passing day, the likelihood of exercising their righ t of return diminishes. History shows this.
Examples abound in displaced persons camps around th e world, many of which have taken on the
character of permanent settlements. Georgians themselves prove this point. Some 300,000 of them
became exiles in their own country during earlier waves of ethnic cleansing, which forced them out
of South Ossetia and Abkhazia in the 1990s. They still have not been allowed to return, and after
more than a decade of exile, the possibility of their eventual homecoming is becoming more
remote.
17. The evidence shows that the rights in disput e are threatened with harm that by its very
nature is irreparable. Without action now, ther e is no relief the Court could order in its judgment
on the merits that could or would adequately repair the damage to these rights in the event of a
judgment in Georgia’s favour. No satisfaction, no award of reparations, could ever compensate for
the extreme forms of prejudice to the rights at issue here. Killings, beatings and physical injuries
cannot be uninflicted. Communities that are elimin ated, through burning and destruction of homes
and entire villages, and forced expulsion of the popul ace, cannot be easily re-established, if at all.
Time spent imprisoned or displaced cannot be added back to a life. Discrimination cannot be
undone.
18. Long ago, the Permanent Court of International Justice ruled that prejudice was
irreparable if it “could not be made good simply by the payment of an indemnity or by
7Republic of South Ossetia State News Agency, Press conference conducted in the International Press Centre of
Tshinvali (26 Aug. 2008). - 59 -
compensation or restitution in some other material form” 77 (Denunciation of the Treaty of
2November 1865 between China and Belgium, Orders of 8January, 15 February and
18 June 1927, P.C.I.J., Series A, No. 8, p.7). This Court has adhered to that formulation. In the
Aegean Sea Continental Shelf case, for example, it held that Turkey’s alleged breach of the
exclusivity of the right claimed by Greece did not constitute a risk of irreparable prejudice
78
precisely because it was “one that might be capable of reparation by appropriate means” (Aegean
Sea Continental Shelf (Greece v. Turkey), Interim Protection, Order of 11September 1976 , I.C.J.
Reports 1976, p. 11, para. 33).
19. In cases like this one, involving actual and threatened harm to human beings, including
potential loss of life or bodily injury, the Cour t has not hesitated to find the potential injury
“irreparable”. Indeed, if there is one category of cases in which the Court has consistently granted
provisional measures, it is when the lives or health or welfare of human beings are at stake.
20. The Court’s most recent provisional measures ruling on 13July2008, just two months
ago, is a good example. The Court ordered provisional measures because Mexican nationals in
United States prisons faced execution unless the Court intervened. The Court’s decision followed a
body of similar precedent established in the Germany and Paraguay cases (LaGrand (Germany v.
United States of America), Provisional Measures , Order of 3 March 1999, I.C.J. Reports 1999 (I) ,
p. 9; Vienna Convention on Consular Relations (Paraguay v. United States of America),
Provisional Measures, Order of 9 April 1998, I.C.J. Reports 1998 , p. 248), and in an earlier phase
of the same Mexico case ( Avena and Other Mexican Nationals (Mexico v. United States of
America), Provisional Measures, Order of 5 February 2003, I.C.J. Reports 2003, p. 77).
21. The Court’s readiness to order provisional measures is not limited to these cases. It has
done so in all kinds of cases involving the threat of harm to people. Thus, provisional measures
were indicated in all of the following cases, each of which involved actual or threatened harm to
human beings: the Nuclear Tests cases, United States Diplomatic and Consular Staff in Tehran ,
Military and Paramilitary Activities in and against Nicaragua , Application of the Convention on
77
“la violation éventuelle . . . ne saurait être réparée moyennant le versem ent d’une simple indemnité ou par une
autre prestation matérielle”.
7“si ce droit était établi, donner lieu à une réparation appropriée”. - 60 -
the Prevention and Punishment of the Crime of Genocide , Land and Maritime Boundary between
Cameroon and Nigeria, and Armed Activities on the Territory of the Congo.
22. There is nothing to distinguish the underlying principle in those cases from this one. The
intrinsically irreparable nature of harm to peopl e is most succinctly captured in the provisional
measures order in the Diplomatic and Consular Staff case in which the Court observed that the:
“continuance of the situation the subject of the present request exposes the human
beings concerned to privation, hardship, anguish and even danger to life and health
79
and thus to a serious possibility of irreparable harm” (United States Diplomatic and
Consular Staff in Tehran (United States of America v. Iran), Provisional Measures,
Order of 15 December 1979, I.C.J. Reports 1979, p. 20, para. 42).
23. The Court made a similar point in the Democratic Republic of Congo/Uganda case in
which the Congo’s provisional measures request related to the need to protect persons and property
threatened by the armed conflict between Uganda n and Rwandan forces in the Congolese city of
Kisangani. The Court stated:
“in the circumstances, the Court is of the opinion that persons, assets and resources
present on the territory of the Congo, particularly in the area of conflict, remain
extremely vulnerable, and that there is a serious risk that the rights at issue in this
80
case . . . may suffer irreparable prejudice” (Armed Activities on the Territory of the
Congo (Democratic Republic of the Congo v. Uganda), Provisional Measures, Order
of 1 July 2000, I.C.J. Reports 2000, p. 128, para. 43).
24. The risk that the rights at issue in a case may suffer irreparable prejudice is not
necessarily removed by a suspension or cessation of the military hostilities that initially provided
the context in which the risk was ge nerated. This issue arose in the Cameroon v. Nigeria case on
Cameroon’s request for the indication of provisional measures to prevent the irreparable harm to its
rights that was threatened by the armed clashes between the two States in the Bakassi Peninsula.
Nigeria argued that in light of a ceasefire brokered by the President of Togo several weeks before
Cameroon’s request was heard by th e Court, the issue was moot ( Land and Maritime Boundary
between Cameroon and Nigeria (Cameroon v. Nigeria), Provisional Measures, Order of
15 March 1996, I.C.J. Reports 1996 (I), p.22, paras.36-37). The Court rejected Nigeria’s
7“la persistance de la situation qui fait l’objet de la requête expose les êtres humains concernés à des privations, à
un sort pénible et angoissant et même à des dangers pour leur vie et leur santé et par conséquent à une possibilité sérieuse
de préjudice irréparable”.
8“Considérant qu’au vu des circonstances, la Cour est d’av is que les personnes, les bi ens et les ressources se
trouvant sur le territoire du Congo, en particulier dans la zone de conflit, demeurent gravement exposés, et qu’il existe un
risque sérieux que les droits en litige dans la présente espèce, tels que décrits au paragraphe 40 ci-dessus, subissent un
préjudice irréparable.” - 61 -
argument, finding that “this circumstance does not, however, deprive the Court of the rights and
duties pertaining to it in the case brought before it” 81 (ibid., para. 37). The Court’s determination
in this respect was predicated on the fact “from the elements of information available to it, the
Court takes the view that there is a risk that ev ents likely to aggravate or extend the dispute may
82
occur again, thus rendering any settlement of that dispute more difficult” (ibid., p. 23, para. 42).
In the present case, neither the unilateral ceasef ire declared by Georgia on 10August, or the
ceasefire brokered by the President of France on 13 and 16August, stopped the ethnic violence
against Georgian civilians. The reports of in dependent international and non-governmental
organizations, and the statements of witnesses, all show that the widespread violations of the rights
of ethnic Georgians under the Convention grew even worse after military engagements ceased, that
they have continued unabated since then, and that they are continuing still.
25. It is also instructive to consider the Court’s opinion on provisional measures in the
Bosnia case. There, as the Court is well aware, Bosnia claimed rights under the Genocide
Convention that were allegedly threatened with irreparable harm. In particular, Bosnia sought
interim protection in light of what it argued were acts attributable to Serbia of murder, summary
executions, torture, rape, mayhem and ethnic cl eansing. Bosnia claimed the acts were being
committed not only by Serbia directly, but also indirectly through its control of and support of local
paramilitary forces (Application of the Convention on the P revention and Punishment of the Crime
of Genocide, Provisional Measures, Or der of 8 April1993, I.C.J. Reports 1993 , p.3, p.21,
para. 41.) Serbia, for its part, argued that provisional measures were not warranted because, inter
alia, there was “no credible evidence that its Government ha[d] committed acts of genocide against
83
anyone” (ibid., para. 43).
26. The Court ordered provisional measures, including the following:
“The Government of the Federal Republic of Yugoslavia (Serbia and
Montenegro) should in particular ensure th at any military, paramilitary or irregular
81“considérant que cette circonstance ne prive cependant pas la Cour des droits et devoirs qui sont les siens dans
l’affaire portée devant elle”.
82“considérant qu’au vu des éléments d’information à sa dis position la Cour est d’avis qu’il existe un risque que
des événements de nature à aggraver ou à étendre le différend puisse nt se reproduire, rendant ai nsi toute solution de ce
différend plus difficile”.
83“il n’existe aucun élément de pre uve crédible que son gouvernement ait commis des actes de génocide contre
quiconque”. - 62 -
armed units which may be directed or supported by it, as well as any organizations and
persons which may be subject to its control, direction or influence, do not commit any
acts of genocide. ” (Ibid., para. 52 (B); emphasis added.)
27. In deciding to indicate provisional measures in that case, the Court did not make any
binding factual determinations re garding the conduct of Serbia. In fact, it specifically reiterated
that it did not have the power to do so at the provisional measures stage:
“Whereas the Court, in the context of the present proceedings on a request for
provisional measures, has in accordance with Article 41 of the Statute to consider the
circumstances drawn to its attention as requiring the indication of provisional
measures, but cannot make definitive findings of fact or of imputability , and the right
of each Party to dispute the facts alleged agai nst it, to challenge the attribution to it of
responsibility for those facts, and to submit arguments in respect of the merits, must
remain unaffected by the Court’s decision . ” (Ibid., para. 44; emphasis added.)
28. This is a very helpful articulation, we submit, of the role of the Court, as well as that of
the parties, at the provisional measures phase. The Court need not, indeed it cannot, decide the
facts or the matter of attribution at this phase of the proceedings. Accordingly, it is not incumbent
on Georgia to prove at this phase that the acts it a lleges have been committed, or that they are in
fact attributable to Russia. Nor is it Russia’s role to prove that they were not committed, or that, if
committed, the responsible party was beyond Russia’ s control, direction or influence. Russia
cannot avoid the indication of provisional measures, therefore, by simply denying that the events
suggested by the evidence took place, or by denying its responsibility for them. The issue for the
Court on provisional measures is this: is the evid ence sufficient to satisfy the Court that there is a
risk of irreparable harm to the rights in dispute, and that the risk of such harm is sufficiently serious
and imminent that provisional meas ures are required to protect the threatened rights. Georgia
submits that, under any view of the evidence, that test is easily satisfied here.
29. This conclusion is reinforced by the pe remptory nature of the norms imposed by the
1965 Convention. In the Genocide case, the Court stressed that provisional measures were
warranted in part in light of the parties’ unamb iguous and indisputable duty “to prevent” the crime
84“Le Gouvernement de la République fédé rative de Yougoslavie (Serbie et M onténégro) et le Gouvernement de
la République de Bosnie-Herzégovine doivent ne prendre aucune mesure et veiller à ce qu’il n’en soit prise aucune, qui
soit de nature à aggraver ou étendre le différend existant sur la prévention et la répression du crime de génocide, ou à en
rendre la solution plus difficile.”
85“Considérant que la Cour, dans le contexte de la pr ésente procédure concernant l'indication de mesures
conservatoires, doit, conformément à l’article 41 du Statut, examiner si les circonstances portées à son attention exigent
l’indication de mesures conservatoires, mais n'est pas habilitée à conclure définitivement sur les faits ou leur imputabilité
et que sa décision doit laisser intact le droit de chacune des Parties de contester le s faits allégués contre elle, ainsi que l a
responsabilité qui lui est imputée quant à ces faits et de faire valoir ses moyens sur le fond.” - 63 -
of genocide under Article1 of the Genocide Conventi on. It ordered that the parties, “whether or
not any such acts in the past may be legally imputable to them, are under a clear obligation to do all
in their power to prevent the commission of any such acts in the future” 86 (ibid., para. 45).
30. It is the same here. The parties to the 1965 Convention are under a clear and unqualified
obligation under Article2 (b) “not to sponsor, defend or support racial discrimination by any
persons or organizations”. They are expressly obligated by Article 2 (d) to “prohibit and bring to
an end, by all appropriate means.. racial discr imination by any persons, group or organization”.
And Article 5 obligates them “to prohibit and to eliminate racial discrimination in all its forms”.
31. These obligations are mandatory in times of war as well as peace, as Professor Crawford
has stressed. Russia may challe nge the facts, but it cannot deny its obligations under the
Convention. No State is entitled to permit or condone ethnic violence. No State may lawfully turn
a blind eye to such discrimination. No State may force people from their homes based solely on
their ethnicity, or deny such people the right of return to their native towns and villages.
Accordingly the provisional measures Georgia has requested pose no threat of any kind to the
rights of Russia. All that Georgia seeks is an order requiring Russia explicitly to do what it is
already indisputably required to do by the Convention ⎯ to stop targeting ethnic Georgians for
discrimination, and to stop others under its contro l, direction or influence from denying ethnic
Georgians the rights guaranteed by the Convention. Provisional measures that order a party to
fulfill its specific obligations under the Conventio n represent the minimum the Court can and must
do. In doing so, the Court reaches no conclusion on the merits, or on any factual or legal issue
which may be in dispute.
There is an urgent need to protect the rights in dispute
32. I will turn now, Madam President and Members of the Court, to the third and final part of
my presentation, which addresses the matter of urgency. The urgency of the measures requested by
Georgia is self-evident. To be sure, the defin ition of urgency in the Court’s jurisprudence has
evolved. As I have already mentioned, in cases like Great Belt , the Court has indicated that
8“Yougoslavie et la Bosnie-H erzégovine, que de tels actes commis danle passé puissent ou non leur être
imputés en droit, sont tenues de l'inc ontestable obligation de faire touest en leur pouvoir pour en assurer la
prévention à l'avenir.” - 64 -
urgency exists when action prejudicial to the rights in dispute is likely before the final decision is
given. More recently, and especially in its Order denying provisional measures sought by
Argentina in the Pulp Mills case, there is a suggestion by the Court that urgency implies imminence
of threatened harm, such that provisional measure s are indicated when the risk to the rights in
dispute is imminent.
33. Under either approach, the standard is plainly met here. The risk of irreparable prejudice
to the rights at issue in this case is not only immi nent, it is already happening. Actions prejudicial
to these rights are not only possible or very likely in the near future; they are occurring now, and
they are very likely to continue to occur unless and until the Court orders that they be stopped. The
facts that we have brought to the Court’s attention today show that the ethnic cleansing and other
forms of prohibited discrimination carried out against Georgians in Abkhazia, South Ossetia and
other regions occupied by Russian forces is still o ccurring, and that it is likely to continue to occur
and to recur absent the provisional measures Georgia has requested. Accordingly, whatever
approach to urgency the Court might take, the requisite standard is plainly met in this case.
Conclusion
34. Madam President, Members of the Court, I come now to my conclusions, which I shall
state briefly. First, because of the grave and imminent risk of irreparable prejudice to the right
under Article5 of the 1965 Convention to “security of person and protection by the State against
violence or bodily harm”, to the “right of freedom of movement and residence”, to “the right to
own property”, and to the right “to return”, the Court should order the respondent State, as set forth
in paragraph 24 (a) of the amended Request for provisional measures, to
“take all necessary measures to ensure that no ethnic Georgians or any other persons
are subject to violent or coercive acts of racial discrimination, including but not
limited to the threat or infliction of death or bodily harm, hostage-taking and unlawful
detention, the destruction or pillage of property, and other acts intended to expel them
from their homes or villages in South Ossetia, Abkhazia and/or adjacent regions
within Georgia”.
Madam President, I note that it is one o’clock. With the Court’s indulgence, if I am allowed,
I would be able to finish my presentation in two minutes. Thank you. - 65 -
35. Second, because of the grave and imminent risk that acts prejudicial to these rights will
be committed by organizations or individuals that, whether or not they are organs of the respondent
State, are in any event subject to its direction, control or influence, the Court should order the
respondent State, pursuant to paragraph24 (b) of Georgia’s Request for provisional measures, to
“take all necessary measures to prevent groups or individuals from subjecting ethnic Georgians to
coercive acts of racial discrimination”, including the same kinds of acts that I have just described.
36. Third, to protect the right of return of ethnic Georgians, the Could should order the
respondent State, pursuant to paragraph 24 (d) of Georgia’s Request, to
“refrain from taking any actions or supporting any measures that would have the effect
of denying the exercise by ethnic Georgians and any other persons who have been
expelled from South Ossetia, Abkhazia, and ad jacent regions on the basis of their
ethnicity or nationality, their right of return to their homes of origin”.
37. Finally, in addition to these and the other specific requests set forth in paragraph24 of
the amended Request for provisional measures, Geor gia asks the Court, based on the independent
reports of respected humanitarian organizations that we have today brought to the Court’s attention,
to order the respondent State to permit and facilita te, and to refrain from obstructing, the delivery
of urgently needed humanitarian assistance to et hnic Georgians and others remaining in territory
that is under the control of Russian forces.
38. Madam President, Members of the Court, this concludes Georgia’s opening round
presentation. I thank you for your kind and courteous attention.
The PRESIDENT: Thank you, Mr.Reichler. This does indeed bring an end to the first
round of oral observations of Georgia. The Court will meet again at 3 p.m. this afternoon to hear
the first round of the oral observations of the Russian Federation.
The Court now rises.
The Court rose at 1.05 p.m.
___________
Audience publique tenue le lundi 8 septembre 2008, à 10 heures, au Palais de la Paix, sous la présidence de Mme Higgins, président, en l'affaire relative à l'Application de la convention internationale sur l'élimination de toutes les formes de discrimination raciale (Géorgie c. Fédération de Russie)