Non-Corrigé
Uncorrected
CR 2008/25
International Court Cour internationale
of Justice de Justice
THHEAGUE LAAYE
YEAR 2008
Public sitting
held on Tuesday 9 September 2008, at 4.30 p.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 mardi 9 septembre 2008, à 16 h 30, 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 division au ministère de la défense de la Fédération de Russie,
M. Ilya Tiatkin, général de brigade 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 hear ing is open. We meet this afternoon for the
second round of the oral observations of Georgia on its Request for the indication of provisional
measures and I will immediately call upon Professor Crawford.
CMRA. WFORD:
1. URISDICTION OVER AND ADMISSIBILITY OF G EORGIA ’S REQUEST
Introduction
1. Madam President, Members of the Court, before dealing with various objections to
jurisdiction and admissibility of the Request, so me preliminary remarks are called for by the
presentation of the Russian Federation yesterday.
A. Preliminary remarks
The submissions of the Russian Federation focused on the merits
2. The first preliminary remark concerns the relation between these proceedings and the
merits.
3. Madam President, Georgia was attentive to your clarification yesterday as to what the
1
focus of this hearing is under Practice Direction XI. The merits of the dispute are only relevant in
so far as they relate to the factual basis for th e provisional measures requested. Georgia has been
explicit that the escalation in violence against ethni c Georgians in August of this year provides the
factual basis for our Request for provisional measu res and explains their urgency. Despite the
Court’s unambiguous parameters, the Russian Co-Agent dedicated the major part of his
presentation to an account of the ethnic conflic t from the eighteenth century onwards, finally
2
arriving at August 2008 . But precious little was said about facts on the ground over the past few
weeks and no evidence was referred to for that purpose.
1
CR 2008/22, p. 16.
2CR 2008/23, pp. 17-22, paras. 2-31 (Gevorgian). - 11 -
4. ProfessorZimmermann also trespassed onto the merits by raising various questions of
attribution and breach. In relation to attribution, he said: “even at this stage, Georgia has to make
its case, and cannot be allowed to merely assert it” 3. In relation to the issue of breach, he said:
“Were the Court to adopt these measures , it would have to share the underlying
assumption that Russia is indeed committing su ch acts, without the Court previously
having had an4 chance to verify the underlying alleged facts in an orderly
procedure.”
With respect, these remarks reveal some confusi on about the function of provisional measures.
Whether certain acts breach an obligation and whethe r they are attributable to the respondent State
cannot possibly be the subject of adjudication by the Court in a provisional measures hearing, and
Practice Direction XI reflects this. In every case where the Court indicates provisional measures, it
is acting in a way that Professor Zimmermann now says is impermissible.
5. I do not, therefore, propose to cross swords with ProfessorZimmermann on questions
such as attribution. But I cannot resist responding to his assertion that:
“As a matter of fact, it is evident that both, during their time as recognized
autonomous regions within Georgia, as well as since their declarations of
independence, South Ossetia and Akbhazia ha ve not been mere instruments of the
5
Respondent lacking any real autonomy . . .”
6. “As a matter of fact” –– says Professor Zimmermann. Well, Madam President, Members
of the Court, you are the judge of the facts, but not yet. The only question at this stage is whether
facts are credibly asserted which, if true, would raise an issue under the Convention.
7. You will note that Mr.Wordsworth’s presen tation of the evidence tended to contradict
ProfessorZimmermann’s assertion. You will recall how he tried to mitigate the damage done by
the public remarks of the South Ossetian leader Mr.Kokoity. He referred to Mr.Kokoity’s
statement that “we do not intend to let anybody in here anymore”, and he continued:
“The Russian Ministry of Foreign Affairs immediately characterized
Mr.Kokoity’s remarks as ‘an emotional statement made under the impact of the
situation resulting from the massive armed assault on South Ossetia carried out by the
Georgian leadership’. The . . .Russian Ministry further stated that:
‘There are generally recognized rules of international law entitling
people to return to their former habitual residence when the
3CR 2008/23, p. 45, para. 20 (Zimmermann).
4
Ibid., p. 49, para. 36.
5Ibid., p. 45, para. 22. - 12 -
circumstances owing to which they had to leave them do not exist
anymore.’.” 6
8. Mr.Kokoity’s interview was given on 15 August. The Russian Ministry of Foreign
Affairs, knowing the case made against Russia before this Court, decided immediately to overrule
his policy of not allowing ethnic Georgians back into South Ossetia. After Russia publicly rebuked
his statement as “emotional”, Mr. Kokoity fell into line. Here is Mr. Wordsworth again:
“We also note that, on 22August, Mr.Kokoity met with the United Nations
High Commissioner for Refugees and stated that there would be no discrimination
based on ethnicity in the policy of voluntar y return of refugees and other displaced
persons.”
9. Madam President, Members of the Court, it is Georgia’s case that there is in fact, and has
long been, “discrimination based on ethnicity in the policy of voluntary return of refugees and other
displaced persons”, that this policy is associated with ethnic cleansing in relevant areas of Georgia,
that the process of ethnic cleansing continues and that to at least a significant degree it is
attributable to the Russian Federation. The Court will not expect us ⎯ indeed, Madam President,
you will not allow us ⎯ to prove this case at this stage. Thus whether Mr. Kokoity’s real view is
what he said in the press interview or (after he ha d received further instructions) what he said in
fronting up to the United Nations High Commissione r for Refugees is not something that you can
resolve here and now. What we have to show ⎯ and all that we have to show ⎯ is that such
policies raise admissible issues under the Conventi on and that there is a real risk of their
continuation pending further proceedings in this case, thereby causing irreparable harm.
10. I would also comment that the fact that even Mr.Kokoity found himself constrained to
correct his earlier utterances tends to show an awareness of the 1965 Conve ntion and its relevance
to ethnic cleansing and the right of return. One may wonder whether such awareness would long
survive the striking out of this case from the Genera l List. And this relates to another significant
feature of the Russian case yesterday. Professi ng their firm adherence to the 1965Convention,
they nonetheless present a series of exculpatory legal arguments that would not long survive
examination if we were at a later stage of the proceedings ⎯ and which need not detain you even
so long on this Request. “The Court is a last r esort” (this from M. Pellet, whose principal resort is
this Court and who persuaded the entire Court in Nicaragua that a bilateral treaty not even
6
CR 2008/23, p. 58, para. 23 (Wordsworth). - 13 -
mentioned in the Application ⎯ let alone in diplomatic exchanges ⎯ could be invoked on the
7
merits) . “Georgia has never complained about Russian complicity in ethnic cleansing and refusal
of the right of return” (this again from M. Pellet) 8. “The 1965 Convention does not apply abroad”
(this from Professor Zimmermann, who appears to th ink that Article 29 of the Vienna Convention
9
is somehow relevant to this issue) . “There is no obligation of prevention” (this again from
Professor Zimmermann, who appears to have overlooked phrases such as “eliminate” and “bring to
10
an end” in Article2) . With all apologies to St.Augustine, it is as if the Russian Federation is
heard to say: “Lord, make me accountable ⎯ but not very accountable and certainly not now, and
certainly not for this!” If the facts are as they say, they have nothing to fear from the Court.
11. I also note in passing that the evidence of key members of the de facto Government in
South Ossetia being concurrently employed by the Russian military and intelligence services,
presented by ProfessorAkhavan yesterday 11, has not been contradicted. ProfessorZimmermann
appeared to think it common ground that such authorities are not de facto organs of the respondent
State 12: but that is not common ground at all. Of course your provisional measures order will be
addressed exclusively at the Russian Federation and will only concern acts contrary to the
Convention that are attributable to the Russian Federation.
No evidence of facts on the ground in Abkhazia and South Ossetia adduced by Russia
12. My second preliminary remark concerns, MadamPresident, your second remark in
opening yesterday, when you said that the Court particularly seeks “the assistance of the Parties . . .
13
in identifying the situation as it presently is” .
13. As I have said, Russia’s submissions yest erday delved into the history of the ethnic
conflict and relied heavily on arguments about attribution; yet these topics are entirely peripheral
to the present phase. What does o ccupy centre stage is the situati on that currently exists on the
7CR 2008/23, p. 35, para. 25 (Pellet).
8
Ibid., pp. 32-33, para. 18 (Pellet).
9
Ibid., p. 42, para. 9 (Zimmermann).
10
Ibid., p. 48, para. 31 (Zimmermann).
11CR 2008/22, pp. 43-44, paras. 18-20 (Akhavan).
12CR 2008/23, p. 44, para. 22 (Zimmermann).
13
CR 2008/22, p. 16. - 14 -
ground in the regions. This was the focus of Pr ofessor Akhavan’s presentation. The extraordinary
omission that characterized Russia’s presentations was the absence of any attempt to adduce its
own evidence as to what is happening there. Of the two Parties before this Court, there cannot be
any doubt which is currently in a better position to engage in fact finding on the ground. Georgia is
confined to interviewing IDPs, relying upon the reports of NGOs, studying satellite imagery:
Russian forces are physically present in these regi ons in substantial numbers. Russia is in a
position to counter Georgia’s evidence of wide spread burning of houses, looting and other
manifestations of the ethnic violence that has sw ept the regions in the l ast few weeks, since the
ceasefire. But it has failed to do so.
14. I would add that what facts the respondent State did assert, through counsel, bear no
relation to the facts as we understand them. My colleagues will–– as far as appropriate–– deal
with these matters shortly.
The provisional measures ordered by the European Court of Human Rights
15. My third preliminary remark concerns the provisional measures ordered by the European
Court of Human Rights on 12 August and since reaffirmed. Mr. Wordsworth appeared to suggest
that the proceedings before this Court have been rendered moot by virtue of the European Court’s
order. That proposition cannot be accepted.
16. There is, it is true, overlap between th e rights guaranteed under Article5 of the
1965Convention and the rights protected by the ECHR. There are four individual complaints
made under the ECHR relating to human rights abuses in the regions, in addition to the inter-State
14
proceedings between the two Parties . The order of the European Court is exhibited at tab 29.
17. The question for the Court is whether this order renders inadmissible the Request made
to this Court.
18. As I have said, the underlying purpose of the 1965 Convention is to provide a last line of
defence against discriminatory practices implicating the constitution and composition of territorial
1Mamasakhlisi v. Russian Federation and Georgia (Application 29999/04); Mekhuzla, Sania, Duali,
Gogia etal. v. Russian Federation and Georgia (Application 5148/05)Nanava v. Russian Federation and Georgia
(Application 41424/04); Parastaevi v. Russian Federation and Georgia (Application 50514/06). - 15 -
15
communities . Surely there can be no principle of admissibility serving the administration of
justice that would disable a State facing the most acute crisis in its history from invoking specific
rights before this Court? Mr.Wordsworth cited no authority to that effect. Surely Georgia is
entitled to pursue legal remedies in each forum availa ble to it. This is especially the case when the
rights in issue in the two proceedings are different in substance.
B. Jurisdiction and admissibility
19. Madam President, Members of the Court, I turn briefly to the questions of jurisdiction
and admissibility.
Characterization for the purposes of the Court’s ratione materiae jurisdiction
20. It was Professor Pellet who addressed the question of characterization ⎯ that is, whether
the dispute submitted by Georgia to this Court falls within the four corners of the 1965 Convention.
First, he quotes a truncated paragraph from Geor gia’s initial Request for provisional measures,
16
which, he says, “annonce la couleur” of the dispute . Then he asserts that the present dispute
relates solely to the unlawful uses of force in August 2008 1.
21. But, to restate, Georgia’s claims in its Application and the rights it asserts in both the
initial and amended Requests are grounded in the 1965 Convention and in th at Convention alone.
Georgia makes no claim here under international humanitarian law or the jus ad bellum. That can
be tested simply by reading Georgia’s Requests.
22. ProfessorPellet says that Georgia’s amended Request suffers from the same flaw
18
because, in any event, “il s’agit bien de la même demande, fondée sur les mêmes faits” . So
Professor Pellet’s second point is that the facts relied upon by Georgia to establish a prima facie do
not engage the obligations under the 1965 Convention.
15
CR 2008/22, p. 38, para. 67.
16CR 2008/23, p. 29, para. 10 (Pellet).
17Ibid., p. 29, para. 11 (Pellet):
“On ne saurait dire plus crûment que l’objet du différend que la Géorgie voudrait voir examiné par la
Cour ne consiste nullement en de prétendues violations par la Russie de ses obligations en vertu de la
convention de 1965, mais qu’il repose (et repose seulement) sur des allégations d’interventions illicites et
contraires au droit international humanitaire en Ossétie du Sud et en Abkhazie.”
18Ibid., p. 30, para. 12 (Pellet). - 16 -
23. Madam President, Members of the Court, I opened my own presentation yesterday with
19
the words: “This case is about the ethnic cleansing of Georgians . . .” . Professor Akhavan, who
followed me, dedicated the major part of his pr esentation to the evidence of ethnic cleansing.
Ethnic cleansing is a prohibited form of discr imination under the 1965Convention. That
proposition was not put in dispute yesterday. So I re turn to Professor Pellet’s point about the facts.
Russia can deny that ethnic cleansing has ta ken place in Abkhazia and South Ossetia and in
adjacent regions, or it can say that it is not responsible for it: despite Russia’s best efforts, this is
just something that will happen, even in the best households. Such issues are for the merits. But
what does Russia say about the connection between the facts asserted by Georgia and the
Convention’s obligations? That is the jurisdicti onal question for the Court today. And in that
respect Professor Pellet’s speech was a fact-free zone.
24. ProfessorPellet says that our documents show that we never mentioned the
1965 Convention, and that:
“pour sa part le mot ‘discrimination’ (et cela vaut aussi pour ses déclinaisons) apparaît
une fois, une seule, dans la déclaration d’un témoin, qui impute d’ailleurs l’acte
discriminatoire en question non pas à la Russie mais aux ‘autorités abkhazes de
20
fait’” .
25. ProfessorPellet’s French is always forma lly perfect–– unlike my pronunciation of it.
But it has been deployed to make a very formalistic point indeed. It amounts to this: the 248 pages
of Georgia’s evidence only refer on ce to the word “discrimination”; therefore, this cannot be a
dispute under the 1965 Convention.
26. But if you turn to the first of these 248 pages, you will see references to reports entitled
“Georgia: Satellite Images Show Destruction, Et hnic attacks”, “Status of internally displaced
persons and refugees from Abkhazia, Georgia”, “R eports of lawlessness creating new forcible
displacement in Georgia” ⎯ and then on page 2 ⎯ “South Ossetian police tell Georgians to take a
Russian passport, or leave their homes”, “Franc e accuses Russia of Ethnic Cleansing”, “Russia:
Kouchner claims ethnic cleansing in Georgia”, “S outh Ossetia emptied of Georgians”, “Fanning
Ethnic Flames in Georgia” and “Looting and ethnic cleansing against Georgian enclaves”.
19
CR 2008/22, p. 20, para. 2 (Crawford).
2CR 2008/23, pp. 31-32, para. 15 (Pellet). - 17 -
27. Now, it is true, there is no reference to the word “discrimination” in these first two pages.
But ProfessorPellet’s point is only a good one if this Court is prepared to accept that ethnic
cleansing and other violence targeted against ethnic groups cannot amount to discrimination for the
purposes of Article1 of the Convention. That wo uld be tantamount to saying that torture cannot
satisfy the definition of grievous bodily harm.
28. The fundamental point is this. Internati onal relations are not governed by the forms of
action, and this is particularly so when it comes to peremptory norms of international law. As I
demonstrated yesterday–– and as the Respondent appears to accept–– the 1965Convention is
applicable as a matter of international public polic y, and its application is independent of specific
invocation by a party. The question is ⎯ as you held in Nicaragua ⎯ whether the facts as
presently and plausibly alleged raise an issue cove red by the Convention. Mr. Kokoity now seems
to think that they do, to ju dge from his most recent professions. It is curious to find
Professor Pellet behindhand on this point, as compared with the South Ossetian leader.
29. Of course, there is an admissibility issue, but it is not a formalistic one. In the NATO
cases, at the provisional measures stage, you rightly held that the NATO actions there were not in
the circumstances capable of raising an issue under the Genocide Convention (Legality of Use of
Force (Yugoslavia v. Belgium), Provisional Measures, Order of 2 June 1999 ). If you think that
ethnic cleansing and the denial of the right of return are not governed by the 1965 Convention ⎯ in
the NATO sense ⎯ then, of course, it is for you to say so. But we say the position is otherwise.
The obligation to negotiate
30. I turn to another issue concerning the admi ssibility of this Request: the phrase “which is
not settled by negotiation” in Article 22.
31. Yesterday, ProfessorPellet described the submission of a dispute concerning the
Convention to this Court as “un ultime recours lorsque toutes les autres possibilités se sont révélées
inopérantes” 21.
32. But in the most authoritative commentary on the Convention, the 1970 Commentary by
Natan Lerner 22, there is no support for such a restrictive interpretation of Article22. The
21
CR 2008/23, p. 35, para. 24 (Pellet). - 18 -
commentary merely notes that a dispute between the parties under the Convention may be referred
to this Court at the request of either party “[w]hen such disputes are not settled by negotiation or by
23
the procedures expressly provided for in the Convention” . There is no mention in the
commentary of the Court being a “last resort”. Nor was this an agreed position taken during the
negotiations.
33. A broad approach is consistent with the liberal interpretation Lerner advocates in relation
to Article16 of the Convention. Article16 concerns recourse to procedures outside the
Convention. It is inconsistent with the notion th at there is a remedial hierarchy imposed by the
Convention, with the Court (so to speak) as the last station at the end of a long line. As Lerner
comments:
“it is apparent that no single machinery for the implementation of the several human
rights instruments can at this stage be creat ed. Different machineries do exist, on the
double level of different fields covered and th e regional and universal level. None of
these machineries go far enough and it could not have been the intention of the United
Nations members, . . . to impose a restrictive interpretation on Article 16.” 24
The same is true, we say, of Article 22.
34. Yesterday I cited your decision in Nicaragua, and the separate opinion of
25
Sir Robert Jennings, who was not exactly a jurisdictional radical . That represents the consistent
approach this Court has taken to provisions such as Article 22.
35. I also discussed Congo v. Rwanda 26. Article 29 of CEDAW has some similarities to our
Article22, but there is an important difference. Article29 of CEDAW does have the Court as a
fall-back mechanism. The normal method of judi cial settlement under CEDAW is arbitration, but
that requires a compromis ⎯ it is only when the parties to the dispute have failed within six months
to agree a compromis that this Court can be seised. Arbitration is the first judicial resort.
36. By contrast under the 1965 Convention the only form of judicial settlement is this Court.
The only form of binding third party settlement is you. If international law is to be respected at
22
N Lerner, The U.N. Convention on the Elimination of All Fo rms of Racial Discrimi nation: A Commentary ,
(A W Sijthoff, Leyden, 1970).
23
Ibid., p. 104.
24
Ibid., p.99.
25CR 2008/22, p. 33, para. 51 (Crawford).
26Ibid., pp. 34-35, paras. 55-56 (Crawford). - 19 -
times of crisis, the principle must be that judicial settlement is not a last resort but an available
resort, and that if conditions préalables to judicial settlement are to be imposed it must be done in
clear terms.
37. In any event, I note that even where an obligation to negotiate prior to seising the Court
does exist, it is well established that it does not re quire the parties to continue with negotiations
which show every sign of being unproductive (see, for example, Mavrommatis Palestine
Concessions, Judgment No.2, 1924, P.C.I.J., SeriesA, No.2, pp.13-15; South West Africa
(Ethiopia v. South Africa; Liberia v. South Africa), Preliminary Objections, Judgment, I.C.J.
Reports 1962, p.346; Applicability of the Obligation to Arb itrate under Section21 of the United
Nations Headquarters Agreement of 26June1947 , Advisory Opinion, I.C.J. Reports 1988,
pp.33-34, para.55). Discussions and negotiations with the Russian Federation in relation to the
27
return of IDPs have been ongoing since 2003, as noted yesterday . Yet during this period things
got worse, not better ⎯ and now, despite Mr. Wordsworth, they are worse still.
38. Georgia has consistently raised the probl em of ethnic violence against Georgians in the
region in the public sessions of international orga nizations to which Russia is a party. These
include the United Nations Human Rights Committee, the Committee Against Torture and the
European Commission against Racism and Intolerance. By way of example ⎯ many examples
could be given ⎯ the Georgian President said the following at the Sixth-First session of the Unit
ed
Nations General Assembly on 22 September 2006, which you will find at tab 30 of your folders:
“Since the deployment of Russian pea cekeepers in Abkhazia, Georgia, more
than 2,000 Georgian citizens have lost their lives and more than 8,000 Georgian
homes have been destroyed. For more than 12 years, Russian peacekeepers have been
unable to facilitate the return of more th an 250,000 internally displaced persons to
their homes in Abhazia ⎯ though this is an explicit part of their mandate.” 28
The President of Georgia confirmed the substance of this statement to the General Assembly a year
later in September 2007 29. He made an explicit reference to “ethnic cleansing” . 30
27
See CR 2008/22, pp. 35-36, paras. 57-59 (Crawford).
28Statement by H.E.MrMikheilSaakashvili, President of Georgia at the Sixty-First Session of the United
Nations General Assembly, 22 Sept. 2006, available at www.un.org/webcast/ga/61/gastatement22.shtml.
29Statement by H.E.MikheilSaakashvili, President of Ge orgia, at the General Debate of the Sixty-Second
Session of the General Assembly of the United Nations, 26 Sept. 2007,
30Statement by H.E.MrMikheilSaakashvili, President of Georgia at the Sixty-First Session of the United
Nations General Assembly, 22 Sept. 2006, available at http://www.un.org/webcast/ga/62/2007/pdfs/georgia-en.pdf. - 20 -
Madam President, we have given to the Cour t in response to the challenge yesterday, an
Exchange of Letters between the Presidents of th e two Governments dated 23 June and 1 July. I
will not refer to them unless the Court would like me to do so. I think Professor Pellet says that he
is happy, but . . .
The PRESIDENT: Please continue.
Mr. CRAWFORD:
39. Russia admonished Georgia yesterday for failing to raise these forms of discrimination in
bilateral negotiations with Russia. But I refer to the letter of the Georgian President to the Russian
President dated 23 June 2008 and the Russian Preside nt’s response of 1 July 2008. We have given
the Court the originals and translations. The Geor gian President requested a “serious dialogue” in
relation to a catalogue of problems facing Abkhazia. The first on the list was the safe return of
internally displaced persons to the Gali and Ochamchirski regions of Abkhazia. In his response,
which you can read and judge for yourself, the Russian President made it clear that, in relation to
working out a solution to these problems, “the principal partner must be Abkhazia”.
Jurisdiction ratione loci
40. Madam President, Members of the Court, I will not talk very much about jurisdiction by
reference to place. I note only that the most in structive precedent for the present circumstances is
Ilaşcu v. Moldova and Russia ⎯ a case I cited yesterday 31but which ProfessorZimmermann
ignored. The European Court concluded that Russia’s “military, economic, financial and political
support” 32 to the separatist régime there meant that the region came within Russia’s control and
therefore jurisdiction for the purposes of Article 1 of the European Convention. If Russian control
was found to exist over the region called the “M oldavian Republic of Transdniestra” without
military occupation, can there be any doubt about Russian control over Abkhazia and South Ossetia
with military occupation?
31
CR 2008/22, p. 28, para. 35 (Crawford).
3Ilaşcu v. Moldova and Russia, (dec.) [GC], No. 48787/99, para. 392. - 21 -
Obligation to prevent under Articles 2 and 5 of the Convention on Racial Discrimination
41. Finally, I turn to the scope of the obligations imposed under Articles2 and 5.
Professor Zimmermann came to the surprising conclusion that these Articles do not enshrine a duty
to prevent breaches of the Convention. An initial point is that we say that Russia is complicit in
these breaches; indeed many are committed by persons whose conduct, we say, is attributable to
the respondent State. So our case does not depend solely on prevention.
42. But taking the ordinary meaning of these provisions, Article2, paragraph1, requires
States parties to purpose “by all appropriate means and without delay a policy of eliminating racial
discrimination in all its forms”. In particular under Article2(1) (d): “Each State party shall
prohibit and bring to an end, by all appropr iate means, including legislation as required by
circumstances, racial discrimination by any persons, group or organization.” Bring to an end.
43. By what logic does an obligation to “bring to an end, by all appropriate means” not entail
an obligation to prevent racial discrimination? Article5 requires “compliance with the
fundamental obligations laid down in Article 2” by States parties in fulfilling the obligations under
that provision. In appropriate circumstances, both Articles impose an obligation to prevent.
Conclusions
44. Madam President, Members of the Court, for these reasons, supplementing what I said
yesterday, Georgia’s Application falls prima facie within the scope of the Court’s jurisdiction under
the Convention and the present Request is admissible. Madam President, I ask you now to call
upon Professor Akhavan.
The PRESIDENT: Thank you, Professor Crawford. We now call Professor Akhavan.
Mr. AKHAVAN:
2.R USSIA HAS FAILED TO REBUT G EORGIA ’S FACTUAL ASSERTIONS
1. Madam President, distinguished Members of the Court, I shall briefly address the Russian
Federation’s oral observations on Georgia’s factua l assertions. In doing so, I would observe that
the most significant aspect of Russia’s case was what it did not address. In particular, I take note of
Russia’s failure to contest the evidence that Georgia has put before the Court. First, Russia has not - 22 -
denied that the Ossetian militia is engaged in c ontinuing acts of ethnic cleansing against Georgians
in areas under Russian control. Second, although Russia has denied the participation of its forces in
such conduct, it has not produced any eviden ce rebutting Georgia’s voluminous evidence
demonstrating that Russian forces are in fact participating in such acts of ethnic cleansing. Third,
Russia has not denied that senior military and intelligence officials in the de facto separatist
governments are in fact officials of the Russian Federation.
2. It is indicative of Russia’s case that only Mr.Wordsworth even attempted to challenge
Georgia’s evidence. We would submit however, th at his pleadings were wholly inadequate in
rebutting Georgia’s factual assertions.
3. Mr. Wordsworth made much of the fact that Georgia has not submitted as much evidence
on ethnic cleansing in Abkhazia as it has on South Ossetia. I would make four observations on
Mr.Wordsworth’s argument. First, Russia does not deny that the Gali population is completely
isolated and cut off by Russian forces. Should the Court require additional evidence on this point, I
would respectfully draw its attention to an ar ticle published yesterday, 8September, by Itar-Tass,
wherein the Abkhaz separatist leader Sergei Bagaps h confirms that Russian forces “will remain in
the republic and [they] will also be our border guards in Gali district” 33. To the extent that further
evidence would elucidate the situa tion of the ethnic Georgian comm unity in that district, it is
Russia that is in the best position to obtain the evidence and clarify the facts. This it has failed to
do. Second, the once majority ethnic Georgian popul ation has been eliminated throughout
Abkhazia with the sole exception of Gali district. In other words, as set forth in our Application,
and as not denied by the Agents or counsel for Russia in their pleadings on the history of the
present dispute, much of the ethnic cleansing of Georgians in that region is a fait accompli from the
1992-1994 conflict. Third, Russia does not deny the ethnic cleansing of 3,000 Georgians from the
Kodori gorge in mid-August2008. Fourth , Russia does not deny that the Georgians in Gali are
being threatened with expulsion if they refuse to adopt Russian citizenship.
4. Mr.Wordsworth also took exception that Georgia has cited numerous reputable press
reports of ethnic cleansing. He invoked the jurisprudence of the Court, paragraphs 62 and 63 of the
33
“Abkhazia will be able to host brigade of RF troops — Bagapsh”, Itar-Tass, 8 Sept. 2008. - 23 -
Nicaragua case in particular, in support of the pr oposition that such sources are inherently
unreliable. But this argument has no merit here. First, paragraph63 of the Nicaragua case
indicates that in United States Diplomatic and Consular Staff in Tehran , the Court relied on press
and broadcast material which was “wholly consis tent and concordant as to the main facts and
circumstances of the case” to declare that it was sat isfied that the allegations of fact in that case
were well founded. That is exactly the case here . Mr.Wordsworth also disregards the fact that
Georgia’s Observations includes multiple credible sources, including the reports of the UNHCR,
the ICRC, reputable human rights organizations, numerous witness statements, and UNOSAT
satellite imagery. All of these sources, including the media sources cited by Georgia, are consistent
and corroborate the pattern of ethnic cleansing that is at issue before the Court.
5. Second, in paragraph64 of the Nicaragua case, which counsel for Russia failed to
mention, the Court indicated that “statements by representatives of States” including those made
“during press conferences or interviews” and “reported by the local or international press . . . are of
particular probative value when they acknowledge facts or conduct unfavourable to the State
represented by the person who made them”. Th e media sources submitted by Georgia include
several statements against interest from the de facto separatist authorities in South Ossetia wherein
they confirm their intention to ethnically cl eanse and permanently displace the Georgian
population. These are supported and corroborated by witness statements and other sources.
6. Third, Russia is trying to hold Georgia to an evidentiary standard applicable at the merits
phase of proceedings. The case before the Court is one concerning provisional measures, and we
respectfully submit that Georgia has more than ade quately satisfied its evidentiary burden for such
purposes.
7. I also note that Mr.Wordsworth, while ne ver directly refuting any of the press reports
relied upon by Georgia, suggested that Russia has compiled an equally impressive volume of media
sources supporting its views. He cited only one exam ple of such supposed parity of evidence and
with your permission I will briefly examine this assertion. Mr.Wordsworth noted that both
Georgia and the Russian Federation cite articles published by the Guardian. He neglected
however, to describe the content of the article submitted by Georgia, c ontained in Annex13 of
Georgia’s Observations. That article is entitled “Russia’s cruel intention: in South Ossetia, I - 24 -
witnessed the worst ethnic cleansing since the war in the Balkans.” It is written by a journalist who
spent three weeks travelling throughout South Ossetia where he interviewed Russian soldiers about
what he describes as a campaign of “killing, burning, stealing, and kidnapping” against ethnic
Georgians. He indicates that in response to his queries about these acts of ethnic cleansing, a
Russian official first claimed that “Georgia n special commandos burned the houses” and then,
alternatively, that “[t]hose houses suffered from a gas or electricity leak”. He reports further how
he witnessed Georgians fleeing from Russian c ontrolled Akhalgori and how an Ossetian militia
leader, a certain CaptainElrus, when asked about the destruction of Georgian villages between
Tskhinvali and Gori admitted that “[w]e did carry out cleaning operations, yes”.
8. In contrast with this article from the Guardian, corroborated by numerous other sources in
Georgia’s Observations, Mr.Wordsworth su ggests that an opinion editorial from the Guardian,
entitled “This is a tale of US expansion not Russian aggression”, is somehow of equal evidentiary
weight. Madam President, I need not dwell furt her on the complete irrelevance of such political
commentary in a judicial proceeding. It only unde rscores the fact that the Russian Federation has
completely failed to rebut the credible and comp elling evidence that Georgia has put before the
Court.
9. I also take this opportunity, Madam President, to respond further to your question
yesterday concerning the provenance of the sketch-map provided by Georgia on the ethnic
composition of South Ossetia and Gori district befo re and after the Russian invasion of 8 August.
Georgia’s Agent has authorized me to advise the Court that the white circles depicting villages that
have been depopulated are based on information pr ovided by the Civil Registry Agency of the
Ministry of Justice of the Government of Georgia. In particular, they are based on information
reported by internally displaced persons who are required to register and to indicate the villages
from which they have been expelled. Where there are a sufficient number of IDPs registering from
a particular village and indicating the circumstance s of their displacement, that village has been
identified with a white circle. I trust that thisexplanation meets with the Court’s satisfaction and
Georgia stands ready to provide further information as required.
10. I would also add, Madam President, that the facts that the sketch-map represents are
corroborated by the witness statements, reports of Human Rights Watch, media sources, UNOSAT - 25 -
satellite imagery, and other sources. I provided Kekhvi as an example of a Georgian village that all
these sources confirm has been dest royed. The same could be done for many other villages on the
sketch-map but I have refrained from doing so in view of time constraints.
11. Madam President, I shall now turn to some of the evidence invoked by counsel for
Russia in support of its contentions. As I shall demonstrate, this evidence actually confirms
Georgia’s assertions of fact. Yesterday, Mr. Wordsworth gave a remarkably optimistic assessment,
asserting that since “the armed actions have now ceased . . . civilians of all ethnicities are returning
to some, although not yet all, of the former conflict zones”. In support of this assertion, he referred
to a map prepared by the United Nations Office of Co-ordination for Humanitarian
Affairs(OCHA) “showing the situation in Geor gia as of 25August 2008”. Since counsel for
Russia failed to produce this map, we have ta ken the liberty of doing so for the Court’s
consideration. It may be found at tab 23 of the judges’ folder and is projected on the screen before
you.
12. The map depicts the movement of refugees and internally displaced persons out of and
back into the areas affected by the conflict. You will see from the legend of the map that
displacements are represented by black arrows. The return of populations is represented by red
arrows. You will see as a general matter that there are only two populations that are returning:
Ossetians in North Ossetia in the Russian Federation are returning to South Ossetia; and Georgians
are returning to the town of Gori and villages in the immediate vicinity, outside of Russia’s
so-called “buffer zone”. You will see that this zone of Russian occupation is roughly depicted by a
red oval with a black box indicating “no humanitarian access”. This corresponds to the map
provided yesterday at tab17 of the judges’ folder in which this same zone is depicted. For
purposes of comparison, you can compare the close-up of South Ossetia that we presented
yesterday depicting this same zone with a dark grey line.
13. Madam President, when Mr.Wordsworth discu ssed this map, he correctly noted that it
states that 67per cent of those displaced in Sout h Ossetia are expected to return within three
months. You will notice the box on the upper right-hand corner of the map containing this figure.
As I noted just now, however, the red arrow pointing from North Ossetia to South Ossetia indicates
that only Ossetians in the Russian Federation are re turning to this region. I would also draw the - 26 -
Court’s attention to the fact that 67per cent corresponds roughly with the proportion of South
Ossetia’s population that is ethnic Ossetian. In other words, this map confirms that displaced
ethnic Georgians, approximately 40per cent of the pre-war population, are not expected to return
any time soon.
14. The map also indicates that in areas of Gori district that are under Georgian Government
control, 87 per cent of IDPs are expected to retu rn within three months. The same does not apply
to the so-called “buffer zone” under Russian cont rol where, as the map indicates, there is “no
humanitarian access”. In any event, Russian forces are not allowing Georgian IDPs back to this
area. Indeed, the map indicates th at those few that remain are s till being forcibly displaced from
their villages. As you can see, the map s hows black arrows emanating from the red oval
representing Russia’s so-called “buffer zone” in Gori district. Likewise, the map depicts
displacement from the area around Akhalgori to th e north-east of Gori. You will recall, Madam
President, that these are the two areas in and around South Ossetia that Georgia identified yesterday
as requiring urgent measures of protection by the Court.
15. The map also provides valuable information on the situation of ethnic Georgians in
Abkhazia. Since Mr. Wordsworth complained that Georgia has provided insufficient proof in this
regard, it should be pointed out that the map fully corroborates Georgia’s factual assertions
concerning the ongoing ethnic cleansing of the Georgi an population in Gali district. You will see
to the left of the map that there are black arrows emanating from Kodori gorge to the top and Gali
district just below, indicating displacements fro m these ethnically Georgian populated territories.
You will also notice just below Gali, to the bot tom left, at the boundary of Abkhazia and the
Zugdidi district, the village of Ganmukhuri. There is also a black arrow emanating from this
village indicating displacement of Georgians. The Court will recall that the statement of
Mr. Joni Mishvelia, found at tab 15 of the judges’ folder, that I quoted in my presentation yesterday
pertains to this same village. It contains testimony that the Georgian residents of that village have
been pressured to adopt Russian citizenship on threat of expulsion, and that many residents have
felt compelled to leave. Mr. Wordsworth belittled this testimony as being, to use his words, simply - 27 -
“allegations based on hearsay” . Madam President, the United Nations map that Mr. Wordsworth
himself has invoked corroborates Mr. Mishvelia’s testimony. Indeed, this map fully confirms that
the situation throughout is exactly as described by Georgia in its oral pleadings yesterday, not only
in Abkhazia, but also in Akhalgori and Gori districts in and around South Ossetia.
16. It was also remarkable that in his presen tation, Mr. Wordsworth referred to 89 Georgian
civilians who were detained in Tskhinvali. He told the Court yesterday, quoting an Ossetian
source, that “the authorities were holding 89Georgi an civilians who were taken into custody to
35
save them from being lynched after the initial Georgian attack on the town earlier this month” . In
other words, Mr.Wordsworth would have us belie ve the Georgian civilians were being protected
from harm. However, if we consult the testimony of these detainees, a very different story
emerges.
17. This is how Enver Babutsidze, a 62-year-old resident of Kvemo Achabeti, recounts his
capture: the “Russian soldier suddenly jabbed me in the back with the point of his rifle and then hit
me with the butt”. His testimony is contained in Annex25 of the Observations of Georgia. He
then explains that he was marched towards Tskhinv ali in the custody of a lieutenant in the Russian
army, and placed into a car with two Ossetian mili tiamen, who drove him to the Interior Ministry
building in Tskhinvali. He was then placed “in a windowless cell with only a small hole for air to
enter” and the guards told him that “we were hostages and would be held until there was an
exchange”.
18. Mr. Babutsidze and his fellow prisoners were subjected to inhumane conditions.
“The guards often beat hostages. On one occasion they took 4 men and I could
hear them being beaten. Another time a guard brandished a knife and shouted ‘I wish
I could drink your blood and that I never see Georgians’. I also remember a brutally
beaten 94-year-old man being thrown into th e cell. This man said that he had been
beaten by Russian soldiers.”
19. It is astonishing that Mr. Wordsworth would invoke this incident as an instance of proper
conduct by the Ossetian forces. If anything, the testimony of these hostages indicates the full
complicity of the Russian forces in such abuses against ethnic Georgians. Mr.Babutsidze’s
testimony describes how, when engaged in forced labour, he witnessed Mikhail Mindzaev, who as
34
CR 2008/23, p. 56, para. 14 (Wordsworth).
3Ibid., p. 57, para. 19. - 28 -
I described yesterday is the Interior Minister of the de facto Ossetian authority and a colonel in the
Russian police, speaking with the commande r of the Russian peacekeeping force,
GeneralKulakhmetov, literally metres away and in plain view of Mr.Babutsidze and other
hostages.
20. Perhaps General Kulakhmetov’s inaction in the face of witnessing hostages is not
surprising, since Russian officers led interrogations of these prisoners. Mr. Babutsidze recounts his
interrogation: “There was a place in the prison where Russians and Ossetians interrogated the
hostages. My interrogation was mostly carried out by Russian officers. I recall they had stars on
their uniforms but I do not recall their ranks. ‘Russia’ was written on their badges.”
21. Mr.Babutsidze tells how the number of hostages ⎯ including many elderly women ⎯
became so large that some had to be kept in cages. Madam President, I am now showing you a
photograph contained as an attachment to Mr .Babutsidze’s testimony. It was taken by
Jonathan Littel, a freelance journalist, and obtained by Georgia from Amnesty International. It was
taken on 22 August and in the background you will notice a lighted area with Russian and Ossetian
flags which is a widely reported Kremlin-sponsored concert that was held in front of Tskhinvali’s
parliament building with the conductor of the London Symphony Orchestra, Valery Gergiev.
Mr.Babutsidze identified this photograph as being the cage in which he himself was placed. I
would like to draw your attention to the large gr een object located a few meters behind the cage.
Mr.Babutsidze identified this in his statemen t as “temporary housing where Russian soldiers
stayed” and testified that “I frequently saw Russian soldiers standing in this area”.
22. I would also draw attention to the statemen ts of Mr. Wordsworth on the need to protect
36
these elderly civilians from “public anger” . Counsel for Russia has suggested that Georgia,
through its military operations to put an end to Ossetian separatist attacks against Georgian
villages, has provoked the ethnic cleansing that has followed. A closer examination of the
evidence, however, indicates that the Russian por trayal of Georgians as aggressors is itself an
integral part of the ethnic cleansing campaign th at began immediately after Russia's invasion of
8 August and which continues to this day. I do not intend now to consider the circumstances and
36
Para. 19. - 29 -
events that led to Russia’s invasion of 8 August in support of the ethnic separatists. That is an issue
that is properly for the merits. I do wish however to explain that what Mr. Wordsworth refers to as
“public anger” following Georgia’s brief defens ive operation against Ossetian separatist forces on
7August is part of a deliberate and ongoing strategy by Russia to justify the current ethnic
cleansing campaign. Within hours after the hostiliti es began, then President Vladimir Putin of
Russia was already accusing Georgia of “genocide” for the alleged mass murder of 2,000 Ossetian
37
civilians . Annex1 to Document3 of Russia’s Observ ations contains the letter dated 11August
from Russia’s Permanent Representative to the Presi dent of the United Nations Security Council
claiming that “1,500peaceful civilians” were killed by Georgian forces. At the same time that
these accusations of genocide were levelled ag ainst Georgia, Russia commenced the massive
bombardment of Georgian forces in Tskhinvali, which it would later compare to Stalingrad and
blame on the Georgians. To date, there is no evidence whatsoever of anything remotely
approximating a casualty figure of 2,000 Ossetian ci vilians as reported by the Russian Federation.
A Human Rights Watch report confirms that ther e were only 44dead in Tskhinvali hospital and
that a majority of casualties were military personnel 38. It further confirms that among Ossetians
interviewed in surrounding villages “[n]one . . . co mplained about cruel or degrading treatment by
Georgian servicemen, who searched the houses looking for remaining militias and arms”. Russia’s
own Observations indicates, in document2 at page20, that the Russian State Investigation
Committee has since reduced this number from 2,000 to 133.
23. Russia’s incendiary propaganda was used to instigate and justify the wave of ethnic
cleansing that followed. As stated by a Human Rights Watch investigator in a 14August
interview: “The torching of [Georgian] houses in these villages is in some ways a result of the
massive Russia propaganda machine which constant ly repeats claims of genocide and exaggerates
39
the casualties... That is then used to justify retribution.” This campaign of misinformation,
echoed again in the pleadings of counsel for Russi a, only underscores why there is “public anger”
37
“Putin accuses Georgia of genocide”, Russia Today,10 August 2008, available at
http://www.russiatoday.com/news/news/28744.
38Human Rights Watch, “Russia/Georgia: Investigate Civilian Deaths”, 14 August 2008, available at
http://hrw.org/english/docs/2008/08/13/russia19620.htm
39Tom Partift, “Human Rights Watch: Russia Inflating Casualty Figures”, The Guardian, 14 August 2008,
available at http://www.guardian.co.uk/world/2008/aug/14/georgia.russia1. - 30 -
against ethnic Georgians who are portrayed as aggresso rs while in reality they are the victims of
ethnic cleansing.
24. Madam President, Members of the Court. In closing, I would respectfully submit that the
Russian Federation has failed completely to rebut the factual case that Georgia has put before you,
and that the evidence that has been submitted is more than sufficient to establish the facts of
ongoing ethnic cleansing for the purposes of a provisional measures hearing. That concludes my
submission. It has been an honour and privilege to appear before you in this hearing. I would now
ask the Court to call on Mr. Reichler.
The PRESIDENT: Thank you, Professor Akhavan. We now call Professor Reichler.
RMEr. HLER:
3.T HE PROVISIONAL MEASURES REQUESTED BY G EORGIA ARE URGENTLY REQUIRED
1. Madam President, Members of the Court, it is my task today to respond to what
distinguished counsel for the Russian Federation, Mr. Wordsworth and Professor Zimmerman, said
yesterday about the criteria for the indication of provisional measures, and the specific provisional
measures requested by Georgia.
2. The Parties are in agreement about what the criteria for provisional measures are. My
good friend Mr. Wordsworth agreed yesterday that there must be a risk of irreparable prejudice to
rights in dispute, and urgency. Where the Parties disagree, as Mr. Wordsworth made very clear, is
whether the facts that have been presented to th e Court at these hearings are sufficient to show a
real risk of irreparable harm, and whether they are sufficient to show urgency.
3. ProfessorAkhavan has already responded to Mr.Wordsworth’s arguments that the facts
do not sufficiently show a risk of irreparable harm to the rights that are in dispute in this case. As
Professor Akhavan has just demonstrated, in responding to the points Mr. Wordsworth made in this
regard, the risk of irreparable harm to the ethnic Georgians who still remain in the Akhalgori
district of South Ossetia, the Gali district of Abazia, and the portion of the Gori district that
Russian military forces still occupy as their so-called “buffer zone”, is every bit as real and as grave - 31 -
as Georgia showed yesterday morning. I do not need to add anything further to
Professor Akhavan’s observations.
4. But I will respond to Mr.Wordsworth’s attempt to demonstrate that there is no urgency.
He made several points, and I will take them one by one. First, he argued, and I quote him, that
Georgia has failed to make out a case of urgency because “the latest document in its judges’ folder
is dated 29 August ⎯ in the Internet age in which we sadly now all have to operate, the absence of
more recent documents tells a significant story” 40. True enough, and here is what the story is.
Georgia sent all its evidence to the printer on 2Sept ember, so that it would arrive at the Court in
advance of these hearings and be delivered to the respondent State in sufficient time to allow it to
review that evidence before the hearings began, and thereby avoid causing any prejudice. That
should hardly give Mr.Wordsworth cause for criticism. But since he wants more recent
documents, we are happy to provide them, today, as a supplement to our judges’ folder. I should
note that all of the supplementary documents are publicly available. At tab25 of your judges’
folder is a report from UNHCR dated 2 September, which states:
“UNHCR remains concerned about the humanitarian situation in and around the
Georgian town of Gori, just south of the breakaway region of South Ossetia. All
[4,200people registered as IDPs] came from villages in the so called ‘buffer zone’
between Gori and the South Ossetian bounda ry... Our initial assessment indicates
that some 450people arrived from their villag es within the last week due to massive
intimidation by marauding militias. Those who remained behind are now leaving due
41
to beatings, harassment, looting and burning of houses.”
UNHCR further reports:
“The remaining 3,750 IDPs were actua lly on their way back home from Tbilisi
and other parts of Georgia where they had sought refuge during the conflict, but got
42
stuck in Gori when they could not proceed into the ‘buffer zone’.”
5. Let us recall that yesterday afternoon Mr. Wordsworth advised the Court that there was no
longer any risk of harm to the ethnic Georgians liv ing in the part of the Gori district claimed by
Russia as a “buffer zone”, and that the situation w as so calm that Georgians were returning to their
homes there, and that they were being warmly welcomed by the Russian forces. UNHCR, not
Georgia, UNHCR refutes Mr.Wordsworth’s presentation on two counts. First, it establishes that
4CR 2008/22, p. 60, para. 32 (Wordsworth).
41
UNHCR, Briefing Notes, Georgia: “Gori Arrivals Tell of Massive Intimidation by Militias” (2 Sept. 2008).
4Ibid. - 32 -
the risk to ethnic Georgians in the Russian-controlled area is ongoing, including, “for those who
remained behind . . . beatings, harassment, looting and burning of houses” 43. Second, it shows that,
contrary to what Mr.Wordsworth told us yest erday, ethnic Georgians are not allowed by the
Russians to return to their homes in Russian-controlled territory; instead, when they approach they
are stopped at the Russian checkpoints and told “they could not proceed into the ‘buffer zone’” 44.
6. By contrast to the plight of ethnic Georgians whose return Russia has blocked, UNHCR
says that “the vast majority of those who fled to the Russian Federation have now been returned to
45
their places of origin in South Ossetia” .
7. But that was on 2 September, a full week ago, and maybe Mr. Wordsworth will come back
tomorrow and tell you that is not recent enough ei ther. So we are also submitting to the Court
today the even more recent statement of 5 September by the Ambassadors of Sweden, Estonia and
Latvia, who were blocked by the Russian forces from entering the “buffer zone” to verify the
“ethnic cleansing reported by the humanitarian agen cies (against the Georgian population in the
area) and to deliver humanitarian aid” 46. According to the three Ambassadors: “The vehicle
loaded with humanitarian aid was stopped at Kara leti and was not allowed to move any further
under excuse of the established regulation by th e Russian authorities concerning delivery of
humanitarian aid.” 47 This statement, which, by the way, also confirms who is actually in control in
this part of Georgia, has been added to your judges’ folder at tab 26.
8. And then there is a report from just yesterday stating on 8 September ⎯ and it would be
difficult to satisfy Mr. Wordsworth if he wants something more recent than that ⎯ Russian military
forces prevented international humanitarian assi stance convoys from delivering urgently-needed
relief to Georgians remaining in Russian-held territory. The report quoted Mr.DavidCarden, the
leader of an interagency mission representi ng UNHCR, UNICEF and the World Food Program:
“We tried to do a preliminary humanitarian mission. It didn’t work out today as we would have
43
Ibid.
44
Ibid.
45Ibid.
46Statement of Ambassadors of Estonia, Latvia and Swed en to Georgia and the Deputy-Minister of Foreign
Affairs of Lithuania (5 Sept. 2008).
47Ibid. - 33 -
48
hoped . . .” This report, which has been added to your judges’ folder at tab 27, includes a colour
photograph of Mr.Carden speaking with a Russian general at the Karaleti checkpoint, where his
aid mission was blocked.
9. Finally, I would call the Court’s attention to the report of 8September–– that is, again,
yesterday –– by the Council of Europe Commissi oner for Human Rights, which has been added to
your judges’ folder at tab28. Here are some of his findings: “Lawlessness spread in the ‘buffer
zone’ controlled by Russia be tween Tskhinvali and Karaleti and forced many to leave from
49
there.” “There is a return movement to homes in Gori [that is, the city of Gori] and other safe
neighboring villages. At the same time there ar e new flows of displacement coming from areas
where inter-community violence was reported.” 50 “Very severe damages have been caused on the
villages in South Ossetia with a majority Georgi an population. Those villages between Tskhinvali
and Java have been destroyed, reportedly by South Ossetian militia and criminal gangs.” 51
10. Mr. Wordsworth’s next comment on urgency was that if it existed, it was only during the
period of military hostilities, whic h ended with the ceasefire that took effect on 10August. I
addressed this issue in my remarks of yesterday, in my discussion of the Nigeria v. Cameroon case,
where the Court ordered provisional measures because, notwithstanding the ceasefire between
those two States, there was a risk that the act s potentially causing irreparable harm might occur
again. Again, as I pointed out yesterday, in the present case, the acts creating a risk of irreparable
harm to ethnic Georgians has not only continued but has grown worse since the ceasefire. But
since Mr.Wordsworth made this argument nonethel ess, I will refer the Court to tab9 of our
judges’ folder, which is Human Rights Watch’s report on the UNOSAT photos of destroyed
Georgian villages that Professor Akhavan discussed and showed the Court yesterday. The Human
Rights report says: “The map shows active fires in the ethnic Georgian villages on August 10, 12,
13, 17, 19 and 22, well after hostilities ended in the area on August 10.” 52 Furthermore, the reports
48
Fox News, Associate Press, “Russian Troops Turn Away U.N. Convoy in Georgia” (8 Sept. 2008).
49
Council of Europe Commissioner for Hu man Rights, Thomas Hammarberg, Human Rights in Areas Affected
by the South Ossetia Conflict, Special Mission to Georgia and Russian Federation (8 Sept. 2008), para. 2.
50Ibid., para. 63.
51Ibid., para. 78.
52Human Rights Watch, Human Rights News, “Georgia: Satellite Images Show Destruction, Ethnic Attacks.
Russia Should Investigate, Prosecute Crimes” (29 Aug. 2008). - 34 -
of UNHCR, ICRC, and Amnesty International, at tabs 5 through 8 of your judges’ folder ⎯ all of
which attest to the ongoing violent attacks and forced expulsions inflicted on ethnic Georgians
remaining in Russian-controlled territory, also post-date the cessation of military hostilities.
11. Mr.Wordsworth’s last attempt at denying the obvious presence of urgency in these
proceedings is to recite public professions by the Russian Foreign Ministry of its commitment to
assuring the right of return of all IDPs. The recent report by the European Commissioner for
Human Rights likewise states that he “raised the right of return with high Government officials in
both Tbilisi and Moscow and noted that they a ll recognized the importance of the unconditional
53
implementation of the right to return for all victims, without any distinction whatsoever” . But
Moscow’s words are not its deeds. And its deed s are to the contrary. According to UNHCR’s
report of 2September, from which I quoted a fe w moments ago, only Ossetian IDPs have been
allowed to return to their homes in South Ossetia. Georgian IDPs have not been allowed to return
to South Ossetia, to Abkhazia or to the part of the Gori district that Russia calls its buffer zone. It
is true, as Mr. Wordsworth said, that Georgians are returning to Gori. But what he neglected to tell
the Court is that they are returning to Gori city and its nearby villages, precisely because there are
no longer any Russian forces there, and these areas are once again administered by the Georgian
Government, which has facilitated their return. Th ey are still not allowed into the Gori district
under Russian control. Nor, as we have seen , are international humanitarian assistance
organizations or members of the diplomatic corp s allowed past the Russian lines marked by the
barbed wire that is depicted in the photograph at tab 27.
12. With respect, there is nothing that was said yesterday by learned counsel for the
respondent State that diminishes the conclusi ons reached by reputable international and
non-governmental organizations, to which we referred yesterday, that: “the remaining residents of
these destroyed Georgian villages are facing desper ate conditions, with no means of survival, no
help, no protection, and now here to go...” (tab7; and “with access to humanitarian agencies
blocked [and] poor security, their situation is b ecoming more precarious by the day” (tab5).
Madam President, Members of the Court, it is difficult to craft a better definition of urgency.
5Council of Europe Commissioner for Human Rights, Thom as Hammarberg, “Human Rights in Areas Affected
by the South Ossetia Conflict, Special Mission to Georgia and Russian Federation” (8 Sept. 2008), para. 34. - 35 -
13. I will now address Mr.Wordsworth’s argum ent that the Court should decline to order
provisional measures against the respondent State as a matter of discretion. This is plainly a
last-ditch argument, and he all but admits it. He sa ys that “even if [the Court] considers that the
criteria of Article41 are met... there is a powerful factor that goes to discretion, and this is that
the events of August2008 were born out of Georgia’s use of force is South Ossetia. It is
undeniable that Georgia used force before Russia...” 54 Now, about this argument several brief
comments are in order. First is to note his relian ce on purported facts that relate exclusively to the
merits and have nothing to do with provisional measures. Mr.Wordsworth’s response to the
evidence of irreparable harm presented by Georgia is to shout “But Georgia started it!” And he
invites us to debate with him who fired the firs t shot. We decline. We are conscious of the
President’s admonition yesterday morning, in her c itation of Practice Direction XI, that the Parties
should “limit themselves to what is relevant to the criteria for the indication of provisional
measures . . . They should not enter into the merits of the case beyond what is strictly necessary for
55
that purpose.” The issue before the Court is whether the rights under the 1965Convention
relating to the ethnic Georgians who remain in South Ossetia, Abkhazia and the Russian “buffer
zone” are now or imminently at risk of irreparable prejudice. There could be no conceivable
relevance to a debate over whose army shot first on 7 August, or why it did so. This cannot be a
reason for the Court to exercise its discretion to deny provisional measures, to quote
56
Mr. Wordsworth “if [the Court] considers that the criteria of Article 41 are met” . He has offered
no other reason.
14. I will now proceed to the arguments made by my friend Professor Zimmermann against
the indication of provisional measures. Professor Cr awford has already disposed of most of them.
But he did leave three of them for me. First, Professor Zimmermann tells us that the Court cannot
57
order provisional measures in this case without prejudging the merits . With respect, he cannot be
right about this. His thesis is at odds with the jurisprudence of the Court on provisional measures.
54CR 2008/23, p. 62, para. 43 (Wordsworth).
55
CR 2008/22, p. 16 (President).
56CR 2008/23, p. 62, para. 43 (Wordsworth).
57Ibid., pp. 48-51, paras. 32-45. - 36 -
I refer the Court in particular to paragraph 44 of its Order of 8 April 1993 on provisional measures
in the Bosnia case, to which I specifically referred yesterday.
15. ProfessorZimmermann tells us that if the Court orders provisional measures, it is
necessarily assuming the existence of the circumstances giving rise to them, including the
responsibility of the respondent State. But that is incorrect. To be sure, as the Court said in the
Bosnia case, it “has in accordance with Article41 of the Statute to consider the circumstances
drawn to its attention as requiring the indication of provisional measures” (see Application of the
Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and
Herzegovina v. Yugoslavia (Serbia and Montenegro)), Provisional Measures, Order of
8 April 1993, I.C.J. Reports 1993, p. 22, para. 44). There is nothing remarkable here. If the Court
does not consider the circumstances, how can it determine whether the criteria for provisional
measures have been met? But this does not m ean, as ProfessorZimmermann suggests, that in
considering the circumstances, the Court is prejud ging them. In fact, the opposite is true. The
Court made this clear in Bosnia, where it said that it “cannot make definitive findings of fact or of
imputability, and the right of each Party to disput e the facts alleged against 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.).
16. ProfessorZimmermann also argues that, even if provisional measures are warranted in
this case, the Court should not order the specifi c measures requested by Georgia because they
would impose on the respondent State a responsibility for actors and actions over which it has no
control. Georgia intends no such thing. Pr esumably, ProfessorZimmermann was referring to
paragraph 24 (b) of Georgia’s revised provisional measures Request, pursuant to which Georgia
asks for an order that the respondent State “take all measures to prevent groups or individuals from
subjecting ethnic Georgians to coercive acts of racial discrimination”. But as I stated yesterday, the
purpose of this Request is to protect the rights re lating to ethnic Georgians that are threatened 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 . . .”5. This is the same language that the Court
58
CR 2008/22, p. 65, para. 35. - 37 -
used in its provisional measures Order in the Bosnia case. In any event, Georgia has no objection
to inserting these words into its Request for this provisional measure, such that it would require the
respondent State to “take all necessary measures to prevent groups or individuals subject to its
direction, control or influence from subjecting ethnic Georgians to coercive acts of racial
discrimination”.
17. This is not a matter that should cause the Court to hesitate in its indication of the
requested provisional measures. With or wit hout the additional language, Georgia accepts that
Russia cannot be held responsible for breaching the Court’s order based on acts committed by third
parties beyond its control or influence. Nor is the Court remotely likely to hold Russia responsible
in such circumstances. In th e event Georgia were to claim a breach of any provisional measure
ordered by the Court, it would have to prove attribution in the same way it would have to prove any
other fact on the merits. Accordingly, Russia is in no danger of being held responsible for acts by
third parties over which it exercises no control or influence.
18. ProfessorZimmermann suggests that in orde r to comply with the provisional measures
that might be issued by the Court, Russia would have to send more troops into Georgia. This
argument is a red herring. In fact, the opposite is true. The best way for Russia to avoid violating
any orders that might be issued by the Court is to withdraw its forces from Georgia altogether. A
clear example is the city of Gori and its surroundi ng villages. After Russia withdrew its forces,
peace and order were quickly restored and IDPs we re returned to their homes. No inter-ethnic
conflict has been reported. It is only behind th e Russian lines that the violent attacks and the home
burnings continue, and the ethnic Georgians con tinue to leave. If Russia wants to avoid
responsibility for these acts, it can return the “buffe r zone” to Georgia, which is, after all, the
undisputed sovereign. If Russia wants to avoid responsibility for violations of the
1965 Convention occurring in South Ossetia and Abkhazia, it can withdraw from those regions as
well, in favour of the long-promised but cons tantly-postponed arrival of neutral European
peacekeepers. Russia cannot be held responsible for acts in areas where it exercises no control.
The best way for Russia to protect itself agains t a claim that it breached its obligations under
Court-ordered provisional measures, therefore, is to surrender control over these areas to Georgia - 38 -
and European peacekeepers, respectively. Until it does, provisional measures applicable to the
respondent State are required.
19. The last argument by Professor Zimmerman that I will discuss is his suggestion that, in
any provisional measures order issued by the Court, the rights of both parties should be addressed.
Mr.Wordsworth actually made a similar point, when he referred on several occasions to the
Amnesty International report at tab6 of the judg es’ folder. Mr.Wordsworth emphasized that, in
his words: “Amnesty has called on all parties to the conflict ‘to provide protection to civilians who
may be subjected to inter-ethnic reprisals . . .’” 59. Together, it appears, Professor Zimmerman and
Mr.Wordsworth are suggesting that any provis ional measures ordered by the Court should be
directed equally to both Parties.
20. But what are the circumstances that might require a provisional measures order directed
at Georgia? ProfessorZimmerman and Mr.Wordsworth never say. They offer nothing that is
relevant in this regard. ProfessorZimmerman merely says that provisional measures orders must
protect the rights in dispute of both parties. True enough. But he doesn’t tell us what rights of
Russia require protection. As I discussed yesterday, the provisional measures requested by Georgia
would require Russia to do what it is already obligated to do by the 1965Convention. It has no
right to engage in any of the discriminatory ac tivities that would be prohibited by a provisional
measures order. To be sure, Russia has a right not to be the subject of a provisional measures order
unless the requirements for provisional measures are met. But we say, as we did yesterday, that
they are, and the facts that have been presented by Georgia demonstrate this.
21. As Georgia has shown, the rights that are at risk of irreparable prejudice, meriting
provisional measures, are those relating to ethni c Georgians who still remain in territories under
Russian military control, namely, the Akhalgori di strict of South Ossetia, the Gali district of
Abkhazia and the parts of the Gori district where Russia maintains a self-proclaimed “buffer zone”.
There has been no showing that the rights relating to any other group or individual are at risk of
irreparable prejudice. Certainly there has been no showing that the rights of anyone present in
territory under Georgian administration are at risk of irreparable prejudice. To be sure, ethnic
59
CR 2008/23, p. 57, para. 17. - 39 -
Ossetians and Abkhaz and others enjoy the sa me protections as ethnic Georgians under the
1965Convention. But the respondent State has s ubmitted no facts even remotely suggesting that
the rights of these or any other ethnic groups are presently or prospectively at risk of any harm, let
alone irreparable harm, in territory controlled by th e Government of Georgia. The only rights that
have been shown to be at risk of irreparabl e prejudice are those relating to ethnic Georgians
remaining in Russian-controlled territory. Accordingl y, if provisional measures are to be ordered,
that is where they should be directed, not at Georgia.
22. Madam President, Members of the Court, this concludes my presentation. I once again
thank the Court for its kind and courteous attenti on, and I respectfully ask you to call the Agent of
Georgia to make Georgia’s concluding remarks and present its Submissions.
The PRESIDENT: Thank you, Mr. Reichler. The Court now calls the Agent of Georgia.
Ms BURJALIANI:
4. CONCLUSIONS AND G EORGIA S SUBMISSIONS
1. Madam President, Members of the Court, today I will respond to some arguments raised
by the honourable counsel for the Russian Fede ration and once again establish the grounds for
Georgia’s request for provisional measure.
2. My Government is appearing before this honourable Court because we believe that this
dispute should be resolved in accordance with in ternational law. We appreciate the time and
attention Your Excellencies have dedicated to this matter.
3. Madam President, Members of the Court, wh ile we are here today, discrimination against
ethnic Georgians continues. More people are for ced to leave their homes and join the hundreds of
thousands of others who are already exiles in their own country. The statement, made by
distinguished counsel for the Russian Federation, that IDPs are starting to return simply is not true.
Only approximately 30,000IDPs from the town of Gori, not the Gori district, Kaspi, Kareli,
Khashuri and Igoeti districts, have started to return to areas that have returned to Georgian
government control. No Georgians are allowed to retu rn to the Gori district villages in the vicinity - 40 -
of Tskhinvali region under the control of the respondent State military forces. To the contrary, the
few remaining Georgians in the Gori district are being expelled.
4. As Professor Akhavan indicated on the map, the most extreme southern checkpoint of the
military forces of the respondent State is located in the village of Karaleti ⎯ a few kilometres north
of the town of Gori. Less then two weeks ago, dozens of displaced Georgians managed to enter the
village of Karaleti. Within less then one we ek all of them were expelled from their houses as a
result of harassment and persecution. Just yesterday, we have received a report from a survivor
from the village of Mekhvrekisi, Tea Kakhiashvili, that on 28August, Cossacks and Russians
entered the village, burnt what was left and forced Georgians to leave. According to her, they
tortured a 70-year-old woman, Olia Khaladze, kille d her in front of the other villagers and put her
body on exhibition.
5. On 5September 2008, Ambassadors from Es tonia, Latvia and Sweden accompanied by
the Lithuanian Deputy-Minister for Foreign Affairs reported that they had been denied access to the
Georgian villages in Gori distri ct by the Russian military forces deployed in Karaleti and Variani
villages. The Ambassadors expressed concern “a bout possible ethnic cleansing [that] remain in
60
force” .
6. Any argument raised by respected counsel for the Russian Federation that this is neither
the urgent nor ongoing discriminatory violence against Georgians is simply not true.
7. Madam President, Members of the Court, the assertion made by Professor Zimmermann
that the Russian Federation has only a limited military presence in the territory of Georgia and that
it is being reduced is contradicted by the fact s. I respectfully remind counsel for the Russian
Federation that Georgia is a small country. The region of South Ossetia, including the Gori district
villages under Russian control covers only 4,500 sqkm. The Russian military checkpoints are
placed on strategic roads in order to ensure full and effective control of the perimeter. Counsel for
the Russian Federation probably was not aware that yesterday, while we were appearing before the
Court, Russian military forces opened a new checkpoint in the western Georgian village of Nazadi
bringing yet another Georgian community under its control.
60
Statements of Ambassadors on the Russian Military Checkpoints, 7 Sept. 2007. - 41 -
8. Madam President, Members of the Court, it is the respondent State that instigated ethnic
violence in Georgian territory. Despite its assume d role and well-designed cover, it is no longer a
question for the international community that Russia is an interested party rather than the neutral
mediator as it pretends to be.
Madam President, I see it is 6.00p.m. With yo ur permission, I will conclude in 3 minutes.
Thank you very much.
9. The respondent State’s position that Georgi a triggered ethnic violence in South Ossetia
has no basis in fact; Georgia has no conflict with Ossetians; there are thousands of Ossetians
living throughout Georgia and there has been not a single incident of discrimination observed by
any international body. Many Ossetians are actively involved in the political, economic and
cultural life of Georgia. Some of them occupy high positions in the Government, including
Cabinet Ministers and senior State advisers.
10. Madam President, Members of the Court, my country is seeking urgent assistance from
this Court not to solve numerous political or other outstanding issues with the respondent State, but
to save the lives and integrity of thousands of ethnic Georgians at the mercy of the respondent State
and separatist militias under its control.
11. Therefore Georgia respectfully requests the Court, as a matter of urgency, to order the
following provisional measures, pending its determina tion of this case on the merits, in order to
prevent irreparable harm to the rights of ethnic Georgians under Articles 2 and 5 of the Convention
on Racial Discrimination:
(a) The Russian Federation shall take all necessary me asures 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 d eath or bodily harm, hostage-taking and unlawful
detention, the destruction or pillage of prope rty, 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 necessary 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 - 42 -
destruction or theft of property, and other acts intended to expel them from their homes or
villages in South Ossetia, Abkhazia and/or adjacent regions within Georgia;
(c) The Russian Federation shall refrain from adopting any measures that would prejudice the right
of ethnic Georgians to participate fully and equally in the public affairs of South Ossetia,
Abkhazia and/or adjacent regions of Georgia.
Georgia further requests the Court as a matter of urgency to order the following provisional
measures to prevent irreparable injury to the right of return of ethnic Georgians under Article 5 of
the Convention on Racial Discrimination pending the Court’s determination of this case on the
merits:
(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 taki ng any actions or supporting any measures by
any group or individual that obstr ucts or hinders the exercise of the right of return to South
Ossetia, Abkhazia, and adjacent regions by ethni c Georgians and any other persons who have
been expelled from those regions on the basis of their ethnicity or nationality;
(f) The Russian Federation shall refrain from adopting any measures that would prejudice the right
of ethnic Georgians to participate fully and equa lly in public affairs upon their return to South
Ossetia, Abkhazia, and adjacent regions.
12. Madam President, to those requests as presented in its 25August amended provisional
measures Request, Georgia adds one other, as stated yesterday by Mr.Reichler. It is this: “The
Russian Federation shall refrain from obstructing, and shall permit and facilitate, the delivery of
humanitarian assistance to all individuals in the territory under its control, regardless of their
ethnicity.”
Madam President, Members of the Court, on behalf of the Government and people of
Georgia, I thank you for your attention to this urgent matter. - 43 -
The PRESIDENT: I thank the Honourable Ms Burj aliani. This brings to an end the second
round of oral argument of Georgia. The Court will meet again tomorrow at 4.30 p.m., to hear the
second round of oral argument of the Russian Federation.
The Court now rises.
The Court rose at 6.05 p.m.
___________
Audience publique tenue le mardi 9 septembre 2008, à 16 h 30, 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)