INTERNATIONAL COURT OF JUSTICE
APPLICATION OF THE INTERNATIONAL CONVENTION ON THE
ELIMINATION OF ALL FORMS OF RACIAL DISCRIMINATION
GEORGIA
v.
RUSSIAN FEDERATION
WRITTEN STATEMENT OF GEORGIA
ON PRELIMINARY OBJECTIONS
VOLUMEI
1 APRIL 2010 TABLE OF CONTENTS
CHAPTER I.NTRODUCTION ......................................................................................1
Section I. Summary of Argument.............................................................4
Section II. Observations on Russia’s Approach.........................................9
Section III. Structure of the Written Statement ..........................................16
CHAPTER II. USSIA’SFIRST PRELIMINARY OBJECTION : WHETHER THERE IS
A DISPUTE BETWEEN THE PARTIES U NDER THE 1965 CONVENTION .......................17
Section I. Introduction...........................................................................19
Section II. The Parameters for Determining the Existence of a
Legal Dispute........................................................................29
Section III. Ethnic Discrimination Is Fundamental to Georgia’s
Dispute with Russia..............................................................36
Section IV. Georgia’s Claims Regarding Ethnic Cleansing and
Other Violent Acts of Discrimination by Russia’s
Armed Forces........................................................................50
A. The Evidence Pertaining to 8-12 August 2008.............................51
B. The Evidence Pertaining to the Period Before August 2008........58
Section V. Georgia’s Claims Regarding Russia’s Forcible
Prevention of the Exercise of the Right of Return by
Georgian IDPs.......................................................................71
Section VI. Georgia’s Claims of Russian Support, Sponsorship and
Defence of Ethnic Discrimination by Third-Parties.............76
Section VII. Georgia’s Claims Regarding Russia’s Deliberate
Failure To Prevent Ethnic Discrimination............................85
Section VIII.Conclusion............................................................................92
CHAPTER III. USSIA’SSECOND PRELIMINARY OBJECTION : THEC ONDITIONS
FOR JURISDICTION UNDER ARTICLE 22 ...................................................................93
Section I. Article 22 of CERD................................................................97 Section II. Article 22 in Context ..............................................................99
Section III. The Modes of Dispute Settlement Identified in Article 22
are not Cumulative................................................................106
Section IV. Article 22 Does Not Impose the Preconditions Claimed
by Russia...............................................................................110
Section V. To the Extent that Article 22 Imposes any Prior
Obligation to Negotiate, Georgia has Met that Condition....123
A. The Meaning of “Negotiations”..................................................124
B. There is No Specific Procedure or Format for Negotiations......126
C. The Negotiations Need Not Expressly Refer to the
Convention ..................................................................................128
D. A Party Need Not Proceed with Negotiations that are
Unsuccessful ...............................................................................131
E. Conclusion..................................................................................132
Section VI. Georgia Attempted to Negotiate with Russia on Matters
Falling Under the 1965 Convention: The Evidence.............133
A. Russia’s Direct Participation in Ethnic Cleansing and Other
Forms of Ethnic Discrimination .................................................134
B. Russia’s Prevention of Ethnic Georgian IDPs from
Exercising Their Right of Return ...............................................139
C. Russia’s Support, Sponsorship and Defence of
Discrimination Against Ethnic Georgians by Other Parties.......149
D. Russia’s Failure To Prevent Discrimination against Ethnic
Georgians in Areas It Controlled................................................158
Section VII. Conclusions.........................................................................162
C HAPTER IV. RUSSIA ’S THIRD P RELIMINARY O BJECION : LACK OF
JURISDICION R ATIONE LOCI ...................................................................................165
Section I. Introduction...........................................................................167
ii Section II. Russia’s First Argument: “The Principle of Territorial
Application” ..........................................................................170
Section III. Russia’s Second Argument: “An Exceptional Basis for
Extraterritorial Application Does Not Apply to the
Present Case”........................................................................183
A. The Extraterritorial Application of Human Rights Treaties
is Not “Exceptional” or Confined to the Two Grounds
Cited by Russia...........................................................................183
B. In the Alternative: Russia Exercised “Effective Control”
Over South Ossetia and Abkhazia at All Material Times...........189
Section IV. Russia’s Analysis of Its Obligations Under the 1965
Convention ............................................................................198
A. Article 2(1)(a) of the 1965 Convention......................................199
B. Article 2(1)(b) of the 1965 Convention......................................200
C. Article 5 of the 1965 Convention...............................................202
Section V. Conclusion............................................................................203
CHAPTER V. RUSSIA’SFOURTH PRELIMINARY OBJECTION : ACK OF
JURISDICTION RATIONE TEMPORIS .........................................................................205
Section I. Introduction...........................................................................207
Section II. Failure to Implement the Right of Return and Otherwise
to Comply with the 1965 Convention...................................211
Section III. The Remedies Sought by Georgia........................................213
Section IV. Facts or Events Subsequent to the Application .....................214
Section V. Conclusion............................................................................219
CHAPTER VI.R USSIAS ONGOING DISCRIMINATION A GAINST ETHNIC
G EORGIANS N OTWITHSTANDING THE COURT ’SO RDER ON PROVISIONAL
M EASURES .............................................................................................................221
Section I. Introduction...........................................................................223
iii Section II. Russia’s Use of Its Military Forces to Deny Ethnic
Georgian IDPs from Exercising Their Right of Return to
South Ossetia and Abkhazia..................................................226
Section III. Russia’s Use of Its Military Forces to Deny Ethnic
Georgians Living in South Ossetia and Abkhazia the
Right to Freely Cross the Administrative Boundaries..........234
Section IV. Russia’s Ongoing Support, Sponsorship and Defence of
Discrimination against Ethnic Georgians in South
Ossetia and Abkhazia ...........................................................240
Section V. Russia’s Failure to Protect the Property of Displaced
Persons and Refugees...........................................................245
Section VI. Russia’s Obstruction of Access to Humanitarian
Assistance and International Monitoring..............................246
Section VII. Conclusion...........................................................................249
SUBMISSIONS ...................................................................................................251
APPENDIX ONTHETRAVAUXPRÉPARATOIRES .........................................253
Section I. There Are No Preconditions to the Jurisdiction of the
Court ......................................................................................253
Section II. The Drafting History.............................................................254
A. The Sub-Commission on Prevention of Discrimination and
Protection of Minorities..............................................................255
B. The Commission on Human Rights............................................259
C. The Third Committee of the General Assembly.........................260
D. Cumulative Conditions? .............................................................264
CERTIFICATION ...............................................................................................269
LIST OFANNEXES ............................................................................................271
iv CHAPTER I.
INTRODUCTION1.1 In accordance with the Court’s Order of 11 December 2009, Georgia
submits this Written Statement of Observations and Submissions on Preliminary
Objections, in response to Russia’s Preliminary Objections of 1 December 2009.
This Written Statement supplements the submissions on law and evidence put
forward in Georgia’s Memorial of 2 September 2009, which are maintained in
full.
1.2 In its Preliminary Objections Russia has asked the Court to “adjudge and
declare that it lack s jurisdiction over the claims brought against the Russian
Federation by Georgia, referred to it by the Application of Georgia of 12 August
2008” 1. Russia’s arguments generally mirror those it made at the provisional
measures phase in September 2009, which did not find favour with the Court.
Indeed, a number of argu ments now maintained by Ru ssia were rejected by all
members of the Court. With the passage of time Georgia is now in a position to
respond even more strongly to Russia’s objections, which are without merit.
Russia’s arguments ar e not supported by this Court’ s jurisprudence or by other
human rights bodies established under instru ments of universal application. If
accepted, Russia’s claims would require th e Court to depart from its settled
practice, introducing uncertainty into significant areas of the law. To the extent
that Russia invites the Court to aba ndon its established case-law, Russia has
provided no legal or policy arguments th at could possibly ju stify such radical
steps. In short, Russia has identified no grounds that can prevent the Court from
exercising jurisdiction under Article 22 of the Convention on the Elimination of
All Forms of Racial Discrimination (the 1965 Convention).
1Preliminary Objections of the Russian Federtion, Vol. I (1 Decemb er 2009) (hereinafter
“RPO”).
3 Section I. Summary of Argument
1.3 This Written Statement consists of six Chapters, followed by Georgia’s
Submissions.
1.4 Chapter 2 , which immediately follows this Introduction, responds to
Russia’s first preliminary objection, namely Russia’s contention that there is no
legal dispute between it and Georgia regarding the interpretation or application of
the 1965 Convention. This objection is based on the untenable claim that –
despite Georgia’s longstanding claims and the overwhelming evidence before the
Court that Russian forces committed or allowed or failed to prevent ethnic
cleansing and other violent acts of ethnic discrimina tion, including killings,
beatings and destruction of property, and that they forc ibly denied the right to
return of internally displaced persons – no dispute has arisen or been raised in
respect of matters that fall under the 1965 Convention.
1.5 The evidence shows that Georgia repeat edly raised disputes with Russia,
commencing long before the Application was filed on 12 August 2008, in which
Georgia attributed responsi bility to Russia for participating in ethnic cleansing
campaigns against ethnic Georgians in So uth Ossetia and Abkhazia; for forcibly
preventing ethnic Georgians expelled by means of these campaigns from
exercising their right of return to those territories; for supporting, sponsoring and
defending discrimination agai nst ethnic Georgians by other parties; and for
failing to take action to pr event such discrimination in areas of Georgia under its
control. To be sure, Ru ssia uniformly denied respons ibility for these acts; but
Russia’s denials only serve to confirm th e existence of disputes between the two
States over these matters, which plainly fall under the 1965 Convention.
1.6 Russia’s argument in support of its claim that no legal dispute under the
Convention exists is based on a miscon ceived approach to the evidence and
4provides no basis upon which to avoid the Court’s exercise of jurisdiction. If
accepted, given the clear conclusions of the CERD Committee as to the scope of
the Convention and the matters falling th ereunder, it is difficult to envision
circumstances in which a dispute falli ng under an internati onal human rights
convention could ever be said to have arisen.
1.7 Chapter 2 demonstrates the falsity of Russia’s attempt to purge all
references to ethnic discrimination from the historical record. A small fraction of
the pertinent evidence of Georgia’s repeated attempts to raise with Russia
disputes under the 1965 Convention wa s presented during the provisional
measures phase; more was described in the Memorial. Still more is detailed in
Chapter 2, which shows that Georgia, over a period of more than a decade prior
to the filing of the Application, has consistently raised its serious concerns with
Russia over unlawful acts of discrimination th at are attributable to that State,
making it clear that there exists a long- standing dispute between the two States
with regard to matters falling under th e 1965 Convention. Indeed, the day after
Russia renewed its acts of ethnic clean sing in South Ossetia and Abkhazia in
August 2008, Georgia’s President Mikheil Saakashvili publicly accused Russian
military forces of perpetrating acts of ethnic discrimination, referring explicitly to
2
“ethnic cleansing” by “Russian troops” . Russia has long known about Georgia’s
claims relating to matters falling under the 1965 Convention and has consistently
denied them: its own Minister of Foreign Affairs specifically rejected President
Saakashvili’s accusation . Many more such examples are provided in Chapter 2.
2Office of the President of Georgia, Press Briefing, “President of Georgia Mikheil Saakashvili
met foreign journalists” (9 August 2008). Written Statement of Georgia on Preliminary
Objections (hereinafter “GWS”), Vol. IV, Annex 184.
3
Ministry of Foreign Affairs of the Russian Federation, Transcript of Remarks and Response to
Media Questions by Russian Minister of Foreign Affairs Sergey Lavrov at Joint Press Conference
After Meeting with Chairman-in-Office of the OSCE and Minister for Foreign Affairs of Finland
Alexander Stubb, Moscow, August 12, 2008 (12 August 2008). GWS, Vol. IV, Annex 187.
51.8 Chapter 3 responds to Russia’s second preliminary objection, which
asserts that Georgia did not fulfil the procedural conditions necessary for the
seisin of the Court under Article 22 of the Convention. The first part of Chapter 3
demonstrates that, contrary to Russia’s claims, the Convention does not require a
party to the 1965 Convention to invoke a nd exhaust the conciliation mechanisms
established by Articles 11 and 12 of the Convention in order to be able to invoke
the jurisdiction of the Court under Article 22. In support of that claim Russia
seeks to rewrite the plain terms of the C onvention and depart from their ordinary
meaning, claiming that the word “or” s hould be read to mean “and”. This
approach finds no support in the Court’ s jurisprudence and was not accepted by
any judge at the provisional measures phase of this case. Russia has introduced
no new material to enhance the force of this argument, and there is nothing in the
negotiating history of the Convention to provide any additional support. The
argument is hopeless.
1.9 Nor, despite Russia’s efforts to asse rt the contrary, do es Article 22’s
ordinary meaning impose any obligation on a party to th e 1965 Convention to
enter into negotiations before invoking th e Court’s jurisdiction under Article 22;
all that is required is for the Court to determine that the dispute has not already
been settled by negotiations, as the Court has long and consistently made clear
since 1984. Russia has provided no argumen ts that would ju stify the Court’s
abandonment of its settled jurisprudence. Articl e 22 provides no material
differences with the analogous provisi on in the 1956 Treaty that allowed the
Court to justify its finding of juri sdiction in 1984 in the case brought by
4
Nicaragua against the United States .
4 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of
America), Jurisdiction and Admissibility, Judgment, I.C.J. Rep. 1984, para. 83.
61.10 But even if the Court did now deci de that evidence of attempts at
negotiations were required, that standard has plainly been met. Since the mid-
1990s there have been repeated diplom atic exchanges between Georgia and
Russia over the very matters that fall under the 1965 Convention and are alleged
in the Application. These matters have been raised bilaterally and channelled
through multilateral organizations, and th ey plainly constitute attempts to
negotiate on the part of Georgia, again in accordance with the settled
jurisprudence of the Court. This was th e finding of the Cour t at the provisional
measures phase, on the basis of limited evidence then put forward, which has now
been amply supplemented both in the Memorial and in this Written Statement.
1.11 In Chapter 4 , Georgia addresses the thir d preliminary objection of
Russia, which asserts that the Court lacks jurisdiction ratione loci. In essence,
Russia’s argument is that, contrary to the Court’s well-established jurisprudence
on the extraterritorial application of hu man rights law as refl ected in universal
instruments, Russia is free to engage in acts of racial discrimination that are
prohibited by the Convention so long as they occur outsi de of the territory of
Russia. In such circumstances, Russia claims, there can be no violation of the
1965 Convention. This unhappy claim is inc onsistent with the jurisprudence of
this Court and practice under international human rights instruments. General
international law has long recognized the extraterritorial application of human
rights obligations of the kind reflected in the 1965 Convention where they arise in
human rights instruments of a universal char acter, as in the circumstances of this
case. Moreover, contrary to Russia’s alternative assertion, the grounds for
extraterritorial application are not “exceptional”: international jurisprudence
recognizes the application of instruments such as the 1965 Convention in areas
beyond the territory of the respondent State in circum stances where that State
exercises power or authority over the vi ctims of its own alleged human rights
violations, wherever such victims are situated. Finally, and in the alternative, the
7evidence shows that Russia has been in “e ffective control” of the territories of
South Ossetia and Abkhazia at all releva nt times, a standard that Russia accepts
imposes obligations upon it in respect of the 1965 Convention.
1.12 Chapter 5 responds to Russia’s fourth and final preliminary objection,
namely that the Court’s jurisdiction is limited ratione temporis. As described in
this Chapter, Russia’s effort to raise an i ssue of retrospectivity is without merit.
Its desire to identify “a tension” between Georgia’s treatment of events in the
1990s and the relief sought with respect to continuing violations and acts
occurring after 2 July 1999 is without any foundation. Russia’s arguments are
inconsistent with the 1965 Convention and internationa l case-law and practice,
and it is plain that the Court can take cognizance of acts occurring prior to July
1999, not least because the effects of the violations for which Russia is
responsible are continuing. Equally mi sconceived is Russia’s claim that the
Court cannot deal with facts or events subsequent to the filing of the Application,
especially as these facts and events form part of the same dispute which is the
subject of the Application and do not introduce any new claims or disputes.
1.13 In Chapter 6 Georgia addresses its obligation under Paragraph 149(D) of
the Court’s Order of 15 October 2008 indicating provisional measures, which
requires the Parties to update the C ourt regarding compliance with that Order.
Georgia shows that since its most recent update in the Memorial, Russia has
maintained its acts of ethnic discriminati on in a manner that manifestly violates
the provisional measures indicated in the Order, not least by continuing to
support and failing to prevent ethnic disc rimination and by refusing to allow the
right of return of internally displaced persons on grounds of ethnic origin.
8 Section II. Observations on Russia’s Approach
1.14 Before turning to a more detailed explication of the arguments set forth
above, Georgia will pause briefly to comme nt on Russia’s principal strategies in
its Preliminary Objections. Russia expends much energy suggesting that Georgia
has conjured an “artificial ” dispute over racial discri mination where none exists,
for the sole purpose of establishing a ju risdictional foothold with the Court.
According to Russia, the disputes generated by the conflicts in South Ossetia and
Abkhazia are many and varied, and include di sputes related to the legal status of
territory, the unlawfu l use of force and violation of international humanitarian
law. Russia seems to accept that there may be many disputes, but denies that any
of them relate to matters falling under the 1965 Convention.
1.15 Russia sought to buttress this demonstrably false claim in its Preliminary
Objections by presenting the Court with a misleading description of the findings
made in the Report of the European Un ion’s Independent International Fact-
Finding Mission on the Conflict in Georgi a (the EU Report), which was publicly
released in September 2009. In that rega rd, Russia chose to discuss only those
parts of the Report that addressed the initiation of large- scale armed conflict
during the night of 7 August 2008, despite th e fact that this has no relevance to
the present case, which concerns only Russia’s responsibility for ethnic
discrimination in breach of the 1965 Convention. Russia systematically excluded
all discussion of any other part of the Re port. This approach is consistent with
Russia’s treatment of the case-law of the Court, of the texts of international
conventions, and of the negotiating hist ory of the 1965 Convention: an extreme
and selective approach. As with these ot her materials, Georgia invites the Court
to treat Russia’s claims and arguments with caution.
91.16 Russia’s reason for adopting this appro ach is clear: to create the false
impression that Georgia’s dispute with Ru ssia relates only to matters that are
unconnected with obligations falling under the 1965 Convention, and that they
relate only to legal issues concerning the use of force and humanitarian law. This
is manifestly inaccurate, and reflects a se rious distortion of the findings made by
the EU Mission. It therefore falls to Georgia to present the Court with an
accurate picture of its conclusions. As will be readily apparent, the EU Report
confirms the evidence presented by Georgia in the Memorial: ethnic
discrimination and matters falling under the 1965 Convention lie at the very heart
of Georgia’s dispute with Russia.
1.17 First, the Report expressly confirms as fact that “ethnic cleansing was
indeed practised against et hnic Georgians in South Osse tia both during and after
the August 2008 conflict” 5. Among other things, the EU Mission found
compelling evidence of “widespread campa igns of looting and destruction of
ethnic Georgian settlements” and that ethn ic Georgians were subjected to serious
human rights abuses, including “ill-treat ment, gender-related crime including
6
rape, assault, hostage-tak ing and arbitrary arrests” . Indeed, the EU Report
verified that much of the ethnically-targeted violence occurred after the cessation
of hostilities on 10 August 2008, specifically concluding that such “acts were
perpetrated after the ceasefire came into effect, raising serious concerns about the
co-responsibility of those forces in control of the situation” – i.e., Russia –
“whose duty it was to protect the civilian population” . 7
1.18 The EU Mission also found even where Russian troops did not commit
such violent acts of discrimination themse lves, they failed to prevent Ossetian
5Independent International Fact-Finding Mission on the Conflict in Georgia,Report, Vol. I
(September 2009) (hereinafter “IIFFMCG Report, Vol. I”), para. 27. GWS, Vol. III, Annex 120.
6Ibid., para. 28.
7
Ibid., para. 25. GWS, Vol. III, Annex 120.
10forces from engaging in acts of ethnic discrimination, a nd that they did so even
where those acts occurred in their own pr esence. In particular, the EU Report
described the “failure by Russian for ces to prevent and stop violations” both
8
“before and after the ceasefire in South Ossetia and the adjacent territories” . The
failure of the Russian army to prevent Ossetian forces from committing these acts
of violent ethnic discrimination is not surp rising in light of the Mission’s further
conclusion that Ossetian forces were under Russia’s de facto control: “the
separatist governments and security forces were manned by Russian officials”
who were “appointed” by “Russia” 9.
1.19 Second, the EU Mission concurs with the evidence presented by Georgia
in the Memorial regarding the pervasive discrimi nation against ethnic Georgians
who remain under Russian occupation. Specifically, the EU fact-finders
determined that the “rights as a minority” of the ethnic Georgian communities in
the Gali District of Abkhazia continue to be “endangered” 10, and that
discrimination in Akhalgori, located adjacent to S outh Ossetia but still under
Russian occupation, “continues to be a matter of concern, as ethnic Georgians are
11
still leaving the region” .
1.20 Third, the EU Mission’s findings confir m that Russia is blocking ethnic
Georgians from exercising their lawful right of return. In that regard, the EU
8
Ibid., para. 28. GWS, Vol. III, Annex 120.
9
Independent International Fact-Finding Mission On the Conflict in Georgia, Report Vol. II
(September 2009) (hereinafter “IIFFMCG Report, Vol. II”), p. 19. GWS, Vol. III, Annex 121.
The Report quoted with approval a Russian journalist who report ed that the “power elite” of
South Ossetia is a “joint business venture between KGB generals and Ossetian entrepreneurs
using money allocated by Moscow for the fight against Georgia”. Ibid. See also ibid. at p. 132
(“Russian officials already had de facto control over South Ossetia’s institutions before the
outbreak of the armed conflict, and especially over security institutions and security forces”); ibid.
at p. 134 (concluding that the “policies and struct ures” of Abkhazia, “particularly its security and
defence institutions, remain to a large extent under control of Moscow”).
10
IIFFMCG Report, Vol. I, para. 25. GWS, Vol. III, Annex 120.
11Ibid., para. 27. GWS, Vol. III, Annex 120.
11Report “stressed” that Russia “must take appropriate measures to ensure that
IDP/refugees, including those from the c onflicts of the early 1990s, are able to
return to their homes with no conditions imposed other than those laid down in
relevant international standards” 12.
1.21 In short, the EU Report undermines Russia’s central contention that ethnic
discrimination is not a feature of the conflicts in South Ossetia and Abkhazia, and
is not a matter in dispute between the tw o States. Indeed, the Report establishes
the reverse: ethnic discrimination in relation to matte rs falling under the
Convention is an essential element of those conflicts. The Mission’s conclusions
in that regard are clear. In descri bing the massive campaign to burn ethnic
Georgian homes, the Report “stressed” that “[t]he practice of burning reached
such a level and scale that it is possible to state that it characterised the violence
of the conflict in South Ossetia 13. Accordingly, the EU Mission found that
although the “conflict in Geor gia” is not “solely relate d to ethnic and minority
14
issues”, this “consideration [is] critical” . That is Georgia’s position as well, and
it aptly articulates why it was appropria te for Georgia to invoke the Court’s
jurisdiction under the 1965 Convention.
1.22 Another misrepresentation that permeates the Preliminary Objections
which merits comment is an attempt by Ru ssia to portray the dispute over ethnic
discrimination underlying this case as one between Georgia, on the one hand, and
the separatist authorities in South Osse tia and Abkhazia on the other. Russia
claims that, far from being a party to this dispute, it was actually a peacemaker.
Typical of this approach is its contention at paragraph 1.29 of the Preliminary
12Ibid., para. 28. GWS, Vol. III, Annex 120. Elsewhere, the Mission concluded that “serious
obstacles have prevented IDPs from returning to their homes in South Ossetia,”, and it therefore
declared that Russia “should takeall appropriate steps to ensurthat IDPs can return to their
homes”. Ibid., p. 401. GWS, Vol. III, Annex 121.
13Ibid., p. 366 (emphasis added). GWS, Vol. III, Annex 121.
14
Ibid, p. 405. GWS, Vol. III, Annex 121.
12Objections that it was “perceived by all rele vant actors, incl uding Georgia, as
15
being a facilitator and a State contri buting stabilising peace-keeping forces” .
Elsewhere, Russia contends that “Geo rgia never alleged that the Russian
Federation was a party” to the conflicts and that Georgia “f requently confirmed
the internationally recognized role of the Russian Federation as a third-party
16
facilitator to those conflicts” .
1.23 This is a further example of Russia’s propensity to prefer form over
substance. It is also inaccurate, and a serious distortion of history. Georgia has
long made clear its view that Russia is a party to the disputes it has raised under
the 1965 Convention, not a facilitator of th eir peaceful resolution. As early as
October 2001, Georgia stated that “instead of facilitating conflict settlement,
17
[Russian peacekeepers] rather instigate it” . Georgia reiterat ed this position on
numerous occasions and in many international fora. For example, in June 2006,
Georgia reported to the United Nations th at Russia is a not a “facilitator in the
settlement of conflict” and does not “exercise the impartiality which is an
18
inherent part of this status” . Georgia likewise informed the OSCE in September
2006 that “the Russian Federation is a si de in conflicts, and not an impartial
facilitator” . Also in 2006, Georgia’s Ministry of Foreign Affairs publicly stated
that the “Russian side’s strong assertions that it is not a party to the conflict, are
15RPO, para. 1.29.
16Ibid., para. 1.8.
17
Resolution of the Parliament of Georgia, Concerning the Situation on the Territory of Abkhazia,
(11 October 2001). GWS, Vol. IV, Annex 145.
18U.N. General Assembly, Letter dated 1 June 2006 from the Permanent Representative of
Georgia to the United Nations addressed to the Secretary-General, Annex, U.N. Doc. A/60/872 (2
June 2006). GWS, Vol. III, Annex 80.
19OSCE, Statement by the Delegation of Georgia , PC.DEL/886/06 (18 September 2006). GWS,
Vol. III, Annex 109.
13 20
unpersuasive, to put it in the mildest possible terms, and totally ungrounded” .
21
The diplomatic record is replete with similar statements by Georgia .
1.24 There is no justification for Russia’s fa lse claim that it was considered by
Georgia to be an impartial facilitator. Georgia repeatedly and specifically
denounced Russia’s claimed status as a f acilitator in the months preceding the
filing of the Application. For example, on 24 Marc h 2008, Georgia informed the
UN Secretary-General and Security Counc il that “the Russian Federation has
deprived itself of any political, legal or moral right to claim the role of a neutral
and unbiased mediator in the conflict resolution process” 22. On 12 May 2008,
President Saakashvili stated: “It is absolu tely clear that Russian peacekeepers are
not legitimate participants of the proce ss. Russia is a part y in the process.
Unfortunately, the Russian Federation and its officials are violating international
20
Ministry of Foreign Affairs of Georgia, Statement of the Ministry of Foreign Affairs of Georgia
on the Situation in Tskhinvali district/South Ossetia(14 July 2006). GWS, Vol. IV, Annex 165.
21A few examples of the many that could be provided suffice to illustrate the point. See, e.g.,
Ministry of Foreign Affairs of Georgia, Comments of the Department of the Press and
Information on the statement by the Ministry of Foreign Affairs of the Russian Federation over
the situation in the Kodori Gorge (1 August 2006) (“Russia gives up on its role as an unbiased
mediator facilitating a conflict resolution process,provides an increasingly active support for
aggressive separatism and does all in its power to obstruct political settlement of the conflicts…
”). GWS, Vol. IV, Annex 166; Ministry of Foreign Affairs of Georgia, Comment of the
Department of the Press and Information on the visit of Secretary of State and Deputy Minister
for Foreign Affairs of the Russian Federation G. Karasin to Abkhazia, Georgia (10 August 2006)
(“Russia, rather than acting as an unbiased fac ilitator in the conflict settlement process, is an
active supporter of aggressive separatism”, and “upholds only its own interests in the region and
does all in its power to impede any progress towards resolution of the territorial conflicts and
restoration of Georgia’s territorial integrity”). GWS, Vol. IV, Annex 167.
22U.N. General Assembly, Security Council, Identical letters dated 25 March 2008 from the
Permanent Representative of Georgia to the United Nations addressed to the Secretary-General
and the President of the Security Council , Annex, U.N. Doc. A/62/765-S/2008/197 (26 March
2008). GWS, Vol. III, Annex 90. See also U.N. General Assembly, Letter dated 28 April 2008
from the Permanent Representative of Georgia to the United Nations addressed to the Secretary-
General, Annex, U.N. Doc. A/62/824 (29 April 2008) (“It is absolutely clear that the Russian
Federation has lost all legal, political and moral right to be a State facilitating the settlement of the
conflict as it has already become a party to the conflict, which make the presence of its
peacekeepers on the territory of Georgia extremely risky.”). GWS, Vol. III, Annex 93.
14 23
norms of conduct” . On 18 July 2008, Georgi a’s State Minister for
24
Reintegration stated that “Russia is not an impartial side in this conflict” . And
on 25 July 2008, three weeks before filing the Application, Georgia told the
Security Council that “the Russian Federation acts as a party to the conflict and
25
has no will and ability to guarantee the peaceful settlement of disputes” .
1.25 This was also the conclusion of the European Union’s Fact-Finding
Mission, which concluded that, contrary to its formal designation as a
“facilitator”, in reality Russia was a party to the conflict:
Russia was given the role of f acilitator in the Georgian-Abkhaz
and the Georgian-Ossetian negotia tion processes, and that of a
provider of peacekeeping forces. This formula, while seemingly
in line with the rules of Realpolitik, seriously affected the existing
political equilibrium in the region. It meant in practice that these
two conflicts could be settled not alone, when the sole interests of
the Georgians, the Abkhaz and the Ossetians were duly reconciled26
but that the interests of Russia had to be satisfied as well .
1.26 Accordingly, Russia’s protestations in the Preliminary Objections that
“Georgia never alleged that the Russian Federation was a party” to the disputes in
South Ossetia and Abkhazia and “frequen tly confirmed” Russia’s “role” as a
23
Office of the President of Georgia, Press Release, “The President of Georgia met the
representatives of EU countries” (12 May 2008). GWS, Vol. IV, Annex 179.
24
“State minister: Georgia in ‘low-intensity conflict’”The Messenger (11 July 2008). GWS,
Vol. IV, Annex 199.
25U.N. Security Council, Letter dated 25 July 2008 from the Permanent Representative of
Georgia to the United Nations addressed to the President of the Security Council, Annex, U.N.
Doc. S/2008/497 (29 July 2008). GWS, Vol. III, Annex 95.
26IIFFMCG Report, Vol. I, para. 33. GWS, Vol. III, Annex 120. See also ibid. (“The Russian
peacekeepers were also regarded as being larg ely a protective ring behind which secessionist
entities were developing their institutions”); IIFFMCG Report, Vol. II, p. 8. GWS, Vol. III,
Annex 121. (“Russia was engaged in these conflicts as the main peacekeeper, as facilitator … but
it was demonstrating a clear bias in favour of the ‘separatists’ to the conflict”).
15“third-party facilitator in those conflicts”7do just as much violence to history as
Russia’s attempt to erase ethnic discrimination from the dispute.
Section III. Structure of the Written Statement
1.27 Georgia’s Written Statement consists of 3 volumes. Volume I contains
the main text. Volumes II and III cont ain supporting materials. Because Russia
has chosen to present the Court with hi ghly selective and misleading portions of
the travaux préparatoires of the 1965 Convention, the entirety of Volume II
consists of extensive porti ons of the relevant sec tions of the Convention’s
preparatory works, so as to allow the C ourt the opportunity to review a complete
set of the relevant material. These materials demonstrate clearly that Russia has
made a selective and partial use of the negotiating history. The remaining
Annexes, which are contained in Volumes III and IV, are presented in the
following order: (i) United Nations documents, (ii) inter-governmental and multi-
lateral organisation documents, (i ii) government documents, (iv) non-
governmental organisation reports, (v) academic articles, (vi) news articles, (vii)
witness statements, and (viii) additional documents.
27RPO, para. 1.8.
16 CHAPTER II.
RUSSIA’S FIRST PRELIMINARY OBJECTION:
WHETHER THERE IS A DISPUTE BETWEEN THE PARTIES
UNDER THE 1965 CONVENTION Section I. Introduction
2.1 This Chapter responds to Russia’s first preliminary objection: that
Georgia did not raise a dispute with Russia under the 1965 Convention prior to
filing its Application on 12 August 2008.
2.2 Russia’s objection is groundless. It is defeated by the voluminous
evidence showing that Georgia repeatedly, during a period of more than 15 years
leading up to the filing of its Application, raised disputes with Russia over
multiple forms of ethnic discrimination carried out by the Respondent State
against persons of Georgian ethnicity. Georgia’s repe ated complaints of ethnic
discrimination by Russia were made in direct bilateral exchanges between the two
States, before organs of the United Nations and the Organization for Security and
Cooperation in Europe, in reports to th e CERD Committee, and in a plethora of
public statements by senior Georgian o fficials and state entities accusing Russia
of deliberate acts of discrimination against ethnic Georgians – precisely the kinds
of discrimination that fall under the 1965 Convention. To be sure, Russia has
always denied its responsibility for thes e acts of ethnic discrimination. But that
only goes to confirm the existence of a dispute between the Parties as to whether
Russia has engaged in discriminatory conduct under the Convention. Georgia
says “Yes”. Russia says “No”. A disput e exists. It predates the filing of the
Application. Russia’s first preliminary objection fails. It is no more complicated
than that.
2.3 The specific complaints of ethnic discrimination made by Georgia and
denied by Russia prior to the filing of the Application include the following, each
of which was raised by Georgia on nume rous occasions starting as far back as
1992 and continuing until the filing of the Application on 12 August 2008:
19 a. Violent acts by Russian military forces against ethnic Georgians in
areas of Georgia controlled by Russia – including killings,
beatings, forced removals, and de struction of homes and property
– for the purpose of “cleansing” these areas of persons of
Georgian ethnicity;
b. The use of violence and the threat of violence by Russian military
forces to forcibly prevent ethnic Georgians previously expelled
from parts of Georgia contro lled by Russia from lawfully
exercising their right of return to their native homes and villages;
c. Support and defence of groups, orga nizations and individuals in
areas of Georgia controlled by Russian military forces that were
dedicated to and engaged in vi olent and non-violent forms of
discrimination against persons of Georgian ethnicity, including
killings, beatings, forced removals, destruction of homes and
property, deprivation of cultural and educat ional rights including
education in the Georgian language, and compulsory renunciation
of Georgian nationality and acceptance of Russian passports; and
d. Failure of Russian military forces to fulfil their obligation to
prevent ethnic discrimination against persons of Georgian
ethnicity in areas of Georgia that they controlled.
2.4 Much of the evidence of Georgia’s persistent claims against Russia and
Russia’s equally persistent deni als was presente d in Georgia’s Memorial 28; a
small part of it had been produced earlier at the oral hear ings on provisional
measures; additional evidence is produced here. It leaves no doubt that the two
Parties had a vigorous and longstanding dispute over acts of ethnic cleansing,
28Memorial of Georgia, Vol. I, (2 September 009) (hereinafter “GM”), Part E, Chapter VIII,
Section II(B).
20denial of the right of return, and other forms of ethnic discrimination attributed by
Georgia to Russia, all of which fall plai nly under the Convention. In the face of
this evidence, summarized below, Russia’s continued insistence that there was no
legal dispute between the two Part ies prior to the filing of the Application is
entirely without merit.
2.5 The Court addressed this issue in it s Order of 15 October 2008 in regard
to Georgia’s Request for Provisional Meas ures. Georgia’s re quest, filed on 14
August 2008, was an urgent response to the specific campaign of ethnic cleansing
undertaken by Russian military forces in South Ossetia and Abkhazia during the
Russian Federation’s military intervention commencing on 8 August 2008. As
such, at the oral hearings on provi sional measures, Georgia based its
demonstration of the existence of a le gal dispute between the Parties under the
1965 Convention solely on their statements and actions between 8 August and the
filing of the Application four days later. Even this small microcosm of four days’
worth of evidence, the totality of which – covering more than 15 years – has now
been placed before the Court, was sufficient to allow the Court to conclude that
Georgia had demonstrated prima facie the existence of a legal dispute with
Russia under the 1965 Convention:
Whereas the Parties differ on the question of whether the events
which occurred in South Ossetia and Abkhazia, in particular
following 8 August 2008, have given rise to issues relating to legal
rights and obligations under CERD ; whereas Georgia contends
that the evidence it has submitted to the Court demonstrates that
events in South Ossetia and in Abkhazia have involved racial
discrimination of ethnic Georgian s living in these regions and
therefore fall under th e provisions of Article s 2 and 5 of CERD;
whereas it alleges that displaced ethnic Georgians, who have been
expelled from South Ossetia and Abkhazia, have not been
permitted to return to their place of residence even though the right
of return is expressly guaranteed by Article 5 of CERD; whereas
Georgia claims in addition that ethnic Georgians have been subject
to violent attacks in South Ossetia since the 10 August 2008
21 ceasefire even though the right of security and protection against
violence or bodily harm is also guaranteed by Article 5 of CERD;
whereas the Russian Federation claims that the facts in issue relate
exclusively to the use of force, humanitarian law and territorial
integrity and therefore do not fall within the scope of CERD;
Whereas, in the view of the Court, the Parties disagree with regard
to the applicability of Articles 2 and 5 of CERD in the context of
the events in South Ossetia and Abkhazia; whereas, consequently,
there appears to exist a dispute between the Parties as to the
interpretation and application of CERD; whereas, moreover, the
acts alleged by Georgia appear to be capable of contravening
rights provided for by CERD, even if certain of these alleged acts
might also be covered by other rules of international law,
including humanitarian law; whereas this is sufficient at this stage
to establish the existence of a di spute between the Parties capable
of falling within the provisions of CERD, which is a necessary
condition for the Court to have prima facie jurisdiction under
Article 22 of CERD… 29.
2.6 Russia states at paragraph 3.40 of its Preliminary Objections that the
Court should determine whethe r there exists a dispute over the interpretation or
application of the 1965 Convention by examining the “pertinent evidence”, which
Russia states includes the Parties’ “diplomatic exchanges” and “public
30
statements” . Georgia agrees. When the enti rety of the pertinent evidence is
considered – and not just th e highly selective extracts that Russia has surgically
removed and transplanted in its Preliminary Objections , or the evidence
presented at the provisional measures phase, which was limited in scope to a
four-day period in August 2008 – it is plain that Geor gia, over a period of many
years prior to the filing of its Application, consistently a nd publicly raised
disputes with Russia regarding acts of ethnic discrimination that were covered by
the Convention, and that Russia steadfastly opposed Georgia at every occasion.
29 Application of the International Convention on the Elimination of All Forms of Racial
Discrimination (Georgia v. Russian Federation) , Provisional Measures, Order, I.C.J. Rep. 2008
(hereinafter “Provisional Measures Order”), paras. 111-112.
30Preliminary Objections of the Russian Federation, Vol. I (1 Decemb er 2009) (hereinafter
“RPO”), para. 3.40.
222.7 Russia’s first preliminary objection, therefore, is no obstacle to the
Court’s exercise of jurisdiction in re gard to Georgia’s claims of ethnic
discrimination in violation of the 1965 Convention.
2.8 This Chapter is organised into 8 s ections. Section II, which immediately
follows this Introduction, sets out th e legal parameters, drawn from the
jurisprudence of the Court, for determining the existence of a legal dispute over
which the Court may exercise jurisdicti on. Those parameters are easily satisfied
here. They leave no doubt that there is a legal dispute between the Parties over
Russia’s alleged violations of the 1965 Convention, and th at the elements of this
dispute were raised by Ge orgia and opposed by Russia consistently starting long
before the filing of the Application and throughout the 15-year period leading up
to it.
2.9 Section III of this Chapter responds to Russia’s argument that Georgia has
invented or inflated a di spute about ethnic discrimina tion in order to create an
artificial basis for the Court to exerci se jurisdiction under Article 22 of the
Convention. Russia argues in its Preliminary Objections that Georgia’s “real”
dispute with Russia is not about ethnic cleansing but the use of force and the
violation of humanitarian law – matters outside the 1965 Conven tion. It is true
that Georgia has publicly accused Russi a of these other unl awful acts. But
Russia’s illegal use of force and violat ion of humanitarian law are legally
different, and do not insulate the Res pondent State against well-founded claims
that it engaged in ethnic cleansing a nd other violent forms of discrimination
against ethnic Georgians in violation of the 1965 Conve ntion. The existence of
disputes over the use of force and human itarian law cannot negate or extinguish
the dispute about ethnic discrimination. This is especially so where the evidence
shows, as it does here, that the ethnic discrimination alleged by Georgia was not
merely parallel or peripheral to the wider conflict between the two States (as
23Russia would have the Court believe), but a central element of it. As Georgia
demonstrated in its Memorial 31, when Russia invaded its territory in August 2008,
it deliberately carried out acts of violence against unarmed civilian
noncombatants of Georgian ethnicity preci sely to complete the ethnic cleansing
of Georgians from South Ossetia and Abkhazia that it began over a decade
earlier, and to render those areas Georgian -free and therefore ripe for separation
from Georgia. The dispute over Russia’ s ethnic cleansing of Georgians from
South Ossetia and Abkhazia is therefore at the heart of the conflict between the
two States.
2.10 Section III also responds to Russia’s attempt to portray the dispute over
ethnic discrimination as one between Georgia and the de facto authorities of
South Ossetia and Abkhazia, to which Russia itself is not a party. Here again, the
existence of disputes between Georgia on the one hand, and the separatist leaders
of South Ossetia and Abkhazia on the ot her, does not negate that there is a
dispute between Georgia and Russia, or that the dispute between the two States is
an important one. As elaborated in the Memorial, Georgia has directly accused
Russia and Russian military forces of or chestrating and carrying out widespread
ethnic cleansing and other forms of violent discrimina tion against ethnic
32
Georgians in violation of the 1965 Convention . Whatever other disputes may
exist with any non-State parties, there is certainly a dispute between Georgia and
Russia concerning acts falling under the 1965 Convention.
2.11 Sections IV through VII of this Chapter identify some of the many
specific occasions when Georgia and Russia, by their opposing statements and
conduct, manifested the existence of a dispute over matters falling under the 1965
Convention. The first part of Section IV presents evidence of the dispute
31GM, paras. 3.3-3.34.
32GM, Part E, Chapter IX.
24between the Parties over the ethnic cleansing that Georgia denounced and Russia
denied during the four days immediat ely prior to the filing of Georgia’s
Application in August 2008. The evidence disc ussed herein enlarges upon that
which was presented at the provisional meas ures hearings. By way of example,
Georgia’s President declared on 9 August 2008, that is, the day after Russia
commenced its campaign of ethnic cleansing and three days before Georgia filed
the Application, that “Russian troops” were committing “ethnic cleansing” in “all
areas they control in South Ossetia” and had “expelled ethnic Georgians living
33
there” . Similar statements were made on each of the following days up to the
filing of the Application. These statements were widely reported in the Russian
34
news media , and were denied by Russian officials. Russia’s Minister of Foreign
Affairs, Sergey Lavrov, stated that Mr. Saakashvili “claimed hysterically that the
Russian side wanted to annex the whole of Georgia and, in general, he did not
feel shy of using the term ethnic cleansings … it was Russia that he accused of
carrying out those ethnic cleansings” . This and other evidence described within
expose the emptiness of Russia’s protestations that Georgia never raised a dispute
about ethnic discrimination before it came to this Court.
2.12 The second part of Section IV details the repeated occasions on which the
Parties opposed one another in regard to ethnic discrimination falling under the
1965 Convention during the 15 year peri od prior to August 2008. The evidence
shows that Georgia repeatedly challenge d the participation of Russia’s armed
33
Press Briefing, Office of the President of Georgia, “President of Georgia Mikheil Saakashvili
met foreign journalists” (9 August 2008). GWS, Vol. IV, Annex 184.
34
“Lavrov: ‘Russia is frustrated with the cooperation with the Western countries on South
Ossetia’”, Pravda (12 August 2008). GWS, Vol. IV, Annex 208. See also “Sergei Lavrov sent
the US Secretary of State into a ‘Knockout’”, Izvestia (13 August 2008). GWS, Vol. IV, Annex
210.
35Ministry of Foreign Affairs of the Russian Federation, Transcript of Remarks and Response to
Media Questions by Russian Minister of Foreign Affairs Sergey Lavrov at Joint Press Conference
After Meeting with Chairman-in-Office of the OSCE and Minister for Foreign Affairs of Finland
Alexander Stubb, Moscow, August 12, 2008 (12 August 2008). GWS, Vol. IV, Annex 187.
25forces and other state organs in acts of discrimination against ethnic Georgians in
South Ossetia and Abkhazia between 1992 and 2008. The disputed conduct
included complaints of Russia’s direct participation in violent expulsions of entire
ethnic Georgian communities from ar eas of South Ossetia in 1991-1992, and
Abkhazia in 1992-1994 and 1998, as well as other acts of ethnic cleansing by
Russian military forces in subsequent y ears, leading Georgia to accuse Russia in
2001, for example, of direct responsibil ity for “numerous crimes” against the
“peaceful population” of ethnic Georgians in Abkhazia 36.
2.13 Section V presents evidence showing that the Parties had a longstanding
and ongoing dispute in regard to Russia’s responsibility for forcibly preventing
the ethnic Georgian victims of ethnic cl eansing campaigns in South Ossetia and
Abkhazia from exercising their right of return, guaranteed by the 1965
Convention. The evidence establishes th at there were numerous occasions both
before and after Georgia’s accession to the Convention in 1999 when Georgia
formally or publicly complained of Russia’s denial of the right of return of ethnic
Georgian IDPs. In particular, Georgia repeatedly accused Russia of deploying its
armed forces as “border guards” 37for the de facto separatist authorities of South
Ossetia and Abkhazia with the specific mission of preventing previously expelled
ethnic Georgians from returning to thei r homes in those parts of Georgia.
Georgia communicated its protests in direct bilateral communications with
Russia, in a variety of international forums, and in widely-reported public
statements by senior Georgian officials. Russia ignored or denied all of them; as
of the filing of the Application, Russian troops still guarded the borders of South
Ossetia and Abkhazia, and still prevented expelled Georgian IDPs from returning
36Resolution of the Parliament of Georgia, Concerning the Situation on the Territory of Abkhazia
(11 October 2001). GWS, Vol. IV, Annex 145.
37
Ministry of Foreign Affairs of GeorgiaComments of Deputy Minister of Foreign Affairs of
Georgia Merab Antadze Concerning the Answers of Minister of Foreign Affairs of the Russian
Federation Sergey Lavrov to Journalists’ Questions(19 June 2006). GWS, Vol. IV, Annex 164.
26to those regions. In fact, as shown in Chapter VI, nothing has changed in this
regard up to the present day.
2.14 Section VI demonstrates that the Pa rties have also disputed Russia’s
support, sponsorship and defence of the human rights abuses directed against
ethnic Georgians by third- parties, namely the de facto separatist authorities and
militias of South Ossetia and Abkhazia. Those entities, Georgia repeatedly stated
in diplomatic communications and public declarations, were not only aided and
abetted by the Russian Federation, but were in fact under the effective command
and control of the Respondent State, when they committed ethnic cleansing and
other forms of discrimination against ethnic Georgians. In one of many protests
in regard to Russia’s actions, Georgia conveyed to the Security Council in 2007,
by way of example, its “extreme concern” regarding Russia’s “support and
38
training” of the de facto authorities “responsible for ethnic cleansing” .
2.15 Georgia, further, formally and publicly maintained for years preceding its
Application that Russia was responsible for the acts of discrimination committed
by the de facto separatist authorities in South Ossetia and Abkhazia because their
political, military, security and intelligen ce leaderships consisted of active duty
Russian General Officers and other Russi an state officials (whose names and
positions were provided in paragraphs 4.49 to 4.57 and paragraphs 6.64 to 6.66 of
the Memorial). As Georgia’s Minister of Foreign Affairs complained to the
OSCE Permanent Council in 2006, the de facto administration in South Ossetia is
39
“staffed” by “representatives” of Russia’s “law enforcement” and “military” . In
2007, President Saakashvili complained to the General Assembly that Russia was
38U.N. Security Council, Letter dated 3 October 2007 from the Permanent Representative of
Georgia to the United Nations addressed to the President of the Security Council, A, U.N.
Doc. S/2007/589 (4 October 2007). GWS, Vol. III, Annex 89.
39
Statement by the Minister of Foreign Affairs of Georgia , PC.DEL/101/06 (9 February 2006), p.
2. GM, Vol. II, Annex 81.
27responsible for the “morally repugnant politics of ethnic cleansing” in South
Ossetia, where the de facto authority “basically consists of elements from security
40
services from neighbouring Russia” . Russia, of course, opposed this charge –
but its very opposition makes manifest the existence of a legal dispute over
Russia’s responsibility for ethnic discrimination committed by separatist
authorities and militias operating in areas under Russian control.
2.16 Section VII, the final substantive s ection in this Chapter, describes
Georgia’s various diplomatic and public protests regarding Russia’s failure to use
the means available to it to prevent ethni c discrimination by third-parties in areas
of Georgia under its contro l, as distinguished from its active support for the
ethnic discrimination practiced by those parties. Specifically, the evidence shows
that Georgia repeatedly called into dis pute Russia’s role in tolerating, allowing,
and failing to prevent or punish violent acts of discrimina tion against ethnic
Georgians in areas controlled by its military or “peacekeeping” forces, despite
having the means to halt such discrimi nation and the obligation to do so.
Russia’s failure to act in the face of violent attacks against ethnic Georgians
residing in areas under its control led Georgia in 2006, for example, to dispute the
“culpable inaction” of Russia’s military an d “peacekeeping” forces in the face of
“grave crimes and gross violation of human rights” 41. Russia’s persistent denials
of responsibility underscored the existence of a dispute between the two Parties in
regard to duties imposed by the 1965 Convention.
2.17 Section VIII briefly se ts forth the Conclusion of this Chapter, as
demonstrated in the preceding sections, that there is undeniably a legal dispute
40U.N. General Assembly, 7th Plenary Meeting, Address by Mr. Mikheil Saakashvili, President of
Georgia, U.N. Doc. A/62/PV.7 (26 September 2007). GWS, Vol. III, Annex 88.
41
Ministry of Foreign Affairs of Georgia, Comment of the Department of the Press and
Information on the Statements of the Minister of Foreign Affairs of the Russian Feder(20on
January 2006). GWS, Vol. IV, Annex 162.
28between the Applicant and Respondent St ates regarding ethnic discrimination
under the 1965 Convention, which predates the filing of the Application.
Russia’s first preliminary objection is therefore unsustainable.
Section II. The Parameters for Determining the Existence of a Legal
Dispute
2.18 According to the Court’s well-established jurisprudence, “[w]hether there
exists an international dispute is a ma tter for objective determination”, which is
made by the Court based on the eviden ce submitted to it by the Parties 42. In
making this determination, the Court ex amines both the statements and the
conduct of the Parties prior to the commencement of legal proceedings; substance
matters more than form.
2.19 In this case, the statements, conduct and pleadings of the Parties all reflect
the existence of a legal dispute be tween Georgia and Russia over whether
Russia’s alleged ethnic discrimination ag ainst persons of Ge orgian ethnicity,
committed over the course of 15 years leading up to the filing of the Application,
constituted breaches of its legal oblig ations under the 1965 Convention. The
pertinent evidence, summarized in the preced ing section, is described in detail in
Sections IV through VII below. It shows that Georgia repeatedly and
continuously accused Russia of conduct th at is prohibited by the Convention,
including violent acts of ethnic cleansing to rid certain parts of Georgia of ethnic
42
Interpretation of Peace Treaties with Bulgaria, Hungary and Romania , Advisory Opinion,
I.C.J. Rep. 1950, p. 65, para. 74; East Timor (Portugal v. Australia), Judgment, I.C.J. Rep. 1995,
p. 100, para. 22; 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. Rep. 1998, p. 17, para. 22;Land and Maritime Boundary
between Cameroon and Nigeria (Cameroon v. Nigeria: Equatorial Guinea intervening) ,
Preliminary Objections, Judgment, I.C.J. Rep. 1998, p. 275, para. 87; Certain Property
(Liechtenstein v. Germany), Preliminary Objections, Judgment, I.C.J. Rep. 2005, p. 18, para. 24;
Armed Activities on the Territory of the Congo (New Application: 2002) (Democratic Republic of
the Congo v. Rwanda), Judgment, I.C.J. Rep. 2006, p. 40, para. 90.
29Georgians; forcible prevention of the exer cise of the right of return; support and
sponsorship of ethnic discrimination ag ainst Georgians by third-parties; and
failure to act responsibly to prevent such discrimination despite the availability of
reasonable means to do so. And it shows that Russia was not only made aware of
Georgia’s accusations, th rough bilateral negotiations , reports to the CERD
Committee, the United Nations and ot her multilateral forums, and public
declarations to the news media, but positiv ely opposed them prior to the filing of
the Application. Under the Court’s ju risprudence, discussed below, this is more
than sufficient to establish the existence of a legal dispute between the Parties to
this case.
2.20 Russia’s principal argument to avoid th is conclusion is to point out that
Georgia did not declare, prior to its Application, that the specific acts of
discrimination by Russia that it identified and denounced, and which Russia
denied, were in fact violations of the 1965 Convention; that is, according to
Russia, there can be no dispute between the Parties under the Convention because
Georgia did not expressly cite that instrument prior to the filing of its Application
as the basis for its complaints regarding Russia’s ethnic discrimination against
ethnic Georgians 43.
2.21 Curiously, Russia appears to be of tw o minds as to whether Georgia was
required to expressly incant the words “ 1965 Convention” at some point prior to
filing its Application in order to establish a legal dispute under that Convention.
It took precisely the opposite position at the oral hearings on provisional
measures:
Of course, Madam President, ‘[i]t does not necessarily follow that,
because a State has not expressly referred in negotiations with
another State to a particular tr eaty as having been violated by
conduct of that other State, it is debarred from invoking a
43RPO, para. 3.18.
30 compromissory clause in that trea ty’, as you stated in Nicaragua
(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). But the subject of the negot iations must nevertheless be a
dispute regarding the interpretation or application of the44
convention and the parties must be aware of that fact .
2.22 And even in its Preliminary Objections Russia continued to express doubt
that an explicit mention of the 1965 Convention by Georgia was required in order
to establish a legal dispute under it, as long as Georgia complained about conduct
going to the “object” of the Convention (which it plainly did):
In order to amount to a ‘negotia tion’ over a CERD-related dispute
per se, the contacts between the Parties to a dispute must expressly
refer to the 45nvention or to its substantive provisions or, at least,
to its object .
2.23 Russia’s argument, whatever it is, fails. To the extent that Russia argues
that there can be no legal dispute under the 1965 Convention because Georgia did
not expressly state that the ethnic discrimination of which it complained for more
than 15 years violated th at Convention, the same ar gument was rejected by the
Court in Military and Paramilitary Activi ties in and against Nicaragua , as
Counsel to Russia recognized at the provisional measures hearings. In the former
case, the United States argued that:
Since… Nicaragua has never even raised in negotiations with the
United States the application or interpretation of the Treaty [of
Amity] to any of the factual or le gal allegations in its Application,
Nicaragua has failed to satisfy the Treaty’s own terms for invoking
46
the compromissory clause .
44
Verbatim Record, CR 2008/27 (10 September 2008), para. 15 (Pellet).
45RPO, para. 4.84
46
Military and Paramilitary Activities in and agains t Nicaragua (Nicaragua v. United States of
America), Jurisdiction and Admissibility, Judgment, I.C.J. Rep. 1984, p. 427, para. 81.
312.24 The Court disagreed. It found that Nicaragua’s failure to expressly invoke
the bilateral Treaty of Friendship, Co mmerce and Navigation prior to the
commencement of legal proceedings neither barred it from raising claims against
the United States for violation of the Treaty in its Application, nor prevented the
Court from exercising jurisdiction in regard to Nicaragua’s claims pursuant to the
Treaty’s compromissory clause:
it does not necessarily follow th at, 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 is47
debarred from invoking a compromissory clause in that treaty .
2.25 The Court ruled that jurisdiction could be exercised because “[t]he United
States was well aware that Nicaragua alleged that its conduct was a breach of
international obligations before the pres ent case was instituted”. Nicaragua’s
Application subsequently made it “aware that specific articles of the 1956 Treaty
48
are alleged to have been violated” . That was sufficient to establish a legal
dispute cognizable by the Court. The continuing force of this principle was
evident in the Court’s Order of 15 Octobe r 2008 in regard to Georgia’s Request
for Provisional Measures, where it was obser ved that “[t]he f act that CERD has
not been specifically mentioned in a bilateral or multilateral context is not an
49
obstacle to the seisin of the Court on the basis of Article 22 of the Convention” .
Thus, the test is not whether Georgi a expressly invoked the 1965 Convention in
its communications with Russia or its public statements prior to filing its
Application, but whether it alleged that Ru ssia’s conduct “was a breach of
international obligations before the present case was instituted” and subsequently
made clear in the Application which “specific articles of the Treaty are alleged to
47
Ibid., p. 428, para. 83 (emphasis added).
48Ibid.
49
Provisional Measures Order, op.cit., para. 115.
32have been violated” 50. The evidence shows that this is precisely what Georgia
did.
2.26 As discussed in the following sections of this Chapter, the evidence also
shows that prior to commencement of these proceedings Russia positively denied
and opposed – disputed – each of Georgia’s accusations of ethnic discrimination.
That constitutes an additional ground fo r determining that a legal dispute under
the 1965 Convention exists between these tw o Parties. Even if Russia had made
no statements opposing Georgia’s positions in regard to ethnic discrimination, its
opposition to them could be inferred from its conduct, which continued
unchanged despite Georgia’s protests. In Land and Maritime Boundary, Nigeria
advanced a preliminary object ion to jurisdiction based on its assertion that there
was no “dispute” between the parties over the location of the international
boundary. The Court observed that Nigeria had not explicitly challenged the
location of the boundary with Cameroon, taking note that:
Nigeria has constantly been reserved in the manner in which it has
presented its own position on the matter. Although Nigeria knew
about Cameroon’s preoccupation a nd concerns, it has repeated,
and has not gone beyond, the statement that there is no dispute
concerning ‘boundary delimitation as such’ 51.
2.27 Nonetheless, the Court determined that it was entitled to infer the
existence of a dispute over that issue. The Court explained:
[A] disagreement on a point of la w or fact, a conflict of legal
views or interests, or the positive opposition of the claim of one
party by the other need not necessarily be stated expressis verbis.
In the determination of the existence of a dispute, as in other
50Military and Paramilitary Activities in and agains t Nicaragua (Nicaragua v. United States of
America), op. cit., p. 428, para. 83.
51
Land and Maritime Boundary (Cameroon v. Nigeria), op. cit., p. 275, para. 91.
33 matters, the position or the attitude of a party can be established by
inference, whatever the professed view of that party 52.
2.28 Again, substance matters more than form. This has been the consistent
view of the Court. In the Certain Property case, the Court held that the inquiry
into whether a “claim of one party is positively opposed by the other” is
53
undertaken “for the purposes of verifying the existence of a legal dispute” . The
54
same formulation was repeated in the East Timor case . Express
acknowledgement of a dispute confir ms its existence, but is not a sine qua non,
since the existence of a dispute may be inferred from the conduct of a party 55. In
Headquarters Agreement, the Secretary-General informed the Court that a dispute
within the meaning of the Headquarter s Agreement existed between the United
Nations and the United States. The dispute, he said, arose when the Anti-
Terrorism Act was signed into law by the President of the United States and the
United States failed to give adequate assurances to the United Nations that the
Act would not be applied to the PLO Ob server Mission to the United Nations.
The United States raised a jurisdictional objection to the request for an advisory
opinion on the ground that there was no “dis pute” since “the United States in its
public statements has not referred to the matter in issue as a ‘dispute’” 56. The
Court rejected the United States’ objection:
[W]here one party to a treaty prot ests against the behaviour or a
decision of another party, and claims that such behaviour or
52Ibid., p. 275, para. 89.
53
Certain Property (Liechtenstein v. Germany), op.cit., p. 18, para. 25 (emphasis added).
54
East Timor (Portugal v. Australia), op.cit., p. 100, para. 22 (“[f]or the purpose of verifying the
existence of a legal dispute in the present casit is not relevant whether the “real dispute” is
between Portugal and Indonesia rather than Portugal and Australia”) (emphasis added).
55Neither case was cited in Russia’s Preliminary Objections. In that regard, Russia’s reliance on
the South West Africa case is misplaced since the relatively rigid standard that one could interpret
that case as adopting was subsequently clarified. See RPO, para. 3.17.
56 Applicability of the Obligation to Arbitrate under Section 21 of the United Nations
Headquarters Agreement of 26 June 1947, Advisory Opinion, I.C.J. Rep. 1988, p. 12, para. 39.
34 decision constitutes a breach of the treaty, the mere fact that the
party accused does not advance any argument to justify its conduct
under international law does not prevent the opposing attitudes of
the parties from giving rise to a dispute concerning the
interpretation or application of the treaty 57.
2.29 The Court cited to its decision in United States Diplomatic and Consular
Staff in Tehran , where it had similarly determined the existence of a dispute
despite Iran’s failure to oppose the claims of the United States:
Iran had at no time claimed to just ify its actions by advancing an
alternative interpretation of the Conventions, on the basis of which
such actions would not constitute such a breach. The Court saw no
need to enquire into the attitude of Iran in order to establish the
existence of 58‘dispute’; in order to determine whether it had
jurisdiction .
2.30 In the present case, Russia has issued numerous public statements
opposing Georgia’s claims that its milita ry forces engaged in ethnic cleansing
against persons of Georgian ethnicity, prevented them from exercising their right
of return, supported third- parties (especially separa tist Ossetian and Abkhaz
militias) who committed acts of violence targeting ethnic Georgians, and
deliberately failed to prevent such violent acts in such areas they controlled. This
should leave no doubt that the Parties ar e in dispute over matters of ethnic
discrimination falling within the 1965 Convention. However, Russia’s opposition
to Georgia’s claims can also be inferred from its conduct, evidenced in great
detail in the Memorial, by which it continued to engage in all of the
discriminatory conduct protested by Ge orgia despite, and after, Georgia’s
59
repeated protests .
57
Ibid., p. 12, para. 38.
58Ibid.
59
GM, Part B, Chapters III-VII.
35 Section III. Ethnic Discrimination Is Fundamental to Georgia’s Dispute
with Russia
2.31 Russia’s Preliminary Objections attempt to charac terize the dispute
underlying this case as pertaining to anything but ethnic discrimination
perpetrated by Russia. At paragraph 1.4, Ru ssia asserts that the “real dispute in
this case concerns the conflict, betw een Georgia on the one hand and Abkhazia
and South Ossetia on the other, in relati on to the legal status of Abkhazia and
60
South Ossetia, a conflict that has on occasion erupted into armed conflict”. In
other words, there is a dispute, but it is not between Georgia and Russia. Russia
repeats this contention at paragraphs 2.3 and 3.41, where it again claims that that
the “real dispute” concerns the “legal st atus” of South Ossetia and Abkhazia.
Elsewhere, Russia claims that if there is a dispute between Georgia and Russia it
relates not to ethnic discrimination but to “unlawful use of force” that was “born
out of the allegations that Georgia ha s made as to the ‘annexation’ of its
territory” . Still elsewhere, Russia claims that the dispute between the two
States, insofar as it involves harms inflicted on ethnic Georgians, is about alleged
violations of international humanita rian law, not the 1965 Convention 62. In
Russia’s view (or views, since several di fferent ones are expressed), the present
proceeding concerns many things, but it “is not a case about racial
63
discrimination” . Thus, Georgia is guilty of attempting to “transform a case
60
RPO, para. 1.4.
61Ibid., para. 3.79.
62
Ibid., paras. 3.10, 3.33.
63 Ibid., paras. 2.3, 3.41See also ibid. para. 3.76(b) (“Insofar as Georgia has been able to
establish conflict, this concerns the conflict, between Georgia on the one hand and Abkhazia and
South Ossetia on the other, in relation to the legal status of Abkhazia and South Ossetia”).
36turning on the use of force, and interna tional humanitarian law, into a racial
64
discrimination case” .
2.32 Russia is wrong. For Georgia, the case it has brought before the Court is
only about ethnic discrimination, and mo re particularly it is only about
discriminatory conduct prohibited by the 1965 Convention. Georgia’s Application
raises only claims of ethnic discrimi nation by Russia in violation of the
Convention. Its Memorial – all 408 pages of it plus over 2,340 pages of Annexes
– is addressed only to cl aims of ethnic discrimination against Russia, and
provides voluminous evidence of the extent and nature of Russia’s violations of
the Convention, which had both the objective and effect of permanently removing
the entire ethnic Georgian populations from nearly all of South Ossetia and
Abkhazia. That is the onl y dispute Georgia has brought to this Court. The huge
quantity of compelling evidence of widespread ethnic cleansing and related forms
of violent discrimination against ethnic Georgians – much of it collected by
highly qualified and unbiased multilatera l institutions and international
organizations – that was submitted with Georgia’s Memorial demonstrates the
enormity and the gravity of this dispute, and its centrality to the broader conflict
between the two Parties.
2.33 It is true, but beside the point, that Georgia’s conflict with Russia includes
other disputes, including ones Russia has id entified: Russia’s illegal use of force
against Georgia on several occasions since 1992, including the armed invasion of
Georgian territory by Russian military fo rces in August 2008; Russia’s repeated
and ongoing violations of Georgia’s sovereignty, territorial integrity and political
independence; and the violations of th e laws of war duri ng periods of armed
64RPO, para. 3.33(b).
37 65
conflict. Georgia has raised these disputes in other forums ; but has not brought
them to the Court; they do not form part of Georgia’s claims against Russia in
these proceedings. That they exist does not affect the existence of a dispute over
ethnic cleansing or denial of the right of return in vi olation of the 1965
Convention, or prevent Georgia from bringing that dispute to the Court. To form
a view on whether the Convention has been violated does not require the Court to
form a view on these other matters.
2.34 Russia’s argument is similar to the one that the Court rejected in the Oil
Platforms case 66. Like Russia here, the United States made a preliminary
objection (in that case to the assertion of jurisdiction under the US-Iran Treaty of
65
On 6 February 2009, Georgia filed an applica tion to institute proceedings against the Russian
Federation before the European Court of Human Rights for violations of the European
Convention of Human Rights and several of its Protocols. That action concerns Russia’s
indiscriminate and disproportionate attacks against civilians and their property in Abkhazia and
South Ossetia. Georgia v. Russian Federation , Eur. Ct. H.R., App. No. 38263/08 (9 February
2009). On 9 September 2008, in a statement before the UN Conference on Disarmament, Georgia
accused Russia of violating “the principles and ru les of the United Nations Charter, including the
prohibition of the use of force among states and respect for sovereignty and territorial integrity of
Georgia”. Conference on Disarmament, Letter dated 26 August 2008 from the Permanent
Representative of Georgian Addressed to th e Secretary-General of the Conference on
Disarmament Transmitting the Text on the Update of the Current Situation in Georgia, U.N. Doc.
CD/1850 (9 September 2008), p. 2. GWS, Vol. III, Annex 99. Georgia has raised these and other
breaches of international law by Russia at the General Assembly and Security Council of the
United Nations and the OSCE. See, e.g., U.N. General Assembly, Security Council, Identical
Letters dated 15 August 2008 from the Permanent Representative of Georgia to the United
Nations addressed to the Secretary-General and the President of the Security Council, Annex ,
U.N. Doc. A/62/935-S/2008/557 (18 August 2008) (“Russia is carrying out a full-scale occupation
of Georgia. Encroachment of the sovereignty of an independent State and its military occupation
represents a direct challenge to the security oEurope and the whole democratic community”.)
st
GWS, Vol. III, Annex 97; U.N. Security Council, Provisional Record of the 5961 Meeting, U.N.
Doc. S/PV.5961 (19 Augus t 2008) (“The Russian side conti nues to violate agreed ceasefire
arrangements.”). GWS, Vol. III, Annex 98; OSCE, Statement of the Georgian Delegation at the
Special Permanent Council Meeting, PC.DEL/708/08 (15 August 2008) (“Russian Federation
chose a path of war and occupation and did everyt hing to make sure that Georgia ceased to exist
… In this war, Russian Federation showed that this is the country, which does not oblige itself
with any international norm and regulation. Russian Federation toppled international law in front
of our own eyes. They not only challenged the international order, as we know it today, but also
challenged international law, including humanitarian law.”). GWS, Vol. III, Annex 115.
66 Oil Platforms (Islamic Republic of Iran v. the United States of America), Preliminary
Objections, Judgment, I.C.J. Rep. 1996, p. 803, para. 21.
38Amity, Economic Relations and Consul ar Rights of 1955) on grounds that:
“Iran’s claims raise issues relating to the use of force, and these do not fall within
67
the ambit of the Treaty of 1955” . The Court found the United States’ objection
without merit because:
The Treaty of 1955 imposes on each of the Parties various
obligations on a variety of ma tters. Any action by one of the
Parties that is incompatible with those obligations is unlawful,
regardless of the 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. The arguments put forward on 68is point by the United
States must therefore be rejected .
2.35 By the same logic, Russia’s ethnic cleansing of the Georgian population
from South Ossetia and Abkhazia does not cease to be properly characterized as a
dispute about discrimination in violatio n of the 1965 Convention because it was
perpetrated by the use of force. Indeed, how else would the ethnic cleansing of
an entire population be accomplished? To exclude ethnic cleansing or other
forms of ethnic or racial discrimination from the coverage of the Convention by
virtue of their execution by use of force would render the Convention
meaningless in situations where it was obviously intended and understood to
apply. The fact that Russia used force to carry out the ethnic discrimination
alleged by Georgia in the Application cannot therefore convert the dispute raised
by Georgia from one concer ning ethnic discrimination to one about the use of
force such that the Court would be deprived of jurisdiction under Article 22 of the
Convention.
67Ibid., p. 803, para. 18.
68Ibid., p. 803, para. 21.
392.36 Russia’s attempt to convert the dispute into one about humanitarian law,
as distinguished from human rights law, also fails. This approach has also been
tried before; and this too has been reje cted by the Court, specifically in the
Court’s Advisory Opinion on the Legal Consequences of the Construction of a
Wall in the Occupied Palestinian Territory . Russia asserts that the claims
presented by Georgia are derived from international humanitarian law, not human
69
rights treaties like the 1965 Convention . Indeed, Russia goes so far as to assert
that Georgia’s claims are barred becaus e the Geneva Conventions do not include
compromissory clauses that allow for the referral of disputes to the Court. These
arguments run directly counter to the Court’s reasoning in the Wall case, where it
observed that the same set of facts can give rise to breaches of multiple legal
obligations, including violations of bot h international humanitarian law and
human rights law. Where this occurs, the Court found, human rights conventions
still apply:
…the protection offered by huma n rights conventions does not
cease in case of armed conflict, save through the effect of
provisions for derogation of the kind to be found in Article 4 of the
70
International Covenant on Civil and Political Rights…
2.37 The Court reaffirmed this position in Democratic Republic of Congo v.
Uganda, at paragraph 216, where, after recal ling that “it had o ccasion to address
the issues of the relationship between international humanitarian law and
international human rights law” in the Wall case, reaffirmed that “the protection
offered by human rights conventions does not cease in case of armed conflict,
69RPO, para. 3.10.
70
Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory,
Advisory Opinion, I.C.J. Rep. 2004, p. 178, para . 106. The Court further noted: “As regards the
relationship between international humanitarian law and human rights law there are thus three
possible situations: some rights may be exclusively matters of international humanitarian law;
others may be exclusively matters of human rights law; yet others may be matters of both these
branches of international law”.
40 71
save through the effect of provisions for derogation…” . The Court thus
concluded in DRC v. Uganda that “both branches of international law, namely
international human rights law and international humanitarian law, would have to
72
be taken into consideration” .
2.38 The Court took a similar approach in its 15 October 2008 Order regarding
provisional measures, at paragraph 112: “[W]hereas, moreover, the acts alleged
by Georgia appear to be capable of cont ravening rights provided for by CERD,
even if certain of these alleged acts mi ght also be covered by other rules of
international law, including humanitarian la w; whereas this is sufficient at this
stage to establish the existence of a dispute between the Parties capable of falling
within the provisions of CERD, which is a necessary conditi on for the Court to
have prima facie jurisdiction under Article 22 of CERD”.
2.39 The CERD Committee has also found that the protections provided by the
1965 Convention do not disappear merely because ethnic discrimination is
carried out in the context of armed conflic t and violations of humanitarian law.
After having insisted that “effective action should be taken to ensure that refugees
and other displaced persons were a llowed to return to their homes” 73, the
Committee requested the Federal Republic of Yugoslavia and its successors to
adhere to their obligatio ns under the 1965 Convention and report, within four
74
months, on their performance of these obligations . In so doing, the Committee:
71Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda),
p. 69, para. 216 (quotingLegal Consequences of the Construction of a Wall in the Occupied
Palestinian Territory, Advisory Opinion, I.C.J. Rep. 2004, p. 178, para. 106).
72Ibid., p. 69, para. 216.
73
U.N. General Assembly, Report of the Committee on the Elimination of Racial Discrimination,
Official Records, Forty-Eigh th Session, Supplement No. 18, U.N. Doc. A/48/18 (1994)
(hereinafter “CERD Report, 48th Session, Supp. No. 18”), paras. 453, 470. GM, Vol. V, Annex
412.
74Ibid., para. 509.
41 expressed deep concern over repo rts of serious and systematic
violations of the Convention o ccurring in the territory of the
Federal Republic of Yugoslavia (Ser bia and Montenegro). In that
regard, the Committee considered that by not opposing extremism
and ultranationalism on ethnic grounds, State authorities and
political leaders incurred serious responsibility 75.
2.40 Accordingly, Russia cannot deprive the Court of jurisdiction over
Georgia’s claims of ethnic discrimina tion by labelling this a dispute about
humanitarian law as distinguished from human rights law. The only relevant
consideration is whether Georgia has presented a dispute about human rights law
– specifically a dispute ar ising under the 1965 Convention – since, as the Court
has already indicated, that is sufficient in itself to present a legal dispute over
which the Court can exercise jurisdiction under Article 22.
2.41 Naturally, Russia tries to deny the existence of such a dispute, or at the
very least to downplay its significance. It goes so far as to state:
In the present case, not only ha s Georgia never invoked CERD in
its relations with Russia in the context of the situation in Abkhazia
and South Ossetia prior to the filing of its Application, but also, as
Chapter III of the present Objections demonstrates, the
circumstances could not be interpreted as obliging Russia to infer
a claim over racial discrimina tion from the various political
disagreements it had had with Georgia over the recent years 7.
2.42 This is a remarkable statement: that the “various political disagreements
[Russia] had with Georgia over the recen t years” “could not be interpreted as
obliging Russia to infer a claim over ra cial discrimination”! Russia cannot so
easily erase 15 years of history, especia lly as it is replete with Georgia’s
complaints about Russia’s discrimination against ethnic Georgians, both by direct
means and by its support and sustenance of armed groups of Ossetian and Abkhaz
engaged in ethnic violence against the Ge orgian population; and especially in
75Ibid., para. 536.
76RPO, para. 4.32.
42light of Georgia’s ongoing protests about Russia’s refusal to allow expelled
Georgian IDPs from exercising their right of return, which is expressly
guaranteed by the 1965 Convention.
2.43 Not only Georgia, but independent and reputable institutions and
organizations expert in the investigation of racial di scrimination have confirmed
that ethnic cleansing lies at the heart of this dis pute. As early as 1993, the
Security Council, in Resolution 876, expressed concern over the “reports of
77
‘ethnic cleansing’ in Abkhazia” . This characterization was repeated in
78
subsequent Security Council resolutions as well . Similarly, the Sub-
Commission on Prevention of Discriminati on and Protection of Minorities of the
UN Commission on Human Rights described the “large-sca le ethnic cleansing”
79
that occurred in both Abkhazia and South Ossetia .
2.44 The OSCE has also repeatedly charact erized the anti-Georgian violence
that underlies this case as “ethnic cleans ing”. In the immedi ate aftermath of the
ethnic violence in the early 1990s, the OSCE Budapest Document noted its “deep
concern over ‘ethnic cleansing’, the massi ve expulsion of people, predominantly
80
Georgian, from their living areas and the deaths of large numbers of civilians” .
Similarly, in 1996, the OSCE condemned the “ethnic cleansing” that had resulted
77U.N. Security Council, Resolution 876, U.N. Doc. S/RES/876 (19 October 1993), p. 1. GM,
Vol. II, Annex 11.
78See, e.g., U.N. Security Council, Resolution 1124, U.N. Doc. S/RES/1124 (31 July 1997), paras.
9, 10 (reaffirming “the unacceptability of the demographic changes resulting from the conflict” in
Abkhazia and condemning “killings, particularly those ethnically motivated, and other ethnically
related acts of violence”). GM, Vol. II, Annex 23; U.N. Security Council, Resolution 1524, U.N.
Doc. S/RES/1524 (30 January 2004) (reaffirm ing “the unacceptability of the demographic
changes resulting from the conflict”), para. 15. GM, Vol. II, Annex 36.
79U.N. Commission on Human Rights, Sub-Commission on Prevention of Discrimination and
Protection of Minorities, Possible ways and means of facilitating the peaceful and constructive
solution of problems involving minorities , Report submitted by Mr. Asbjorn Eide,U.N. Doc.
E/CN.4/Sub.2/1993/34 (10 August 1993), para. 285. GM, Vol. II, Annex 9.
80OSCE, Budapest Document 1994: Toward a genuine Partnership in a New Era (6 December
1994), p. 7. GWS, Vol. III, Annex 104.
43in “mass destruction and forcible e xpulsion of predom inantly Georgian
81
population in Abkhazia” . The OSCE likewise repor ted on the ethnic cleansing
that was carried out in 2008; its investigativ e fact-finders re ported that “many
villages” that had been “inhabited by et hnic Georgians” were “nearly completely
destroyed” when they were “pillaged a nd then set afire” by perpetrators that
included the “Russian armed forces” 82.
2.45 The same findings were made by th e Council of Europe. In 2007, the
European Commission against Racism and Intolerance:
register[ed] its deep concern at re ports of human rights violations
in South Ossetia and Abkhazia. It is particularly worried about
allegations from various sources that members of the non-Abkhaz
population, including many people of Georgian origin who have
spontaneously returned to thei r homes in the Gali region of
Abkhazia, are victims of racial discrimination 83.
2.46 Fact-finders investigating the ethnic violations of 2008 on behalf of the
Council’s Parliamentary Assembly (“PACE ”) reported evidence of “systematic
acts of ethnic cleansing of Georgian villages in South Ossetia” and that “entire
84
villages have been bulldozed over and razed” . The PACE Rapporteur
concluded, after visiting S outh Ossetia, that the “syste matic destruction of every
single house is a clear indication that there has been an intention to ensure that no
81OSCE, Lisbon Summit, Lisbon Document (1996), para. 20 of the Summit Declaration. GM,
Vol. II, Annex 69.
82OSCE, Office for Democratic Institutions and Human Rights, Human Rights in the War-
Affected Areas (2008), pp. 7, 25-26. GM, Vol. II, Annex 71.
83
Council of Europe, European Commission against Racism and Intolerance, Second Report on
Georgia, CRI(2007)2 (13 February 2007). GWS, Vol. III, Annex 110.
84
Council of Europe, Parliamentary Assembly, The situation on the ground in Russia and
Georgia in the context of the war between those countries, Memorandum , Doc. 11720 Addendum
II (29 Sept. 2008), para. 20. GM, Vol. II, Annex 56.
44Georgians have a property to return to in these villages” and that this “supports
the accusation that these villages have been ‘ethnically cleansed’ of Georgians” 85.
2.47 The most recent finding that ethnic cl eansing is a fundamental element of
the dispute between Georgia and Russia is the Report of the European Union’s
Independent International Fact-Finding Mission on the Conf lict in Georgia,
which was publically released in Sept ember 2009. According to the EU fact-
finders:
the Mission found patterns of fo rced displacements of ethnic
Georgians who had remained in their homes after the onset of
hostilities. In addition, there wa s evidence of systematic looting
and destruction of ethnic Georgian villages in South Ossetia.
Consequently, several elements suggest the conclusion that ethnic
cleansing was indeed practised against ethnic Georgians in S86th
Ossetia both during and after the August 2008 conflict .
2.48 Ethnic discrimination, including Russia’s responsibility for ethnic
cleansing and denial of the right of return, is not an ancillary or minor feature of
the dispute between Georgia and Russia. Nor could it be given the seriousness of
these offenses. In Barcelona Traction, the Court described racial discrimination
as being among those legal oblig ations that are of such importance that they are
87
obligations erga omnes . The General Assembly, “recalling” the 1965
Convention, “condemn[ed] unreservedly ‘e thnic cleansing’ and acts of violence
arising from racial hatred ” and “reaffirm[ed] that ‘e thnic cleansing’ and racial
hatred are totally incompatible with universally recognized human rights and
85Council of Europe, Parliamentary Assembly, Committee on Migration, Refugees and
Population, Report, The humanitarian consequences of the war between Georgia and Russia:
follow-up given to resolution 1648 (2009) , Doc. 11859 (9 April 2009), para. 29. GM, Vol. II,
Annex 62.
86Independent International Fact-Finding Missi on on the Conflict in Georgia, Report Vol. I
(September 2009) (hereinafter “IIFFMCG Report, Vol. I”), para. 27. GWS, Vol. III, Annex 120.
87
Barcelona Traction, Light and Power Company, Limited (Belgium v. Spain) , Judgment, I.C.J.
Rep. 1970, p. 32, para. 34.
45 88
fundamental freedoms” . As one respected commentator has noted, the
“distinction between genocide” and “ethnic cleansing” is “insignificant in terms of
both a duty to prevent and an obligation to punish” .89
2.49 Russia’s argument that the dispute concerns only the legal status of South
Ossetia and Abkhazia is unconvincing. In sofar as there is now a dispute over
those territories’ legal status, that dispute is inextricably bound to issues of ethnic
cleansing. As the evidence presented in the Memorial shows, the ethnic
cleansing of South Ossetia and Abkhazi a was an indispensable element of
Russia’s drive to change their legal status; by removing the Georgian populations
from these territories Russia created separate and ethnically homogeneous
Ossetian and Abkhazian homelands which it then purported to convert into
ostensibly “independent” States (albeit this ultimate objective is, so far, resolutely
90
opposed by the international community as a whole) . In this regard, it is
important to recall that among the principal concerns that led to the adoption of
the 1965 Convention was the impermissibl e use of ethnic discrimination to
construct states, specifically South Africa’s creation of “Bantustans”, ethnically-
homogeneous pseudo-states to which cer tain racial and ethnic groups were
confined . In its Report, the EU Fact-F inding Mission recognized that the
“status question” in regard to South Ossetia and Abkhazia is “interconnected
with” the issue of “return of refugees/IDPs” because the “legitimacy” of any
claims of “independence” is “undermined by the fact that a major ethnic group
88
U.N. General Assembly, Resolution Adopted by the General Assembly, “Ethnic Cleansing” and
Racial Hatred, U.N. Doc. A/RES/47/80 (15 March 1993). GWS, Vol. III, Annex 47.
89William A. Schabas, “Genocide, Crimes Against Humanity, and Darfur: The Commission of
Inquiry’s Findings on Genocide,”Cardozo Law Review, Vol. 27, no. 4 (2006), p. 1707.
90GM, Part B, Chapters III-VII.
91
Ibid., para. 9.4.
46(i.e. the Georgians) were e xpelled from these territories and are still not allowed
to return, in accordance with international standards” 92.
2.50 The centrality of the dispute over et hnic cleansing to the conflict between
Georgia and Russia is one of a number of compelling factors that distinguish this
case from Democratic Republic of Congo v. Rwanda . In that case, the DRC’s
claims under a potpourri of human right s conventions, including CEDAW, were
incidental to its dispute with Rwanda, a nd were designed solely to create a basis
for the Court’s jurisdiction 9. There was no prior history of complaints by the
DRC of actions by Rwanda that would have constituted violations of CEDAW, or
denials by Rwanda that it had committed such actions. Nor was there any
evidence – or even argument – presente d by the DRC that Rw anda’s actions in
alleged violation of CEDAW were esse ntial or inextricably linked to the
achievement of its objectives in inva ding and occupying Congolese territory.
Those facts established that there was no pre-existing legal dispute between the
parties over conduct by Rwanda in violation of CEDAW.
2.51 In the present case, by contrast, Russia cannot seriously deny that there is
a dispute between Georgia and Russia over et hnic cleansing and the denial of the
right of return in violation of the 1965 Convention, or that this dispute is a central
and fundamental aspect of the conflict be tween the two States. The most Russia
can show is that the dispute over violati ons of the Convention is not the only one
between these two Parties. But that doe s not prevent the Court from exercising
jurisdiction over Georgia’s claims.
2.52 The Court has repeatedly found, as it did in United States v. Iran, that “no
provision of the Statute or Rules contemplates that the Court should decline to
92Independent International Fact-Finding Mission on the Conflict in Georgia, Report Vol. II
(September 2009), pp. 82, 134. GWS, Vol. III, Annex 121.
93
GWS, Chapter III, paras. 3.65- 3.66.
47take cognizance of one aspect of a dispute merely because that dispute has other
94
aspects, however, important” . Further elaborating on this point, the Court
explained:
[N]ever has the view been put forward that, because a legal dispute
submitted to the Court is only one as pect of a political dispute, the
Court should decline to resolve for the partie s the legal questions
at issue between them. Nor can an y basis for such a view of the
Court’s functions or jurisdiction be found in the Charter or the
Statute of the Court; if the Court were, contrary to its settled
jurisprudence, to adopt such a view, it would impose a far-
reaching and unwarranted restriction upon the role of the Court in
the peaceful solution of international disputes 9.
2.53 Applying the same logic, the Court c hose to exercise jurisdiction in the
Border and Transborder Armed Actions case between Nicaragua and Honduras
despite the fact that it was brought in the context of a broader, regional dispute
involving other States that was mos tly beyond the scope of the Court’s
96
jurisdiction . And the Court exercised jurisdiction in the Application of the
Genocide Convention case even though – as in the present case – the claim for
breach of international human rights la w (under Article IX of the Genocide
Convention) arose in the context of a wider and more complex dispute over the
legal status of territory and armed conflict 97. These cases make it clear that the
94
United States Diplomatic and Consular Staff in Tehran (United States of America v. Iran) ,
Judgment, I.C.J. Rep. 1980, p. 20, para. 36; Border and Transborder Armed Actions (Nicaragua
v. Honduras), Jurisdiction and Admissibility, Judgment, I.C.J. Rep. 1988,p. 69, para. 54.
95
United States Diplomatic and Consular Staff in Tehran (United States of America v. Iran) , op.
cit., p. 20, para. 37.
96Border and Transborder Armed Actions (Nicaragua v. Honduras) , op.cit., p. 69, para. 96 (“Nor
should it be thought that the Court is unaware that the Application raises juridical questions which
are only elements of a larger political situatin. Those wider issues are however outside the
competence of the Court, which is obliged to confine itself to these juridical questions.”).
97Application of the Convention on the Prevention and Punishment of the Crime of Genocide
(Bosnia and Herzegovina v. Serbia and Montenegro) , Preliminary Objections, Judgment, I.C.J.
Rep. 1996, p. 595, para. 34.
48existence of other disputes between Ge orgia and Russia does not preclude the
Court from taking seisin over the one presented in Georgia’s Application.
2.54 Russia cannot prevail by arguing that Georgia’s invocation of the 1965
Convention represents a “departure from the practice of States which have
appeared as applicants before the Court in cases involving the allegations of inter-
ethnic violence” 9. In effect, Russia argues th at a Convention that plainly
prohibits ethnic discrimination, and that includes a compromissory clause vesting
the Court with jurisdiction, cannot be invoked as a basis of the Court’s
jurisdiction because it has not been done before. Georgia submits that such an
argument can hardly be taken seriously. Russia’s reliance on Democratic
Republic of Congo v. Uganda is unavailing. While the Court did not list the 1965
Convention as among those that were app licable in that case, it is worth noting
that the Applicant State, the DRC, neve r invoked the Convention anywhere in its
pleadings or submissions to the Court. Moreover, as the C ourt has previously
observed, a State has unfettered discreti on to determine which violations of
99
international legal obligations it will place before the Court .
100
2.55 Russia’s claims regarding Georgia’s motivation in bringing this case ,
101
and the manner in which it was brought , have no relevance to its jurisdictional
objection. The purpose of Georgia’s reco urse to the Court is the peaceful
settlement of the existing dispute. Russia’s allegations – even if true (which they
are not) – provide no justification for avoi ding the Court’s jurisdiction. As the
Court held in Nicaragua v. Honduras , “the Court’s judgment is a legal
pronouncement … it cannot concern itself wi th the political motivation which
98
RPO, para. 3.13.
99See, e.g., Border and Transborder Armed Actions (Nicaragua v. Honduras), op. cit., p. 69, para.
52.
100RPO, paras. 1.11-1.16.
101
Ibid., para. 3.12.
49may lead a State at a partic ular time, or in particul ar circumstances, to choose
judicial settlement”102. In the present case, Georgi a has plainly placed before the
Court a legal dispute under the 1965 Convention, especial ly in regard to ethnic
cleansing in, and the denial of the right of return to, South Ossetia and Abkhazia.
The sections that follow present the evidence that this legal dispute has existed
since long before the filing of Georgia’s Application.
Section IV. Georgia’s Claims Regarding Ethnic Cleansing and Other
Violent Acts of Discrimination by Russia’s Armed Forces
2.56 In the Memorial, Georgia demonstrated that Russia breached its
obligations under the 1965 Convention th rough acts of ethnic discrimination
committed by its military and security forces in and around South Ossetia and
103
Abkhazia . In that regard, Georgia show ed that Russian armed forces
participated in ethnic cleansing and enga ged in other violent abuses of ethnic
Georgians.
2.57 Russia’s assertion that Georgia did not raise these issues prior to filing its
Application is false. In fact, on numerous occasions in the years preceding the
submission of the Application Georgia accused Russia of having engaged in acts
of ethnic discrimination that fall under the 1965 Convention. In this Section,
Georgia demonstrates that it raised these matters in its bilateral discussions with
Russia, in various international fora, including the United Nations and the OSCE,
in its reports to the CERD Committee, and in public statements by Georgia’s
President and other State organs. In short, contrary to the inaccurate portrayal in
Russia’s Preliminary Objections, Russia has been aware for many years of the
complaints raised by Georgia over the commission of acts covered by the 1965
102Border and Transborder Armed Actions (Nicaragua v. Honduras), op. cit., p. 69, para. 52.
103GM, Part E, Chapter IX.
50Convention, including among others, Russia’ s participation in ethnic cleansing
and other violent acts of ethnic discrimination.
2.58 This section is divided into two parts. The first part focuses on the
evidence pertaining to the period between the outbreak of armed hostilities
between Georgia and Russia on 8 August 2008 and the filing of the Application
four days later. The second part disc usses the evidence covering the 15-year
period prior to August 2008.
A. THE E VIDENCE PERTAINING TO 8-12A UGUST 2008
2.59 Russia’s argument that Georgia’s Application was the first place it alleged
that Russia was responsible for the ethni c cleansing that occurred between 8 and
12 August 2008 has no basis in fact 104. To the contrary, Georgia’s highest
authorities made repeated accusations of Russia’s re sponsibility for ethnic
cleansing in the opening days of the August 2008 conflict, and they did so before
the filing of the Application.
2.60 As Georgia detailed in the Memorial, major hostilities between Georgia
and Russia commenced during the nigh t of 7 August 2008. Immediately
thereafter, Russia’s armed forces, in conj unction with separatist military units
operating under Russia’s command and c ontrol, began targeting the ethnic
Georgian population of South Ossetia an d adjacent areas, as well as ethnic
105
Georgians in the Kodori Gorge region of Abkhazia . As the scale of these acts
of violent ethnic discrimination became a pparent, Georgia made every effort to
invoke Russia’s responsibility , and it repeatedly did so prior to filing its
Application. When Russia persisted in its cam paign of ethnic cleansing, Georgia
chose to invoke the Court’s jurisdiction under Article 22.
104See, e.g., RPO, paras. 1.7, 1.10, 3.3, 3.18, 3.45, 3.49, 3.76.
105
GM, paras. 3.3-3.117.
512.61 On 9 August 2008, the day after major hostilities commenced, President
Saakashvili issued a wide ly publicized statement declaring that the Russian
Federation was acting in support of sepa ratists in South Ossetia who were
“engaged in massive violation of human rights and freedoms, armed assaults on
peaceful population and violence” 106. He emphasized that the separatists
committing these human rights abuses of ethnic Georgians had the “full” and
“active” support of Russia 107. President Saakashvili specifically observed that
Russia had supplied the separatists with military equipment and ammunition and
that Russian officials held senior leadership positions in the de facto
108
administration . He instructed that his statement be transmitted to “the U.N.
Secretary-General, the General-Secret ary of the Council of Europe, other
109
International Organizations and Heads of Diplomatic Missions in Georgia” .
2.62 The same day, President Saakashvili held a press conference with the
international news media during which he provided more details about the
unfolding ethnic cleansing. He could not have been clearer in holding Russia
responsible for perpetrating a campaign inte nded to expel ethnic Georgians from
South Ossetia and Abkhazia:
Russian troops, Russian tanks that moved in, into South Ossetia on
their way expelled the whole ethn ically Georgian population of
South Ossetia. This morning they’ve committed the ethnic
cleansing in all areas they contro l in South Ossetia, they have
106Press Release, Office of the President of Georgia, “Presidential Decree on Declaration of State
of War and Full Scale Mobilization” (9 August 2008). GWS, Vol. IV, Annex 183. President
Saakashvili’s statement was covered in Russia. See, e.g. , “Georgia imposes martial law as
violence continues”, RIA Novosti (9 August 2008). GWS, Vol. IV, Annex 200.
107Press Release, Office of the President of Georgia, “Presidential Decree on Declaration of State
of War and Full Scale Mobilization” (9 August 2008). GWS, Vol. IV, Annex 183.
108
Ibid.
109Ibid. See also U.N. General Assembly, Security Council , Identical letters dated 11 August
2006 from the Chargé d’affaires A.I. of the Permanent Mission of Georgia to the United Nations
addressed to the Secretary-General and the President of the Security Council, Annex, U.N. Doc.
A/60/976-S/2006/638 (14 August 2006). GWS, Vol. III, Annex 83.
52 expelled ethnic Georgians living th ere. Right now they are trying
to set up the ethnic cleansing of ethnic Georgians from upper
Abkhazia – Kodori Gorge 110.
2.63 The next day, 10 August 2008, Georgia requested an emergency session
of the Security Council. There, Georgi a’s Permanent Representative explicitly
raised Russia’s responsibility for violen t acts of ethnic discrimination, accusing
Russia of attempting to “exterminate the Georgian people” in South Ossetia and
111
Abkhazia . The Representative of Georgia reported that President Saakashvili
was urgently seeking to communicate wi th President Medvedev of Russia about
this, to which Russia’s Permanent Representative responded “what decent person
would talk to him [ i.e., President Saakashvili] now” 112. The Russian Permanent
Representative specifically denied the accusation made by President Saakashvili
the previous day that Russian forces were committing ethnic cleansing 113.
2.64 The following day, 11 August 2008, Georgia’s Ministry of Foreign
Affairs issued a public stat ement that also raised Russia’s actions to forcibly
remove ethnic Georgians from South Ossetia:
According to the reliable inform ation held by the Ministry of
Foreign Affairs of Georgia, Russian servicemen and separatists
carry out mass arrests of peaceful ci vilians of Georgian origin still
remaining on the territory of the Tskhinvali region and
110
Press Briefing, Office of the President of Georgia, “President of Georgia Mikheil Saakashvili
met foreign journalists” (9 August 2008). GWS, Vol. IV, Annex 184. For an example of
reporting on President Saakashvili’s statement,see “Russian bear goes for West’s jugular”,Mail
on Sunday (London) (10 August 2008) (reporting President Saakashvili “said Russia was
conducting ethnic cleansing of Georgians in Ossetia and Abkhazia’s Kodor[i] Gorge region”).
GWS, Vol. IV, Annex 201.
111
U.N. Security Council, 5953rd Meeting, U.N. Doc. S/PV.5953 (10 August 2008), p. 16. GWS,
Vol. III, Annex 96.
112
U.N. Security Council, 5953rd Meeting, U.N. Doc. S/PV.5953 (10 August 2008), p. 17. GWS,
Vol. III, Annex 96. See also, “The Russian President refused to speak with Saakashvili” Pravda
(11 August 2008). GWS, Vol. IV, Annex 206.
113U.N. Security Council, 5953rd Meeting, U.N. Doc. S/PV.5953 (10 August 2008), p. 17. GWS,
Vol. III, Annex 96.
53 subsequently concentrate them on the territory of the village of
Kurta 114.
Georgia appealed to “the Internationa l Red Cross and other humanitarian and
international organizations and the intern ational community as a whole” to help
115
end these human rights abuses perpetrated against ethnic Georgians .
2.65 Also, on 11 August 2008, President Saak ashvili said on CNN: “And right
now, as we speak, there is an ethni c cleansing of whole ethnic Georgian
population of Abkhazia taking place by Russian troops. I directly accuse Russia
116
of ethnic cleansing there . And it’s happening now” . President Saakashvili
raised the same accusation of ethnic cleansing by the Russian army in regard to
South Ossetia, stating that the Russian military “fully expelled a couple of days
117
ago the whole Georgian population” . Georgia’s accusations received extensive
118
publicity worldwide .
2.66 Russia unquestionably learned about, and denied, Georgia’s accusations
that it was ethnically cleani ng South Ossetia and Abkhazi a. These claims were
specifically acknowledged and disputed by Russia’s Mins ter of Foreign Affairs,
Sergey Lavrov, who stated: “Mr. Saakashvi li against the backdrop of … the flag
114Ministry of Foreign Affairs of Georgia, Statement of the Ministry of Foreign Affairs of Georgia
(11 August 2008). GWS, Vol. IV, Annex 185.
115Ibid.
116
“President Bush condemns Russian invasion of Georgia”, CNN (11 August 2008) (emphasis
added). GWS, Vol. IV, Annex 205.
117
Ibid.
118See, e.g., “Saakashvili: Russia committing ‘ethnic cleansing’ in Abkhazia”, Deutsche Press-
Agentur (11 August 2008) (“Georgian President Mikheil Saakashvili remained defiant late
Monday in the face of Russian attacks into Georgia and accuse d Moscow of committing ‘ethnic
cleansing in Georgia’s breakaway region of Abkhazia…. ‘I directly accuse Russia of ethnic
cleansing,’, he said.”). GWS, Vol. IV, A nnex 204; “Saakashvili accu sed Russia of ‘ethnic
cleansing’ plan,” EuroNews (11 August 2008) (“Saakashvili has called for international help,
saying the goal of Russian soldiers is ‘ethnic cleansing’”). GWS, Vol. IV, Annex 202; “Georgia
accuses Russia of ethnic cleansing,” UPI, (11 August 2008) (“Georgian President Mikheil
Saakashvili Monday accused Russian forces of ‘ethnic cleansing’”.). GWS, Vol. IV, Annex 203.
54of either the EU or Council of Europe, claimed hysterically that the Russian side
wanted to annex the whole of Georgia and, in general, he did not feel shy of using
the term ethnic cleansings … it was Russia that he accused of carrying out those
ethnic cleansings” 119.
2.67 On 12 August 2008, President Saakashvili made another public statement
that described Russia’s acts of ethnic cleansing in both Abkhazia and South
Ossetia. With regard to the expulsion of ethnic Georgians from the Kodori Gorge
in Abkhazia, he stated: “several hundred pieces of Russian equipment, Russian
airborne troops, commanded by head of ai rborne troops of Russia, with the rank
of general, landed there and expelled and certainly killed part of the population;
whole population from that place is gone . This is classical case of ethnic
120
cleansing…” .
2.68 President Saakashvili was equally clear in holding Russia responsible for
ethnic cleansing in South Ossetia:
The other development is around South Ossetia. As you know the
enclaves of South Ossetia previ ously controlled by the Georgian
government and by local administration headed by ethnic Ossetian
Dimitri Sanakoev, has been ethnically cleansed by intruding
Russian troops and I get very worrying reports, some of them look
to be unfortunately credible, of point blank execution, on sight
killings and some people are taken in some kind of camps or some
internal places in Kurta and Vladikavkaz... 121
119
Ministry of Foreign Affairs of the Russian Federation, Transcript of Remarks and Response to
Media Questions by Russian Minister of Foreign Affairs Sergey Lavrov at Joint Press Conference
After Meeting with Chairman-in-Office of the OSCE and Minister for Foreign Affairs of Finland
Alexander Stubb, Moscow, August 12, 2008 (12 August 2008) (emphasis added). GWS. Vol. IV,
Annex 187. See also “Lavrov: ‘Russia is frustrated ith the cooperation with the Western
countries on South Ossetia’”, Pravda (12 August 2008). GWS, Vol. IV, Annex 208.
120
Office of the President of Georgia, Press Briefing, “The President of Georgia Mikheil
Saakashvili held press conference about situatioin South Ossetia” (12 August 2008). GWS,
Vol. IV, Annex 186.
121
Ibid.
552.69 Also on 12 August, President Saakashvili held a televised Joint Briefing
with President Sarkozy of France, w ho was mediating negotiations between
Georgia and Russia. President Saakashvili again raised Russia’s acts of ethnic
cleansing in parts of Georgia occupied by Russian forces:
There have been signs of ethni c cleansing in Upper Abkhazia as
well. The entire population was forced out. People have died. …
We need involvement of in ternational monitors and
internationalization of the entire process.... It is worse than what
happened in Abkhazia when almost half a million persons were
expelled 122.
2.70 In another public statement on 12 August 2008, President Saakashvili
said: “the result and the end game of this operation of Russian troop is to commit
ethnic cleansing and annihi lation of ethnic Georgi an population in entire
123
Abkhazia” .
2.71 Russia, unsurprisingly, de nied its responsibility for ethnic cleansing in
South Ossetia and Abkhazia. It also opposed Georgia’s position by its conduct;
as reported by independent international observers cited at paragraphs 3.13 to
3.16 of the Memorial, Russia’s military forces continued to expel ethnic
Georgians from their villages in these re gions, to loot and burn their homes, to
kill or beat those who refused to leave, and to incarcerate others 124.
2.72 The Joint Dissenting Opinion to the Order of 15 October 2008 takes the
view that “Russia’s armed activities afte r 8 August cannot, in and of themselves,
constitute acts of racial discrimination in the sense of Article 1 of CERD unless it
is proven that they were aimed at establishing a ‘distinction, exclusion,
122
Transcript of the Joint Press Briefing of Pr esidents Saakashvili and Sarkozy, News Program
“Kurieri”, Rustavi 2 (12 August 2008). GWS, Vol. IV, Annex 209.
123“Russia advances into Georgia”, Australian Broadcasting Corporation (12 August 2008).
GWS, Vol. IV, Annex 207.
124
See also GM, paras. 3.17-3.117.
56restriction or preference based on race, colour, descent, or national or ethnic
125
origin’” . Georgia submits that the evid ence described herein, and in the
Memorial, which is far more voluminous than the limited proof made available to
the Court at the hearings on provisional measures, plainly m eets this standard.
The presently available evidence shows that Georgia did claim prior to the filing
of its Application that Russia’s armed activities after 8 August were aimed at
discriminating against ethnic Georgians based on their ethnicity; these claims, all
opposed by Russia, were: that there was a “massive violation of human rights and
126
freedoms, armed assaults on pe aceful population and violence” with the “full”
127
and “active” support of Russia (9 August); that “Russian troops, Russian tanks
that moved in, into South Ossetia on their way expelled the whole ethnically
Georgian population of South Ossetia. This morning they’ve committed the
ethnic cleansing in all areas they control in South Ossetia…” 128 (10 August); that
“Russian servicemen and separatists carry out mass arrests of peaceful civilians
of Georgian origin still remaining on the territory of the Tskhinvali region and
subsequently concentrate them on the territory of the village of Kurta” 129 (11
August); that, in Abkhazia “several hundred pieces of Russian equipment,
Russian airborne troops, commanded by head of airborne troops of Russia, with
the rank of general, landed there and e xpelled and certainly killed part of the
125
Application of the International Convention on the Elimination of All Forms of Racial
Discrimination (Georgia v. Russian Federation), Request for the Indication of Provisional
Measures, Joint Dissenting Opinion, I.C.J Rep. 2008 (hereinafter “Joint Dissenting Opinion”),
para. 9 (emphasis added).
126
Press Release, Office of the President of Georgia, “Presidential Decree on Declaration of State
of War and Full Scale Mobilization” (9 August 2008). GWS, Vol. IV, Annex 183. See e.g.
“Georgia imposes martial law as violence continues”, RIA Novosti (9 August 2008). GWS, Vol.
IV, Annex 200.
127
Press Release, Office of the President of Georgia, “Presidential Decree on Declaration of State
of War and Full Scale Mobilization” (9 August 2008). GWS, Vol. IV, Annex 183.
128Press Briefing, Office of the President of Geor gia, “President of Georgia Mikheil Saakashvili
Met Foreign Journalists” (9 August 2008). GWS, Vol. IV, Annex 184.
129Ministry of Foreign Affairs of Georgia, Statement of the Ministry of Foreign Affairs of Georgia
(11 August 2008). GWS, Vol. IV, Annex 185.
57population; whole population from that pla ce is gone. This is classical case of
ethnic cleansing…” 130(12 August); that the Georgian-inhabited region of South
Ossetia “has been ethnically cleansed by intruding Russian troops [amid] very
worrying reports… of point blank executi on, on sight killings and some people
131
are taken in some kind of camps…” (12 August).
2.73 Of course, it remains for Georgia to prove these claims – all of which
allege conduct by or attributable to Russia that is prohibited by the 1965
Convention – with persuasive evidence. Bu t that is for the merits phase of the
case. The only proper question here is whether prior to its Application Georgia
took positions, opposed by Russia, with regard to acts of ethnic discrimination by
Russia’s military forces falling under the 1965 Convention. Georgia submits that
the evidence now before the Court, which is far greater and more compelling than
what was submitted in September 2008, requires that the question be answered in
the affirmative.
B. THE EVIDENCE P ERTAINING TO THE PERIOD B EFORE A UGUST 2008
2.74 At the hearings on provisional measures, Georgia did not present the
voluminous evidence of its repeated and ongoing protests against Russia’s
participation and complicity in ethnic cleansing and other forms of discrimination
against ethnic Georgians which it made over a period of 15 years prior to 8
August 2008. This was because, in Geor gia’s view, the act s of the Russian
Federation giving rise to an urgent need for provisional measures were those that
commenced on 8 August, namely, the viol ent campaign of ethnic cleansing then
being carried out by invading Russian military forces who were killing and
130Office of the President of Georgia, Press Briefing, “The President of Georgia Mikheil
Saakashvili held press conference about siin South Ossetia” (12 August 2008). GWS,
Vol. IV, Annex 186.
131
Ibid.
58beating ethnic Georgians, and destroying their homes and villages, in an effort to
expel them from South Ossetia and Abkh azia. Accordingly, Georgia’s evidence
of the existence of a legal dispute under the 1965 Convention offered at that stage
of the proceedings focused on the oppos ing positions expressed by Georgia and
Russia between 8 and 12 August regarding activities by Russia then in progress.
2.75 In regard to the state of the eviden ce concerning the manifestation of a
legal dispute under the Convention prior to 8 August 2008, the Joint Dissenting
Opinion observes that: “the Court must consider whet her the two Parties have
opposing views with regard to the interpretation or application of the Convention.
Admittedly, it is established that no such opposition was ever manifested before 8
132
August…” As indicated above, although ther e was little evidence presented at
the provisional measures hearing that the Parties had opposing positions on issues
falling under the Convention prior to 8 August 2008, it was not Georgia’s
intention to convey the impression that it regarded its legal dispute with Russia
regarding ethnic discrimination under the Convention as having manifested itself
only after that date. To the contrary, as the huge volume of evidence submitted
subsequent to the provisional measures phase of the case establishes, legal
disputes between Georgia and Russia regarding matters falling under the
Convention manifested themselves many times over a period of more than 15
years preceding August of 2008.
2.76 Georgia began complaining about Ru ssia’s ethnic discrimination against
Georgians in South Ossetia and Abkhazia – conduct that plainly comes within the
1965 Convention – in the early 1990s, and it continued to do so after it acceded to
the Convention in 1999. For example, in December 1992, Georgia submitted a
note verbale to the Security Council, anne xing a letter from Mr. Eduard
Shevardnadze, then serving as the Chairman of Georgia’s Parliament and its Head
132Joint Dissenting Opinion, para. 8.
59of State. The note described the ongoi ng ethnic cleansing and emphasized that
“[p]articularly disturbing is the participation of Russian troops stationed in
Abkhazia on the side of Abkhaz extremists” 133. Georgia’s note verbale explicitly
blamed Russia for the acts of ethnic disc rimination described therein, stating that
“[i]t is quite clear that all of this is being directed by the reactionary forces
ensconced within the political circles of the Russian Federation”. It also stated
that the “increasingly intensive interferen ce on the part of the Russian military
134
units” was generating “an inter-State conflict” between Georgia and Russia .
2.77 The targeting of ethnic Georgian civ ilians by the Russian military moved
the Parliament of Georgia to blame Russia fo r its role in acts of ethnic cleansing.
For example, on 17 December 1992, the Georgian Parliament issued a declaration
holding Russia responsible for “the ma ss shooting of civilian Georgian
population and the policy of ethnic cleansing” 13. This “tragedy”, it said, had
been carried out jointly by “armed Abkh az separatists together with Russian
reactionary forces”, including the “ immediate involvement of Russian armed
136
forces” acting “on the side of the extremist separatists” . Russia, as it has
always done, denied its complicity in ethnically-directed violence against
Georgians. Thus, the evidence shows that a dispute existed between Georgia and
Russia over Russia’s participation in et hnic cleansing operations, conduct well
within the scope of the 1965 Convention, as far back as 1992.
2.78 On 1 April 1993, Georgia again declared that the Abkhazian “separatist
grouping with the support of Russian troops ” was carrying out “the policy of
133
U.N. Security Council, Note Verbale dated 25 December 1992 from the Ministry of Foreign
Affairs of Georgia Addressed to the Secretary-General, Annex , U.N. Doc. S/25026 (30 December
1992), p. 2 (emphasis added). GWS, Vol. III, Annex 46.
134Ibid.
135Statement of the Parliament of Georgia (17 December 1992). GWS, Vol. IV, Annex 124.
136
Ibid. (emphasis added).
60ethnic cleansing, acquiring the characteristic s of genocide directed against the
137
Georgian civilian population and civilians of other nationalities” . On the same
date, Georgia also accused Russia of res ponsibility for the pa rticipation of its
armed forces in what it again characterized as “ethnic cleansing” in an appeal to
the United Nations and the OSCE:
A policy of ethnic cleansing is bein g implemented in a part of the
Georgian territory, Abkhazia, that is controlled by the separatist
group of Gudauta, by means of Russian troops . This policy has
taken the form of apparent genocid e against civilians of Georgian
and other nationalities. Systematic mass murders, shootings, and
unprecedented harassment force the Georgian population to leave
their places of residence 138.
By these statements, Georgia made it clear that it had a disp ute with Russia over
these and similar violent acts of ethnic discrimination: “ Russia…bears full
139
responsibility for the above mentioned policy ” . Russia, of course, has always
opposed Georgia’s position in this regard.
2.79 On 27 April 1993, the Georgian Parlia ment repeated that the “ethnic
cleansing of Georgian populations ” was occurring in areas “ under control of
Russian troops and the Abkhaz separatists” and d eclared that the “root cause of
the tragic events unfolding in Abkhazia” is “the Russi an Federation’s attempt to
137
Decree Issued by the Parliament of Georgia on Necessary Measures to be Taken to Protect Life
and Ensure Security of Peaceful Population in the Armed Conflict Zone (1 April 1993)(emphasis
added). GWS, Vol. IV, Annex 126. Foreshadowin g the issue of forced displacement that would
come to dominate the following years, Georgi a emphasized the link between the expulsions of
ethnic Georgians from their homes in Abkhazia and their right to return. “The Council of
National Security and Defense and the Cabinet of Ministers of the Republic of Georgia to take all
the necessary measures to ensure the return of th e internally displaced persons to their homes and
to create adequate conditions to this end”. Ibid.
138
Appeal of the Parliament of Georgia to the United Nations, Conference on the Security and
Cooperation in Europe, International Human Rights Organizations (1 April 1993) (emphasis
added). GWS, Vol. IV, Annex 125.
139 Ibid. (emphasis added). GWS, Vol. IV, Annex 125. Georgia therefore appealed to
international organizations “to take effective measures” to “protect the Georgian population in the
territories controlled by the Russian armed forces and the Gudauta formations”. Ibid.
61 140
annex a part of the territory of Georgia” . Georgia’s claim that Russia was
responsible for the ethnic cleansing in Abkhazia during this period was
recognized in a September 1993 report by the UN Special Rapporteur on the
question of the use of mercenaries, who ha d investigated the events that occurred
in Abkhazia. The Special Rapporteur acknowledged that Georgia held Russia
responsible for the “thousands of Russian citizens, mercenaries and members of
the regular armed forces” who “were dir ectly involved in armed hostilities”,
141
including the “Russian army troops” who participated in the ethnic cleansing .
2.80 In 1998, Georgia again held Russia re sponsible for ethnic cleansing in
Abkhazia, in this case the activities that occurred in the Gali District, in May and
June of that year 142. On 27 May 1998, the Parliament of Georgia formally and
140
Decree Issued by the Parliament of Georgia on Withdrawal of Russian Military Units from the
Conflict Zone in Abkhazia (27 April 1993). GWS, Vol. IV, Annex 127. Georgia also raised
Russia’s responsibility for ethnic cleansing in a letter to the UN Security Council on 2 July 1993
that described the ethnic cleansing then taking place in and around Sukhum i. In that letter,
President Shevardnadze reporting that “the number of casualties among the civilian population is
spiralling at a catastrophic rate”, and blamed the Russian military for much of the violence being
directed against ethnic Georgian civilians. U.N. Security Council, Letter dated 2 July 1993 from
the Head of State of the Republic of Georgia Addressed to the President of the Security Council ,
U.N Doc. S/26031 (2 July 1993). GM, Vol. II, Annex 8.
141U.N. General Assembly, Annex, Report on the question of the use of mercenaries as a means of
violating human rights and impeding the exercise of the right of peoples to self-determination,
submitted by the Special Rapporteur of the Commission of Human Rights , U.N. Doc. A/48/385
(23 September 1993), paras. 45, 47. GM, Vol. II, Annex 10.
142The violence directed against ethnic Georgians in Gali in 1998 has been repeatedly recognised
by the international community as an example of extreme ethnic di scrimination. For example, at
the Seventh Meeting of the Ministerial Council of the OSCE in December 1998, the “[Ministers]
strongly condemn[ed] the violent acts in the Gali District of Abkhazia, Georgia, in May and June
1998, resulting in mass destruction and the forcible expulsion of Georgian population”. OSCE,
Seventh Meeting of the Ministerial Council, Decision on Georgia , MC(7).DEC/1 (December
1998). GWS, Vol. III, Annex 105. The OSCE Ministers further acknowledged the right of those
forcibly displaced ethnic Georgians to return to their homes in Gali: “[Ministers] stress the need to
refrain from the use of force, the importance of the prompt, immediate, safe and unconditional
return of the refugees to the Gali district . . . .” OSCE, Seventh Meeting of the Ministerial
Council, Decision on Georgia, MC(7).DEC/1 (December 1998). GWS, Vol. III, Annex 105. See
also U.N. Security Council, Letter dated 26 May 1998 from the Permanent Representative of
Georgia to the United Nations Addressed to the President of the Security Council , U.N. Doc.
S/1998/432 (26 May 1998), p. 2. (“Hundreds of civilians are reported dead and the villages of the
Gali region levelled to earth. The renewed ethnic cleansing has already prompted the exodus of
62publicly accused Russia of carrying out ethnic cleansing in that region, involving
the killing of more than 1,500 ethnic Ge orgians and the burning of over 1,000
houses:
The recent tragedy in Gali Distri ct once again demonstrated that
the Abkhaz separatists still resort to genocide and ethnic cleansing
in the territory occupied by them. This policy, i.e. the crime
against humanity and mankind, is ai med at forcible change of
historically established demogr aphic reality, ta king away from
Georgia its centuries-old, integral part, Abkhazia, involvement of
Georgians in a wide-scale war, de struction of Georgia’s statehood
143
and provocation of chaos and anarchy .
The statement blamed Russian military forces for participating in the ethnic
cleansing so described, and accused Russi a of “helping separatists to conduct
144
punitive operation against peaceful dwellers” . The existence of a dispute
between Georgia and Russia over the latter’s responsibility for ethnic cleansing in
the Gali district of Abkhazia could not have been made clearer: “The Parliament
of Georgia declares, that … the CIS peacekeeping forces are to a large extent
responsible for the tragedy in Gali District, as they in fact facilitated raids
against peaceful population and destruction of villages in their entirety” 14.
2.81 After 1999, when Georgia acceded to the 1965 Convention, its
disagreements with Russia relating to di scrimination against ethnic Georgian by
Russian armed forces continued. In October 2001, Georgia’s Parliament declared
that since the deployment of “Russian Peacekeepers” to Abkhazia, the “ethnic
thousands of people”). GWS, Vol. III, Annex 55; U.N. Security Council, Letter dated 16 June
1998 from the Chargé d’Affaires A.I. of the Permanent Mission of Georgia to the United Nations
addressed to the President of the Security Council , Annex, U.N Doc. S/1998/516 (16 June 1998)
(“The Ministry of Foreign Affairs of Georgia expresses its extreme indignation in connection with
the developments in the Gali district of Abkhaza, Georgia, where the ethnic cleansing of the
Georgian population is continuing openly”.). GWS, Vol. III, Annex 56.
143Statement of the Parliament of Georgia (27 May 1998). GWS, Vol. IV, Annex 136.
144Ibid.
145
Ibid.
63cleansing against Georgians has not stopped” 146. To the contrary, it stated that
“more than 1,700 persons were killed in the security zone”. Georgia blamed the
Russian forces for this anti-ethnic Geor gian violence, public ly declaring that
Russia’s “Peacekeeping Forces committed numerous crimes against the peaceful
147
population” . Russia, as would be expected, disagreed.
2.82 Georgia similarly complained of et hnic cleansing against persons of
Georgian ethnicity in Abkhazia in its first report to the CERD Committee
following its accession to the 1965 Convention:
Georgia unreservedly condemns any policy, ideology or practice
conducive to racial hatred or any form of ‘ethnic cleansing’ such
as that practised in the Abkhaz region of Georgia following the
armed conflict of 1992-1993. Hundreds of thousands of displaced
persons, a large majority of whom are women, elderly persons and
children, lost their homes and means of survival and became exiles
in their own country. Such has been the outcome of the policy
pursued by the authorities of th e self-proclaimed ‘Republic of
Abkhazia’, the aim of which has been to ‘cleanse’ the region of
Georgians and – in many cases – representatives of other
nationalities as well. Georgia firmly believes that a policy founded
on racial hatred is a fundamental infringement of human rights and
should be u148nditionally pr oscribed, condemned and
eliminated .
2.83 When the CERD Committee met to consider Georgia’s report, a member
of the Committee, Mr. Valencia Rodri guez, observed that the submission
“referred to the ‘policy of ethnic cleansing’ practised in the Abkhaz region. That
situation deserved special consideration, even if the region was de facto outside
146
Resolution of the Parliament of Georgia, Concerning the situation on the territory of Abkhazia
(11 October 2001). GWS, Vol. IV, Annex 145.
147Ibid. (emphasis added).
148
U.N. Committee on the Elimination of Racial Discrimination,Reports Submitted by States
Parties Under Article 9 of the Convention, Initial report of States parties due in 2000, Addendum,
Georgia, U.N. Doc. CERD/C/369/Add.1 (1 February 2001), para. 55. GWS, Vol. III, Annex 64.
64 149
Georgia's control” . Underscoring the centrality of these matters to the 1965
150
Convention, Mr. Valencia Rodriguez requested further information . In
response, Georgia “confirmed that some 30[0],000 persons – 90 percent of them
Georgian – had been driven from their homes in Abkhazia, in what could be
151
considered to be a case of ethnic cleansing” . Georgia further reported that
“[t]he efforts of the international co mmunity had not managed to resolve the
conflict and serious ethnically motivated human rights violations were still
152
occurring” . In its Concluding Observati ons, the CERD Committee took note
of the fact that “Georgia has been confronted with ethnic and political conflicts in
South Ossetia and Abkhazia” that had “res ulted in discrimination”, including “a
large number of internally displaced pers ons and refugees” who were unable to
return despite “attention” ha ving been repeatedly draw n to the “obs truction” of
their right of return153.
2.84 In January 2003, the Speaker of the Parliament of Georgia raised the same
issue of ethnic discrimination by Russi a in discussions with, among others, the
Chairperson of the Council of the Russian Federation and the Chairperson of the
Russian State Duma, placing blame on Ru ssian peacekeeping forces which were
viewed with “distrust” because of the “actions” they had taken in the “conflict
zone”. When Georgia suggested that th e Russian peacekeepers move out of the
149U.N. Committee on the Elimination of Racial Discrimination, Summary Record of the 1453rd
Meeting, U.N. Doc. CERD/C/SR.1453 (15 March 2001), para. 22. GWS, Vol. III, Annex 65.
150Ibid.
151
U.N. Committee on the Elimination of Racial Discrimination, Summary Record of the 1454th
Meeting, U.N. Doc. CERD/C/SR.1454 (16 March 2001), para. 8. GWS, Vol. III, Annex 67.
152Ibid., para. 21.
153U.N. Committee on the Elimination of Racial Discrimination, Concluding observations of the
Committee on the Elimination of Racial Discrimination: Georgia , U.N. Doc. CERD/C/304/Add.
120 (27 April 2001), paras. 3-4. GWS, Vol. III, Annex 66.
65Gali District to “facilitate the process of refugee return”, the Russian side rejected
the proposal 154.
2.85 In its periodic report to the CERD Committee submitted in 2004, Georgia
stated: “it must be reiterat ed that, owing to the cont inuing political crisis in
Abkhazia and South Ossetia, during the reporting period Georgia was not in a
position to protect citizens of these regions from criminal acts. In this
connection, it should be stressed that Georgia does not absolve itself of
responsibility for the situation in this pa rt of its territory, which includes its
155
responsibility to safeguard human rights and freedoms” . Appearing before the
CERD Committee to discuss the report, the Georgian delegation stated:
The Government sought to protect the rights of national minorities
and to promote their integration into Georgian institutions and
administration. In particular, it attached great importance to
peaceful resolution of the conflicts in South Ossetia and Abkhazia
and wished to ensure that the people of Ossetia and Abkhazia
could participate in the social, political and cultural life of
Georgia. A conference on the p eaceful resolution of the Georgia-
Ossetia conflict had been opened by President Saakashvili on 10
July 2005. The Government was ready to extend its jurisdiction to
the territory of South Ossetia, thereby granting that territory wide
autonomy under the Georgian Constitution, including self-
governance, cultural autonomy, a privileged border-crossing
regime with the Russian Federation, a privileged economic and tax
system, and representation in Parliament and the central
Government.
A strategy had been formulated reflecting the president’s position
on a number of key concerns rela ting to the situation in South
Ossetia and Abkhazia, including security, economic rehabilitation,
confidence-building measures and po litical issues. In the hope of
154Script of the Talks of delegation of the Parliament of Georgia to Moscow on January 20-23
[2003] Headed by Ms. N. Burjanadze, Speaker of the Parliament of Georgia, Taken Place at the
Council and State Duma of the Russian Federation. GWS, Vol. IV, Annex 153.
155
U.N. Committee on the Elimination of Racial Discrimination, Third periodic reports of States
parties due in 2004, Addendum, Georgia, U.N. Doc. CERD/C/461/Add.1 (21 July 2004), para. 53.
GWS, Vol. III, Annex 70.
66 facilitating a peaceful resolution of the conflict, the Government
had offered far-reaching autonomy to South Ossetia. Respect for
human rights and the integration of minorities would be placed at
the heart of the peace process. Her Government was gravely
concerned about violations of the human rights of Georgian
citizens in the Gali district of Abkhazia and called for the
establishment of a United Nati ons human rights protection office
156
in the city of Gali to monitor the situation... .
2.86 The CERD Committee’s Concluding Ob servations on Georgia’s report
acknowledged the “ethnic and political c onflicts in Abkhazia and South Ossetia”
that confronted Georgia, which made it “d ifficult” for Georgia to exercise “its
jurisdiction with regard to the protecti on of human rights and the implementation
157
of the Convention in those regions” .
2.87 In February 2004, President Saakashv ili directly accused Russia and its
forces of complicity in ethnic cleansing against ethnic Georgians in Abkhazia. In
a public statement, the President of Ge orgia said that: “most of the population
there is ethnically Georgian or was ethnically Georgian. Those people were
thrown out by Russian troops and local separatists and we need to change the
situation” 158. President Saakashvili declared that Russia was responsible for
blocking a resolution to this dispute: “[I] t’s primarily the issue of our relations
with Russia. The Russian generals are in command there, they have military
159
contingent there which played a very negative role in the years of the war” . It
strains credulity for Russia to claim, notwithstanding these statements by
156U.N. Committee on the Elimination of Racial Discrimination, Summary Record of the 1706th
Meeting, U.N. Doc. CERD/C/SR.1706 (10 August 2005), paras. 23-24 (emphasis added). GWS,
Vol. III, Annex 72.
157U.N. Committee on the Elimination of Racial Discrimination, Concluding observations of the
Committee on the Elimination of Racial Discrimination: Georgia, U.N. Doc. CERD/C/GEO/CO/3
(27 March 2007), para. 4, GWS, Vol. III, Annex 86.
158
“Ask Georgia's President”, BBC News (25 February 2004) (emphasis added). GWS, Vol. IV,
Annex 198.
159
Ibid.
67Georgia’s President, and all those that came before it (described above), that there
was nothing that could “be interpreted as obliging Russia to infer a claim over
racial discrimination from the various po litical disagreements it had had with
Georgia over the recent years” 16.
2.88 Georgia made similar complaints in regard to Russia’s discrimination
against ethnic Georgians in South Osse tia. On 19 June 2006, Georgia’s Deputy
Foreign Minister, Mr. Merab Antadze, disputed the “immediate involvement” of
Russian peacekeeping forces in “illegal and criminal acts against the ethnically
Georgian peaceful population” 161. These acts, he said, were “totally unacceptable
162
and provocative” . Still nothing “obliging Russia to infer a claim of racial
discrimination”? Perhaps so, but only in the limited sense that Georgia’s
accusations of Russia’s discrimination agai nst ethnic Georgians were so direct
and unmistakable that they left nothing “to infer”.
2.89 In July 2006, Georgia drew the attention of the Secretary-General (and, of
course, Russia as well) to the ethnic discrimination committed by Russian
peacekeeping forces in both South Ossetia and Abkhazia. Georgia stated that the
“reality” that had been “brought about” by Russia’s “peacekeeping operations”
was “permanent attempts to legalize the results of ethnic cleansing” and the
“massive violation of fundamental hum an rights” of the ethnic Georgian
population. 163 Russia disputed these claims in a statement by its Ministry of
160RPO, para. 4.32.
161Ministry of Foreign Affairs of Georgia,Comments of Deputy Minister of Foreign Affairs of
Georgia Merab Antadze Concerning the Answers of Minister of Foreign Affairs of the Russian
Federation Sergey Lavrov to Journalists’ Questions(19 June 2006). GWS, Vol. IV, Annex 164.
162
Ibid.
163U.N. General Assembly, Letter dated 24 July 2006 from the Permanent Representative of
Georgia to the United Nations addressed to the Secretary-General, Annex , U.N. Doc. A/60/954
(25 July 2006). GWS, Vol. III, Annex 82
68 164
Foreign Affairs , leaving no doubt that it received the message loud and clear
this time.
2.90 Georgia again accused Russia of e ngaging in ethnic cleansing against
ethnic Georgians in President Saakashvili’s address to the European Parliament in
November 2006. In a statement that Ru ssia could not have missed, Georgia’s
President observed that “[t]he Russian administra tion first undertook ethnic
cleansing in Abkhazia” in the early 1990s, and that “history seems to be repeating
itself”, with Russia again “targeting the same victims for a second time” 165.
2.91 In September 2007, Georgia’s Ministry of Foreign Affairs emphasized the
“daily incidence of grave offences involving peacekeepers tak[ing] place amid the
culpable inactivity of the [Russian] peacekeeping forces” in South Ossetia and
Abkhazia “including with the participation of the representatives of [Russia’s]
166
peacekeeping forces” . Georgia therefore “call[ed]” on “the Russian side” to
cease such activities and to “undertake the functions of a truly unbiased
167
facilitator” .
2.92 In the months leading up to the filing of its Application, Georgia again
complained of Russia’s ethnic discrimina tion against ethnic Georgians, accusing
Russia of acts that undeniably fall w ithin the 1965 Convention. On 17 April
2008, Georgia informed the Secretary-Genera l that “Russia justifies the ethnic
cleansing of hundreds of thousands of peaceful citizens” by recognising the
164U.N. Security Council, Letter dated 19 July 2006 from the Permanent Representative of the
Russian Federation to the United Nations addressed to the Secretary-General, Annex , U.N. Doc.
A/2006/555 (20 July 2006). GWS, Vol. III, Annex 81.
165Office of the President of Georgia, Press Release, “Remarks by The President of Georgia
Mikheil Saakashvili to the European Parliament, Strasbourg” (14 November 2006) (quoting Otar
Ioseliani). GWS, Vol. IV, Annex 172.
166
Ministry of Foreign Affairs of Georgia, Statement of the Ministry of Foreign Affairs of Georgia
(20 September 2007). GWS, Vol. IV , Annex 175.
167
Ibid.
69 168
“defacto authorities” that were “created through this very cleansing” . Two
days later, the Georgian Foreign Ministry reiterated that Russia was responsible
in South Ossetia and Abkhazia for “violati ons and neglect of human rights of an
absolute majority of the regions’ popul ation” who were “victims of ethnic
cleansing” 169. On 21 April 2008, President Saakas hvili issued a public statement
in which he assigned responsibility to Russia for the “[e]thnic cleansing of
territory” in Abkhazia, which he said ha d been carried out by “special units of
170
[the] Russian Army” and “hired combatants which came from Russia” . All of
these alleged acts come within the coverage of the 1965 Convention.
2.93 In sum, the evidence now before the Court shows Georgia and Russia
have been engaged in a l ongstanding dispute over Georgia’s claims and Russia’s
denials, regarding the part icipation of the Respondent State’s military forces in
ethnic cleansing and other violent acts of ethnic discrimination, all of which
constitutes conduct which falls under the 1965 Convention. Georgia began
raising these disputes in the early 1990s , continued raising them in the years
following Georgia’s 1999 accession to the Convention, and raised them again
when Russia resumed and stepped up its et hnic cleansing activities from early in
2008 through the beginning of August of that year. Because all of this occurred
before Georgia filed its Application, the existence of a le gal dispute under the
1965 Convention prior to the invocation of the Court’s jurisdiction is well
established.
168U.N. General Assembly, Letter dated 17 April 2008 from the Chargé d’affaires a.i. of the
Permanent Mission of Georgia to the United Nations addressed to the Secretary-General, Annex ,
U.N. Doc. A/62/810 (21 April 2008). GWS, Vol. III, Annex 91.
169Ministry of Foreign Affairs of Georgia, Statement of the Ministry of Foreign Affairs of Georgia
(19 April 2008). GWS, Vol. IV, Annex 177.
170
Office of the President of Georgia, Speech , “The President of Georgia Mikheil Saakashvili
made a special statement” (21 April 2008). GWS, Vol IV, Annex 178.
70Section V. Georgia’s Claims Regarding Russia’s Forcible Prevention of the
Exercise of the Right of Return by Georgian IDPs
2.94 Georgia and Russia disputed not onl y whether Russian military forces
committed acts of ethnic cleansing and other violent forms of discrimination
against ethnic Georgians; in addition, they disagr eed about whether Russian
troops, who served, in effect, as the border guards of South Ossetia and Abkhazia,
physically prevented the Georgian victim s of ethnic cleansing from returning to
their homes and villages in those territories. Consistently between the mid-1990s
and August of 2008, Georgia claimed, a nd Russia denied, that Russia’s armed
forces gave permanent effect to the phys ical expulsion of ethnic Georgians from
South Ossetia and Abkhazia by denying them their right of return, and by doing
so, turning those territories into separatist enclaves populated, with limited
exceptions, only by ethnic Ossetians and A bkhaz, respectively. Obstruction of
the right of return, based on ethnic discrimination, is unquestionably conduct that
falls under the 1965 Convention.
2.95 Georgia consistently complained of Russia’s use of its armed forces to
block the return of ethnic Georgians ID Ps to South Ossetia and Abkhazia. For
example, on 30 May 1997, the Parliament of Georgia accused the Russian
peacekeeping forces of preventing the return of ethnic Georgians to those
territories. The Parliament observed that “no tangible progress” had been made
with respect to the “return of refugees to their homes” despite the fact that the
“Peacekeeping Forces of the Russian Federation” were required by their mandate
to facilitate this process. To the cont rary, the parliamentary statement concluded
that Russia’s “peacekeeping forces, in f act, carry out the functions of border
guard”. As a result, they were “s upporting and strengthening the separatist
71regime[’s]” efforts to “oppose[]” the “r eturn of refugees and IDPs to their
homes” 171.
2.96 Georgia raised the same issue with Russia in October 2001 when it again
complained that Russian forces were preventing the return of ethnic Georgians to
South Ossetia and Abkhazia. Georgia emphasized that “Russia appears as the
party involved in the conflict” and “t he function of Peacekeeping Forces is
172
limited to drawing ‘the border’” .
2.97 In March 2002, Georgia similarly accused Russia’s military forces of
obstructing the return of ethnic Georgians to Abkhazia:
The CIS Peacekeeping Forces, deployed on the territory of
Abkhazia, in reality fulfil the f unctions of border guards between
Abkhazia and the rest of Georgia and fail to perform the duties,
envisaged by their mandate, namely, they cannot provide for the
protection of population and creatio n of conditions for the secure
return of internally displaced persons… 173
2.98 Russia’s policy and practice of re ndering permanent the forced
displacement of ethnic Georgians, and violating their right of return, was disputed
again in June 2006, by Georgia’s Deputy Foreign Minister. “Peacekeepers have
in fact assumed the role as protectors of separatists” and the “border guards
between the conflict regions and the rest of Georgia”. The effect of Russia’s
171Decree Issued By the Parliament of Georgia on Further Presence of Armed Forces of the
Russian Federation Deployed in the Zone of Abkhaz Conflict under the Auspices of the
Commonwealth of Independent States (30 May 1997). GWS, Vol. IV, Annex 132.
172Resolution of the Parliament of Georgia, Co ncerning the Situation on the Territory of
Abkhazia (11 October 2001). GWS, Vol. IV, Annex 145.
173
Resolution of the Parliament of Georgia on the Situation in Abkhazia (20 March 2002). GWS,
Vol. IV, Annex 146.
72actions, the Deputy Foreign Minister sai d, was to prevent the return of ethnic
174
Georgian victims of ethnic cleansing .
2.99 The dispute was raised again in Oc tober 2006 when Georgia’s Permanent
Representative to the United Nations stated:
It is crystal clear, that the Russian peacekeeping force is not an
impartial, nor international contingency. It failed to carry out the
main responsibilities spelled out in its mandate – create favorable
security environment for the return of ethnically cleansed
hundreds of thousands of Georgian citizens. It became the force
that works to artificially alienate the sides from one another 175.
2.100 Georgia again raised the issue with Russia in correspondence between the
two States’ Presidents in June-July 2008. When President Saakashvili pressed
the issue of the return of ethnic Georgi an IDPs to Abkhazia, Russian President
Medvedev categorically rejected their retu rn, stating that it was “untimely” even
to consider 176. It is difficult to understand how, following this clear contradiction
between the opposing positions of the two States, Russia could argue in its
Preliminary Objections that there was no legal dispute between them concerning
the return of ethnic Georgians to the re gions of Georgia from which they had
been expelled because of their ethnicity. Indeed, Russia pretends to be “shocked”
by Georgia’s Application accusing it of blocking the return of ethnic Georgian
IDPs to South Ossetia and Abkhazia. Russia’s feigned astonishment at this
accusation is not credible. Georgia has been disputing Russia’s role in forcibly
174
Ministry of Foreign Affairs of Georgia,Comments of Deputy Minister of Foreign Affairs of
Georgia Merab Antadze Concerning the Answers of Minister of Foreign Affairs of the Russian
Federation Sergey Lavrov to Journalists’ Questions(19 June 2006). GWS, Vol. IV, Annex 164.
175
Ministry of Foreign Affairs of Georgia, Statement of Mr. Irakli Alasania, Ambassador
Extraordinary and Plenipotentionary, Permanent Representative of Georgia in the UN (4 October
2006) (emphasis added). GWS, Vol. IV, Annex 171.
176Letter of President Mikheil Saakashvili of Georgia to President Dmitry Medvedev of the
Russian Federation (24 June 2008). GM, Vol. V, Annex 308; Letter of President Dmitry
Medvedev of the Russian Federation to President Mikheil Saakashvili of Georgia (1 July 2008).
GM, Vol. V, Annex 311.
73preventing the return of ethnic Georgian IDPs to South Ossetia and Abkhazia on
a regular basis since at least 1997, a nd Russia has been disputing Georgia’s
claims for the entire time – covering more than eleven years prior to the filing of
the Application.
2.101 In its Preliminary Objections, Russia seeks to portr ay its dispute with
Georgia over the right of return of ethnic Georgian IDPs as falling outside the
scope of the 1965 Convention. According to Russia, the dispute over the denial
of the right of return based on the ethnicity of the IDPs cannot be “assimilated to
a discussion of a claim of racial di scrimination brought against Russia” under the
Convention 177. Russia’s argument is not only contrary to the text of Article 5 of
the Convention, but also to the view s expressed by the CERD Committee,
especially in its General Recommendati on 22, sub-titled “Article 5 and refugees
and displaced persons”:
(a) All such refugees and displaced persons have the right freely to
return to their homes of origin under conditions of safety;
(b) States parties are obliged to ensure that the return of such
refugees and displaced persons is voluntary and to observe the
principle of non-refoulement and non-expulsion of refugees;
(c) All such refugees and displaced persons have, after their return
to their homes of origin, the right to have restored to them property
of which they were deprived in the course of the conflict and to be
compensated appropriately for any such property that cannot be
restored to them. Any commitments or statements relating to such
property made under duress are null and void;
(d) All such refugees and displaced persons have, after their return
to their homes of origin, the right to participate fully and equally in
177RPO, para. 4.90(a)(1).
74 public affairs at all levels a nd to have equal a178ss to public
service and to receive rehabilitation assistance .
2.102 The CERD Committee applied this prin ciple in relation to the ethnically-
based forced displacement that occurred in Bosnia-Herzegovina:
219. The Committee expresses its grave concern and condemns
the massive, gross and systematic human rights violations
occurring in the territory of Bo snia and Herzegovina, most of
which are committed in connection with the systematic policy of
‘ethnic cleansing’ and genocidal acts in the areas under the control
of the self-proclaimed Bosnian Serb authorities. All these
practices, which are still occurring, constitute a grave violation of
all the basic principles underlying the International Convention on
the Elimination of All Forms of Racial Discrimination. The
Committee urges the immediate reversal of ethnic cleansing which
must begin with the voluntary return of displaced people 179.
2.103 Indeed, the CERD Committee repeat edly recognized the relationship
between the 1965 Convention and the right of return in the sp ecific context of
forced displacement of ethnic Georgians from South Ossetia and Abkhazia. The
th
Committee’s Summary Record of its 1706 Meeting, on 4 August 2005, includes
this statement by the Georgian delegation:
The situation of internally displaced persons who had been unable
to return to Abkhazia was another cause for concern. Her
Government was hopeful that an agreement could be reached with
the Abkhaz authorities to the satisfaction of all parties. It had
expressed its willingness to provide security guarantees and
economic and political cooperation, including negotiations on the
178
U.N. Office of the High Commissioner for Human Rights, CERD, General Recommendation
No. 22: Art. 5 and refugees and displaced persons , Forty-Ninth Session, U.N. Doc. A/51/18
(1996), para. 2(a)-(d). GM, Vol. II, Annex 21.
179U.N. General Assembly, Committee on the Elimination of Racial Discrimination, Report of the
Committee on the Elimination of Racial Discrimination, U.N. Doc A/50/18 (22 September 1995),
para. 219 (emphasis added). GWS, Vol. III, Annex 50. See also ibid., para. 26 (CERD
Committed “demands” that “that persons be given the opportunity to return safely to the places
they inhabited before the beginning of the conflict and that their safety be guaranteed, as well as
their effective participation in the conduct of public life”).
75 political status of Abkhazia within the territory of Geo180a, so as to
facilitate the return of internally displaced persons .
The CERD Committee’s Concluding Ob servations on Georgia’s report
acknowledged the “ethnic and political c onflicts in Abkhazia and South Ossetia”
that confronted Georgia, which made it “d ifficult” for Georgia to exercise “its
jurisdiction with regard to the protecti on of human rights and the implementation
181
of the Convention in those regions” . The CERD Committee drew particular
attention to the fact that such “discrimination” had manifested itself, among other
things, in the “large number of internal ly displaced persons and refugees” whose
182
“free movement” and right of return had been obstructed .
2.104 Accordingly, there can be no doubt that each time Georgia raised a
dispute with Russia over the denial of et hnic Georgians’ right of return, it was
raising a dispute under the 1965 Convention.
Section VI. Georgia’s Claims of Russian Support, Sponsorship and
Defence of Ethnic Discrimination by Third-Parties
2.105 As Georgia showed in paragraphs 9.54 to 9.62 of the Memorial, Russia’s
responsibility under the 1965 Convention is not conf ined to breaching the
Convention through the acts of its armed fo rces, including their participation in
violence against ethnic Georgians a nd their blocking the return of ethnic
180
U.N. Committee on the Elimination of Racial Discrimination, Summary Record of the 1706th
Meeting, U.N. Doc. CERD/C/SR.1706 (10 August 2005). GWS, Vol. III, Annex 72.
181
U.N. Committee on the Elimination of Racial Discrimination, Concluding observations of the
Committee on the Elimination of Racial Discrimination: Georgia, U.N. Doc. CERD/C/GEO/CO/3
(27 March 2007), para. 4. GWS, Vol. III, Annex 86.
182U.N. Committee on the Elimination of Racial Discrimination, Concluding observations of the
Committee on the Elimination of Racial Discrimination: Georgia, U.N. Doc. CERD/C/GEO/CO/3
(27 March 2007), para. 5. GWS, Vol. III, Annex 86. See also U.N. Committee on the
Elimination of Racial Discrimination, Concluding observations of the Committee on the
Elimination of Racial Discrimination: Georgia , U.N. Doc. CERD/C/304/Add. 120 (27 April
2001), para. 4. GWS, Vol. III, Annex 66.
76Georgian IDPs. In additi on, Russia has breached it s obligations under Article
2(b) “not to sponsor, defend or support racial discrimination by any persons or
organizations”. In the Memorial, Georgia demonstrated Russia’s responsibility
for breaching this provision by virtue of its support, sponsorship and defence of
discrimination against ethnic Georgians by the de facto separatist authorities and
militias of South Ossetia and Abkhazia 18. The evidence shows that for more
than a decade preceding the submission of its Application Georgia repeatedly
complained of Russia’s support, sponsorship and defence of the de facto
separatist authorities in regard to their discriminatory acts against ethnic
Georgians, and Russia consistently opposed Georgia’s position.
2.106 Georgia began disputing Russia’s support, sponsorship and defence of the
discriminatory activities of these partie s in the early 1990s. In a letter dated 2
October 1992, the Vice-Chairman of the State Council of Georgia informed the
Security Council that Russia was faci litating ethnic cleansing by, among other
things, arming the Abkhaz separatists and allowing allied irregular armed forces
to enter Abkhazia from Russian territory to attack ethnic Georgians. Georgia
highlighted Russia’s support for the perpet rators of ethnic discrimination in the
Gagra District of Abkhazia, where eg regious acts of ethnic cleansing were
committed:
The State Council of the Republic of Georgia would like to inform
you that on 1 October the Abkhaz se paratists in conjunction with
mercenary terrorists, who had ar rived from the north Caucasian
regions of the Russian Federation, took the large-scale offensive
against the town of Gagra aiming at reaching the Georgian-
Russian border, thus cutti184off the northern part of Abkhazia
from the rest of Georgia .
183
GM, Part E, Chapter IX.
184U.N. Security Council, Letter dated 2 October 1992 from the First Deputy Foreign Minister of
Georgia Addressed to the President of the Security Council , U.N. Doc S/24626 (7 October 1992).
77Georgia held Russia responsible for arming and supplying these perpetrators of
ethnic cleansing. Its letter to the Security Council st ated: “The attackers are
armed with the state-of-art heavy tanks and other modern weaponry, the kind the
185
Russian army is currently equipped with” .
2.107 In a subsequent statement to the Security Council, Georgia declared:
The conspiracy of the Abkhaz se paratists and the reactionary
forces in Russia is quite apparent. The Acts, adopted by the
Parliament of the Russian Federation have fuelled the escalation of
the conflict, encouraged the extr emist forces and have directly
provoked recent bloodshed 186.
2.108 On 20 September 1993, President Sh evardnadze renewed Georgia’s
appeal to the Security Council, emphasizing Russia’s support for those
committing atrocities against ethnic Georgi ans. Decrying the “criminal intent of
those who sponsor the Gudauta clique [the Abkhaz separatists]” that had “led to
the forced exile of 150,000 Georgians”, Pres ident Shevardnadze stated that their
“success” was “achieved with the direct support and complicity” of “forces in
Russia”, including “some of the highest-ranking military personnel of the Russian
Federation” as well as the “policy of the Russian Parliament” 187.
GM, Vol. II, Annex 5. For discussion of ethnic cleansing in Gagra, see GM, paras. 6.14, 6.15,
6.31.
18U.N. Security Council, Letter dated 2 October 1992 from the First Deputy Foreign Minister of
Georgia Addressed to the President of the Security Council , U.N. Doc S/24626 (7 October 1992),
GM, Vol. II, Annex 5.
186
U.N. Security Council, Annex II, Appeal of the State Council of the Republic of Georgia to the
Committee of Senior Officials of the Conference on Security and Cooperation in Europe . GM,
Vol. II, Annex 5.
187
U.N. Security Council, Letter dated 20 September 1993 from the Permanent Representative of
Georgia to the United Nations Addressed to the President of the Security Council, Annex, U.N.
Doc. S/26472 (20 September 1993). GWS, Vol. III, Annex 48. President Shevardnadze
specifically noted that negotiations with Russia had failed to achieve any results. He stated: “My
talks with General Grachev, Minister of Defence of the Russian Federation, yielded no results.
Although in themselves they were constructive, later that same day they were disavowed by
statements by several subordinates of the Russian Minister of Defence and by the decision of the
782.109 In a further manifestation that Georgi a considered itself in dispute with
Russia over the latter’s support for Abkhaz attacks on ethnic Georgians, President
Shevardnadze directly appealed to Russian President Boris Yeltsin:
do not allow this monstrous crime to be committed, halt the
execution of a small country and save my homeland and my
people from perishing in the fires of imperial reaction. The world
must not condone the annihilation of one of its most ancient
nations, the creator of a great culture and heir to exalted spiritual
188
traditions .
2.110 Georgia’s appeal to Russia fell on deaf ears, and the ethnic cleansing, with
Russia’s support, continued. On 12 October 1993, as the ethnic cleansing in the
area around Sukhumi accelerated, President Shevardnadze addressed the Security
Council regarding Russia’s role in the ongoing anti-G eorgian atrocities. He
described the “ethnic cleansing and genoc ide of ethnic Georgians of the Abkhaz
region” in which the perpetrators “showed mercy to no one, neither to child or
woman, nor to the elderly”. The “exte rmination of ethnic Georgians still
189
continues”, he reported . Georgia’s President held Russian responsible for
supporting these acts of ethnic discriminati on, stating that “the Gudauta side has
turned out to be well-prepared to wage a war, being equipped with state-of-the-art
weapons, currently at the disposal of the Russian military forces” 190.
Russian Parliament”. U.N. Security Council, Letter dated 20 September 1993 from the
Permanent Representative of Georgia to the United Nations Addressed to the President of the
Security Council, Annex, U.N. Doc. S/26472 (20 September 1993). GWS, Vol. III, Annex 48.
188U.N. Security Council, Letter dated 20 September 1993 from the Permanent Representative of
Georgia to the United Nations Addressed to the President of the Security Council, Annex , U.N.
Doc. S/26472 (20 September 1993). GWS, Vol. III, Annex 48.
189U.N. Security Council, Letter dated 13 October 1993 from the Permanent Representative of
Georgia to the United Nations Addressed to the President of the Security Council, Annex , U.N.
Doc. S/26576 (13 October 1993). GWS, Vol. III, Annex 49.
190
Ibid. Georgia also highlighted Russia’s responsib ility for ethnic discrimination in a statement
by the Parliament of Georgia on 26 June 1998, in which it stated that r ecent acts by the Russian
State Duma were the “continuation” of an “ugly tradition” that “contributed” to the “ethnic
cleansing and genocide of Georgian population in Abkhazia”. Statement of the Parliament of
792.111 After Georgia acceded to the 1965 Convention in 1999, it continued to
complain of Russia’s support for the pe rpetrators of ethnic discrimination,
conduct that was plainly within the scope of the Convention. For instance, in
September 2000, Georgia’s Ambassador in Moscow held bilateral discussions
with the Deputy Chairperson of the St ate Duma of Russia, during which he
accused Russia of providing “signi ficant support and assistance” to the de facto
authorities in Abkhazia re sponsible for ethnic clean sing of the Georgian
population 19. In March 2002, the Parliame nt of Georgia described the de facto
authorities in Abkhazia as “an ethnocra tic-discriminative regime” that had
engaged in the “ethnic cleansing of the peace population” of ethnic Georgians. It
criticised Russia for “continu[ing] to supply the separatist regime with heavy
military equipment and armaments”, which had been “carried out by the Russian
192
military forces” in “breach of international law” .
2.112 The Georgian Parliament described the dispute with Russia over support
of discrimination against ethnic Georgians in the following terms:
In Abkhazia, on the occupied Ge orgian territory, major human
rights and freedoms’ violation on the ethnic basis has been carried
on by the assistance of external military force. Such as: arbitrary
deprivation of freedom, terror, murders, taking of hostages,
kidnapping for money extortion, violat ion of the official status of
the Georgian language, destructio n and misappropriation of state,
Georgia on Resolution, “The Necessity of Normalization with Regard to Border and Customs
regimes on the Abkhaz Segment of State Border” adopted by the Russian State Duma on 24 June
1998 (26 June 1998). GWS, Vol. IV, Annex 137. Continuing, Georgia stated that “the Russian
State Duma supports separatism, justifies crimes against humanity committed by the Abkhaz
separatist in the late May and makes Russia's commitment to the international law and
fundamental principles of the United Nations an d Organization for Security and Cooperation in
Europe doubtful”. Ibid.
191Script of the Talks of Mr. Z. Abashidze, Ambassador Extraordinary and Plenipotentiary of
Georgia to the Russian Federation with V. Lukin, Deputy Chairperson of the State Duma of
Russia (14 September 2000). GWS, Vol. IV, Annex 143.
192
Resolution of the Parliament of Georgia on the Situation in Abkhazia (20 March 2002). GWS,
Vol. IV, Annex 146.
80 refugees and IDPs’ properties. The monuments of Georgian
culture and scientific and academic institutions have been
destroyed and similar activities have been going on 193.
2.113 Georgia’s Ambassador in Moscow agai n raised Russia’s unlawful supply
of military equipment to the de facto authorities in Abkhazia engaged in ethnic
cleansing of the Georgian population duri ng bilateral discussions with Russia’s
Minister of Foreign Affairs, on 25 Ap ril 2002. The Russian Foreign Minister
194
denied that Russia had done so . Here again, the evidence shows a direct
conflict of opposing views held by the two Parties about conduct covered by the
1965 Convention, this time about Russia’s alleged support and defence of ethnic
discrimination perpetrated by Abkhaz separatists against ethnic Georgians.
2.114 In October 2005, the Parliament of Ge orgia described various offenses
that the de facto regimes, with Russian State support, had committed against the
ethnic Georgian populations of South Ossetia and Abkhazia 195. These offenses
included, among other things: “killings”, “raids and robbery of the civilian
population”, “appropriating of refugee assets ”, “denial of the ri ght of instruction
to citizens in their native language” and “denial of their right to return to their
dwellings”, all of which fa ll within the 1965 Convention 196. The Georgian
Parliament made explicit its contention that Russia bore responsibility for these
acts of ethnic discrimination via its support for the perpetrators:
The question then arises – through what or whose support do
separatist regimes manage to ignor e the position of authoritative
193Resolution of the Parliament of Georgia on the Situation in Abkhazia (20 March 2002)
(emphasis added). GWS, Vol. IV, Annex 146.
194
Script of the talks of Mr. Z. Abashidze, Ambassador Extraordinary and Plenipotentiary of
Georgia to the Russian federation with Mr. I. Ivanov, Ministry of Foreign Affairs of the Russian
Federation (25 April 2002). GWS, Vol. IV, Annex 147.
195
Resolution of the Parliament of Georgia Rega rding the Current Situation in the Conflict,
Regions on the Territory of Ge orgia and Ongoing Peace Operatio ns (11 October 2005). GWS,
Vol. IV, Annex 158.
196Ibid.
81 international organizations a nd violate all basic norms of
international law?
Regretfully the answer to this question unambiguously indicates
the role of Russian Federation in inspiring and maintaining these
conflicts, the exact co197ry which is an official facilitator for
conflict settlement….
Georgia’s accusation that Russia itself was “inspiring and maintaining these
conflicts” that “violate all the basic norms of international law” makes plain that a
legal dispute existed between the tw o States regarding acts of ethnic
discrimination falling within the 1965 Convention.
2.115 In January 2006, the dispute manifest ed itself again when Georgia’s
Ministry of Foreign Affairs complained that the Russian military forces’ “overt
support” for the de facto regime in South Ossetia made Russia “responsible for”
the frequent “grave crimes” and “gross violation of human rights” perpetrated
198
against the ethnic Georgian population . The same month, Georgia’s
Permanent Representative to the Securi ty Council, referring to the systemic
ethnic discrimination against the ethnic Georgian population of the Gali District
of Abkhazia, reported:
There are not even minimal standards of security and safety in the
conflict zone – especially in the Gali district. On a daily basis we
witness severe violations of funda mental rights and direct threats
to the lives of spontaneously returned population. Regrettably,
since my last attendance at the UN Security Council meeting there
has been little, if any, change. Efforts aimed at elimination of
Georgian identity and cultural heritage continue. Georgian
historical sites, temples and churches are still being ruined. Ban of
197Ibid.
198
Ministry of Foreign Affairs of Georgia, Comment of the Department of the Press and
Information on the Statements of the Minister of Foreign Affairs of the Russian Feder(20on
January 2006). GWS, Vol. IV, Annex 162.
82 instruction in Georgian language is still no199ifted and children are
denied to study in their own language…
2.116 Georgia’s Permanent Representative described this state of affairs as “one
more clear demonstration of continui ng ethnic cleansing of Georgians in
Abkhazia” 20. He specifically accused Russia of actively supporting these acts of
ethnic discrimination, stating that Russia’ s policies constituted an “endorsement
201
of ethnic cleansing of more than 300000 citizens of Georgia” . Russia, as
shown, has always opposed Georgia’s position in this regard. How then can it
deny the existence of a legal dispute under the Convention?
2.117 In December 2006, Georgia’s Ministry of Foreign Affairs stated that the
“Russian side … offers an open support a nd armaments to the separatist regimes
202
widely known to have conducted an ethnic cleansing of Georgians” . Russia’s
support for groups and individuals engage d in discrimination against ethnic
Georgians was denounced again by Georgi a before the Security Council in
August 2007:
The separatist regimes’ illegal armed formations get their supply
of arms and military equipmen t from the Russian Federation,
while the guidance over their training, exercises and logistical
support is an immediate task of the officers of the Russian armed
forces….
The Georgian side calls on the Russian Federation to cease its
support of the separatist regime, including military assistance, and
actions uncoordinated with the Georgian authorities in the conflict
199Ministry of Foreign Affairs of Georgia, Statement by Mr. Irakli Alasania Special
Representative of the President of Georgia to UN Security Counci(26 January 2006). GWS,
Vol. IV, Annex 163.
200Ibid.
201
Ibid.
202Ministry of Foreign Affairs of Georgia, Reply of the Department of the Press and Information
to the Georgia News Agency concerning the statements made by the Minister of Foreign Affairs of
the Russian Federation (22 December 2006). GWS, Vol. IV, Annex 173.
83 zones and undertake its functions as an unbiased mediator that will
prevent a dangerous development of events 20.
2.118 Georgia again raised its dispute with Russia regard ing support for ethnic
violence by the de facto regimes in South Osseti a and Abkhazia in a public
statement issued by the Ministry of Foreign Affairs in September 2007. Georgia
complained about the “obvious support” that Russia was giving to the
“separatists” despite the fact that the de facto authorities were responsible for the
violation of the “fundamental human righ ts” of ethnic Georgians and the “gross
infringement on the property rights” of IDPs who were the “victims of ethnic
cleansing 204.
2.119 In the same month, President Saakashvili complained to the General
Assembly that Russia was responsible for “the morally repugnant politics of
ethnic cleansing, division, violence and i ndifference” in South Ossetia where the
“separatist regime” “basically consists of elements from security services from
neighbouring Russia that have no historical ethnic or cultural links to the territory
205
whatsoever” . Russia’s support for the ethni c discrimination carried out by
separatist forces was again disputed by Ge orgia in a statement to the Security
Council on 3 October 2007. Georgia expre ssed “extreme concern” regarding the
fact that separatist military forces, “responsible for ethnic cleansing”, were
206
“receiving support” and “training” from Russia .
203U.N. Security Council, Letter dated 5 September 2007 from the Permanent Representative of
Georgia to the United Nations addressed to the President of the Security Council, Annex, U.N.
Doc. S/2007/535 (7 September 2007). GWS, Vol. III, Annex 87.
204
Ministry of Foreign Affairs of Georgia, Statement of the Ministry of Foreign Affairs of Georgia
(20 September 2007). GWS, Vol. IV, Annex 175.
205
U.N. General Assembly, 7th Plenary Meeting, Address by Mr. Mikheil Saakashvili, President
of Georgia, U.N. Doc. A/62/PV.7 (26 September 2007), pp. 18-20. GWS, Vol. III, Annex 88.
206U.N. Security Council, Letter dated 3 October 2007 from the Permanent Representative of
Georgia to the United Nations addressed to the President of the Security Council, Annex, U.N.
Doc. S/2007/589 (4 October 2007). GWS, Vol. III, Annex 89.
842.120 As shown in the Memorial, at paragraphs 4.49 through 4.57, by early
2008 the de facto agencies in South Ossetia responsible for defence, public
security and intelligence were headed by active duty Russian General Officers.
On 28 June 2008, President Saakashvili accused these Russian generals of
supporting ethnic violence against the Georgian population in South Ossetia:
The Russian Generals that are sitting in Tskhinvali and are
creators of many dirty provocations must return back to their
locations in Russian Federati on, because they do not have
anything to do in Georgia. This situ ation is created artificially and
it won’t continue for long time, our Russian colleagues know this
better then us, but some have di fficulties in decision making. If
law level officials are not able to make this happen, I hope that the
207
President of Russian Federation will make sufficient decision .
2.121 In a statement issued on 17 July 2008, a month before the Application was
filed, Georgia’s Ministry of Foreign Affairs declared that Russia’s “true designs”
in South Ossetia and Abkhazia were “to legalize results of the ethnic cleansing”
that had been “ instigated by itself and c onducted through Russian citizens ” 208.
Russia’s denial that there was a legal di spute under the 1965 Convention prior to
12 August 2008 simply cannot stand in the face of such evidence.
Section VII. Georgia’s Claims Regarding Russia’s Deliberate Failure To
Prevent Ethnic Discrimination
2.122 In the Memorial, Georgia demonstrated Ru ssia’s responsibility for
breaching the 1965 Convention by its failure to make efforts to “prohibit and
bring to an end, by all appropriate mean s” acts of “racial discrimination by any
207Office of the President of Georgia, Press Briefing, “The President of Georgia Mikheil
Saakashvili held a press conference” (28 June 2008). GWS, Vol. IV, Annex 181.
208
Ministry of Foreign Affairs of Georgia, Comment of the Press and Information Department of
the Ministry of Foreign Affairs of Georgi(17 July 2008) (emphasis added). GWS, Vol. IV,
Annex 182.
85 209
persons, group or organization”, including the de facto separatist authorities .
In that regard, Georgia showed that Ru ssia’s military and “peacekeeping” forces
refused to protect ethnic Georgians despite having both the means and the
210
obligation to do so under the Convention .
2.123 Georgia began complaining about the failure of the Russian forces to
prevent discrimination against ethnic Georgians soon after they were deployed in
South Ossetia and Abkhazia. On 12 Oc tober 1994, the Parlia ment of Georgia
stated that “the Georgian population” in Abkhazia continued to be “persecuted”
even though they lived in the “securi ty zone” that was “controlled by the
peacekeepers of the Russian Federation” 211. On 17 April 1996, the Georgian
Parliament again complained of the failu re of Russia’s forces to protect ethnic
Georgians:
Peacekeeping Forces, designated by Russia in agreement with the
CIS and the UN, to this day are unable to fulfil their function.
They failed to secure the safety of the population, to prevent ethnic
cleansing and genocide of the Georgian population, to render a
real assistance to return refugees and internal displaced people to
their homes 21.
2.124 In more recent years, Georgia renewe d its complaints that Russian forces
were refusing to halt the abuse of et hnic Georgians. On 5 November 2005,
Georgia’s Ministry of Forei gn Affairs stated: “Human rights violations continue
209GM, paras. 9.63-9.84.
210
The ceasefire agreements that ended the hos tilities in the early 1990s provided for Russian
peacekeepers to be stationed in both South Ossetia and Abkhazia. In each case, the terms of the
peacekeepers’ mandate expressly required that they “protect the popul ation…from criminal
invasion” of “armed groups and bands”. Provision on Joint Peacekeeping Forces (JPKF) and Law
and Order Keeping Forces (LOKF) in the Zone of Conflict (12 July 1992). GM, Vol. III, Annex
104; Quadripartite Agreement on Voluntary Return of Refugees and Displaced Persons (4 April
1994). GM, Vol. III, Annex 110.
211
Statement of the Parliament of Georgia (12 October 1994). GWS, Vol. IV, Annex 129.
212Resolution of the Parliament of Georgia on M easures of Conflict Settlement in Abkhazia (17
April 1996). GWS, Vol. IV, Annex 130.
86to be committed in Abkhazia, especially Gali District, in th e zone controlled by
CIS peacekeeping forces. These violations have recently become massive and are
mainly committed against ethnic Georgian population” 213. Five days later,
Georgia’s Foreign Ministry reiterated that Russia was failing to protect ethnic
Georgians from “human rights violations and violence” occurring “in the areas
controlled by peacekeeping forces” 21. Georgia disputed Russia’s explanation
that its peacekeepers’ failure to act was the result of their inability to do so,
contending that it was in stead the result of a decision to “ignore” abuses
committed against ethnic Georgians:
The forementioned fact obviously demonstrates that the
peacekeeping forces, in a better cas e, ignore the actions of armed
criminal groups, under the patr onage of the so-called law
enforcement authorities of the separatist regime, are carrying out
purposeful terror against ethnically Georgian population 215.
2.125 Later in the same month (November 2005), the Georgian Foreign Ministry
complained that violent discriminati on against ethnic Georgians was being
committed not only because the Russian forces “ignore the actions of armed
criminal groups”, but because they give these actions their “secret consent”:
With the syndrome of impunity, the separatist government of
Abkhazia and its so-called law enforcement agencies, are resorting
to terror towards ethnically Georgian population, in order to expel
them from the region and conclude and legitimize ethnic
cleansing. This totally outrageous situation in the conflict zone
takes place in front of the eyes of peacekeeping forces and often
216
with their secret consent. . .
213Ministry of Foreign Affairs, Information concerning the death of the resident of Gali District,
Daniel Tsurtsumia (5 November 2005). GWS, Vol. IV, Annex 159.
214
Ministry of Foreign Affairs, The Comment concerning the Fact of Kidnapping of the Resident
in Gali Region (10 November 2005). GWS, Vol. IV, Annex 160.
215Ibid.
216Ministry of Foreign Affairs, Statement of the Ministry of Foreign Affairs of Georgia
concerning the current developments in Abkhazia, Georgia (14 November 2005) (emphasis
added). GWS, Vol. IV, Annex 161.
872.126 In January 2006, the Secretary-General recognised Georgia’s dispute with
Russia over the failure of Russia’s peacekeeping forces to act to prevent ethnic
discrimination, reporting that “[o]n a num ber of occasions, Tbilisi called on the
international community to condemn what it referred to as human rights
violations on the part of the de facto Abkhaz authorities and lack of action by the
collective peacekeeping forces of the Commonwealth of Independent States ”217.
Later in the same month, on 20 January 2006, Georgia’s Mini stry of Foreign
Affairs complained of the “ culpable inaction of the peacekeeping forces ” in
South Ossetia in the face of the “every day occurrence of grave crimes and gross
violation of human rights” that were being committed against the ethnic Georgian
population 218. On 21 February 2006, Georgia ag ain raised with the Secretary-
General the failure of Russian peacekeepin g forces in South Ossetia to protect
ethnic Georgians from human rights abus es. Georgia complained that it was
compelled to “assess extremely negatively the fulfilment of the obligations under
the mandate undertaken by the peacekeeping forces deployed in the former
autonomous district of South Ossetia, as well as to assess actions of the Russian
219
Federation as an ongoing attempt at annexation of this region of Georgia” .
2.127 On 10 August 2006, the Georgian Foreign Ministry informed the
Secretary-General and Security Council that the “Ru ssian peacekeepers continue
to act in defiance of their mandated obligations, turning a blind eye to gross
220
violation of law and human rights ta king place in their very presence” . While
217
U.N. Security Council, Report of the Secretary-General on the situation in Abkhazia, Georgia,
U.N. Doc. S/2006/19 (13 January 2006) (emphasis added), para. 9. GM, Vol. II, Annex 39.
218Ministry of Foreign Affairs of Georgia, Comment of the Department of the Press and
Information on the Statements of the Minister of Foreign Affairs of the Russian Federati(20
January 2006) (emphasis added). GWS, Vol. IV, Annex 162
219U.N. General Assembly, Letter dated 16 February 2006 from the Permanent Representative of
Georgia to the United Nations addressed to the Secretary-General, Annex , U.N. Doc. A/60/685
(21 February 2006), para. 1. GWS, Vol. III, Annex 78.
220U.N. General Assembly, Security Council , Identical letters dated 11 August 2006 from the
Chargé d’affaires A.I. of the Permanent Mission of Georgia to the United Nations addressed to
88Georgia’s specific reference was to the Ru ssian forces’ violation of their treaty
obligations as “peacekeepers”, the same conduct, insofar as it constitutes a failure
to execute the duty to prevent et hnic discrimination, falls under the 1965
Convention. Three weeks later, on 31 August 2006, Georgia again reported to
the Secretary-General about the conti nuing refusal of Russia’s peacekeeping
forces to take action to prevent ethnic discrimination against persons of Georgian
ethnicity:
The so-called government of Abkhazia, without confining itself to
ethnic cleansing of Georgian s recognized and condemned
repeatedly in the final documents of the summits of the
Organization for Security and Coope ration in Europe in Budapest
(1995), Lisbon (1997) and Istanbul (1999), remains relentless in its
pursuit of its inhuman discrimina tory policy and acts against the
ethnic Georgian population of the region….
These violations take place within sight of the Commonwealth of
Independent States (CIS) and in actual practice, Russian
peacekeeping forces that do nothing to suppress flagrant and mass
violations of human rights , as they are mandated to do under
paragraph 6, chapter 2 of the regulations approved by the CIS
Council of Heads of State on the collective peacekeeping forces in
the Commonwealth of Independent States. Needless to say,
Russian peacekeepers cannot, against this background, ensure the
protection of the safety, dignity and human rights of the peaceful
population, including internally displaced persons and refugees, as
prescribed by Secur ity Counsel resolutions 1524 (2004), 1582
(2005), 1615 (2005) and 1666 (2006) 221.
2.128 On 4 September 2006, Georgia’s Mini stry of Foreign Affairs again
complained of the “Russian peacekeepers’ culpable inaction, and in many cases,
even encouragement” of human rights abuses against ethnic Georgians in
the Secretary-General and the Presiden t of the Security Council, Annex, U.N. Doc. A/60/976-
S/2006/638 (14 August 2006). GWS, Vol. III, Annex 83.
221U.N. Security Council, Letter dated 4 September 2006 from the Permanent Representative of
Georgia to the United Nations addressed to the President of the Security Council,, U.N.
Doc. S/2006/709 (5 September 2006)(emphasis added). GWS, Vol. III, Annex 84.
89 222
Abkhazia . In November 2006, Georgia’s State Ministry for Conflict Resolution
Issues further evidenced the existence of a dispute betwee n Georgia and Russia
over the role of the Russian peacekeepers in regard to ethnic violence against
persons of Georgian ethnicity: “Unfortunately numerous protests of the Georgian
223
side did not affect the traditi onal role of Russian ‘peacekeepers’” . As a result
of Russia’s refusal to act to prevent discrimination in the face of Georgian
protests, he said, the “[l]ives and hea lth of Georgian residents of Tskhinvali
region are again sacrificed to the activ ities of armed formations” who were
“inspired” by the “criminal in action of Russian peacekeepers” 224. Quite
obviously, protests by Ge orgia followed by conti nued inaction by Russia
evidences the existence of a dispute betw een the two States, in this case about
conduct that plainly falls under the 1965 Convention.
2.129 On 1 March 2007, Georgia again comp lained that ethnic discrimination
against Georgians in Abkhazia was occurr ing because the Russian forces refused
to intervene despite being obligated to do so, noting ethnic violence “is mostly
225
done against the background of criminal inaction of Russian peacekeepers” . In
September 2007, Georgia’s Ministry of Foreign Affairs again disputed the
“criminal inactivity” of Russia’s “peacekeeping forces” in South Ossetia and
Abkhazia, which made possible the viola tion of the “fundamental human rights”
226
of the ethnic Georgian populations . On 22 November 2007, the Georgian
Foreign Ministry repeated that:
222Ministry of Foreign Affairs of Georgia, Statement of the Ministry of Foreign Affairs of Georgia
(4 September 2006). GWS, Vol. IV, Annex 168.
223
Office of State Ministry on Conflict Regulation Issues, Statement of State Ministry for Conflict
Resolution Issues (11 September 2006). GWS, Vol. IV, Annex 169.
224Ibid.
225Office of State Ministry on Conflict Regulation Issues, Statement of State Ministry for Conflict
Resolution Issues (2 March 2007). GWS, Vol. IV, Annex 174.
226
Ministry of Foreign Affairs of Georgia, Statement of the Ministry of Foreign Affairs of Georgia
(20 September 2007). GWS, Vol. IV, Annex 175.
90 the activity of the Russian pea cekeepers in Georgia’s conflict
zones is absolutely destructive and negative. It is further attested
by the fact that up to two thousand local residents have been killed
in the area controlled by the so -called peacekeepers. Russian
peacekeepers do not comply with their mandated comm227ents
and act as protectors of the separatist regimes .
2.130 Senior Georgian officials continued to dispute and decry Russia’s failure
to prevent ethnic discrimination against Georgians in areas controlled by Russian
peacekeepers in the months lead ing up to the filing of the Application. On 21
May 2008, Georgia’s Minister of Foreign Affairs issued a statement that:
On behalf of the Ministry of Fore ign Affairs, I strictly insist on
explanations as to what peacekeep ers do in the conflict zone and
why they don’t perform the duties prescribed to them under their
mandate, which serves as a legal basis for their presence on this
territory, why they don’t protect ethnic Georgians in the Gali
district from physical violence an d why they deny them the right,
opportunity and guarantee to implem ent one of their fundamental
constitutional rights – voting in elections 228.
The Minister’s statement concluded that “[t]he Ministry of Foreign Affairs of
Georgia condemns this fact in the stronge st terms and expects to receive relevant
clarifications from both our colleagues and Russian peacekeepers” 229.
Notwithstanding Georgia’s request, no clarifications were provided by Russia. In
fact, nothing changed. In these circumstances, Russia’s denial of the existence of
a legal dispute between the two States under the 1965 Convention, regarding the
failure of Russian military forces to prevent discrimination against ethnic
Georgians, is simply not credible.
227Ministry of Foreign Affairs of Georgia, Reply by the Press and Information Department to the
News Georgia Agency concerning the statement made by the Information and Press Department
of the Russian Ministry of Foreign Affairs on the completion of the withdrawal of the Russian
military bases from the Georgian territory (22 November 2007). GWS, Vol. IV, Annex 176.
228Ministry of Foreign Affairs of Georgia, Transcript of the briefing of Minister of Foreign
Affairs of Georgia Eka Tkeshelashvili (21 May 2008). GWS, Vol. IV, Annex 180.
229
Ibid.
91 Section VIII. Conclusion
2.131 In sum, the evidence described in the preceding sections of this Chapter,
especially in Sections IV through VII, demonstrates the existence of a legal
dispute between Georgia and Russia under the 1965 Convention that predates the
filing of Georgia’s Application. Since the 1990s, and co ntinuing from then into
2008, Georgia and Russia disputed whethe r Russia’s military forces in Georgia
and other organs of the Russian Federa tion: (i) carried out ethnic cleansing
operations to expel ethnic Georgians from Abkhazia and South Ossetia; (ii)
forcibly prevented expelled ethnic Geor gian IDPs from returning to those
territories; (iii) supported, sponsored and defended ethnic discrimination carried
out by de facto authorities and militias in Abkhazia and South Ossetia; and (iv)
failed to exercise the duty to prevent ethnic discrimination in areas where they
had the capacity to do so. All of th ese are matters that fall under the 1965
Convention. And as regards each one of them Georgia and Russia had and
maintained opposing positions. The parameters established by the Court for
determining the existence of a legal dispute, set out in Section II of this Chapter,
are plainly satisfied. The evidence suppor ts only one conclu sion: that a legal
dispute under the 1965 Convention existed between Georgia and Russia as of 12
August 2008, when Georgia initiated proceedings in this case.
92 CHAPTER III.
RUSSIA’S SECOND PRELIMINARY OBJECTION:
THE CONDITIONS FOR JURISDICTION UNDER ARTICLE 223.1 This Chapter sets forth Georgia’s response to Russia’s Preliminary
Objections on the scope and satisfaction of the conditions to the Court’s exercise
of jurisdiction under Article 22 of the C onvention. It develops the arguments
made by Georgia in the provisional measures phase and in Georgia’s Memorial,
which are adopted in full and will not be repeated.
3.2 In the 15 October 2008 Order for Provisional Measures , the Court ruled
that it had prima facie jurisdiction under Article 22 of the Convention because the
dispute “is not settled by negotiation” 230. With respect to the applicable law, the
Joint Dissenting Opinion observed similarl y that an “attempt” at negotiation is
sufficient, with the additional requi rement that such negotiations be
unsuccessful 23, and concurred that the referenc e in Article 22 to procedures
232
provided for by the CERD Committee is an “alternative precondition” . Based
on the limited evidence available to it at that phase of the proceedings, however,
the Dissenting Opinion concluded that prior attempts at negotiations on
Convention-related issues had not been established.
3.3 In this Chapter, Georgia presents additional evidence of the repeated
attempts at negotiations be tween the Parties, in rela tion to matters falling under
the 1965 Convention. The evidence incl udes, in particular, extensive
documentation relating to discussi ons between Georgia and Russia inter alia on
ethnic cleansing and the right of return of Georgians who have been displaced by
ethnic discrimination in South Ossetia and Abkhazia, issues that fall within the
terms of the 1965 Convention. Based on the applicable standard set forth by both
the Majority and Dissenting Opinions, Georgia respectfully submits that the
230
Application of the International Convention on the Elimination of All Forms of Racial
Discrimination (Georgia v. Russian Federation) , Provisional Measures, Order, I.C.J. Rep. 2008,
paras. 115 and 117 (hereinafter “Provisional Measures Order”).
231Provisional Measures Order, Joint Dissenting Opinion, para. 13.
232
Ibid., para. 17.
95evidence of negotiations now available to the Court can only lead to a conclusion
that the requirements of Article 22 have been satisfied.
3.4 Contrary to the standard identified by the Court, Russia claims that the
conditions in Article 22 are both extremely stringent and cumulative. Its
approach is not supported by the ordinary meaning of Article 22 or by the object
and purpose of the Convention. Russi a ignores the Cour t’s consistent
jurisprudence and the clear evidence of negotiations between the Parties on issues
that fall under the Convention. As disc ussed below, in disregard of the
unambiguous terms of Article 22, Russi a’s assertion is largely based on a
selective and distorted reading of the travaux préparatoires. Georgia responds to
this with a detailed Appendix on the negotiating history that shows clearly that
negotiations and the CERD Committee procedures are (a) not a prerequisite to the
Court’s exercise of jurisdiction, and (b) not cumulative requirements. Far from
being conditional on those procedures be ing utilized, the drafters of the 1965
Convention appear to have been keen to en sure that unilateral seisin of the Court
was wholly independent of the Concil iation Committee process. Furthermore,
Russia’s attempt to dismiss the extensive evidence of attempts at negotiations as
well as actual negotiations is based on a combination of an unreasonably exacting
standard of what constitute s “negotiations” that is manifestly inconsistent with
the Court’s jurisprudence and a misrepresentation of the extensive evidence
submitted by Georgia.
3.5 This section reaffirms and elaborates Georgia’s views set forth in the
Memorial that: (1) the conditions in Article 22 are alternatives and not
cumulative; and (2) to the extent that Georgia was required to attempt to negotiate
prior to the Court’s seisin, it has clearly sa tisfied this requirement. Specifically,
this Chapter is divided into seven sections. Georgia begins by introducing Article
22 (Section I). It then addresses Article 22 in its context (Section II), before
96explaining why the procedures referred to in Article 22 are not cumulative
(Section III). In Section IV Georgia describes why Article 22 does not impose
the preconditions claimed by Russia and th at Georgia has met all the conditions
of Article 22, and in Section V Georgia addresses the criteria for the attempt at
negotiations, should they be required. In Section VI, Georgia provides further
evidence to show that negotiations were attempted in the present dispute. Finally
in Section VII, Georgia summarizes its conclusions. As already noted, a separate
Appendix at the end of this Written Statement , addresses the Convention’s
travaux préparatoires in further detail.
Section I. Article 22 of CERD
3.6 Russia’s second preliminary objection is that the Court lacks jurisdiction
under Article 22 of the Conve ntion. Russia’s claim is premised on the argument
that Article 22 of the Convention contains “procedural conditions” that must be
fulfilled before a State Party may have recourse to the International Court of
Justice to resolve any dispute, and that these conditions have not been fulfilled.
Russia made similar arguments in the course of the provi sional measures
phase 233. These were rejected by the Court .234
3.7 Article 22 provides:
Any dispute between two or more States Parties with respect to the
interpretation or application of this Convention, which is not
settled by negotiation or by the pr ocedures expressly provided for
in this Convention, shall, at the re quest of any of the parties to the
dispute, be referred to the In ternational Court of Justice for
decision, unless the disputants agree to another mode of
settlement.
233Verbatim Record, CR 2008/23 (8 September 2008), paras. 24-35 (Pellet).
234Provisional Measures Order, paras. 114-117.
973.8 Russia makes two arguments: first, it argues that the c onditions provided
for in Article 22 of the Convention are preconditions for the seisin of the
Court 235, and second, it argues that these conditions are cumulative 23. In
rejecting these and related arguments in its Order of 15 Oc tober 2008, the Court
largely relied on the ordinary meaning of Article 22, as directed by Article 31(1)
of the 1969 Vienna Convention on the Law of Treaties. The Court ruled that:
the phrase ‘any dispute … which is not settled by negotiation or by
the procedure expressly provided for in this Convention’ does not,
on its plain meaning, suggest that formal negotiations in the
framework of the Convention or recourse to the procedure referred
to in Article 22 thereof constitute preconditions to be fulfilled
before the seisin of the Court 23.
3.9 Georgia submits that what was a “plain meaning” then is also a “plain
meaning” now, and that on its face the text of Article 22 does not support
Russia’s arguments. The “plain meaning” adopted by the Court is confirmed by
the context of Article 22 and the object and purpose of the Convention, as well as
the Court’s consistent jurisprudence. Th is is not a case in which the ordinary
meaning in the context of the Convention leads to an interpretation that is
“ambiguous or obscure” or that is “man ifestly absurd or unreasonable” in the
sense of Article 32 of the 1969 Vienna Conve ntion, so that ther e is no need to
have recourse to the preparatory work of the Convention. In any event, contrary
to Russia’s contention, the travaux préparatoires do not support Russia’s
interpretation. Indeed, as set forth in this Chapter and the accompanying
Appendix, Russia has made selective use of the preparatory work. The
negotiating history confirms that it was not the intention of the drafters of the
Convention to establish preconditions, in cluding those of the kind claimed by
235
Preliminary Objections of th e Russian Federation, Vol. I (December 2009) (hereinafter
“RPO”), paras. 4.6-4.56.
236Ibid., paras. 4.57-4.80.
237
Ibid., para. 114.
98Russia, before a party to the Convention may be able to seize the Court
unilaterally to resolve any dispute. The Convention’s preparatory work confirms
the ordinary meaning of Article 22.
3.10 Georgia submits that the requirements of Article 22 had been fully met by
the time the Application was filed. Specifically, Georgia submits that:
(i) Article 22 does not include any conditions that are preconditions
to the seisin of the Court, and specifically that Georgia was not
under any obligation to engage in formal negotiations with Russia
to settle the dispute under the C onvention, or to have recourse to
the “procedures expressly provided for in [the] Convention”; and
(ii) The “conditions” in Article 22 of the Convention are not
cumulative; and
(iii) Further or alternatively, if cont rary to Georgia’s first submission
Article 22 does impose a requirement of prior negotiations then
such conditions have been fulfilled.
3.11 Georgia will deal with each of these arguments in turn. Before doing so,
it is necessary to consider the scheme established by the Convention for resolving
disputes, in its overall context, somethin g that the Russian Fe deration has failed
to do.
Section II. Article 22 in Context
3.12 Russia fails to consider Article 22 in its context. The Convention is
composed of three parts. Part I (Article s 1 to 7) imposes substantive obligations.
Part II (Articles 8 to 16) establishes a Committee on the Elimination of Racial
Discrimination (the Committee) and define s its role. Part III of the Convention
(Articles 17 to 25) cont ains the final clauses, including Article 22 on the
settlement of disputes concerning th e interpretation and application of the
Convention. The location of Article 22 in a separate Part of the Convention from
that which governs the functioning of the Committee is an important contextual
element that the Russian Federation ignores.
993.13 This is not the only contextual elemen t that it ignores. Part II of the
Convention comprises nine Articles th at govern the functioning of the
Committee. Article 8 establishes the Comm ittee. Article 9 enables it to receive
reports from States Parties, providing inter alia that the Committee “shall report
annually … on its activities and ma y make suggestions and general
recommendations based on the examination of the reports and information
received from the States Parties”. Article 10 of the Convention deals with
procedural and administrative matters.
3.14 Article 11 of the Convention then esta blishes a distinct procedure that
allows a State Party to bring to the atte ntion of the Committee its concerns as to
the acts or omissions of another State Pa rty, and defines the steps that are to be
followed. This is a significant process, the details of which the Russian
Federation has misconstrued or ignore d. This is not a dispute settlement
procedure (that is governed by Article 22), but rather a complaints procedure (as
so referred to in Article 16 of the Conve ntion, a further provision that Russia has
chosen to ignore, and which is addressed in further detail below at paragraphs
3.20 to 3.22). Article 11(1) provides in relevant part that:
If a State Party considers that another State Party is not giving
effect to the provisions of this Convention, it may bring the matter
to the attention of the Committee. The Committee shall then
transmit the communication to the State Party concerned. Within
three months, the receiving State shall submit to the Committee
written explanations or statemen ts clarifying the matter and the
remedy, if any, that may have been taken by that State.
3.15 It is noteworthy that this procedure, which is referred to by Russia as a
“conciliation procedure”, is not mandato ry: the language provi des that a State
Party “may” invoke this procedure if it wi shes to do so (not “shall”), making it
clear that it is not required to invoke this procedure for any purposes. Article
10011(2) then deals with the right to retu rn to the Committee “if the matter is not
adjusted”. It provides:
If the matter is not adjusted to the satisfaction of both parties,
either by bilateral negotiations or by any other pr ocedure open to
them, within six months after th e receipt by the receiving State of
the initial communication, either Stat e shall have the right to refer
the matter again to the Committee by notifying the Committee and
also the other State.
3.16 A number of points are to be noted. First, the provision re fers to a
“matter”, not a “dispute”. Second, it refers to an “adjustment”, not a
“settlement”. And third, unlike the righ t to initiate proceedings under Article
11(1), the right to return to the Committ ee under Article 11(2) is subject to two
preconditions: (a) the right must be exerci sed within six months from the receipt
by the receiving State of the initial communication to the Committee, and (b) the
Committee must have determined that the matter has not been “adjusted to the
satisfaction of both parties”, whether by “bilateral negotiations or by any other
procedure open to them”. By including these preconditions to the exercise of any
right to return to the Committee, it become s clear that the right to file the initial
communication is not dependent upon a determination by any body that the
matter has not been settled or adjusted by negotiation, whether bilateral or other.
The texts of Articles 11(1) and (2) conf irm that when the drafters of the
Convention wanted to establ ish preconditions to the exer cise of any procedural
rights they did so very clearly. Equall y, if the drafters wanted to make any
particular form of negotiation a preconditi on to the exercise of any procedural
right, or to establish time limits, they chose to do so explicitly.
3.17 Moreover, it must be noted that Article 11(3) establishes an exhaustion of
local remedies rule as anothe r condition to admissibility of any right to return to
the Committee under Article 11(2):
101 The Committee shall deal with a matter referred to it in accordance
with paragraph 2 of this article after it has ascertained that all
available domestic remedies have been invoked and exhausted in
the case, in conformity with the ge nerally recognized principles of
international law. This shall not be the rule where the application
of the remedies is unreasonably prolonged.
3.18 Article 11 thus makes clear that where the drafters of the 1965
Convention wanted to incorporate partic ular preconditions they so stated in
express language. In acco rdance with Article 12 of the Convention, assuming
that the preconditions are satisfied, and after the Committee has obtained and
collated all the information it deems n ecessary, the Chairman of the Committee
“shall appoint an ad hoc Conciliati on Commission … comprising five persons
who may or may not be members of the Committee” 238. The ad hoc Conciliation
Commission’s “good offices shall be made available to the States concerned with
a view to an amicable solution of the matter on the basis of respect for this
Convention” 239. Under Article 13 the Conciliation Commission may also prepare
“a report embodying its findings on all questi ons of fact relevant to the issue
between the parties and containing such recommendations as it may think proper
240
for the amicable solution of the dispute” . Article 14 allows States Parties to
recognize the competence of the Committee “to receive and consider
communications from individuals or groups of individuals within its jurisdiction
claiming to be victims of a violation by that State Party of any of the rights set
forth in this Convention” 241. Article 15 allows the Committee to receive certain
petitions in relation to the Declara tion on the Granting of Independence to
238
Art. 12(1).
239Art. 12(1).
240Art. 13(1).
241
Art. 14.
102Colonial Countries and Pe oples, contained in Genera l Assembly resolution 1514
242
(XV) of 14 December 1960 .
3.19 The requirements imposed by Articl es 11(2) and (3) and 12 – which
establish detailed preconditions to the exer cise of procedural rights – stand in
sharp contrast to the absence of any similar requirements in relation to the
exercise of rights under Article 22. Th is becomes all the more apparent by
reference to other treaties that made such preconditions clear and that were in the
minds of the drafters of the Convention. Russia recognizes and refers to the fact,
for example, that the drafters were well aware of the terms of the 1960 Protocol
Instituting a Conciliation and Good Of fices Commission to be responsible for
seeking a settlement of any disputes whic h may arise between States Parties to
the UNESCO Convention against Discri mination in Education, which was
adopted on 10 December 1962 243. Article 17 of the 1960 Protocol establishes a
conciliation procedure, culminating in the preparation by the Commission of “a
report on the facts and [indicating] the re commendations which it made with a
244
view to conciliation” . Article 25 then allows any State Party “to refer to the
International Court of Justice, after the drafting of the report provided for in
article 17, paragraph 3, any dispute c overed by this Protocol on which no
amicable solution has been reached in accordance with article 17, paragraph
245
1” . This text explicitly establishes as a precondition to exercise the right of
242Art. 15.
243
RPO, para. 4.72.
2441960 Protocol, Art. 17(3).
245The 1960 Protocol provides in relevant part:
Article 17
1. Subject to the provisions of article 14, the Commission, after obtaining all the information it
thinks necessary, shall ascertain the facts, anmake available its good offices to the States
concerned with a view to an amicable solution of the matter on the basis of respect for the
Convention.
103recourse to the Court the prior preparation of a report. Having these provisions in
mind the drafters of the Convention could have established a similar link between
Articles 11(2) and 12 of the Convention, on the one hand, and Article 22, on the
other. The fact that they decided not to do so supports Georgia’s approach.
3.20 Against this background, Part II of the Convention contains a further
clause that is of material significance but which again the Russian Federation has
completely ignored, notwithstanding the fact that it was the subject of
submissions in the provisional measures phase 246. Article 16 of the Convention
provides as follows:
The provisions of this Conventi on concerning the settlement of
disputes or complaints shall be applied without prejudice to other
procedures for settling disputes or complaints in the field of
discrimination laid down in the constituent instruments of, or
conventions adopted by, the Unit ed Nations and its specialized
agencies, and shall not prevent the States Parties from having
recourse to other procedures fo r settling a dispute in accordance
2. The Commission shall in every cas e, and in no event later than eighteen months after the date
of receipt by the Director-General of the notice under article 12, pa ragraph 2, draw up a report in
accordance with the provisions of paragraph 3 belo w which will be sent to the States concerned
and then communicated to the Dir ector-General for publication. When an advisory opinion is
requested of the International Court of Justice, in accordance with article 18, the time-limit shall
be extended appropriately.
3. If a solution within the terms of paragraphI of this article is reached, the Commission shall
confine its report to a brief statement of the facts and of the solution reached. If such a solution is
not reached, the Commission shall draw up a report on the facts and indicate the recommendations
which it made with a view to conciliation. If the re port does not represent in whole or in part the
unanimous opinion of the members of the Commission, any member of the Commission shall be
entitled to attach to it a separate opinion. The written and oral submissions made by the parties to
the case in accordance with article 11, paragraph 2 (c), shall be attached to the report.
Article 25
Any State may, at the time of ratification,acceptance or accession or at any subsequent date,
declare, by notification to theDirector-General, that it agrees, with respect to any other State
assuming the same obligation, to refer to the Inte rnational Court of Justice, after the drafting of
the report provided for in article 17, paragraph 3, any dispute covered by this Protocol on which
no amicable solution has been reached in accordance with article 17, paragraph 1.
246
Verbatim Record, CR 2008/22 (8 September 2008), paras. 53-54 (Crawford).
104 with general or special internati onal agreements in force between
them.
3.21 Article 16 is located in Part II of th e Convention, indicating that its terms
will exclude the scheme established by Ar ticle 11. The inclusion of Article 16,
and its location in Part II of the Conv ention, undermine the Russian Federation’s
claim that reference to negotiation and/or the Article 11 complaint procedure are
necessary preconditions to the exercise of ri ghts under Article 22. The drafters
inserted a clause which states in express terms that the provisions within the
Convention are not mutually exclusive or dependent, and that these provisions
“shall not prevent the States Parties from having recourse to other procedures for
settling a dispute in accorda nce with general or special international agreements
in force between them”. Article 16 confirms that if other instruments provide for
access to the Court, or to other courts or tribunals, or to arbitration, they may be
relied upon to resolve disputes under the Convention without prior recourse to the
arrangements envisaged by Articles 11 and 12. A party to the 1965 Convention is
free to go to the Court to enforce its oblig ations by means arising elsewhere. In
other words, if there were a clause in another instrument providing for a right of
access to the International Court of Justic e (such as the Pact of Bogotá), or a
regional court such as the European Cour t of Human Rights or the African Court
of Justice, a State Party is free to ma ke use of that provision without prior
recourse to the arrangements envisaged under Articles 11 or 12. The fact that
these arrangements or the other pro cedures expressly provided for by the
Convention are not a requirement for the exercise of the Court’s jurisdiction in all
cases brought under the Convention (or, Ge orgia submits, in any) confirms that
Russia’s approach is wrong. It simply makes no sense to read Article 22 as
requiring exhaustion of the procedures set forth in Articles 11 and 12 as a
precondition to the Court’s jurisdiction, when Article 16 states that its jurisdiction
can be invoked under similar dispute reso lution clauses in other international
instruments without prior recourse to those procedures. Article 16 is inconsistent
105with the argument of the Russian Fede ration, which has provided no explanation
of the purpose of that provision.
3.22 The language of Article 16, and its lo cation in Part II of the Convention,
are inconsistent with the claim that the Convention imposes a hierarchy of
remedies or that the Court may only be reached once all other remedies have been
exhausted. On Russia’s a pproach, Article 16 would be meaningless. As one
leading commentator has noted:
[I]t is apparent that no single machinery for the implementation of
the several human rights instruments can at this stage be created.
Different machineries do exist, on the double level of different
fields covered and the 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 to Article 1624.
3.23 Moreover, on the logic of Russia’s a pproach, if negotiation, access to the
Committee and a right of return to the Committee together with the establishment
of a Conciliation Commission are all re quired before a State Party may have
access to the Court under Article 22, then it is inevitably also the case that a State
Party must have exhausted local remedies , as required by Article 11(3) of the
Convention. For the reasons set out below, that was not and cannot have been the
intention of the drafters of the Convention when they created an inter-State
dispute settlement mechanism providing for access to the Court.
Section III. The Modes of Dispute Settlement Identified in Article 22 are
not Cumulative
3.24 Article 22 of the Convention refers to the absence of settlement of the
dispute “by negotiation or by the proce dures expressly provided for in this
247Natan Lerner, The U.N. Convention on the Elimination of All Forms of Racial Discrimination
(1980), p. 92.
106Convention”. Notwithstanding the ordinary meaning of the text, and the use of
the word “or” (as opposed to “and”), Ru ssia asserts that th e “conjunction ‘or’
248
does not express alternatives but rather cumulative conditions” . This view was
not accepted by any member of the Court in the provisional measures phase.
3.25 This argument is wholly without merit. It is not supported by the ordinary
meaning of the word “or”, which plainly indicates that, whether or not they are
preconditions to access to the Court, the dr afters treated “ne gotiation” and “the
procedures expressly provided for in this Convention” as altern atives. This is
249
confirmed by the Appendix on the travaux préparatoires . Negotiation is
neither a precondition nor a cumulative precondition.
3.26 Russia’s argument is not supporte d by any practice. The CERD
Committee has never been seized of a matter under the inter-State procedure in
250
Article 11 of the Convention . A few inter-State complaints have been
248
RPO, para. 4.59.
249Appendix on Travaux Préparatoires, infra, paras. xxxi-xli.
250Article 11 states:
1. If a State Party considers that another State Party is not giving effect to the provisions of this
Convention, it may bring the matter to the attention of the Committee. The Committee shall then
transmit the communication to the State Party concerned. Within three months, the receiving State
shall submit to the Committee written explanations or statements clarifying the matter and the
remedy, if any, that may have been taken by that State.
2. If the matter is not adjusted to the satisfaction of both parties, either by bilateral negotiations or
by any other procedure open to them, within six months after the receipt by the receiving State of
the initial communication, either State shall have the right to refer the matter again to the
Committee by notifying the Committee and also the other State.
3. The Committee shall d eal with a matter referred to it accordance with paragraph 2 of this
article after it has ascertained that all avilable domestic remedies have been invoked and
exhausted in the case, in conformity with the generally recognized principles of international law.
This shall not be the rule where the application of the remedies is unreasonably prolonged.
4. In any matter referred to it, the Committee may call upon the States Parties concerned to supply
any other relevant information.
5. When any matter arising out of this article ibeing considered by th e Committee, the States
Parties concerned shall be entitled to send a representative to take part in the proceedings of the
Committee, without voting rights, whilethe matter is under consideration.
107submitted under Article 9, but the CERD Committee has never taken a formal
decision. The Russian Federation has addu ced no evidence whatsoever to show
that States Parties have resorted to Article 9 in order to satisfy any supposed pre-
condition to the seisin of the Court under Article 22.
3.27 The argument is also unsupported by the negotiating history of the
Convention. In paragraphs 4.63 to 4.72 of its Preliminary Objections Russia
seeks to invoke the negotiating history of the Convention in support of its claim
that the word “or” actually means “and”. Yet it is not able to identify even a
single statement by any negotiator at any phase of the negotiations to support that
proposition. It cannot do so. Georgia ha s been through the entirety of the
negotiating history, which is summarized in the attached Appendix; there is
nothing in it that supports Russia’s assertion.
3.28 In any event, as with the text of Article XXXIV(2) of the 1956 Treaty
between Nicaragua and the United States , which was the subj ect of the Court’s
251
1984 judgment without any need for r ecourse to the negotiating history , the
ordinary meaning of Article 22 is clear, as is its context and the object and
purpose of the Convention. There is ther efore no need to ha ve any regard to
supplementary means, such as the ne gotiating history of the Convention.
Nevertheless, in view of Russia’s sel ective and misleading reference to the
negotiating history to buttress an approach that destroys the ordinary meaning of
Article 22, Georgia has reviewed the entir ety of the negotiating history. Georgia
has prepared an Appendix summarizing those negotiations on the key points, and
made available by an additional volume of annexes all relevant materials. These
indicate, in summary, the following conclusions:
251Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of
America), Jurisdiction and Admissibility, Judgment, I.C.J. Rep. 1984.
108 a. The travaux préparatoires make it clear that negotiation and the
CERD procedures are (a) not a prerequisite to the Court’s exercise
of jurisdiction, and (b) not cumulative requirements.
b. The Conciliation Commission was envisaged as a useful addition
to existing and other procedures for dispute settlement, including
the ICJ, rather than as a mandatory process for complaints;
c. ICJ jurisdiction was considered as a self-contained issue all the
way from negotiations at the Sub-Commission through to the final
drafting in the Third Committee;
d. This was reflected in the location of the clause and machinery in
separate parts of the final Conve ntion, with balance provided by
referring to the opportunity (in a non-mandatory or preconditional
way) to resort to the conciliation process in the final
compromissory clause.
3.29 Georgia notes that during the provisi onal measures phase of this case
there was no support whatsoever for Russi a’s assertion that the reference in
Article 22 to “the procedures expressly provided for in this Convention” is
properly to be treated as a “cumulative condition”. The seven judges who
participated in a Joint Dissenting Opini on described these “procedures” as an
252
“alternative precondition” .
3.30 Having regard to the case-law of th e Court, there is no support for
Russia’s contention. In the United Nations Headquarters case, for example, the
Court did not rule that “negotiation or other agreed mode of settlement” (as
referred to in Article 21 of the United Nations Hea dquarters Agreement) were
252Provisional Measures Order, Joint Dissenting Opinion, para. 17.
109cumulative requirements 253. In Democratic Republic of the Congo v. Rwanda,
Rwanda argued that the conditions in Ar ticle 75 of the WHO Constitution were
254
cumulative but the Court did not make a ruling in support of that submission .
3.31 It is clear that “negotiation” and “the procedures expressly provided for in
this Convention”, as referred to in Article 22, were treated by the drafters of the
Convention as alternatives. Even if they are properly to be treated as
preconditions to the exercise of the C ourt’s jurisdiction, wh ich Georgia denies,
once Georgia made attempts at negotiation in respect of matters falling under the
Convention it could satisfy the require ments of Article 22. There was no
requirement to have recourse to the procedures referred to in Article 11 and 12 of
the Convention. The claim to the contra ry ignores the ordinary meaning of
Article 22, the negotiating history of th e Convention, the approach taken by the
entire Court in the provisional measur es phase, and the approach taken by the
Court in its prior jurisprudence.
Section IV. Article 22 Does Not Impose the Preconditions Claimed by
Russia
3.32 Russia claims that Article 22 impo ses three conditions that must be
satisfied before Georgia is entitled to have access to the Court:
− first, Georgia must have complied w ith some general “duty to settle
the dispute before seizing the Court”;
− second, Georgia must have complied with the obligation to negotiate
with Russia; and
253Applicability the Obligation to Arbitrate under Section 21 of the United Nations Headquarters
Agreement of 26 June 1947,Advisory Opinion, I.C.J. Rep. 1988.
254
Armed Activities on the Territory of the Congo (New Application: 2002) (Democratic Republic
of the Congo v. Rwanda), Jurisdiction and Admissibility, Judgment, I.C.J. Rep. 2006, pp. 41-42
(in relation to Article 75 of the WHO Constitution).
110 − third, Georgia must have had recour se to “the procedures expressly
provided for in [the] Convention”, namely the procedures envisaged in
Articles 11 and 12.
3.33 Yet none of these conditions or pre-c onditions to have recourse to the
Court are to be found in the actual text of Article 22, as drafted by the negotiators.
Specifically:
a. Article 22 says nothing – expressly or implicitly – about any
general “duty to settle the dispute before seizing the Court”;
b. Article 22 states that a State Party may unilaterally refer a
dispute to the Court if that dispute “is not settled by
negotiation”, but it does not esta blish any express (or other)
obligation to engage in such negotiation and only requires the
Court to make a factual determination;
c. Article 22 provides that a State Party may unilaterally refer a
dispute to the Court if that dispute “is not settled by … the
procedures expressly provided for in [the] Convention”, but
does not establish any express (or other) obliga tion to have
recourse to those procedures a nd only requires the Court to
make a factual determination.
3.34 If the drafters of the Convention ha d intended to incl ude the conditions
that Russia now reads into the text they would have done so. Article 11(2), for
example, includes as one condition the requi rement that a renewed application to
the Committee must be made within six m onths of the origin al application.
Article 11(3) imposes a clear requirement to exhaust local remedies before filing
a renewed application to the Committee. The drafters were therefore well aware
of the possibility of incorporating speci fic obligations into the Convention as
preconditions to the exercise of procedural rights. They were also well aware of
the requirements of other conventions, su ch as the 1960 UNESCO Protocol. In
the absence of corresponding language in Article 22, its plain terms can only be
understood as expressing an intention of the drafters not to have imposed such
conditions.
1113.35 Moreover, there is nothing in the Convention’s travaux préparatoires that
supports Russia’s contentions. A proper re ading of the drafting history reveals
that Article 22 had its roots in an entirely distinct process to that constructing the
CERD Committee machinery. All referen ce to the ICJ was expressly removed
from that section during the key debates of the Third Committee (despite the
protest of some of the draf ters). It was plainly inte nded to be applied without
prejudice to other procedures for settli ng disputes (see what became Article 16).
The CERD mechanism and ICJ are thus presented in two separate sets of
provisions in the final draft. Contrary to the strained attempts of the Russian
Federation to explain this division, it is clear from the negotiating history of the
Convention that the separation between the CERD mechanisms on the one hand,
and the ICJ on the other hand, were inte nded by the drafters. The detailed
negotiating history is addressed in the Appendix.
3.36 Georgia will deal with the points made by Russia in tur n. As regards the
purported general “duty to settle the dis pute before seizing the Court”, Georgia
notes that when States have wanted to establish an express duty to seek to resolve
a dispute by negotiation or other means as a condition precedent to access to an
international court or tribunal they have done so explicitly. Article 283(1) of the
1982 Convention on the Law of the Sea, for example, provides that:
When a dispute arises between States Parties concerning the
interpretation or application of th is Convention, the parties to the
dispute shall proceed expeditiously to an exchange of views
regarding its settlement by negotiation or other peaceful means.
The 1965 Convention contains no such re quirement, whether in Article 22 or
anywhere else. Equally, the drafters of the Convention agreed on the formulation
that the dispute “is not settled by negotia tion”; they did not agree on a different
112formulation, for example, that the dispute “cannot be settled” by negotiation or
255
other means, as drafters have done in other conventions .
3.37 It is readily apparent that the wo rds “cannot be settled” must have a
different meaning from the words “is not se ttled” as used in Article 22 of the
1965 Convention; the former impose a require ment on a court or tribunal that is
charged with interpreting the words to de termine whether as a matter of fact and
law a particular dispute “cannot be settl ed” by negotiation or other means (as
happened in the Case concerning Border and Transborder Armed Actions, where
the Court rejected a jurisdictional object ion from Honduras that the requirement
in Article II of the Pact of Bogotá – providing for a right of access to the Court
“in the event that a controversy arises between two or more signatory states
which, in the opinion of the parties, ca nnot be settled by direct negotiations
through the usual diplomatic channels” – was a “condition precedent” that had
not been met, concluding that the form ulation required it to make “an objective
evaluation by the Court of the possibilities for settlement of the dispute by direct
negotiations”) 256. That is a different exercise from determining whether a dispute
“is not settled”. This point has been emphasized, for example by Judge Jessup in
the South West Africa cases, where he said:
The phrase ‘cannot be settled’257ea rly must mean something more
than ‘has not been settled’ .
255
Mavrommatis Palestine Concessions Case, Jurisdiction, Judgment, P.C.I.J., Series A, No. 2,
1924, p.13; South West Africa Cases (Ethiopia v. South Africa; Liberia v. South Africa),
Preliminary Objections, Judgment, I.C.J. Rep. 1962, p. 435 (Sep. Op. Judge Jessup); Case
concerning the Northern Cameroons (Cameroon v. United Kingdom), Preliminary Objections,
Judgment, I.C.J. Reports 1963, p. 15.
256
Border and Transborder Armed Actions (Nicaragua v. Honduras), Jurisdiction and
Admissibility, Judgment, I.C.J. Rep. 1988, p. 94, paras. 62-63.
257South West Africa Cases (Ethiopia v. South Africa; Liberia v. South Africa), Preliminary
Objections, Judgment, I.C.J. Rep. 1962, p. 435 (Sep. Op. Judge Jessup). See also Bayindir Insaat
Turizm Ticaret Ve Sanayi A.S. v. Islamic Republic of Pakistan , ICSID Case No. ARB/03/29 (14
November 2005), para. 98,available at http://www.worldbank.org/icsid/cases/awards.htm.
113He also recognized what the “more” is; since it cannot be know n that a dispute
“cannot be settled” by negotiation if no effo rt at negotiation has been made, this
formulation necessarily implies a requirement to negotiate, while the formulation
adopted in Article 22 does not.
3.38 Similarly, if the parties had wanted to include other essential
preconditions, such as the need for a coo ling off period, or a prior requirement to
have recourse to arbitration, they w ould have done so. The Convention on the
Elimination of Discrimination Against Women (CEDAW), for example, provides
that:
Any dispute between two or more States Parties concerning the
interpretation or application of the present Convention which is
not settled by negotiation shall, at the request of one of them, be
submitted to arbitration. If within six months from the date of the
request for arbitration the parties are unable to agree on the
organization of the arbitration, a ny one of those parties may refer
the dispute to the International Court 258Justice by request in
conformity with the Statute of the Court .
3.39 Russia rightly points out that some compromissory clauses require prior
recourse to arbitration before access to the Court is available. The Montreal
Convention for the Suppression of Unlawf ul Acts against the Safety of Civil
259
Aviation, which was in issue in the Lockerbie cases, is another example . That
compromissory clause is significantly diffe rent from Article 22: first, there must
258
Convention on the Elimination of Discriminatio n Against Women, Art. 29, G.A. Res. 34/180,
U.N. Doc. A/34/46 (1981), 1249 U.N.T.S. 13. See also Article 30 of the Convention against
Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment 1984, GA Res. 39/46,
annex, U.N. Doc. A/39/51 (1984), 1465 U.N.T.S. 85.
259Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation, 974
U.N.T.S. 177, 24 U.S.T. 56 4, 10 I.L.M. 1151 (1971). See Questions of Interpretation and
Application of the 1971 Montreal Convention ar ising from the Aerial Incident at Lockerbie
(Libyan Arab Jamahiriya v. United Kingdom), Preliminary Objections, Judgment, I.C.J. Rep.
1998, p. 9; 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. Rep. 1998, p. 115.
114be a situation in which the dispute “ca nnot be settled” by negotiation (rather than
“is not settled”); second, it is then necessary to go to arbitration; and third, a time
element is imposed on access to the Court, namely an inability to agree on the
organization of the arbitration within si x months of the date of it having been
260
requested . The Court decided it had jurisdiction because the United Kingdom
and United States refused to answer Libya’s requests for arbitration. Similarly, in
the Armed Activities on the Territory of the Congo case, which also concerned
261
Article 14 of the Montreal Convention , the Court ruled that it could not
exercise jurisdiction because the Demo cratic Republic of Congo had failed to
request arbitration proceedings as required by Article 14. A similar requirement
was at issue in Questions relating to the Obligation to Prosecute or Extradite ,
where the Court was satisfied that a request for arbitration had properly been
made . These decisions are based on material differences with the present
situation, and are of no assistance to Russi a. To the contrary, they bring into
relief the limited nature of the requirements of Article 22.
260Article 14(1) of the Montreal Convention states: “Any dispute between two or more
Contracting States concerning the interpreta tion or application of this Convention which cannot
be settled through negotiation, shall, at the request of one of them, be submitted to arbitration. If
within six months of the date of the request for arbitration the Parties are unable to agree on the
organization of the arbitration, any one of those Parties may refer the dispute to the International
Court of Justice by request in conformity with the Statute of the Court” (emphasis added).
261Armed Activities on the Territory of the Congo (New Application: 2002) (Democratic Republic
of the Congo v. Rwanda) , Jurisdiction and Admissibility , Judgment, I.C.J. Rep. 2006, pp. 46-49
(in relation to Article 14, paragraph 1, of the Montreal Convention for the Suppression of
Unlawful Acts against the Safety of Civil Aviation).
262 Questions relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal)
Provisional Measures, Order, I.C.J. Rep. 2009, (Article 30, paragraph 1 of the Convention against
Torture). Article 30(1) of the Convention Against Torture and Other Cruel, Inhuman or Degrading
Treatment 1984 states: “Any dispute between two or more States Parties concerning the
interpretation or application of this Convention which cannot be settled through negotiation, shall,
at the request of one of them, be submitted to arbitration. If within six months from the date of the
request for arbitration the Parties are unable to agree on the organization of the arbitration, any
one of those Parties may refer the dispute to the International Court of Justice by request in
conformity with the St atute of the Court”. See also Armed Activities on the Territory of the
Congo (New Application: 2002) (Democratic Republic of the Congo v. Rwanda) , Jurisdiction and
Admissibility, Judgment, I.C.J. Rep. 2006, pp. 35-41 (in relation to Article 29, paragraph 1, of
CEDAW).
1153.40 The point is a simple one: the language of Article 22 is specific and needs
to be interpreted and applied on its ow n terms and in its own context. The
ordinary meaning of Article 22 is diffe rent from that of analogous dispute
settlement provisions in other international agreements. It falls to be interpreted
and applied on its own merits.
3.41 The ordinary meaning of Article 22 does not impose any general duty to
attempt to settle the dispute before se izing the Court. Nor does the ordinary
meaning of that provision require the exha ustion of any particular means for the
pacific settlement of disputes before a St ate Party is entitled to have recourse to
the Court. Nor does the context, includi ng the separate location of Article 22 in
part III of the Convention, as well as th e adoption of Article 16 in part II of the
Convention. The leading commentary on the Convention was published by
263
Natan Lerner in 1980 . It concludes without ambigu ity that there is no support
for a restrictive interpreta tion of Article 22, of the kind now urged by Russia.
The Lerner commentary merely notes that a dispute between the parties under the
Convention may be referred to the Court at the request of either party “[w]hen
such disputes are not settled by nego tiation or by the procedures expressly
provided for in the Convention” 264. There is nothing in th e text of Article 22, or
in Lerner’s commentary, to s upport Russia’s view that the Court is a last resort.
The same conclusion flows from the ne gotiating history of the Convention, to
265
which reference was made above .
3.42 What then is the meaning of Article 22? For the reasons set out above,
the reference to “negotiation” is in al ternative to “the procedure expressly
263
Natan Lerner, The U.N. Convention on the Elimination of All Forms of Racial Discrimination
(1980).
264Ibid., p. 97.
265
Written Statement of Georgia on Preliminary Ob jections (hereinafter “GWS”), paras. 3.26-
3.27.
116provided for in this Convention”. The difference between the Parties turns on the
meaning of the words “Any dispute … which is not settled by negotiation”. As
already noted, in the provisional measures phase the Court concluded that these
words describe a state of fact, so that the function of the Court is limited to
determining whether the dispute “is not settled”. As the Court put it in the
provisional measures phase:
the phrase ‘any dispute … which is not settled by negotiation or by
the procedure expressly provided for in this Convention’ does not,
on its plain meaning, suggest that formal negotiations in the
framework of the Convention or recourse to the procedure referred
to in Article 22 thereof constitute preconditions to be fulfilled
266
before the seisin of the Court .
3.43 This approach is consistent with th e Court’s longstanding practice, which
has been to reject preliminary objections raised by Respondents on the grounds of
an alleged deficiency of negotiations preceding the institution of judicial
proceedings. The objection has not enjoyed success and has been repeatedly
rejected both by the Permanent Court of International Justice as well as this
Court 267.
3.44 The Court’s case-law overwhelmingly supports Georgia’s approach. The
Court’s judgment in the Military and Paramilitary Activities in and against
Nicaragua case relates to considerations that are not materially different from
266
Provisional Measures Order, para. 114.
267Mavrommatis Palestine Concessions, pp. 13-15, South West Africa Cases (Ethiopia v. South
Africa; Liberia v. South Africa) , Preliminary Objections, Judgment, pp. 319, 346; United States
Diplomatic and Consular Staff in Tehran (United States of America v. Iran) Judgment, I.C.J. Rep.
1980, p. 27, para. 51; Applicability of the Obligation to Arbitrate under Section 21 of the United
Nations Headquarters Agreement of 26 June 1947 , pp. 33-34, para. 55; Questions of
Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident
at Lockerbie (Libyan Arab Ja mahiriya v. United Kingdom) , Preliminary Objections, Judgment,
I.C.J. Rep. 1998, p. 17, para. 21; Questions of Interpretation and Application of the 1971
Montreal Convention arising from the Aerial Inci dent at Lockerbie (Liby an Arab Jamahiriya v.
United States of America), Preliminary Objections, Judgment, I.C.J. Rep. 1998, p. 122, para. 20;
Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of
America), Jurisdiction and Admissibility, Judgment, I.C.J. Rep. 1984, pp. 428-429, para. 83.
117 268
those at issue in the present case . The United States argued that Nicaragua had
not raised in prior nego tiations or diplomatic e fforts the application or
interpretation of the 1956 Friendship, Commerce and Navigation Treaty, with
regard to the factual and le gal allegations that were the subject of Nicaragua’s
Application. Article XXXIV(2) of that Treaty provided that:
Any dispute between the Parties as to the interpretation or
application of the present Treaty, not satisfactorily adjusted by
diplomacy, shall be submitted to the International Court of Justice,
unless the Parties agree to set tlement by some other pacific
269
means .
3.45 Russia has failed to explain any mate rial difference between the language
of the 1956 Treaty (“not satisfactorily adjusted by diplomacy”) and that of Article
22 (“not settled by negotiati on”). Having regard to the language of Article
XXIV(2), the Court ruled decisively th at, since there had in fact been no
settlement of the dispute between th e parties, the requirements of the
compromissory clause were satisfied b ecause the dispute was “clearly one which
is not satisfactorily adjusted by diplomacy” 270.
3.46 The Court’s conclusion in 1984 wa s supported by an overwhelming
majority of the sixteen j udges who participated in th e decision: only two judges
271
dissented on this point . Although he dissented on ot her parts of the judgment,
Sir Robert Jennings voted with the major ity on the meaning and effect of Article
XXXIV(2) of the 1956 Treaty. His opinion on this point is characteristically
pithy and clear:
268
Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of
America), Jurisdiction and Admissibility, Judgment, I.C.J. Rep. 1984, p. 392.
269Cited at ibid., para. 81.
270Ibid., para. 83.
271
Judges Schwebel and Ruda, ibid., pp. 630 and 452.
118 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 th e 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 th e clause precisely states, that the
claims have not in fact already been ‘adjusted’ by diplomacy. In
short it appears to be intended to do no more than to ensure that
disputes that have already b een adequately dealt with by
272
diplomacy, should not be reopened before the Court .
3.47 Sir Robert’s words apply equally to the form of words that is found in
Article 22. Like the text of Article XXXIV(2) of the 1956 Treaty that the Court
was interpreting, Article 22 of the Conve ntion is also expressed in “a purely
negative form”. The words “not sett led by negotiation or by the procedures
expressly provided for in this Convention” are in all material purposes to the
same effect as “not satisfactorily adju sted by diplomacy”. Article 22 – like
Article XXIV(2) – does not, in Sir R obert’s words, express “an exigent
requirement”. All that is required by Article 22, like Article XXXIV(2), is that
the claims shall not have been settled by negotiation (or the procedures expressly
provided for in the Convention). They ha ve not been so settled. Russia does not
argue otherwise.
3.48 Is there any reason for the Court to depart from its settled jurisprudence
after more than a quarter of a century ? Russia has provided no such reason.
Indeed, such an approach would introdu ce uncertainty into the understanding of
States as to the circumstances in which th e Court will exercise jurisdiction. It is
plain from its pleading that Russia recognizes the considerable difficulties it faces
with the 1984 judgment in Military and Paramilitary Activities in and against
Nicaragua: it devotes no less than five pages to its efforts to distinguish the 1984
judgment from the present case. It presents three arguments. First, it argues that
272Ibid., Separate Opinion of Judge Sir Robert Jennings, p. 556.
119 273
the two compromissory clauses are differently worded . But there is no
material difference between the words “not settled by negotiation” and “not
satisfactorily adjusted by diplomacy”. Th e key word in each provision is “not”,
and the crucial factor, as Sir Robert Je nnings has noted, is the “purely negative
form” of the provision. The two texts ar e, on these crucial points, the same.
Russia’s second argument concerns the i ssue of whether in fact there were
negotiations: this is addressed below, and Georgia submits again that the two
cases are not distinguishable. Russia’s th ird point is that the character of the
treaties at stake in the two cases are “entire ly different”: even if correct, which it
is not, Russia fails to provide any meani ngful explanation as to why the present
Convention should be the subject of a differe nt interpretation. In short, Russia’s
274
arguments are unpersuasive .
3.49 There is no reason why the Court should abandon its earlier jurisprudence
275
or the approach it adopted in 1984 . Why should there be one rule for the
United States in 1984 and another for Russi a in 2010? The ordinary meaning of
Article XXXIV(2) was clear to the C ourt in 1984 and did not require any
reference to the negotiating history of the 1956 Treaty. This is equally the case
for this Convention. As in 1984, the questi on for the Court is relatively simple:
273
RPO, paras. 4.29-4.35.
274The Russian Federation cites the case of North Sea Continental Shelf (Federal Republic of
Germany v. Denmark; Federal Republic of Germany v The Netherlands ), Judgment, I.C.J. Rep.
1969, p. 3, as some sort of authority evidencing the fundamental importance of the obligation to
negotiate the exhaustion of the negotiation process. What it fails to mention is that the nature of
that case cannot be compared to the present one. In North Sea Continental Shelf, the parties had
entered into a special ag reement to delimit the Continental Shelf. They then tried to resolve the
issue of delimitation, but negotiations broke down because they could not agree on how to
interpret the legal rule; therefore, they asked the Court to state what were the applicable principles
and rules of law regarding delimitation. With the benefit of the Court’s ruling, the parties would
take this into account in their renewed negotiations . Clearly, therefore, recourse to the Court was
premised on an entirely different basis to the present case.
275United States Diplomatic and Consular Staff in Iran (United States of America v. Iran)
Judgment, I.C.J. Rep. 1980, p.3, is another, albeit extreme, example of a dispute “not satisfactorily
adjusted by diplomacy”.
120has the dispute between Georgia and Russi a concerning ethnic cleansing and the
right to return of internally displaced persons been settled by negotiation or by the
procedures explicitly provided for in the Convention? The answer to that
question is no, and plainly so. With this there is no need for additional analysis.
3.50 Yet Russia now seeks to reopen the C ourt’s 1984 judgment, and to that
end invokes a whole series of judgments of the Court, none of which provide any
assistance to its case. Russia’s reliance on the Court’s judgment in Armed
Activities on the Territory of the Congo, which concerned Article 75 of the WHO
276
Constitution, is misconceived . The Court ruled that the DRC had not
demonstrated the existence of a question or dispute concerning the interpretation
or application of the WHO Constitution, not ing that the Democratic Republic of
Congo had failed to specify any obligati on of the WHO Constitution that might
have been breached. The Court did not abandon the approach it took in Military
and Paramilitary Activities in and against Nicaragua.
3.51 Russia invokes the Oil Platforms case . Yet it fails to mention that in
that case neither party contested the fact that there had been an effort to settle the
dispute, so the Court did not need to el aborate on the meaning and effect of the
dispute settlement clause. Rather, the main focus was on whether the “dispute”
concerned violations of the treaty in question. The Court found that it did.
276Armed Activities on the Territory of the Congo (New Application: 2002) (Democratic Republic
of the Congo v. Rwanda), Jurisdiction and Admissibility , Judgment, I.C.J. Rep. 2006, pp. 41-43
(in relation to Article 75 of the WHO Constituti on). Article 75 of the WHO Constitution states:
“Any question or dispute concerning the interpretation or application of this Constitution which is
not settled by negotiation or by the Health Assembly shall be referred to the International Court of
Justice in conformity with the Statute of the Co urt, unless the parties concerned agree on another
mode of settlement” (emphasis added).
277Oil Platforms (Islamic Republic of Ir an v. United States of America), Preliminary Objections,
Judgment, I.C.J. Rep. 1996, p. 803.
121Russia even cites the ELSI case 278, despite the fact that the jurisdiction of the
Court was not in dispute.
3.52 Russia also seeks to invoke linguistic differences in the various texts of
Article 22. It is not immediately apparent that the French text provides Russia
with any assistance. The use of the future perfect tense (“ qui n’aura pas été
réglée”) merely indicates that prior to the seisin of the Court the dispute between
the Parties will not have been previously settled. The French text says nothing
about any obligation to have engaged in prior negotiations (or to have invoked
other procedures under the Convention) a nd, to the extent that any negotiations
may be said to be required, does not indi cate one way or the other anything as to
their formality or scope. It appears that the use of the future perfect tense merely
serves to connect an element of the past (the dispute) with an element of the
future (the jurisdiction of the court). Similarly, the Russian words “ne razreshen”
refer to the past participle in relation to the verb “to settle”, and only appear to
characterize the dispute as one that has not previously been settled. And the
Russian word “putem” may literally be translated to mean “ by way of” in English
(or “par voie de” in French) and merely refers to one way (amongst various ways)
in which the dispute may be resolved. Agai n, there is nothing in the Russian text
to indicate that negotiations or other procedures are required to have been
followed as a matter of obligation, or that any particular form is to be followed
amongst those various means.
3.53 Russia also claims that Georgia’s a pproach to the meaning of the words
279
“which is not settled” renders them tautological and meaningless . This is
wrong. The inclusion of these words makes it clear that a dispute which has been
278Elettronica Sicula S.p.A. (ELSI) (United States of America v. ItaJudgment, I.C.J. Rep.
1989, p. 15.
279
RPO, para. 4.11.
122settled cannot be referred to the Court, so that it falls to the Court to determine
whether (1) there is a dis pute in relation to the Conve ntion and (2) whether that
dispute has been settled.
Section V. To the Extent that Article 22 Imposes any Prior Obligation to
Negotiate, Georgia has Met that Condition
3.54 Georgia’s primary submission is that Article 22 does not require
negotiations to have taken place with Russia as a pre-condition to its right to
bring the dispute to the Court under Artic le 22. Georgia recognizes, however,
that in the provisional measures phase the Court ruled that:
Article 22 does suggest that some attempt should have been made
by the claimant party to initiat e, with the res280dent party,
discussions on issues that would fall under CERD .
3.55 To the extent that Georgia was required to attempt negotiations with
Russia prior to the Court’s seisin, the evidence presented in Georgia’s Memorial
clearly establishes extensive negotiati ons between the Parties concerning the
subject matter of Georgia’s claims under the Convention. The Court was already
satisfied with the evidence at the time of the provisional measures phase. In its
Order of 15 October 2008, the Court ruled:
Whereas it is apparent from the case file that such issues have been
raised in bilateral contacts betw een the Parties, and, that these
issues have manifestly not been resolved by negotiation prior to
the filing of the Application; whereas, in several representations to
the United Nations Security Council in the days before the filing
of the Application, those same i ssues were raised by Georgia and
commented upon by the Russian Federation; whereas therefore the
Russian Federation was made aware of Georgia’s position in that
regard; and whereas the fact that CERD has not been specifically
mentioned in a bilateral or multilateral context is not an obstacle to
280Provisional Measures Order, para. 114.
123 the seisin o281he Court on th e basis of Article 22 of the
Convention .
The judges participating in the Joint Dissen ting Opinion did not feel able, at that
time and on the basis of the evidence then available, to join that conclusion. This
section addresses the meaning of “negotiations” within the context of Article 22
of the Convention, by reference to the Court’s jurisprudence. It demonstrates the
manifest error of Russia’s contention that there were no negotiations whatsoever
with Georgia. The following section pr ovides further evidence that negotiations
with respect to issues falling under the Convention took place between the
Parties, supplementing the extensive ev idence already set forth in Georgia’s
282
Memorial .
A. T HE M EANING OF “N EGOTIATIONS ”
3.56 In its Preliminary Objections , Russia asserts an exacting definition of
what constitutes “negotiations”, one that does not find support in the
jurisprudence of the Court. Russia contends that “[w]hatever form they may take,
substantially, negotiations are an exchange of points of view on law and facts, of
283
mutual compromises in order to reach an agreement” . Russia seeks to
distinguish between “disput ation” and “negotiation” – relying on the Separate
284
Opinion of Sir Gerald Fitzmaurice in the Northern Cameroons case – and it
invokes the Armed Activities (2002) case for the proposition that “mere protests
cannot amount to negotiation” 285. It then leaps to the conclusion that even if the
Parties repeatedly discussed issues falling under th e 1965 Convention – such as
281Ibid., para. 115.
282
Memorial of Georgia, Vol. I, (2 September 2009) (hereinafter “GM”), paras. 8.35-8.79.
283RPO, p. 101, para. 4.37.
284Ibid., p. 103, para. 4.39.
285
Ibid., p. 105, para. 4.40.
124the return of ethnic Georgians displaced by ethnic cleansing – this did not amount
to an “exchange” qualifying as “negotiations”.
3.57 Russia’s unreasonably stringent standard stands in marked contrast to the
established jurisprudence of the Court. The standard identified by the Court in
the provisional measures phase of this case – there must have been “some attempt
… to initiate … discussions on issu es that would fall under CERD” – is
consistent with the case-law of the PCIJ and the Court, which makes it clear that
any threshold is a low one, that it is fo r the parties to determine whether further
negotiation is likely to be fruitful, that substance is more important than form, and
that no purpose is to be served in the pursuit of hopeless or futile negotiations.
3.58 As noted above, in the Mavrommatis case the PCIJ decided that the
286
question of what qualifies as negotiati ons “is essentially a relative one” . The
Court must determine in each case whether the evidence of discussions is
sufficient to meet this requirement. The Court’s Order on Provisional Measures
simply states that Article 22 requires th at “some attempt should have been made
by the claimant party to initiate, with th e respondent party, discussions on issues
that would fall under CERD” 287. The Dissenting Opinion similarly adopts a
flexible standard, stating simply that negotiations consist of “contacts between the
Parties...regarding the subject of the di spute, either the interpretation or
288
application of the Convention” . This is a reasonable interpretation that stands
in sharp contrast with Russia’s exacting and formalistic standard.
286
Mavrommatis Palestine Concessions, op. cit., p. 13.
287Provisional Measures Order, para. 114.
288
Joint Dissenting Opinion, para. 15.
125 B. T HERE IS NO S PECIFIC PROCEDURE OR FORMAT FOR N EGOTIATIONS
3.59 There is no requirement of a specific procedure or format for negotiations.
Such discussions may be very brief, involving a simple communication of protest
to a silent or intractable party. As the Court indicated in an oft-quoted passage of
the Mavrommatis case:
Negotiations do not of necessity always presuppose a more or less
lengthy series of notes and despatches; it may suffice that a
discussion should have been commenced, and this discussion may
have been very short; this will be the case if a deadlock is reached,
or if finally a point is reached at which one of the Parties definitely
declares himself unable, or refu ses, to give way, and there can
therefore be no doubt that the dispute cannot be settled by
diplomatic negotiation289.
Similarly, as stated in the South West Africa case, negotiations may take place in
different forums and by different modes of communication:
It is, however, further conte nded by the Respondent that the
collective negotiations in the Un ited Nations are one thing and
direct negotiations between it a nd the Applicants are another, and
that no such direct negotiations have ever been undertaken by
them. But in this respect it is not so much the form of negotiation
that matters as the attitude and views of the Parties on the
substantive issues of the question involved. So long as both sides
remain adamant, and this is obvious even from their oral
presentations before the Court, there is no reason to think that the
dispute can be settled by furt her negotiations between the
Parties90.
3.60 In the South West Africa cases, the Court concluded that “negotiations” do
not have to be bilateral: they can also take place w ithin the framework of an
289Mavrommatis Palestine Concessions , op. cit. (emphasis in original) . Cited in South West
Africa Cases (Ethiopia v. South Africa; Liberia v. South AfricPreliminary Objections,
Judgment, pp. 345-6; Applicability of the Obligation to Arbitrate under Section 21 of the United
Nations Headquarters Agreement of 26 June 1947 , Advisory Opinion, I.C.J. Rep. 1988, pp. 33-
34, para. 55.
290
South West Africa Cases, op. cit., p. 346.
126 291
international organization, such as the UN General Assembly . Judge Jessup
highlighted the important role that international organizations can play as a forum
for discussions and negotiations, in the c ontext of compromissory clauses of the
kind at issue. He rightly noted that:
The General Assembly, and indeed the whole of the United
Nations complex with its permanent missions and its special
committees, are today part of the normal processes of diplomacy,
292
that is of negotiation .
The Court has confirmed the appr oach taken by the PCIJ in the Mavrommatis
Palestine Concessions case to the effect that the chance of success of diplomatic
293
negotiations was a relative one . As Judge Jessup noted, States are in the best
position to judge the political reasons that would prevent a dispute being settled
294
by negotiations . Other international courts and tribunals have adopted the
295
approach taken by the PCIJ and the Court .
3.61 In this regard, in the Order of 15 October 2008, the Court stated that
Article 22 did not require “ formal negotiations in the framework of the
Convention” but only “discussions on issues that would fall under CERD” 296.
Similarly, the Dissenting Opinion only referred to “contacts between the
Parties” 297 requiring simply that “[f]or the c ondition of prior negotiation to be
291Ibid., pp. 342-346.
292
Ibid., p. 434.
293
Ibid., p. 345.
294Ibid., p. 345.
295See e.g. MOX Plant (Ireland v. United Kingdom) , Provisional Measures, Judgment, I.T.L.O.S.
Rep. 2001, p. 107, para. 60.
296
Provisional Measures Order, para.114 (emphasis added).
297Provisional Measures Order, Joint Dissenting Opinion, para. 15.
127fulfilled, it suffices for an attempt to have been made and for it to have become
298
clear at some point that there was no chance of success” .
3.62 Thus, contrary to Russia’s assertions, there is no requirement of an
attempt at direct, sustained, bilateral negotiations. Indeed, in contrast to Article
11(3), the text of Article 22 does not even refer to “bilateral negotiations”.
Depending on the circumstances, negotiations may take place in a bilateral or
multilateral context, and through diplomatic notes, informal communications, or
any other form of direct or indirect exchange between the parties.
C. THE N EGOTIATIONS N EED N OT E XPRESSLY R EFER TO THE C ONVENTION
3.63 There is no requirement that the negotiations between Georgia and Russia
include an express reference to the Conven tion. Russia falsely asserts that “[i]n
order to amount to a ‘negotiation’ over a CERD-related dispute per se , the
contacts between the Partie s to a dispute must expressly refer to the Convention
or to its substantive provisions or, at least, to its obje. The Court’s judgment
in the Nicaragua case leaves no doubt that the only requirement is that the subject
matter of the dispute under the Convention – i.e. racial discrimination – must
have been discussed:
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 tr eaty as having been violated by
298
Ibid., para. 13.
299
This suggestion is implicit in Russia’s reliance on Sir Gerald Fitzmaurice’s statement that “[I]t
would still not be right to hold that a dispute ‘cannot’ be settled by negotiation, when the most
obvious means of attempting to do this, namely by direct discussions between the parties, had not
even been tried since it could not be assumed th at these would necessarily fail because there had
been no success in what was an entirely dint, and certainly not more propitious milieu”.
Northern Cameroons (Cameroon v. United Kingdom) , Preliminary Objections , Judgment,
Separate Opinion of Judge Sir Gerald Fitzmaurice , I.C.J. Rep. 1963, p. 123. Clearly, the Court
has not abided by this Separate Opinion, as shown in the above citedSouth West Africa case.
300
RPO, p. 133, para. 4.84.
128 conduct of that other State, it is debarred from invoking a
compromissory clause in that tr eaty. The United States was well
aware that Nicaragua alleged that its conduct was a breach of
international obligations before the present case was instituted;
and it is now aware that specif ic articles of the 1956 Treaty are
alleged to have been violated. 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 301.
3.64 Consistent with this earlier jurisprudence, the Court’s Order of 15
October 2008 held that: “the fact that CERD has not been specifically mentioned
in a bilateral or multilateral context is not an obstacle to the seisin of the Court on
the basis of Article 22 of the Convention” 302. The Dissenting Opinion did not
require specific mention of the Convention either. It simply required that the
negotiations be on “the very substance of CERD”, a criteri on that it implies
303
would be satisfied if “Georgia accused Russia of racial discrimination” .
3.65 As noted above, Russia manifestly fails to distinguish the Nicaragua case
304
from the present dispute . Even more significant is Russia’s disregard of the
Court’s Order in the present case. As set forth below, the evidence demonstrates
that Georgia undoubtedly raised “the very substance of CERD” with Russia over
the course of many years, in particul ar Russia’s actions and omissions that
constituted or supported ethnic cleansing, and that frustrated the right of return of
persons displaced by ethnic discrimination in South Ossetia and Abkhazia.
3.66 In this regard it is also instructive to refer to the Court’s approach to the
issues adopted in Democratic Republic of Congo v. Rwanda , which concerned
301
Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of
America), op. cit., p. 392, para. 83.
302Provisional Measures Order, para. 115.
303Provisional Measures Order, Joint Dissenting Opinion, para. 12.
304
GWS, paras. 3.43-3.47.
129Article 29 of CEDAW 305. The Court’s decisions are invoked by Russia to
support its claim that formal negotiations must have taken place before a party to
that Convention can initiate proceedings. As noted by Georgia in the provisional
measures phase, however, that case is eas ily distinguishable, not least because it
is plain from the facts that the DRC wa s looking for any possible basis to argue
for the Court’s jurisdiction, irrespective even of whether the subject of the
underlying dispute had any plausible conne ction with the treaty containing the
compromissory clause (with the D RC even invoking the WHO Constitution
amongst others) 306. There are other material diffe rences. First, unlike the 1965
Convention, CEDAW requires efforts to es tablish an arbitral tribunal to have
failed as a precondition to access to the Cour t. Second, in sharp contrast to the
present case, there were no negotiations of any kind in relation to the matters that
fell under CEDAW and the DRC put no eviden ce of such negotiations before the
Court.
3.67 In that case the Court concluded at the provisional measures phase in
2002 that it did not even have prima facie jurisdiction under Article 29, in the
absence of any evidence to show attempts at negotiation 30. Despite the clear
ruling at the provisional measures phase, by the time the merits phase came
around the Democratic Republic of Congo had still provided no evidence of
negotiations or discussions on discri mination against women. Counsel for
Rwanda rightly noted during the oral arguments of the merits phase:
It was open to the Congo to addu ce fresh evidence in its Counter-
Memorial (if, of course, such evidence existed) to show that the
305
Armed Activities on the Territory of the Congo (New Application: 2002) (Democratic Republic
of the Congo v. Rwanda), Jurisdiction and Admissibility, Judgment, I.C.J. Rep. 2006 , pp. 35-41
(in relation to Article 29, paragraph 1, of CEDAW).
306Verbatim Record, CR 2008/22 (8 September 2008), paras. 55-60 (Crawford).
307
Armed Activities on the Territory of the Congo (New Application: 2002) (Democratic Republic
of the Congo v. Rwanda), Provisional Measures, Order, I.C.J. Rep. 2002, p. 247, para. 79.
130 negotiations were in fact concerned with the application of that
Convention. But it has made no a ttempt whatever to do so. The
Congo has attached only a handful of documents to its Counter-
Memorial. None of those documents gives even a hint that the
negotiations between the Congo and Rwanda at any point
concerned the application of the Convention on the Elimination of
Discrimination Against Women. Th e Congo has, therefore, failed
to adduce a single piece of evid ence – a single piece – in support
of its case beyond what it had al ready produced to the Court in
2002. The Court found that evidence insufficient and
unconvincing then and I submit that it308st reach the same
conclusion on that same evidence now .
The Court’s 2006 judgment found that the Democratic Republic of Congo “failed
to prove any attempts on its part to init iate arbitration proceedings with Rwanda
under [CEDAW]” 309. In the absence of any evidence of negotiations of any
matters falling under CEDAW the Court had no option but to reject that basis for
jurisdiction10.
D. AP ARTY N EED N OT PROCEED WITH N EGOTIATIONS THAT ARE
UNSUCCESSFUL
3.68 The Order of 15 October 2008 states that the term any dispute that “is not
settled by negotiation” unde r Article 22 only requires ev idence that Georgia has
made an attempt at negotiations. As noted above, this may be contrasted with the
terms “cannot be settled by negotiation” in othe r treaties that contain a further
311
requirement that the nego tiations be unsuccessful . In asserting this further
30Verbatim Record, CR 2005/17 (4 July 2005) para. 2.62 (Greenwood).
309
Armed Activities on the Territory of the Congo (New Application: 2002) (Democratic Republic
of the Congo v. Rwanda), Jurisdiction and Admissibility, Judgment, I.C.J. Rep. 2006, para. 92.
310
Armed Activities on the Territory of the Congo (New Application: 2002) (Democratic Republic
of the Congo v. Rwanda), Provisional Measures, Order, I.C.J. Rep. 2006, para. 93.
311For example, Article 14(1) of the Montreal Convention for the Suppression of Unlawful Acts
Against the Safety of Civil Aviation 1971; Article 30(1) of the Convention Against Torture and
Other Forms of Cruel, Inhuman and Degrading Treatment or Punishment 1984.
131 312
requirement that negotiations have reached a deadlock however , Russia
disregards the copious evidence of unsucce ssful negotiations lasting many years.
It also disregards that this proceeding was initiated at a time when Russian armed
forces had attacked and occupied large parts of Georgia’s territory and were
engaged in acts of ethnic cleansing, and wh en the Russian authorities refused to
negotiate or discuss these or any other matters with Georgia. On 11 August 2008,
for example, Pravda reported that President Medve dev refused to speak with
313
President Saakashvili . Many other examples of Georgia’s attempts, and
Russia’s refusals, to negotiate regarding issues falling under the 1965 Convention
and raised in the Application are provided in the follo wing section of this
Chapter. It is respectfully submitted that these circumstances would satisfy even
the more exacting standard of the Dissenting Opinion that, “[f]or the condition of
prior negotiation to be fulfilled, it suffices for an attempt to have been made and
for it to have become clear at some point that there was no chance of success” 314.
E. C ONCLUSION
3.69 In contrast, for example with the CEDAW case, in the present case the
dispute between Georgia and Russia in relation to ethnic cleansing and the right
to return of internally displaced persons under th e Convention has been the
subject of extensive disc ussions and negotiations ove r a period of more than
fifteen years, and is plainly “not se ttled”. These matters falling under the
Convention have also been ra ised in private and public sessions of international
312RPO, p. 101, para. 4.37.
313
“The President of Russia has recently refuse d to speak with President Saakashvili over the
phone. According to Georgia’s representative in the UN Security Counc il the Russian President
has refused to have any direct contact with the Georgian President. Churkin, Russia’s Permanent
Representative in the Security Council comme nted that “no decent man will speak with
Saakashvili after what has occurred.” “The Russian President refused to speak with Saakashvili”,
Pravda (11 August 2008). GWS, Vol. IV, Annex 206.
314
Provisional Measures Order, Joint Dissenting, para. 13.
132organizations with Russia, including the Security Council, the General Assembly,
the CERD Committee, the United Nati ons Human Rights Committee, the
Committee Against Torture, the OSCE and the European Commission against
Racism and Intolerance. It is to the evidence on these attempts at negotiation that
Georgia now turns.
Section VI. Georgia Attempted to Negotiate with Russia on Matters Falling
Under the 1965 Convention: The Evidence
3.70 The evidence described below, whic h summarises and expands upon that
presented in Georgia’s Memorial, confirms that Georgia has far exceeded any
standard that might reasonably be reflected in Article 22 as requiring attempts to
negotiate with Russia in respect of matters falling under the 1965 Convention.
To assist the Court, Georgia organizes the evidence under the same four headings
as appear in Chapter II of this Written Statement (which describes the evidence
that legal disputes exist between Geor gia and Russia regarding matters falling
under the Convention). The evidence confirms that Georgia repeatedly attempted
to negotiate with Russia over ex tended periods in respect of inter alia the
following matters:
− Russia’s direct participation in et hnic cleansing and other acts of
discrimination against ethnic Ge orgians in South Ossetia and
Abkhazia;
− Russia’s prevention of ethnic Georgi an IDPs from exercising their
right of return to their homes in South Ossetia and Abkhazia;
− Russia’s support, sponsorship and de fence of discrimination against
ethnic Georgians by other parties; and
− Russia’s failure to prevent discrimi nation against ethnic Georgians in
areas under its control.
133 A. R USSIA S D IRECT PARTICIPATION IN E THNIC C LEANSING AND O THER
FORMS OF E THNIC D ISCRIMINATION
3.71 Georgia attempted to negotiate with Russia over the latter’s participation
in ethnic cleansing starti ng as early as 1992, when th e first ethnic cleansing
campaign was carried out in South Ossetia. Georgia raised this matter with
Russia in direct bilateral contacts and in various international fora. Negotiations
between Georgia and Russia culminated in the conclusion on 24 June 1992 of an
Agreement on Principles of Settlement of the Georgian-Osse tian Conflict (the
315
“Sochi Agreement”) . Signed by Georgia’s and Ru ssia’s respective Heads of
State, the agreement required the with drawal of “the Russian side” from
Tskhinvali “in order to secure demilitari zation of the conflict region and to rule
out the possibility of involvement of th e armed forces of the Russian Federation
316
in the conflict” . The preamble to the Sochi Agreement makes clear that this
and other provisions were designed to safeguard some of the same rights that are
protected by the 1965 Convention 317. To this day Russia has not complied with
the requirements of the Sochi Agreement.
3.72 Three months later, on 3 September 1992, the President of Russia and the
President of the State Council of Georgia entered into a further Agreement that
“reaffirm[ed] the need to respect international standards in the area of human
rights and national minorities, to prevent discrimination based on nationality,
language or religion” and that obligated the Russian armed forces in Abkhazia to
315Agreement on Principles of Settlementhe Georgian-Ossetian Conflict (24 June 1992).
GM, Vol. III, Annex 102.
316
Ibid., Art. 2.
317According to its preamble, the Sochi Agreement was executed while “acting in the spirit of
respect for human rights and fundamental freedoms, as well as rights of ethnic minorities ”. Ibid.
(emphasis added).
134“remain strictly neutral” and “not take part in internal disputes” 318. Again Russia
failed to abide by its obligations. Georgia presented a note verbale raising
concerns about “the participation of Russian troops” in the ongoing ethnic
cleansing 319, and later informing the United Nations and CSCE that “Russian
troops” were implementing “a policy of ethnic cleansing” 320.
3.73 In the ensuing years, Georgia repeatedly engaged Russia in negotiations
concerning Russia’s involvement in violent ethnic discrimination by availing
321
itself of various international negotiating fora . These attempts at resolving
318
U.N. Security Council, Letter dated 8 September 1992 from the Chargé D’Affaires A.I. of the
Permanent Mission of the Russian Federation to the United Nations Addressed to the President of
the Security Council, Annex, U.N. Doc. S/24523 (8 September 1992). GWS, Vol. III, Annex 45.
319
U.N. Security Council, Note Verbale dated 25 December 1992 from the Ministry of Foreign
Affairs of Georgia Addressed to the Secretary-General, Annex , U.N. Doc. S/25026 (30 December
1992) (emphasis added). GWS, Vol. III, Annex 46.
320
Appeal of the Georgia Parliament to the United Nations, Conference on the Security and
Cooperation in Europe, International Human Rights Organizations (1 April 1993). GWS, Vol. IV,
Annex 125.
321
In a 2 July 1993 letter to the Security Council, President Shevardnadze informed members of
the Security Council th at the Russian military was to blam e for the “catastrophic” number of
civilian Georgian casualties. U.N. Security Council, Letter dated 2 July 1993 from the Head of
State of the Republic of Georgia Addressed to the President of the Security Council , U.N Doc.
S/26031 (2 July 1993) (“The shelling is being carri ed out by large-calibre mortars, howitzers and
Grad rocket launchers with the use of wide-area shells. The shelling is controlled from the air by
Su-25 planes. In the coastal area, controlled by frontier troops of the Russian Federation, assault
forces are landing, consisting primarily of citi zens of the Russian Federa tion”). GM, Vol. II,
Annex 8. On 17 November 1999, Russia and Georgia appeared to reach an agreement on Russian
military participation in Georgia. On that day, the two States issued a joint statement that they
had agreed that Russia would “withdraw its mi litary equipment and weaponry from the Russian
military bases deployed in Vaziani [and] Gudauta” by 31 December 2000. Joint Statement of the
Russian Federation and Georgia (17 November 1999). GWS, Vol. IV, Annex 142. On 7
December 2000, Georgia’s Permanent Representativ e to the UN informed Security Council
members that “the majo rity of the so-called leadership of the separa tists are citizens of the
Russian Federation and hold Russian passports to move free on its territory and receive visas as
Russian citizens to represent the separatist regimes abroad.” U.N. Security Council, Letter dated
7 December 2000 from the Permanent Representative of Georgia to the United Nations addressed
to the President of the Security Council, Annex , U.N. Doc. S/2000/1163 (7 December 2000).
GWS, Vol. III, Annex 62. In March 2001, Ge orgia informed the OSCE that, “despite the
resistance from the Georgian side the unilateral introduction by the Russian Federation of
simplified border crossing for the conflict regions in Georgia… cannot be viewed otherwise than
discriminatory.” Statement by Minister of Special Affairs of Georgia at the Permanent Council of
the OSCE, PC.DEL/207/01 (30 March 2001). GM, Vol. II, Annex 75.
135issues arising under the 1965 Convention all failed. Thus, in its first periodic
report to the CERD Committee, in 2001, Ge orgia complained about the “ethnic
322
cleansing” that had been committed in Abkhazia . On 11 March 2002, Georgia
informed the Security Council that, “w ith the direct part icipation of the
destructive forces of [Russia], more th an 300,000 civilians were forced to flee”
323
Abkhazia . Georgia engaged in direct bi lateral diplomacy with Russia
concerning the participation of its forces in violent discrimination against ethnic
Georgians. In early 2003, the Speaker of the Parliament of Georgia met with the
Chairpersons of the Council of the Ru ssian Federation and the Russian State
324
Duma . The Georgian Speaker informed her Russian counterparts that the local
Georgian population did not trust Russian peacekeepers due to their “actions” in
325
the “conflict zone” . Russia rejected Georgia’s proposal to withdraw Russian
peacekeepers from the Gali District in an effort to “facilitate the process of
refugee return” 326. Once again, the negotiations on these issues under the 1965
Convention failed. This compelled Geor gia, in its 2004 re port to the CERD
Committee, to emphasize that it was “gravely concerned about violations of the
human rights of Georgian citizens in the Gali district of Abkhazia” 327. In May
2006, Georgia renewed efforts to engage Russia, reporting to the UN Committee
Against Torture that “Russian peacekeepers were in some instances aiding or
abetting criminal separatists and we re thereby, actively or by omission,
322
GWS, para. 2.82.
323U.N. Security Council, Letter dated 8 March 2002 from the Permanent Representative of
Georgia to the United Nations addressed to the President of the Security Council, Ann, U.N.
Doc. S/2002/250 (11 March 2002). GWS, Vol. IV, Annex 229. Georgia renewed this accusation
before the UN General Assembly in October 2002. U.N. General Assembly, First Committee,
10th Meeting, U.N. Doc. A/C.1/57/PV.10 (10 October 2002) (accusing the Russian military of
“directly participating in the conflict in Abkahzia”). GWS, Vol. III, Annex 68.
324Ibid.
325Ibid.
326
Ibid.
327GWS, para. 3.85.
136contributing to human rights violations in the region” 32. Georgia specified that
“[m]ost of the human rights violati ons in the territory affected ethnic
Georgians…” 329. In July 2006, Georgia again reported to the United Nations that
Russian peacekeepers had “brought about” a “massive violation of fundamental
human rights” and were attempting to “legalize the results of ethnic cleansing” 330.
3.74 In the period immediately prior to filing the Application, Georgia once
again sought to engage with Russia in negotiations regarding ethnic cleansing. In
April 2008 negotiations were attempted with Russia at the United Nations
regarding the latter’s acts of “ethnic cleansing” in Abkhazia 331. Later that month,
Georgia again raised at the Security C ouncil Russia’s “legitimiz[ing] the results
332 333
of ethnic cleansing” . As before, Russia denied the allegation .
3.75 Even direct approaches failed. On 6 June 2008 President Saakashvili
wrote to President Medvedev requesting the “immediate withdrawal of all
334
additional military units of the Russian Federation from Abkhazia, Georgia” .
President Saakashvili requested that the Russian peacekeeping forces, who were
328U.N. Committee Against Torture, Summary Record of the 699th Meeting , U.N. Doc.
CAT/C/SR.699 (10 May 2006), para. 11. GWS, Vol. III, Annex 79.
329Ibid.
330U.N. General Assembly, Letter dated 24 July 2006 from the Permanent Representative of
Georgia to the United Nations addressed to the Secretary-General, Annex , U.N. Doc. A/60/954
(25 July 2006). GWS, Vol. III, Annex 82. Russ ia disputed these claims in a statement by its
Ministry of Foreign Affairs to the UN Secu rity Council. U.N. Security Council, Letter dated 19
July 2006 from the Permanent Representative of the Russian Federation to the United Nations
addressed to the Secretary-General, Annex , U.N. Doc. A/2006/555 (20 July 2006). GWS, Vol.
III, Annex 81.
331U.N. General Assembly, Letter dated 17 April 2008 from the Chargé d’affaires a.i. of the
Permanent Mission of Georgia to the United Nations addressed to the Secretary-General, Annex ,
U.N. Doc. A/62/810 (21 Apr 2008). GWS, Vol. III, Annex 91.
332 Elena Vapnitchnaia, “Security Council Discussed Situation in Georgia”, United Nations Radio
(24 April 2008). GWS, Vol. III, Annex 92.
333Ibid.
334See Letter from President Mikheil Saakashvili to Pr esident Dmitry Medvedev (23 June 2008).
GM, Vol. V, Annex 308.
137responsible for continuing acts of violence agains t ethnic Georgians, be
335
withdrawn from areas of Abkhazi a inhabited by ethnic Georgians . President
Medvedev responded by refusing these requests 33.
3.76 After 8 August 2008, when Russia commenced its campaign of ethnic
cleansing against ethnic Georgians in South Ossetia and the Kodori Gorge region
of Abkhazia, Georgia urgently attempte d to engage with Russia to bring the
violence against Georgian civilians to a halt. With diplomatic relations
suspended, Georgia appealed to Russia for talks via the United Nations. On 10
August 2008, Georgia requested an emerge ncy session of the Security Council
and informed the Council, in an exchange with the Permanent Representative of
Russia, of the gross human rights violations then being perpetrated against ethnic
Georgians by Russia’s armed forces that amounted to no less than the “process of
337
exterminating the Georgian population” . Indeed, Russia’s Permanent
Representative used the Security C ouncil session to acknow ledge, and deny, the
public address President Saakashvili had made the previous day in which he
explicitly accused Russia of perpetrating ethnic cleansing 338. And, as indicated
above at paragraph 2.63, in response to th e Georgian Permanent Representative’s
communication of President Saakashvili’s plea for talks to stop Russia’s ethnic
cleansing activities, inter alia, the representative of Russia replied that no “decent
person” would agree to talk with Georgi a’s President. Russia’s Minister of
Foreign Affairs said much the same when he publically stated:
335
See ibid.
336Letter from President Dmitry Medvedev of the Russian Federation to President Mikheil
Saakashvili of Georgia (1 July 2008). GM, Vol. V, Annex 311.
337
U.N. Security Council, 5953rd Meeting, U.N. Doc. S/PV.5953 (10 August 2008). GWS, Vol.
III, Annex 96.
338Office of the President of Geor gia, Press Briefing, “President of Georgia Mikheil Saakashvili
met foreign journalists” (9 August 2008). GWS, Vol. IV, Annex 184.
138 I do not think that Russia will have any inten tion to conduct
negotiations with Mr. M. Saakashvili, nor speak with him . He has
committed a crime against our citizens and does not even think to
repent of it… [O]ur position is th at Mr. Saakashvili cannot be our
339
partner and it would be better if he leaves…” .
3.77 Russia’s refusal to negotiate with Ge orgia in the midst of its ethnic
cleansing campaign, and two days prior to the filing of the Application is
sufficient to vest the Court with juri sdiction under Article 22. The history of
fifteen years of failed attempts to negotiate a solution to these issues, arising
directly under the 1965 Convention, confirm that the dispute had not been settled
by negotiation.
B. R USSIA’S PREVENTION OF E THNIC G EORGIAN IDP S FROM E XERCISING
THEIR R IGHT OF R ETURN
3.78 In the Memorial, Georgia detailed how Russia acted in conjunction with
de facto separatist regimes under its co mmand and control to expel over 200,000
ethnic Georgians from South Ossetia a nd Abkhazia and then threaten and use
violence to prevent these victims of ethnic cleansing from returning to their
homes 340. In the preceding Chapter, Georgia showed that prior to filing the
Application it raised this dispute with Russia on numerous occasions. Contrary to
Russia’s claims, the dispute was also th e subject of repeated attempts at
negotiations between Georgia and Russia, as well as actual negotiations, all of
341
which failed .
33Ministry of Foreign Affairs of the Russian Federation, Transcript of Remarks and Response to
Media Questions by Russian Minister of Foreign Affairs Sergey Lavrov at Joint Press Conference
After Meeting with Chairman-in-Office of the OSCE and Minister for Foreign Affairs of Finland
Alexander Stubb, Moscow, August 12, 2008 (12 August 2008) (emphasis added). GWS, Vol. IV,
Annex 187.
34GM, Parts B-D.
341
GM, paras. 8.35-8.79.
1393.79 In that regard, the diplomatic record s attest to the fact that Georgia’s
negotiations with Russia placed a high premium on achieving the return of ethnic
Georgians to South Ossetia and Abkhazia, and that these diplomatic initiatives
were stymied by Russia’s intransigence. In paragraphs 8.35 through 8.44 of the
Memorial, for instance, Georgia de scribed some, but not all, of these diplomatic
records, which included:
− the Sochi Agreement, dated 24 June 1992 and signed by President
Shevardnadze and President Yeltsin, which obligated the Parties to
342
create the “proper conditions for the return of refugees” ;
− the Final Document of the Moscow Meeting between President
Yeltsin and the President Shevardnadze, dated 3 September 1992,
which required that: “Conditions sha ll be created for the return of
refugees to their permanent homes. Refugees will be provided with
343
the necessary relief and assistance.” ;
− the Protocol of Negotiations betwee n the Government Delegations of
the Republic of Georgia and the Russian Federation, dated 9 April
1993 and signed by Georgia’s Prime Minister and Russia’s Minister of
Defence, which reflected the Parties’ negotiations over “[c]reating the
conditions for the return of refugees to the places of their permanent
residence” 344;
342Agreement on Principles of the Settlement of the Georgian-Ossetian Conflict between the
Republic of Georgia and the Russian Federation (the “Sochi Agreement”) (24 June 1992), Art. 4.
GM, Vol. III, Annex 102.
343
U.N. Security Council, Letter dated 8 September 1992 From the Chargé D’Affaires A.I. of the
Permanent Mission of the Russian Federation to the United Nations Addressed to the President of
the Security Council, Annex, U.N. Doc. S/24523 (8 September 1992). GWS, Vol. III, Annex 45.
344Protocol of Negotiations between the Governmental Delegations of the Republic of Georgia
and the Russian Federation (9 April 1993). GM, Vol. III, Annex 105; GM, para. 8.39.
140 − the Memorandum of Understanding dated 1 December 1993, which
reflected agreement to “undertake to create conditions for the
voluntary, safe and speedy return of refuges to the places of their
345
permanent residence in all regions of Abkhazia” ; and
− the Quadripartite Agreement on the Voluntary Return of Refugees and
Displaced Persons, dated 4 April 1994, which provided for the “safety
of refugees and displaced persons in the course of the voluntary
346
repatriation” .
3.80 Georgia detailed in the Memorial its efforts to negotiate with Russia
concerning the return of ethnic Georgians to South Ossetia through the diplomatic
347
machinery of the Joint Control Commission (“JCC”) . Achieving the return of
forcibly displaced persons was an explicit part of the Commission’s terms of
reference, which was tasked with “ela borating and realizing complex measures,
affirmed by the parties, for the return, reception, and reestablishment of refugees
(forcibly resettled persons) with the co llaboration of the Office of the UN High
348
Commissioner for Refugees” . All these efforts failed.
345Memorandum of Understanding between the Georgian and Abkhaz sides at the negotiations in
Geneva (1 December 1993), Art. 4. GM, Vol. III, Annex 108.
346
Quadripartite Agreement on the Voluntary Return of Refugees and Displaced Persons (4 April
1994), Art. 1. GM, Vol. III, Annex 110. See also Declaration of the Participants of the Second
Meeting of the Quadripartite Commission on the Issues of Voluntary Return of Refugees and
Displaced Persons (27 April 1994) (“The draft project on registration procedures of refugees and
displaced persons was heard”.) GWS, Vol. IV, Annex 128.
347GM, paras. 8.51-8.56. The JCC was established by the Sochi Agreement to oversee the cease-
fire and maintain security in South Ossetia. Agreement on Principles of Settlement of the
Georgian-Ossetian Conflict between the Republic of Georgia and the Russian Federation (24 June
1992). GM, Vol. III, Annex 102.
348Regulation of the Joint Control Commission for the Settlement of the Georgian-Ossetian
Conflict (31 October 1994). GM, Vol. III, Annex 113.
1413.81 Georgia repeatedly used the JCC, consistent with this mandate, to
negotiate with Russia regarding the return of ethnic Georgians, a matter that falls
clearly under the 1965 Conven tion. For example, on 13 February 1997, at a
meeting attended by Russia’s Deputy Minister for Cooperation with CIS Member
States, negotiations took placed over the return of ethnic Georgians and yielded
349
approval of a procedure for their return . On 23 July 1999, the JCC expressed
dissatisfaction with the pace of return, observing that “insufficient work” was
350
“hindering the return process” .
3.82 Reflecting the centrality of negotiations related to the return of ethnic
Georgians, the JCC created a Special Ad Hoc Committee on the Facilitation of
the Voluntary Return of Refugees and IDPs to the Places of Former Residence 351.
As noted in the Memorial, Georgia used the Ad Hoc Committee as a forum for
negotiating with Russia during each of the 13 times it was convened between
1997 and 2002 352. By way of example, when the Committee met on 7 April
349
Protocol #7, Meeting of the JCC for the Georgian-Ossetian Conflict Settlement, Vladikavaz
(13 February 1997). GM, Vol. III, Annex 119.
350
Protocol #10 of the Session of Joint Control Commission (JCC) for the Georgian-Ossetian
Conflict Settlement, Annex 3 (23 July 1999). GM, Vol. IV, Annex 129. The JCC was scheduled
to take up the issue of refugees and IDPs at a meeting on 13 June 2003. See OSCE, Mission to
Georgia, Head of Mission Report to the Permanent Council , PC.FR/18/03 (13 June 2003) (“The
next session of the JCC is to be held in Moscow on 22-25 June. Further elaboration of the
Georgian-Russian Program on return of refugees and IDPs will be one of the major items on the
agenda”). GWS, Vol. III, Annex 108.
351
Decision of the JCC, for the Georgian-Ossetian Conflict Settlement, on the process of
implementation of the Procedure on Voluntary Return of Refugees and IDPs (26 September
1997). GM, Vol. III, Annex 123. The Ad Hoc Committee was specifically mandated that its
work be “guided by the acting legislation and normative legal acts, norms of the International
Law, decisions of the JCC, the present Statute and is an accountable body to the JCC.” Ibid.
352GM, para. 5.58. Protocol No. 1 of the Meeting of the Working Group of the JCC on the
Resolution of the Problems Of Refugees and IDPs as a Result of the Georgian-Ossetian Conflict
(17-18 April 1997). GWS, Vol. IV, Annex 131; (establishing the statute and regulations of the Ad
Hoc Committee) Protocol No.1 of the Meeting of the Ad Hoc Committee on Facilitation of the
Volunteer Return of Refugees and IDPs as a Result of the Georgian-Ossetian Conflict to the
Places of Their Former Permanent Residence (2 1 October 1997). GWS, Vol. IV, Annex 133;
Protocol No. 2 of the Meeting of the Ad Hoc Committee on Facilitation of the Voluntary Return
of Refugees and IDPs as a Result of the Georgian-Ossetian Conflict to the Places of Their Former
1421997, the agenda included problems that we re “impeding” the “effective process
of return”, and it was decided to “conduc t bilateral and multilateral consultations
on the issues of return of refugees a nd IDPs to the places of their former
residence” 353. Likewise, on 17 December 1998, it was resolved to intensify these
negotiations by appointing working groups to find “solution[s] of the raised
issues, related with the return of refugees and IDPs” 354.
Permanent Residence (25 November 1997). GWS, Vol. IV, Annex 134; Protocol No. 3 of the
Meeting of the Ad Hoc Committee of the JCC on Facilitation of the Volunteer Return of Refugees
And IDPs as a Result of the Georgian-Ossetian Co nflict to the Places of Their Former Permanent
Residence (7 April 1998). GWS, Vol. IV, Annex 135; Protocol No. 4 of the Meeting of the Ad
Hoc Committee on Facilitation of the Voluntary Retu rn of Refugees and IDPs as a Result of the
Georgian-Ossetian Conflict to th e Places of Their Former Permanent Residence (30 September
1998). GWS, Vol. IV, Annex 138; Protocol No. 5 of the Meeting of the Ad Hoc Committee on
Facilitation of the Voluntary Return of Refugees and IDPs as a Result of the Georgian-Ossetian
Conflict to the Places of Their Former Permanen t Residence (17 December 1998). GWS, Vol.
IV, Annex 139; Protocol No. 6 of the Meeting of the Ad Hoc Committee of the JCC on
Cooperation to the Volunteer Return of Refugees and IDPs as a Result of the Georgian-Ossetian
Conflict to Places of Their Former Permanent Residence (30 March 1999). GWS, Vol. IV, Annex
140; Protocol No. 7 of the Meeting of the Ad Hoc Committee of the JCC on the Facilitation of the
Voluntary Return of Refugees and IDPs, as a Result of the Georgian-Ossetian Conflict to Places
of Their Former Residence (22 July 1999). GWS, Vol. IV, Annex 141; Protocol No. 8 of the
Meeting of the Ad Hoc Committee of the JCC on Facilitation of Volunteer Return of Refugees
and IDPs as a Result of the Ge orgian-Ossetian Conflict to the Places of Their Former Permanent
Residence (20-21 April 2001). GWS, Vol. IV, Annex 144; Protocol No. 9 of the Meeting of the
Ad Hoc Committee on Facilitation of Volunteer Return of Refugees and IDPs as a Result of the
Georgian-Ossetian Conflict to the Places of Th eir Former Permanent Residence (14-15 May
2002). GWS, Vol. IV, Annex 148; Protocol No. 10 of the Session of the Specially Created
Committee (Ad Hoc) of JCC for Promotion of Voluntary Repatriation of Refugees and Internally
Displaced Persons as a Result of the Georgian -Ossetian Conflict to the Places of Their Former
Residence (7 June 2002). GWS, Vol. IV, Annex 149; Protocol No. 11 of the Meeting of the Ad
Hoc Committee on Facilitation of Volunteer Retu rn of Refugees and IDPs as a Result of the
Georgian-Ossetian Conflict to the Places of Their Former Residence (8-9 July 2002). GWS, Vol.
IV, Annex 150; Protocol No. 12 of the Meeting of the Ad Hoc Committee on Facilitation of
Voluntary Return of Refugees and IDPs as a Result of the Georgian-Ossetian Conflict to Places of
Their Former Residence (18 October 2002). GWS, Vol. IV, Annex 152.
353
Protocol No. 3 of the Meeting of the Ad Hoc Committee of the JCC on Facilitation of the
Volunteer Return of Refugees And IDPs as a Result of the Georgian-Ossetian Conflict to the
Places of Their Former Permanent Residence (7 April 1998). GWS, Vol. IV, Annex 135;
354
Protocol No. 5 of the Meeting of the Ad Hoc Committee on Facilitation of the Voluntary
Return of Refugees and IDPs as a Result of th e Georgian-Ossetian Conflict to the Places of Their
Former Permanent Residence (17 December 1998). GWS, Vol. IV, Annex 139.
1433.83 Similarly, at a meeting held on 30 March 1999 that was attended by the
Deputy Head of the Operational Division of Russia’s Ministry of Foreign Affairs,
negotiations resulted in a recommendati on that the “sides [] enhance the legal
protection of the refugees and IDPs, returning to the former residential places” 35.
Negotiations held on 20-21 April 2001, at tended by the Head of the Fourth
Division of the CIS Department of Ru ssia’s Ministry of Foreign Affairs,
confirmed that the “[r]egulations on volunteer return of refugees and IDPs” were
not being implemented effectively 356. It was agreed to provide the JCC with a
“working draft program” to improve the condi tions for the return of refugees and
IDPs who had been forcibly expelled from South Ossetia 357. Once again, these
355
Protocol No. 6 of the Meeting of the Ad Hoc Committee of the JCC on Cooperation to the
Volunteer Return of Refugees and IDPs as a Result of the Georgian-Ossetian Conflict to Places of
Their Former Permanent Residence (30 March 1999). GWS, Vol. IV, Annex 140.
356
Protocol No. 8 of the Meeting of the Ad Hoc Committee of the JCC on Facilitation of
Volunteer Return of Refugees and IDPs as a Result of the Georgian-Ossetian Conflict to the
Places of Their Former Permanent Residence (20-21 April 2001). GWS, Vol. IV, Annex 144.
See also Protocol No. 7 of the Meeting of the Ad Hoc Committee of the JCC on the Facilitation of
the Voluntary Return of Refugees and IDPs, as a Result of the Georgian-Ossetian Conflict to
Places of Their Former Residence (22 July 1999) (same). GWS, Vol. IV, Annex 141.
357Ibid. In July 2002, the Ad Hoc Committee agreed on a final draft of such an agreement and
decided to submit it to the Co-Chairmen of the JCC with the recommendation that an
“intergovernmental body on development and realization of the Program on return of refugees” be
created quickly as a “mechanism of realization of [the] Program on return of refugees.” Protocol
No. 11 of the Meeting of the Ad Hoc Committee on Facilitation of Volunteer Return of Refugees
and IDPs as a Result of the Ge orgian-Ossetian Conflict to the Pl aces of Their Former Residence
(8-9 July 2002). GWS, Vol. IV, Annex 150. The Ad Hoc Committee held its last meeting on
October 18, 2002. At that meeting participants discussed “information of the Russian and
Georgian sides” regarding a “draft of the Russian-Georgian interstate program on return,
settlement, integration and re-integration of refugees, IDPs and others, as a result of the Georgian-
Ossetian conflict.” Protocol No. 12 of the Meeting of the Ad Hoc Committee on Facilitation of
Voluntary Return of Refugees and IDPs as a Result of the Georgian-Ossetian Conflict to Places of
Their Former Residence (18 October 2002). GWS, Vol. IV, Annex 152. See also Protocol No.
10 of the Session of the Specially Created Committee (Ad Hoc) of JCC for Promotion of
Voluntary Repatriation of Refugees and Internally Displaced Persons as a Result of the Georgian-
Ossetian Conflict to the Places of Their Former Residence (7 June 2002) (agreeing to submit the
proposal for a the project of the Russian-Georgian Interstate Program of Return, Accommodation,
Integration and Reintegration of Refugees, Internally Displaced Persons and Other Persons
Suffered as a Result of the Ge orgian-Ossetian Conflict to the J CC co-chairman in Moscow in
early 2002). GWS, Vol. IV, Annex 149. In May 2002, Georgia submitted its draft program on
“return, settlement, integration and re-integration of refugees, IDPs and others, as a result of the
Georgian-Ossetian conflict” to the Ad Hoc Committee. Protocol No. 9 of the Meeting of the Ad
144attempts produced no changes to the situat ion, and those entitled to return in
accordance with the requirements of th e 1965 Convention were prevented from
doing so.
3.84 Georgia’s Memorial also detailed its efforts to negotiate with Russia
through international organizations, in cluding the CERD Committee, the United
Nations, the Group of Friends, the OSCE and the Commonwealth of Independent
States, regarding Russia’s obstruction of ethnic Georgians attempting to exercise
their lawful right of return 358. In its periodic report to the CERD Committee in
2000, Georgia underscored the plight of the “[h]undreds of thousands of
displaced persons, a large majority of whom are women, elderly persons and
children” who “lost their homes and means of survival and became exiles in their
own country” after being ethnically cleansed 359. In March 2002, Georgia utilized
the CIS to secure a decision of the Council of the CIS Heads of State directing the
Foreign Ministries of Russia and Geor gia to elaborate “additional security
measures for return of refugees and IDPs” 360. When this failed to achieve results,
Georgia informed the CERD Committee in 2005 that “[t]he situation of internally
displaced persons who had been unable to return to Abkhazia” remained “cause
Hoc Committee on Facilitation of Volunteer Retu rn of Refugees and IDPs as a Result of the
Georgian-Ossetian Conflict to the Places of Their Former Permanent Residence (14-15 May
2002). GWS, Vol. IV, Annex 148.
358GM, paras. 8.59-8.79.
359U.N. Committee on the Elimination of Racial Discrimination, Reports Submitted by States
Parties Under Article 9 of the Convention, Initial report of States parties due in 2000, Addendum,
Georgia, U.N. Doc. CERD/C/369/Add.1 (1 February 2001), para. 55. GWS, Vol. III, Annex 64.
360
Decision of the Council of the CIS Heads of States on the Presence of Collective Peacekeeping
Forces in the Conflict Zone of Abkhazia, Georgia, Art. 3 (signed by Georgia 1 March 2002,
signed by Russia 8 February 2002). GM, Vol. III, Annex 117. See also Decision of the Council
of Heads of States of the Commonwealth of Independent States on Prolongation of the
Peacekeeping Operation in the C onflict Zone in Abkhazia, Georgi a, Art. 2 (2 October 2002)
(“The Ministries of Foreign Affairs of Georgia and the Russian Federation … shall continue to
work on the issues mentioned in Clause 3 of the Decision of the Council of Heads of States of the
CIS of March 22, 2002”). GM, Vol. III, Annex 133.
145 361
for concern” . The efforts at a negotiated solution continued up to 2008, and
they all failed. By 17 April 2008, Georgia’s frustration was clear for all to see, as
it informed the OSCE that “instead of absorbing the Georgian territories, it would
be better for the Russian side to engage more actively in the process of safe and
dignified return of IDPs/refugees – vi ctims of ethnic cleansing, as provided by a
number of UNSC resolutions” 36.
3.85 In regard to the issue of right of re turn of Georgian IDPs, Georgia also
approached Russia directly on numerous occasions 363. Negotiations between
Georgia and Russia yielded yet another unimplemented agreement, signed in
December 2000 by Georgia’s State Minister and Russia’s Deputy Prime Minister.
This was intended to “create conducive c onditions for return of refugees and
internally displaced persons to the places of their permanent residence” by
establishing an “Inter-Governmental program of repatr iation, accommodation,
integration and re-integration of refugees” 364. Ten years on, it plainly did not
achieve that result. When this failed to achieve meaningful results, Georgia
continued to press the issue in further negotiations with Russia. In July 2002, the
Secretary of the National S ecurity Council of Georgia held negotiations with the
Secretary of the National Security Council of Russia during which “[t]he sides
stressed the importance” of “agreeing on measures for secure return of the
361
GWS, para. 2.103.
362OSCE, Statement by the Delegation of Georgia on Developments in Georgia, PC.DEL/306/08
(17 April 2008). GWS, Vol. III, Annex 112. See also OSCE, 709th Plenary Meeting of the
Council, Annex 1, Statement by the Delegation of Georgia, PC.JOUR/709 (17 April 2008). GWS,
Vol. III, Annex 113.
363GM, paras. 8.35-8.50.
364
Agreement between the Government of Georgia and the Government of the Russian Federation
on Cooperation in Restoration of Economy in th e Georgian-Ossetian Conflict Zone and Return of
Refugees, Tbilisi (23 December 2000). GM, Vol. III, Annex 131.
146refugees to their prior pl aces of residence, on the first stage to Gali region [in
365
Abkhazia]” .
3.86 Similarly, Russia has itself recognized that there were negotiations on this
issue. The Concluding Statement of efforts conducted by President Shevardnadze
and President Putin on 6-7 March 2003 confirmed that “[d]uring the negotiations
the presidents of the two countries addressed … topical issues of international
and regional dimensions,” including the “importance of concrete steps to be taken
aimed at the solution of the most burning problem – dignified and safe[] return of
refugees and internally displaced persons to their homes” 36. The Presidents of
Georgia and Russia agreed that “all the e fforts should be devoted” to the “return
of refugees and internally displaced persons, first of all to the Gali region [of
Abkhazia]” 367. In follow-on negotiations held in June 2003, Georgia emphasized
once again the need for “the issue of refugee return to Abkhazia” to be
resolved 36. All this has been to no avail.
3.87 Instead Russia continued to obstruct th e right of return, requiring further
attempts on the part of Georgia at diplomatic initiatives. On 16 June 2003 and 31
July 2003, representatives of Georgia and Russia met to negotiate resolution of
disputes related to the retu rn of ethnic Georgians IDPs 369. The Georgian
365Joint Statement, Secretary of the National Security Council of Georgia, T. Japaridze and
Secretary of the National Security Council of the Russian Federation, V. Rushailo (11 July 2002)
(emphasis added). GWS, Vol. IV, Annex 151.
366Concluding Statement on the meetings between Mr. Vladimir Putin-President of the Russian
Federation and Mr. Eduard Shevardnadze-President of Georgia, Svobodnaya Gruzia, #60 (12
March 2003). GM, Vol. III, Annex 136.
367Concluding Statement on the meetings between Mr. Vladimir Putin-President of the Russian
Federation and Mr. Eduard Shevardnadze-President of Georgia, Svobodnaya Gruzia, #60 (12
March 2003) (emphasis added). GM, Vol. III, Annex 136.
368
Memorandum of the Georgian-Russian Working Group Meeting for Sochi-Tbilisi Through
Railway Traffic Rehabilitation (26 June 2003). GWS, Vol. IV, Annex 154.
369
Information Note prepared by the Ministry of Foreign Affairs of Georgia (20 January 2004).
GWS, Vol. IV, Annex 155. (This document was incompletely annexed to Georgia’s Memorial as
147delegation indicated its w illingness “to compromise” by agreeing to a “Joint
Provisional Administration” in the Gali Di strict of Abkhazia under the aegis of
international organizations, precisely in or der to facilitate the safe and dignified
return of refugees. Russia refused on the purported ground that this arrangement
370
was “unacceptable” to the Abkhaz de facto regime . Further negotiations were
conducted in April 2004 between Georgia’ s State Minister and Russia’s Deputy
Minister of Foreign Affairs. Georgia emphasised once again that “it is necessary
to begin the process of return of refug ees”, but this too failed to achieve any
progress on this issue that falls under the 1965 Convention 371. A meeting of
Georgia’s Ambassador in Moscow with Ru ssia’s Deputy Foreign Minister in
October 2004, at which Georgia stated th at “real progress concerning the return
of IDP’s is essential”, likewise achieved no results 372.
3.88 Faced with this impasse, Georgia elevated negotiations to the Presidential
level in the months preceding the filing of the Application. After President
Saakashvili met with Pres ident Medvedev in June 2008, Georgia’s President
reminded his Russian counterpart that they had agreed to organise the “[s]afe and
dignified return of refugees and IDPs to Gali and Ochamchire Districts” in
Annex 137. The complete document is properly annexed to these Written Submissions as Annex
155). Indeed, a Georgian-Russian working group meeting concerning refugees and IDPs that had
been scheduled for 30-31 October 2003 did not take place because Russia insisted on
representatives of the Abkhazian de facto regime being present at that meeting despite their
destructive position, Russia rejected Georgia’s pr oposal that Georgia a nd Russia first agree to
conditions for the safe return of refugees and then entertain Abkhazian participation.
370
Ibid.
371Minutes of the Meeting Between the State Mi nister, Mr. G. Khaindrava and the Deputy
Minister of Foreign Affairs of the Russian Federation, Mr. V. Loshinin held on 27 April 2004 (27
April 2004). GWS, Vol. IV, Annex 156.
372Information Note: Concerning the meeting of Ambassador of Georgia in Russian Federation -
Valeri Chechelashvili and the First Deputy Foreign Affairs Minister of the Russian Federation -
Mr. V. Loshinin (21 October 2004). GWS, Vol. IV, Annex 157.
148 373
Abkhazia . President Saakashvili proposed “d rafting, signing and entering into
374
force” agreements addressing the right of return . A month before Georgia filed
375
the Application, the Russian President refused .
3.89 In sum, Georgia consistently sought to negotiate with Russia regarding the
dispute over the denial of the right of return of ethnic Georgians. There can be no
doubt that this matter arises under the 1965 Convention. Actual negotiations took
place, and occasionally interim arrangeme nts were agreed, although they never
resolved the problem.
C. R USSIA’S SUPPORT , SPONSORSHIP AND D EFENCE OF D ISCRIMINATION
A GAINST E THNIC G EORGIANS BY O THER PARTIES
3.90 As Georgia demonstrated in the previ ous Chapter, it repeatedly disputed
Russia’s support, sponsorship and defen ce of discrimination of ethnic Georgians
in South Ossetia and Abkhazia. Geor gia did this on numerous occasions by
publicly accusing Russia of providing fi nancial and military support to the
separatist regimes despite their responsibil ity for ethnic cleans ing and other acts
of discrimination37. Contrary to Russia’s asser tion that Georgia did not engage
in negotiations to resolve this dispute, the evidence demonstrates that the two
Parties to the 1965 Conventi on repeatedly exchanged views in both bilateral
negotiations and through multilateral fora.
3.91 These exchanges began soon afte r ethnic cleansing commenced in
Abkhazia in 1992. Georgia made vigorous efforts to negotiate with Russia
37Letter from President Mikheil SaakashviPresident Dmitry Medvedev (23 June 2008).
GM, Vol. V, Annex 308.
37Ibid.
375
Letter from President Dmitry Medvedev of the Russian Federation to President Mikheil
Saakashvili of Georgia (1 July 2008). GM, Vol. V, Annex 311.
37GWS, Chapter II, Section VI.
149regarding its support for those committing discriminatory acts against ethnic
Georgians. These efforts resulted in the 3 September 1992 Agreement entered
into by the Presidents of Georgia and Russia. Article 1 of the Agreement,
reflecting the Parties’ nego tiations over Russia’s facilita tion of the transfer of
armed bands from Russia into Abkhazia, where they then engaged in ethnic
cleansing, required Russia to “prevent” th e “penetration” of armed groups from
entering Abkhazia. Similarly, Article 11 required:
The authorities and administrative entities of the North Caucasian
republics, regions and territories which form part of the Russian
Federation shall take effective measures to halt and prevent all acts
waged from their territory that ar e in violations of the provisions
of this agreement. They shall promote respect for this agreement
and the restoration of peace in the region. They shall take all
necessary steps to explain the provi sions of this agreement to the
population 37.
3.92 This attempt to negotiate a reso lution of Russia’s support for ethnic
discrimination failed. As a consequence, in October 1992 Georgia approached
the Security Council regarding Russia’s continued contribution to the ongoing
ethnic cleansing through its arming of the pe rpetrators and its facilitation of the
378
transfer of irregular forces from Russia . One week later, Georgia returned to
the Security Council because “organized units” armed with Russian military
equipment continued to enter Georgia from Russian territory and commit ethnic
cleansing 379. In a note verbale, Georgia reiterated that Russia was impermissibly
377U.N. Security Council, Letter dated 8 September 1992 From the Chargé D’Affaires A.I. of the
Permanent Mission of the Russian Federation to the United Nations Addressed to the President of
the Security Council, Annex, U.N. Doc. S/24523 (8 September 1992). GWS, Vol. III, Annex 45.
378U.N. Security Council, Letter dated 2 October 1992 from the First Deputy Foreign Minister of
Georgia Addressed to the President of the Security Council , U.N. Doc S/24626 (7 October 1992).
GM, Vol. II, Annex 5.
379
U.N. Security Council, Letter dated 2 October 1992 from the First Deputy Foreign Minister of
Georgia Addressed to the President of the Security Council , U.N. Doc S/24626 (7 October 1992).
GM, Vol. II, Annex 5. Georgia’s statement to the Security Council referred to bilateral
negotiations that had taken place between Russian President Boris Yeltsin and Georgian President
Eduard Shevardnadze in September 1992. Those consultations produced a Georgian-Russian
150allowing irregular forces to cross the in ternational border into Abkhazia, where
380
they were perpetrating gross human rights abuses against ethnic Georgians .
3.93 Georgia also sought to negotiate these issues directly with Russia. In
April 1993, negotiations between Georgi a and Russia yielded an agreement
signed by Georgia’s Prime Minister and Russia’s Minister of Defence that Russia
would “undertake additional effective measur es in order to pr event infiltration
into the conflict zone [in Abkhazia] of illegal military formations, individuals and
weapons and ammunitions” 381. This was an effort to prevent discrimination. The
Agreement acknowledged that this and ot her issues “need to be addressed in
detail by representatives of Georgia, Abkhazia and Russia in the course of
negotiations” 38.
agreement to prevent cross-bord er infiltration. Nonetheless, in October 1992, Georgia was
compelled to inform the Security Council of Russia’s breach of that agreement based on “the
influx of the organized armed groups from the te rritory of the Russian Federation has increased,
both via land and sea routes, controlled by the Armed Forces of the Russian Federation”. U.N.
Security Council, Letter dated 2 October 1992 from the First Deputy Foreign Minister of Georgia
Addressed to the President of the Security Council, U.N. Doc S/24626 (7 October 1992). GM,
Vol. II, Annex 5. Georgia returned to the UN with Russia’s failure to comply with this agreement
in December 2000. U.N. Security Council, Letter dated 20 December 2000 from the Permanent
Representative of Georgia to the United Nations addressed to the President of the Security
Council, Annex, U.N. Doc. S/2000/1221 (20 December 2 000) (“…the Russian side maintains a
simplified border crossing with those territories that are temporarily out of the control of
Georgia’s central authorities. In these regions ofGeorgia, gross violations of human rights by
separatist regimes have been taking place… It is also noteworthy that groups of mercenaries have
repeatedly entered the territory of Georgia from the Russian Federation through these very
segments of the border to support separatist re gimes.… Subsequently, there are serious grounds
for presuming that the unilateral introduction by the Russian side of a simplified border crossing
on some segments of the State border between Georgia and the Russian Federation is an attempt
to support apparently separatist regimes”). GWS, Vol. III, Annex 63.
380
U.N. Security Council, Note Verbale dated 25 December 1992 from the Ministry of Foreign
Affairs of Georgia Addressed to the Secretary-General, Annex , U.N. Doc. S/25026 (30 December
1992) (emphasis added). GWS, Vol. III, Annex 46. The letter specifically noted that “trains
loaded with arms and ammunition pass unhindered from the Russian Federation into the conflict
zone”. Ibid.
381
Protocol of Negotiations between the Governmental Delegations of the Republic of Georgia
and the Russian Federation (9 April 1993). GM, Vol. III, Annex 105.
382
Protocol of Negotiations between the Governmental Delegations of the Republic of Georgia
and the Russian Federation (9 April 1993). GM, Vol. III, Annex 105.
1513.94 This agreement, however, failed to resolve the dispute as Russia
continued to provide support to those for ces engaged directly in acts of ethnic
cleansing. In September 1993, Presiden t Shevardnadze engaged the United
Nations’ diplomatic machinery, informi ng it that the expulsion of some 150,000
ethnic Georgians had been “achieved with the direct support and complicity” of
“forces in Russia”, including the Russian military 383. President Shevardnadze
specifically stated that Georgia’s direct negotiations with Russia had failed to
resolve the dispute: “My talks with Gene ral Grachev, Minister of Defence of the
Russian Federation, yielded no results. Although in themselves they were
constructive, later that same day they were disavowed by statements by several
subordinates of the Russian Minister of Defence and by the decision of the
384
Russian Parliament” . Georgia used this statement to the United Nations to
appeal directly to Russian President Bo ris Yeltsin: “do not allow this monstrous
crime to be committed, halt the executio n of a small country and save my
homeland and my people from perishing in the fires of imperial reaction” 385.
3.95 Over the course of the next ten years, Georgia continued its efforts to
achieve a negotiated end to Russia’s support for ethnic discrimination in South
Ossetia and Abkhazia in numerous diplomatic communications with international
bodies; these attempts at negotiation w ith Russia are described in Georgia’s
Memorial and are referred to in detail in the footnote below 386. All these efforts
failed.
383U.N. Security Council, Letter dated 20 September 1993 From the Permanent Representative of
Georgia to the United Nations Addressed to the President of the Security Council, Ann, U.N.
Doc. S/26472 (20 September 1993). GWS, Vol. III, Annex 48.
384
Ibid.
385Ibid.
386See, e.g., GM, para. 8.73 (citing OSCE, Statement of the Georgian Delegation on the Situation
in the Tskhinvali Region , PC.DEL/654/04 (13 July 2004). GM, Vol. II, Annex 77. (“Under the
circumstances we can not but express our concern at the position of the Russian Federation which
has launched a massive anti-Georgian campaign in its media and openly supports the separatist
152mood in the Region”.); GM, para. 8.72 (citing Statement by the Mi nister of Foreign Affairs of
Georgia, PC.DEL/0101/06 (9 February 2006). GM, Vol. II, Annex 81. See also U.N. Security
Council, Letter dated 20 September 1993 from the Permanent Representative of Georgia to the
United Nations addressed to the President of the Security Council, Annex, U.N. Doc. S/26472 (20
September 1993). GWS, Vol. III, Annex 48; U.N. Economic and Social Council , Letter dated 24
March 1997 from the Minister for Foreign Affairs of Georgia addressed to the Chairman of the
Commission on Human Rights, Annex, U.N. Doc. E/CN.4/1997/132 (2 April 1997). (“[B]acked by
the regular troops of Russia, deployed in Abkh azia since the existence of the USSR, the Abkhaz
separatists have managed to seize the whole of Abkhazia successfully forcing the Georgian
Government troops to withdraw from the region. Their advancement have been matched with
barbaric violence endured by the separatists upon the Georgian population of Abkhazia that led
effectively reducing the latter, constituting 46% of the population of the region prior to the
conflict, to zero”.). GWS, Vol. III, Annex 52. See also U.N. General Assembly, Annex, Report
on the policy of ethnic cleansing/genocide conducted in the territory of Abkhazia, Georgia, and
the necessity of bringing to justice the persons who committed these crimes in accordance with
international principles of due process, U.N. Doc. S/1997/317 (16 April 1997) (same). GM, Vol.
II, Annex 22; U.N. Security Council, Letter dated 17 July 1998 from the Permanent
Representative of Georgia to the United Nations addressed to the President of the Security
Council, Annex, U.N. Doc. S/1998/660 (17 July 1998). GWS, Vol. III, Annex 57. (“The Abkhaz
separatist authorities, backed by a number of l eaders of the collective Peacekeeping Forces, are
carrying out an anti-Georgian campaign, aimed at convincing the public that the above-mentioned
and earlier incidents have been carried out by the Georgian side.”); U.N. General Assembly,
Measures to Eliminate International Terrorism, U.N. Doc. A/55/179 (26 July 2000). GWS, Vol.
III, Annex 61. (“Georgia further explained that an Abkhaz aggressive separatist regime supported
by certain forces of the Russian Federation and foreign mercenaries had seized the whole territory
of Abkhazia, forcing the Government troops to withdraw from the region. The seizure of the
territory was accompanied by the systematic extermination of the Georgian civilian population.”);
U.N. Security Council, Letter dated 22 July 1999 from the Permanent Representative of Georgia
to the United Nations addressed to the President of the Security Council, U.N. Doc. S/1999/814
(22 July 1999), Annex III. GWS, Vol. III, Annex 60. (“Separatists actively prepared for the war
through the purchase of arms and military equipment. In this they were greatly assisted by the
corrupt leadership of the Russian troops locat ed in Abkhazia, who sold them arms and
ammunition from their arsenals.”); U.N. Security Council, Letter dated 23 December 1998 from
the Permanent Representative of Georgia to the United Nations addressed to the President of the
Security Council, Annex, U.N. Doc. S/1998/1213 (23 December 1998). GWS, Vol. III, Annex 58;
U.N. Security Council, Letter dated 22 July 1999 from the Permanent Representative of Georgia
to the United Nations addressed to the President of the Security Council, U.N. Doc. S/1999/814
(22 July 1999), Annex I. GWS, Vol. III, Annex 60. (“With the support and participation of anti-
democratic, reactionary political and military forces of Russia, Abkhazian separatists carried out
aggressive acts against the statehood and territorial integrity of Georgia, which resulted in the
violation of the integrity of the country, the occupation of Abkhazia – an integral part of Georgia,
the formation of a criminal, separatist regi me and the ethnic cleansing of Georgians”.); U.N.
Security Council, Letter dated 8 March 2002 from the Permanent Representative of Georgia to
the United Nations addressed to the President of the Security Council, Annex , U.N. Doc.
S/2002/250 (11 March 2002). GWS, Vol. IV, Annex 229. (declaring that “the Duma is ready to
discuss other ways of furthering the formation of the statehood of Abkhazia and South Ossetia’ —
from which, through the efforts of the separatists, and with the direct participation of the
destructive forces of a neighbouring State, more th an 300,000 civilians were forced to flee, ‘true
patriots’ from the State Duma openly encourage aggressive separatism...”.).
1533.96 In parallel with these efforts to ne gotiate a resolution of the dispute
through the machinery of multilateral orga nisations, Georgia engaged in direct
bilateral contacts with Russia. For example, on 14 September 2000, Georgia’s
Ambassador in Moscow held bilateral di scussions with the Deputy Chairperson
of the State Duma of Russia, regard ing Russia’s signif icant “support and
assistance” to the de facto authorities in Abkhazia engaged in discrimination
387
against ethnic Georgians . Similarly, in April 2002, Georgia’s Ambassador in
Moscow raised Russia’s unlawful supply of military equipment to the de facto
authorities in Abkhazia in a meeting with Russia’s Minister of Foreign Affairs.
The talks did not achieve a resolution, because Russian Foreign Minister denied
that Russia had provided the separatists with such assistance 388.
3.97 The failure of bilateral discussions compelled Georgia to refocus its
diplomatic efforts to resolve the di spute in the United Nations and other
international organisations. Thus, in October 2002, Georgia informed the General
Assembly:
Just three days ago, South Osseti a’s separatist regime received yet
another shipment from Russia through the border checkpoint
controlled solely by Russian borde r guards. I have to add that
these kinds of shipments have never stopped crossing the Russian-
Georgian border into Abkhazia e ither. These shipments, which in
Russian terms would be called humanitarian aid, are in reality a 389
clear case of unabated proliferation of firearms and ammunition .
387
Script of the Talks of Mr. Z. Abashidze, Ambassador Extraordinary and Plenipotentiary of
Georgia to the Russian Federation with V. Luki n, Deputy Chairperson of the State Duma of
Russia (14 September 2000). GWS, Vol. IV, Annex 143.
388Script of the talks of Mr. Z. Abashidze, Ambassador Extraordinary and Plenipotentiary of
Georgia to the Russian federation with Mr. I. Ivanov, Ministry of Foreign Affairs of the Russian
Federation (25 April 2002). GWS, Vol. IV, Annex 147.
389U.N. General Assembly, First Committee, 10th Meeting , U.N. Doc. A/C.1/57/PV.10 (10
October 2002). GWS, Vol. III, Annex 68. Several months later, on 23 January 2003, Georgia
attempted to resolve the same issue—Russia’s military assistance to the separatists—in another
international forum, the OSCE. Georgia’s Permanent Mission to the OSCE stated: “Part of the
garrison and some weaponry has been withdrawn from Gudauta to Russia, but no one really
1543.98 In September 2005, Georgia again engaged the United Nations as a
conduit for negotiating with Russia, co mmunicating that “d espite Georgia’s
numerous protests, the Russian side continues providing armaments and
ammunition to the separatists” 39. In February 2006, Georgia made a similar
knows, how much weaponry remains in place an d what arms may have been handed to the
Abkhaz by the remaining garrison”. OSCE, Statement by the Georgian Delegation on the
Georgian-Russian relations Permanent Council, January 23, 2003 , PC.DEL/52/03 (24 January
2003). GWS, Vol. III, Annex 106. One week later, Georgia reiterated its claim when it recounted
a South Ossetian Independence Day parade that had taken place in Tshkinvali in September 2002.
The Russian military contingent of the JPKF had participated in the parade, displaying heavy
military armament. Georgia informed the OSCE that “there is no doubt that the heavy military
equipment I mentioned above were introduced in the conflict zone from the Russian Federation”.
OSCE, Statement of the Georgian Delegation on the situation in the Tskhinvali Region ,
PC.DEL/63/03 (30 January 2003). GWS, Vol. III, Annex 107. See also U.N. General Assembly,
First Committee, 9th Meeting , U.N. Doc. A/C.1/58/PV.9 (15 October 2003). GWS, Vol. III,
Annex 69. (“Both the Abkhazia and South Ossetia regions of Georgia, territories nurtured by
Russia, have as a result developed into terrorist enclaves with an increasingly aggressive process
of militarization. Huge amounts of armame nts, antipersonnel mines and ammunition have
accumulated in these territories. Unprotected borders of these separatist regions with the Russian
Federation have turned into a regular route for illegal arms trafficking. Despite our repeated calls,
the problem of the proliferation of small arms in Abkhazia continues unabated due, in no small
part, to the illegal operation there of a Russian military base. Despite our numerous requests for
the expeditious and transparent removal of the base, the Russian Federation refuses to uphold the
commitments made under the Treaty on Conventional Armed Forces in Europe”).
390U.N. General Assembly, Security Council, Identical letters dated 23 September 2005 from the
Permanent Representative of Georgia to the United Nations addressed to the Secretary-General
and to the President of the Security Council, Annex , U.N. Doc. A/60/379-S/2005/606 (28
September 2005). GWS, Vol. III, Annex 73. See also U.N. General Assembly, 7th Meeting, U.N.
Doc. A/C.1/60/PV.7 (7 October 2005). GWS, Vol. III, Annex 74. (And one month later, Georgia
informed the General Assembly that, “[d]espite the Russian Federation’s commitment to playing
the role of principal mediator in the settlement of the conflict in South Ossetia, it continues to arm
separatists….”); U.N. General Assembly, Security Council, Letter dated 9 November 2005 from
the Permanent Representative of Georgia to th e United Nations addressed to the Secretary-
General, Annex, U.N. Doc. A/60/552-S/2005/718 (10 November 2005). GWS, Vol. III, Annex 76.
(“Nevertheless, the Russian Federation does nothing to promote the process of conflict settlement
on the territory of Georgia – quite the contrary. Steps made by the Russian Federation presently
strengthens the separatist regimes and de facto a nnexation of a part of Georgia’s territory … The
Parliament of Georgia demands answer to the question: from where and how did numerous pieces
of new Russian heavy military equipment appear on the territory of the former South Ossetian
Autonomous District, the entire administrative perimeter of which borders only rest of Georgia
and of the Russian Federation? Obviously, not from the Georgian side. This equipment, as well
as the frequent military exercises, is a visiblepart of the hidden arms race carried out by the
Russian Federation in the conflict regions of Georgia”); U.N. Security Council, Letter dated 27
October 2005 from the Permanent Representative of Georgia to the United Nations addressed to
the President of the Security Council , U.N. Doc. S/2005/678 (27 October 2005). GWS, Vol. III,
Annex 75. (“we have no doubt in our mind that financing and equipment for [Abkhaz military]
155overture through the OSCE, complaining that Russia was unlawfully supporting
ethnic discrimination in Sout h Ossetia by staffing the de facto regime’s security
391
agencies with Russian citizens who served under Russian State direction .
3.99 In May 2007, Georgia returned to the OSCE as a vehicle for negotiating
with Russia regarding the Respondent St ate’s support for military actions in
favour of forces that were engaged in acts of ethnic discrimination:
We think that welcoming separatis t leaders and treating them as
‘presidents’, channelling unilatera l assistance to them should be
abandoned and separatist regimes should get right messages that
there is no chance for them neither to turn into a part of the
392
Russian Federation nor to become independent states .
3.100 In September 2007, Georgia launched a si milar diplomatic initiative with
the United Nations, informing the Securi ty Council that Russia continued to
unlawfully arm and train the separatists’ military, who were supervised by
393
“officers of the Russian armed forces” . Georgia used this occasion to insist
exercises came from the Russian Federation. … M ilitary personnel of separatists are trained by
the Russian military schools, without shying away from openly providing them quotas).
391
OSCE, Statement of the Minister of Foreign Affairs of Georgia, PC.DEL/101/06 (9 February
2006). GM, Vol. III, Annex 81. See also U.N. Security Council, Letter dated 27 October 2005
from the Permanent Representative of Georgia to the United Nations addressed to the President
of the Security Council, U.N. Doc. S/2005/678 (27 October 2005). GWS, Vol. III, Annex 75. (“It
is impossible to avoid commenting on the behaviour of the facilitator — the Russian Federation,
especially when several extremely alarming trends take place in Abkhazia, Georgia: – Positions in
the separatist Governments are filled with people se nt directly from public jobs in the Russian
Federation, from as far away as Siberia”); U.N. General Assembly, Security Council, Letter dated
9 November 2005 from the Permanent Representative of Georgia to the United Nations addressed
to the Secretary-General, Annex , U.N. Doc. A/60/552-S/2005/718 (10 November 2005). GWS,
Vol. III, Annex 76. (“In violation of the principles of international law, agreements reached in the
CIS framework, and the Georgian legislation, citizens of Russia have been appointed to the high-
level positions (i.e. Prime-Minister, Ministers of Defense and Law Enforcement, commanders of
military units etc.) in Tskhinvali and Sukhumi – individuals who simultaneously continue to work
in law enforcement and the special services of the Russian Federation…”).
392
OSCE, Statement by the Delegation of Georgia , FSC-PC.DEL/23/07 (24 May 2007). GWS,
Vol. III, Annex 111.
393U.N. Security Council, Letter dated 5 September 2007 from the Permanent Representative of
Georgia to the United Nations addressed to the President of the Security Council, Annex , U.N.
Doc. S/2007/535 (7 September 2007). GWS, Vol. III, Annex 87.
156that Russia “cease its support of the separatist regime, including military
394
assistance” .
3.101 In the months preceding the filing of the Application, Georgia intensified
its efforts to resolve the dispute, especially after Russia announced that its support
to the separatists in South Ossetia a nd Abkhazia would henceforth be “not
declarative, but essential assistance” 39. Georgia went to the OSCE to object to
Russia taking such “unequivocal steps to directly support separatism, including
through military means” 396. On 6 June 2008, President Saakashvili discussed
these issues with President Medvedev in St. Petersburg 397.
3.102 On 23 June 2008, President Saakashvili followed up with a letter to
President Medvedev requesting “cancellation of the Order of the President of the
Russian Federation to the Government of the Russian Federation dated April 16,
2008 on establishment of direct contacts with Abkhazia and Tskhinvali Region of
Georgia” 39. President Saakashvili further proposed “regular consultations
between Ministries of Foreign Affairs of our states and also to create the joint
394U.N. Security Council, Letter dated 5 September 2007 from the Permanent Representative of
Georgia to the United Nations addressed to the President of the Security Council, Annex , U.N.
Doc. S/2007/535 (7 September 2007). GWS, Vol. III, Annex 87. See also U.N. Security Council,
Letter dated 3 October 2007 from the Permanent Representative of Georgia to the United Nations
addressed to the President of the Security Council, Annex , U.N. Doc. S/2007/589 (4 October
2007). GWS, Vol. III, Annex 89. (Georgia expressed “extreme concern” regarding the fact that
separatist military forces were “receiving support ” and “training” from Russia even though they
were “responsible for ethnic cleansing.”).
395
OSCE, Statement by the Delegation of Georgia on Developments in Georgia, PC.DEL/306/08
(17 April 2008). GWS, Vol. III, Annex 112. See also OSCE, 709th Plenary Meeting of the
Council, Annex 1, Statement by the Delegation of Georgia, PC.JOUR/709 (17 April 2008). GWS,
Vol. III, Annex 113.
396
OSCE, Statement by the Delegation of Georgia , PC.DEL/345/08 (30 April 2008). GWS, Vol.
III, Annex 114.
397See Letter from President Mikheil Saakashvili to Pr esident Dmitry Medvedev (23 June 2008).
GM, Vol. V, Annex 308.
398Ibid.
157working group that is to prepare our meeting so that we are able to make specific
399 400
decisions” . Russia refused .
3.103 In these circumstances Russia’s claim that Georgia never attempted to
negotiate with Russia a resolution of th e dispute regarding Russia’s support for
ethnic discrimination in South Ossetia and Abkhazia cannot stand. It is defeated
by the evidence, which shows that Geor gia repeatedly sought by diplomatic
means, both bilateral and multilateral, to end Russia’s funding, training and
arming of the those responsible for ethnic discrimination in the two territories.
D. R USSIA’S FAILURE TO PREVENT D ISCRIMINATION AGAINST ETHNIC
G EORGIANS IN A REAS IT C ONTROLLED
3.104 As Georgia demonstrated in Chapter II, it repeatedly complained of the
failure of Russian “peacekeepers” and other Russian military forces in South
Ossetia and Abkhazia to use the means at th eir disposal to prevent violent acts of
ethnic discrimination against ethnic Georgi ans. Georgia made many attempts to
negotiate a resolution of this problem; all were unsuccessful.
3.105 Georgia began making diplomatic overtures soon after it became clear that
the Russian peacekeepers were refusing to prevent acts of ethnic discrimination.
In February 1996, Georgia brought to the Un ited Nations the persistent inaction
of Russian peacekeepers in the face of violence against ethnic Georgians.
399
Letter from President Mikheil SaakashviPresident Dmitry Medvedev (23 June 2008).
GM, Vol. V, Annex 308. Just two months before Georgia filed iApplication, President
Saakashvili again complained to the General Assembly that Russian military officers were “sitting
in Tskhinvali and are creators of many dirty pro vocations.” President Saakashvili demanded that
the Russian President recall Russian mileadership from South Ossetia. Office of the
President of Georgia, Press Briefing, “The Pres ident of Georgia Mikheil Saakashvili held a press
conference” (28 June 2008). GWS, Vol. IV, Annex 181.
400
Letter from President Dmitry Medvedev of the Russian Federation to President Mikheil
Saakashvili of Georgia (1 July 2008). GM, Vol. V, Annex 311.
158Recounting a recent attack on ethnic Ge orgian civilians, Georgia stated:
“Harassment of the Georgian population by the Abkhaz separatists in this region
401
continues, despite the deployment of the Russian peace-keeping forces here” .
3.106 After Russian peacekeepers refused to aid ethnic Georgians in January
1998, Georgia again invoked the diplomatic machinery of the United Nations
when it informed the Secretary-General of an attack on two ethnic Georgian
villages in the Gali District during which “40 civilians were taken hostage, among
them women, children and elderly persons” 402. Georgia drew attention to the
“especially worrisome” fact that “this ba rbaric act took pla ce in the immediate
vicinity of the deployed peacekeeping forces of the Russian Federation” 403. It
made a similar approach to the United Na tions later that year when it informed
the Secretary-General that:
a well-armed group of 50 to 60 Abkhazians easily passed a
checkpoint of Commonwealth of Independent States (CIS)
peacekeepers and made an unspeakable inroad into the village of
Gudava, ransacking the houses of innocent civilians and
remorselessly killing three Georgian teenagers. The assailants left
the theatre of carnage just as unhampered as they had moved in
and returned to Ochamchira, taking the bodies of the killed and
404
about 20 hostages .
401
U.N. Security Council, Letter dated 15 February 1996 from the Permanent Representative of
Georgia to the United Nations addressed to the President of the Security Council, Annex, U.N.
Doc. S/1996/114 (15 February 1996). GWS, Vol. III, Annex 51.
402
U.N. Security Council, Letter dated 12 January 1998 from the Permanent Representative of
Georgia to the United Nations addressed to the Secretary-General, Annex , U.N. Doc. S/1998/25
(12 January 1998). GWS, Vol. III, Annex 53.
403Ibid.
404U.N. Security Council, Letter dated 14 April 1998 from the Permanent Representative of
Georgia to the United Nations addressed to the Secretary-General , U.N. Doc. S/1998/329 (15
April 1998). GWS, Vol. III, Annex 54. See also, e.g., U.N. Security Council, Letter dated 20
July 1999 from the Permanent Representative of Georgia to the United Nations addressed to the
President of the Security Council , U.N. Doc. S/1999/806 (21 July 1999). GWS, Vol. III, Annex
59. (noting that since the deploy ment of Russian peacekeepers, 1,5000 people had died, “thus
displaying a consistent pattern of progressing ethnic cleansing.”).
1593.107 In July 2004, Georgia sought to negotiate directly with Russia a resolution
of the dispute over Russia’s failure to act to prevent discrimination against ethnic
Georgians. At that time, Presiden t Saakashvili wrote to President Putin
complaining about public comments ma de by the Russian Commander of the
Joint Peace-Keeping Force, General Nabzdorov, and the l ack of “impartiality of
405
Russian peacekeeping forces that ar e carrying out mission in the region” .
406
President Putin responded by dismissing Georgia’s concerns as “propaganda” .
3.108 Having achieved no success through this and simila r direct approaches,
Georgia returned to international venu es. In January 2005, Georgia’s Permanent
Representative to the United Nations informed the Security Council of several
recent “abductions” that were “committed in front of CIS peacekeepers, who did
407
nothing to protect peaceful civilian people - by the way, not for the first time” .
The Georgian Representative recalled that over 2,000 ethnic Ge orgians had been
408
killed since Russian peacekeepers were deployed . In November 2005, Georgia
reminded the Security Council that “the Georgian aut horities have repeatedly
sought to focus the attenti on of the world community on the escalating situation
in Abkhazia” where the “gravest violati ons are reported in the field of human
405Letter of President Saakashvili of Georgia to President Putin of the Russian Federation (26 July
2004) p. 3. GM, Vol. V, Annex 309.
406Letter of President Putin of the Russian Fede ration to President Saakashvili of Georgia (14
August 2004). GM, Vol. V, Annex 310.
407
U.N. Security Council, Letter dated 26 January 2005 from the Permanent Representative of
Georgia to the United Nations addressed to the President of the Security Council , U.N. Doc.
S/2005/45 (26 January 2005). GWS, Vol. III, Annex 71.
408
U.N. Security Council, Letter dated 26 January 2005 from the Permanent Representative of
Georgia to the United Nations addressed to the President of the Security Council , U.N. Doc.
S/2005/45 (26 January 2005). GWS, Vol. III, Annex 71. Georgia also approached Russia before
the OSCE concerning Russian peacekeepers’ failure to protect ethnic Geor gians from violence
and discrimination in South Ossetia and Abkhazia. On 9 February 2006, the Minister of Foreign
Affairs of Georgia informed the OSCE about Georgia’s “concern[s] about the effectiveness of the
JPKF” and stated that the implementation of the peace plan “does not depend on the presence of
the peacekeepers.” Statement by Minister of Foreign Affairs of Geor gia, PC.DEL/101/06 (9
February 2006). GM, Vol. II, Annex 81.
160 409
rights and freedoms” . Specifically, Georgia stated that the “separatist
government of Abkhazia and its so-called law enforcement authorities acting with
apparent immunity are waging a campa ign of terror against the ethnically
Georgian population, with the goal of expelling it from the region, completing the
process of ethnic cleansing and eventually having its legitimacy recognized”. In
that connection, Georgia stressed that thes e “[f]lagrant acts … take place in the
very presence of the peacekeeping forces and in many cases with their latent
410
consent” .
3.109 Similarly, in August 2006, Georgia info rmed the United Nations that the
Russian peacekeepers were “turning a blind eye” to gross violations of the human
rights of ethnic Georgians 411. President Saakashvili himself used the United
Nations as a forum to discuss Russia’s refusal to take steps to prevent violent
ethnic discrimination, informing the General Assembly in September 2006 that
since Russian troops had been deployed in Abkahzia, and due to their inaction
“more than 2,000 Georgian citizens have lost their lives and more than 8,000
Georgian homes have been destroyed” 412. Again, in November 2006, Georgia
409U.N. Security Council, Letter dated 18 November 2005 from the Permanent Representative of
Georgia to the United Nations addressed to the President of the Security Council, Annex , U.N.
Doc. S/2005/735 (23 November 2005). GWS, Vol. III, Annex 77.
410U.N. Security Council, Letter dated 18 November 2005 from the Permanent Representative of
Georgia to the United Nations addressed to the President of the Security Council, Annex , U.N.
Doc. S/2005/735 (23 November 2005). GWS, Vol. III, Annex 77.
411
U.N. General Assembly, Security Council , Identical letters dated 11 August 2006 from the
Chargé d’affaires A.I. of the Permanent Mission of Georgia to the United Nations addressed to
the Secretary-General and the Presiden t of the Security Council, Annex, U.N. Doc. A/60/976-
S/2006/638 (14 August 2006). GWS, Vol. III, Annex 83. See also, e.g., U.N. Security Council,
Letter dated 4 September 2006 from the Permanent Representative of Georgia to the United
Nations addressed to the President of the Security Council, Annex , U.N. Doc. S/2006/709 (5
September 2006) (human rights violations against ethnic Georgians “take place within sight of the
Commonwealth of Independent States (CIS) and in actual practice, Russian peacekeeping forces
that do nothing to suppress flagrant and mass violations of human rights.”). GWS, Vol. III,
Annex 84.
412
Office of the President of Georgia, “Remar ks of H.E. Mikheil Saakashvili, President of
Georgian to the 61st Annual United Nations Gene ral Assembly” (23 September 2006). GWS,
Vol. IV, Annex 170. See also Ministry of Foreign Affairs of Georgia, Statement of Mr. Irakli
161attempted to bring attention to the c ontinuing abuses in the territory under
Russia’s control by informing the UN Human Rights Committee that:
The most flagrant human rights vi olations still take place in the
territory of Abkhazia and the Tskhinvali region/South Ossetia,
Georgia, which are de facto out of the control of the Government
of Georgia and where the Russian Federation exercises effective
control instead. Many citizen s of Georgia living there are
subjected to torture and other ill-treatment; they are victims of
413
other numerous, grave human rights violations .
3.110 Russia did not respond to any of thes e Georgian initiatives, all of which
produced no end to the acts of ethnic di scrimination in relation to matters falling
under the 1965 Convention. Over the c ourse of the ten years immediately
preceding the filing of the Application, none of Georgia’s repeated attempts to
engage Russia in dialogue over the persistent refusal of its military forces in
South Ossetia and Abkhazia to use the means at their disposal to prevent
discrimination against ethnic Georgians bore fruit. The evidence shows that,
during this period, Russia consistently mani fested a lack of interest in discussing
the matter with Georgia, let alone resolving it.
Section VII. Conclusions
3.111 The evidence described above shows that Georgia repeatedly attempted to
negotiate with Russia over the Respondent State’s involvement directly or
indirectly in acts that violate oblig ations falling under the 1965 Convention.
These acts include ethnic cleansing operati ons against ethnic Georgians in South
Alasania, Ambassador Extraordinary and Plenipotentionary, Permanent Representative of
Georgia in the UN (3 October 2006) (Georgia’s Permanent Representative to the UN informed the
organization that the Russian peacekeeping operation “failed to carry oun responsibilities
spelled out in its mandate – create favorable srity environment for the return of ethnically
cleansed hundreds of thousands of Georgian citizens”.) (emphasis added). GWS, Vol. IV, Annex
171.
413U.N. Human Rights Committee, Third periodic report of State parties due in 2006 , U.N. Doc.
CCPR/C/GEO/3 (7 November 2006), para. 22. GWS, Vol. III, Annex 85.
162Ossetia and Abkhazia, over its forcible prevention of ethnic Georgian IDPs,
displaced from these territories by ethni c cleansing and other forms of ethnic
discrimination, from exercisi ng their right of return to these territories, over its
support, sponsorship and defence of et hnic discrimination carried out against
ethnic Georgians by separatist authorities and militias, and over its failure to carry
out its responsibility to prevent acts of ethnic discrimination in areas under its
control. The evidence shows that Geor gia attempted to negotiate with Russia
over these matters, all of which plainl y fall under the 1965 Convention, both
directly and in a variety of multilateral fora over the course of many years.
Although agreements were reached between the two States over some of these
issues in the early and mi d-1990s, none of these agreements were respected by
Russia. Georgia repeatedly brought to the attention of Russia its persistent
violation of its commitments and sought renewed negotiations to address the
same matters. For at least the past 10 y ears, Georgia has not succeeded in any of
its attempts at negotiation with Russia; despite Georgia’s efforts, Russia’s
conduct during this period has not ch anged. The provisions of the 1965
Convention continue to be violated. Indeed, in the most recent period prior to the
filing of the Application, Russia refused even to meet with Georgia, rendering
negotiations impossible.
3.112 In these well-documented circumstances, Georgia has more than met the
standards of Article 22, whether they re quire that it demonstrate simply as a
factual matter that its dispute with Russia “is not settled by negotiation”, or that it
made an “attempt to settle the dispute” prior to seisin of the Court, or even that it
demonstrate, as a result of its unsuccessful attempts at settlement, that the matter
“cannot be settled by negotia tion”. No more can be required for the Court to
exercise jurisdiction under Article 22. In this Chapter, Georgia has shown that,
under the plain language of Article 22 and its context within the 1965
Convention, as confirmed by the preparator y works: (1) the conditions in Article
16322 are alternatives and not cumulative; and (2) to the extent that Georgia was
required to attempt to negotiate prior to th e Court’s seisin, it has clearly satisfied
this requirement. Both conclusions are fully consistent with, if not compelled by,
the prior decisions of this Court and the PCIJ, as well as the evidence on
negotiations submitted by Georgia as part of this pleading and in the Memorial.
For these reasons, Georgia submits that Russia’s second preliminary objection
should be rejected by the Court.
164 CHAPTER IV.
RUSSIA’S THIRD PRELIMINARY OBJECION: LACK OF
JURISDICION RATIONE LOCI Section I. Introduction
4.1 In its Order on Provisional Measures of 15 October 2008, the Court held
that, in the absence of a provision in the 1965 Convention limiting the spatial
scope of the obligations contained ther ein, the Convention, as a human rights
instrument, applies to the conduct of a State Party outside its own territory:
109. Whereas the Court observes that there is no restriction of a
general nature in CERD relating to its territorial application;
whereas it further notes that, in particular, neither Article 2 nor
Article 5 of CERD, alleged viol ations of which are invoked by
Georgia, contain a specific territorial limitation; and whereas the
Court consequently finds that these provisions of CERD generally
appear to apply, like other provisions of instruments of that natu414
to the actions of a State party when it acts beyond its territory .
4.2 As the issue of the spatial scope of the obligations under the 1965
Convention was not addressed in the Joint Dissenting Opinion it may be
concluded that paragraph 109 of the Court’s Order represents the unanimous view
of the Court, albeit on a prima facie basis given that the Court was exercising its
incidental jurisdiction to order provisional measures.
4.3 Russia has advanced two arguments in the alternative to the effect that the
Court lacks jurisdiction ratione loci over the subject matter of this dispute in
Chapter V of its Preliminary Objections:
1. Contrary to Georgia’s assert ion, obligations under CERD
as a general matter only apply on the territory of the State
parties. This is in line with the position of general
international law, which provi des that, unless specifically
indicated, treaty obligations apply only territorially.
414Case Concerning Application of the International Convention on the Elimination of All Forms
of Racial Discrimination (Georgia v. Russian Federation)Provisional Measures, Order, I.C.J.
Rep. 2008 (hereinafter “Provisional Measures Order”), para. 109.
167 2. In the alternative, should this Court hold that even in the
absence of a special clause to this effect, general
international law provides for the extraterritorial
application of treaty obligations, instances of such
extraterritoriality would be exceptional, and the present
415
case would not be covered by any of the exceptions .
4.4 In addition to these general objections to the Court’s jurisdiction ratione
loci, Russia has also engaged in a purported analysis of each of the obligations
relied upon by Georgia in the 1965 Conventi on in support of its submission that
the spatial scope of each is limited in application to Russia’s national territory.
4.5 This Chapter responds to Russia’s objections, which are plainly
inconsistent with the jurisprudence of this Court and practice under international
human rights instruments. Section II demonstrates, by reference to a wealth of
international authorities, that gene ral international law recognizes the
extraterritorial application of human rights obligations of the kind reflected in the
1965 Convention where they arise in human rights instruments of a universal
character in the circumstances of th is case. Section III refutes Russia’s
alternative argument that the grounds fo r extraterritorial application are
“exceptional” and refers to the pertin ent international jurisprudence that
recognizes application beyond the terr itory of the respondent State in
circumstances where it exercises power or authority over the victims of that
State’s alleged human rights violations, wh erever such victims are situated. In
the alternative, Georgia submits in S ection III that one of the grounds of
extraterritorial application of the 1965 Conventio n acknowledged by Russia, viz.
415Preliminary Objections of th e Russian Federation, Vol. I December 2009) (hereinafter
“RPO”), para. 5.9.
168“the effective control of a territory” 416, was plainly satisfied in respect of Russia’s
conduct in South Ossetia and Abkhazia during the relevant times. Section IV sets
out a rebuttal to Russia’s textual analysis of the spatial scope of the individual
obligations invoked by Georgia for its clai ms against Russia. Finally, Section V
contains a summary of Georgia’s principal conclusions in this Chapter.
4.6 Before Russia’s objections are addressed in detail, Georgia would refer to
and adopt the consistent practice of the CERD Committee. Like the other treaty
bodies established by international human rights instruments, the practice of the
CERD Committee is to apply the obligations of the 1965 Convention
extraterritorially to anyone within the pow er or authority of a State Party. In its
Memorial 41, Georgia quoted extensively from the CERD Committee’s reports on
Israel in respect of the Occupied Territories and the Golan Heights, where it said:
The Committee reaffirms its position of principle that, since Israel
is a party to the International Convention on the Elimination of All
Forms of Racial Discrimination, the Committee is competent to
examine the manner in which Israel is fulfilling its obligations
under the Convention with respect to everyone falling under the
jurisdiction of Israel, including all persons livi ng in the territories
418
occupied by Israel .
In 2007, the CERD Committee repeated this position:
The Committee reiterates its conc ern at the position of the State
party to the effect that the Convention does not apply in the
Occupied Palestinian Territories and the Golan Heights. Such a
position cannot be sustained under the letter and spirit of the
416
RPO, para. 5.50.
417Memorial of Georgia, Vol. I, (2 September 2009) (hereinafter “GM”), paras, 8.19-8.23.
418
U.N. General Assembly, Report of the Committee on the Elimination of Racial Discrimination,
Supplement No. 18, U.N. Doc A/49/18 (1995), para. 83. GM, Vol. II, Annex 19.
169 Convention, or under internationa419aw, as also affirmed by the
International Court of Justice .
4.7 The “affirm[ation]” from the International Court of Justice referred to in
the final sentence of this passage was the Court’s recent opinion in Construction
of a Wall , which is considered below in more detail. In addition to taking an
extraterritorial approach with respect to Israel’s conduct, the CERD Committee
has also exercised its competence in re spect of Turkey’s conduct in Northern
420
Cyprus and the United States’ conduc t in Panama and Guantanamo Bay .
Russia’s approach is inconsistent with that of the CERD Committee.
Section II. Russia’s First Argument: “The Principle of Territorial
Application”
4.8 According to Russia, there is a gene ral principle of international law
requiring the territorial application of treat y obligations so that, in the absence of
a provision prescribing the spatial scope of the 1965 Convention, the Court must
interpret Russia’s obligations in the Convention as limited to acts or omissions of
Russian officials taking place within the territorial borders of the Russian
Federation.
4.9 Russia’s alleged general principle is contradicted by the jurisprudence of
this Court and by the decisions of othe r international courts and supervisory
419
U.N. General Assembly, Report of the Committee on the Elimination of Racial Discrimination,
Official Records, Sixty-Second Session, Supplement No. 18, U.N. Doc. A/62/18 (2007), para. 225
(emphasis added). GM, Vol. II, Annex 43.
420U.N. Committee on the Elimina tion of Racial Discrimination, Summary Record of the 1914th
Meeting, U.N. Doc. CERD/C/SR.1914 (2 March 2009), paras. 31, 52. GWS, Vol. III, Annex 101;
U.N. Committee on the Eliminati on of Racial Discrimination, Concluding Observations of the
Committee on the Elimination of Racial Di scrimination: United States of America , U.N. Doc.
CERD/C/USA/CO/6 (8 May 2008), para. 24. GWS, Vol. III, Annex 94; U.N. General Assembly,
Report of the Committee on the Elimination of Racial Discrimination, Supplement No. 18, U.N.
Doc. A/9618 (1974). GWS, Vol. III, Annex 41; U.N. General Assembly, Report of the Committee
on the Elimination of Racial Discrimination , Supplement No. 18, U.N. Doc. A/31/18 (1976).
GWS, Vol. III, Annex 42; GM, paras. 8.19-8.23; RPO, para. 5.60.
170bodies established pursuant to human rights treaties. In the human rights field, if
Russia’s principle were to be accepted it would permit a State to perpetrate
violations of human rights on the territory of another State, where such violations
would attract the international responsibility of the perpetrating State if the acts
were committed on its own territory. Th is goes directly against the policy and
practice of the CERD Committee, as well as the jurisprudence of this Court.
4.10 The leading judicial statement on the extraterritorial application of human
rights treaties is the Court’s Advisory Opinion in Construction of a Wall . In
considering whether human rights treaties applied to Israel’s conduct in the
Occupied Palestinian Territories, the Court held:
109. The Court would observe that, while the jurisdiction of States
is primarily territorial, it may sometimes be exercised outside the
national territory. Considering the object and purpose of the
International Covenant on Civ il and Political Rights, it would
seem natural that, even when such is the case, States parties to the
Covenant should be bound to comply with its provisions.
The constant practice of the Human Rights Committee is
consistent with this. Thus, th e Committee has found the Covenant
applicable where the State exercises its jurisdiction on foreign
territory. It has ruled on the legality of acts by Uruguay in cases of
arrests carried out by Uruguayan ag ents in Brazil or Argentina
(case No. 52/79, López Burgos v. Uruguay; case No. 56/79, Lilian
Celiherti de Cusariego v. Uruguay). It decided to the same effect
in the case of the confiscation of a passport by a Uruguayan
consulate in Germany (case No. 106181, Montero v. Uruguay).
The travaux préparatoires of the Covenant confirm the
Committee’s interpretation of Article 2 of that instrument. These
show that, in adopting the wordin g chosen, the drafters of the
Covenant did not intend to allo w States to escape from their
obligations when they exercise jurisdiction outside their national
territory. They only intended to pr event persons residing abroad
from asserting, vis-à-vis their State of origin, rights that do not fall
within the competence of that Stat e, but of that of the State of
residence (see the discussion of the preliminary draft in the
Commission on Human Rights, E/CN.4/SR.194, para. 46; and
171 United Nations, Official Records of the General Assembly, Tenth
Session, Annexes, A/2929, Part II, Chap. V, para. 4 (1955)) 421.
4.11 Remarkably, this paragraph of the Court’s Opinion in the Construction of
a Wall is one of the two authorities relie d upon by Russia in support of its
argument that there is an inherent territo rial restriction to the application of
human rights obligations. Russia cites only two words of this paragraph from the
first sentence – “primarily territorial” – for its alleged proposition of law:
In the Legal Consequences of th e Construction of a Wall in the
Occupied Palestinian Territories Advisory Opinion, the Court
confirmed that h422n rights obligations apply “primarily
territorial[ly]” .
4.12 When the two words on which Russia relies are placed in their proper
context in paragraph 109 of the Court’s Opinion, it is difficult to overstate just
how far Russia’s position is undermine d by the Court’s interpretation and
application of the relevant principle. The Court states in unequivocal terms that,
to the extent that a State acts outside its national territory, it is bound to comply
with its obligations in th e International Covenant on Civil and Political Rights
(the Covenant). This follows, accordi ng to the Court, “natural[ly]” from the
“object and purpose” of the Covenant as a universal human rights instrument.
Far from supporting Russia’s thesis that the spatial scope of human rights
obligations ends at the terr itorial borders of the State, the Court found that it is
only “natural” that such obligations bind the State wherever it may act.
4.13 Contrary to Russia’s position advocating some sort of inherent spatial
restriction for the obligations in human rights instruments, the Court’s approach
in Construction of a Wall is consistent with the broad principle recognizing the
extraterritorial effect and application of universal human rights instruments. The
421Legal Consequences of the Construction of a Wal1 in the Occupied Palestinian Territory,
Advisory Opinion, I.C.J. Rep. 2004, p. 179, para. 109.
422RPO, para. 5.28.
172Court’s reference to the UN Huma n Rights Committee’s decisions in López
Burgos v. Uruguay and Lilian Celiberti de Cusariego v. Uruguay is significant.
The UN Human Rights Committee affirmed that Uruguay had violated its
obligations under the Covena nt when its security forces had abducted and
tortured a Uruguayan citizen living in Argentina and found that:
[I]t would be unconscionable to so interpret the responsibility
under article 2 of the Covenant as to permit a State party to
perpetrate violations of the Cove nant on the territo ry of another
State, wh423 violations it co uld not perpetrate on its own
territory .
The same principle applies in the present case in respect of the 1965 Convention.
Russia cannot perpetrate violations of the 1965 Convention on the territory of
Georgia.
4.14 The UN Human Rights Committee has given the broadest possible
interpretation of the spatial scope of obligations in the Covenant in General
Comment No. 31:
States Parties are required by article 2, paragraph 1, to respect and
to ensure the Covenant rights to all persons who may be within
their territory and to all persons subject to their jurisdiction. 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 Sta424Party, even if not situated within the territory
of the State Party .
4.15 The UN Human Rights Committee thus endorsed, for instruments of
universal application, a c onception of jurisdiction th at covers both power over
423U.N. Human Rights Committee, Sergio Euben Lopez Burgos v. Uruguay, Communication No.
R.12/52, U.N. Doc. A/36/40 (1981), p. 176, para. 12.3. GWS, Vol. III, Annex 43; U.N. Human
Rights Committee, Lilian Celiberti de Casariego v. Uruguay, Communication No. R.56/1979 ,
U.N. Doc. CCPR/C/13/D/56/1979 (1981), p. 185, para. 10.3. GWS, Vol. III, Annex 44.
424
U.N. CCPR, General Comment No. 31, Nature of the General Legal Obligation Imposed on
State Parties to the Covenant , U.N. Doc. CCPR/C/21/Rev.1/Add.13 (26 May 2004), para. 10.
GM, Vol. II, Annex 37.
173individuals or control over geographic areas not within the territory of the State
Party.
4.16 The principle of unconscionability th at informed the UN Human Rights
Committee’s approach to the spatial scope of the obligations under the Covenant
is echoed in many judicial statements. For instance, Judge Sir Elihu Lauterpacht
made the point powerfully in respect of another human rights instrument of
global application, the Genocide Conventi on, in his Separate Opinion in the
provisional measures phase of Bosnian Genocide:
114. Obviously, an absolutely terr itorial view of the duty to
prevent genocide would not make sense since this would mean
that a party, though obliged to prevent genocide within its own
territory, is not obliged to preven t it in territory which it invades
and occupies. That would be nonsen se. So there is an obligation,
at any rate for a State involved in a conflict, t425oncern itself with
the prevention of genocide outside its territory .
4.17 In addition to the principle of uncons cionability, the principle of equal
human rights protection for nationals a nd non-nationals would be infringed if
jurisdiction were to be con ceived strictly on a territorial basis, as Russia seeks.
The majority of persons affected by a State’s conduct within its own national
territory are nationals or c itizens of that State, whereas the opposite is generally
true in respect of those pe rsons affected by a State’s ex traterritorial conduct. If
the State’s human rights obligations were not extended to its extraterritorial
conduct, there would be an asymmetry in the protection of nationals and non-
nationals. This would undermine the very notion of human rights based on
humanity rather than nationality. As was stated by the Inter-American
Commission of Hu man Rights in Coard v. USA : “[g]iven that individual rights
425Application of the Convention on the Prevention and Punishment of the Crime of Genocide
(Bosnia and Herzegovina v. Serbia and Montenegro), Provisional Measures, Order, I.C.J. Rep.
1993, p. 444, para. 114.
174inhere simply by virtue of a person’s humanity, each American State is obliged to
uphold the protected rights of any person subject to its jurisdiction” 42.
4.18 Russia’s efforts to undermine the Court’s jurisprudence and the UN
Human Rights Committee’s pronouncements on the spatial scope of the
obligations in the Covenant are manifes tly ill-founded. Russia asserts that their
relevance is confined to the interpretation of a particular treaty provision, viz. the
general jurisdictional provision in Article 2(1) of the Covenant. Russia says:
Thus, in the adviso ry opinion on the Israeli Wall , this Court
recognised that provisions of the International Covenant on Civil
and Political Rights governed Israeli conduct within the Occupied
Palestinian Territories, but arrive d at this result through an
interpretation of Article 2(1) ICCPR. Hence the Court’s treatment
of questions of extraterritorialit y is preceded by a reference to
Article 2(1) ICCPR and draw s on the crucial notion of
‘jurisdiction’ used in that provision, which is interpreted to be
‘primarily territorial’, but ‘may sometimes be exercised outside the
national territory’427.
4.19 Again Russia mischaracterizes the C ourt’s opinion. The extraterritorial
application of the Covenant, according to the Court, followed “natural[ly]” from
the “object and purpose” of the Covenant as a universal human rights instrument.
The Court did not limit its view to that particular provision. The Court has,
moreover, adopted precisely the same pos ition in respect of other human rights
instruments without a general jurisdicti onal provision like Article 2(1) of the
Covenant.
4.20 In Application of Genocide Convention , Yugoslavia (later Serbia and
Montenegro) raised an objection to the C ourt’s jurisdiction on the basis that the
alleged acts of genocide occurred outside its territory, and Yugoslavia “did not
426Coard et al. v. United States of America , Case 10.951, Report No. 109/99, Inter-Am.Ct. H.R.
(29 September 1999) (hereinafter “Coard v. United States of America”), para. 37.
427RPO, para. 5.34.
175exercise jurisdiction over that territory at the time in question” 428. The Court first
noted that the only provision of the Genocide Convention expressly dealing with
the spatial scope of the obligations is Article VI which, the Court noted, “merely
provides for persons accused of one of the acts prohibited by the Convention to
‘be tried by a competent tribunal of the Stat e in the territory of which the act was
committed…’” 429. The Court decided that, in th e absence of a general provision
regulating the spatial scope of the obligations in the Genocide Convention, the
spatial scope of the obligations is identified by reference to the object and
purpose of the treaty as a uni versal human rights instrument. Before the relevant
passage of the Court’s judgment is set out in full, it is important to note that the
1965 Convention adopts the very same appr oach as the Genocide Convention in
this respect: there is no general provision in that Convention regulating the spatial
scope of the obligations.
4.21 Having noted that the express terms of the Genocide Convention do not
regulate the spatial scope of the obligations (save in respect of Article VI), the
Court continued:
It would also recall its understand ing of the object and purpose of
the Convention, as set out in it s Opinion of 28 May 1951, cited
above:
‘The origins of the Convention show that it was the intention of
the United Nations to condemn an d punish genocide as ‘a crime
under international law’ involving a denial of the right of existence
of entire human groups, a denial wh ich shocks the conscience of
mankind and results in great lo sses to humanity, and which is
contrary to moral law and to the spirit and aims of the United
Nations (Resolution 96 (1) of th e General Assembly, December
11th 1946). The first consequence ar ising from this conception is
that the principles underlying the Convention are principles which
428Application of the Convention on the Prevention and Punishment of the Crime of Genocide
(Bosnia and Herzegovina v. Yugoslavia) , Preliminary Objections, Judgment, I.C.J. Rep. 1996, p.
16, para. 30.
429
Ibid., p. 16, para. 31.
176 are recognized by civilized nati ons as binding on States, even
without any conventional obligation. A second consequence is the
universal character bo th of the condemnation of genocide and of
the co-operation required ‘in orde r to liberate mankind from such
an odious scourge’ (Preamble to the Convention).’ ( I.C.J. Reports
1951, p. 23.)
It follows that the rights and obligations enshrined by the
Convention are rights and obligations erga omnes . The Court
notes that the obligation each State thus has to prevent and to
punish the cr430 of genocide is no t territorially limited by the
Convention .
4.22 These observations apply, mutandis mutandis, to the 1965 Convention.
As was noted in the Memorial, the prohibition of ra cial discrimination has
431
attained the status of a peremptory norm of international law . The obligation
not to engage in racial discrimination undoubtedly binds all States regardless of
their participation in the 1965 Convention. A territorial limitation to the spatial
scope of the obligations in the 1965 Conven tion is no less inim ical to the object
and purpose of the 1965 Convention than for the Genocide Convention. As a
treaty obligation, it applies irrespective of where the State party acts.
4.23 In its Judgment on the merits in Application of Genocide Convention, the
Court affirmed its previous finding that , in the absence of an express limiting
provision, the obligations in the Genocide Convention extend to a State’s conduct
wherever it might occur:
The substantive obligations arisin g from Articles I and III are not
on their face limited by territory. They apply to a State wherever
it may be acting or may be able to act432 ways appropriate to
meeting the obligations in question .
430Ibid. (emphasis added).
431GM, para. 9.10.
432Case Concerning the Application of the Convention on the Prevention and Punishment of the
Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro) , Judgment, I.C.J. Rep.
2007, p. 68, para. 183.
1774.24 The obligation to prevent genocide in Article I, which the Court classified
as an obligation of conduc t, is engaged depending on th e “capacity to influence
effectively the action of persons lik ely to commit, or already committing,
genocide” 433. In respect of the prohibited acts in Article III of the Genocide
Convention, the Court found that the attri bution of the conduct to the respondent
434
State was the only link required fo r the obligation to be engaged . Exactly the
same principle applies in respect of the 1965 Convention. Russia has identified
no principle of law or policy that woul d support a different approach to ethnic
cleansing or ethnic discrimination in respect of a right to return. There is no such
principle of law or policy within or without the 1965 Convention to assist Russia.
4.25 Apart from the Court’s opinion in Construction of a Wall , the only other
authority relied upon by Ru ssia to support its argument that “obligations under
CERD as a general matter only apply on the territory of the State parties” is the
435
Judgment of the European Court of Human Rights in Banković . The situation
in Banković is, however, readily distinguishable from the present case in a
number of important respects.
4.26 First, the European Convention on Human Rights is a regional human
rights instrument that forms an essential part of the broader project for European
integration. The regional aspect of the Eu ropean Convention is emphasized in its
preamble: “Being resolved, as the governme nts of European countries which are
like-minded and have a common heritage of political traditions, ideas, freedom
and the rule of law, to take the first steps for the collective enforcement of certain
of the rights stated in the Universal Declaration”. In Banković, the impugned
conduct of the seventeen respondent States was the military air strikes carried out
433
Ibid., p. 154, para. 430.
434Ibid., p. 136, para. 379.
435
Banković et al. v. Belgium et al ., Eur. Ct. H.R. Application. No. 52207/99 (2001), 41 ILM.
517.
178by NATO forces on the build ing in Belgrade that hous ed the studios of Radio
Television Serbia. This attack caused the death and injury of many civilians. The
Federal Republic of Yugoslavia, as it wa s referred to in the Judgment, was not
and never had been a Contracting Party to the European Convention. It was not,
therefore, part of the “ espace juridique ” of the European Convention.
Understandably, the European Court in Banković interpreted the reference to
“jurisdiction” in Article 1 of the European Convention by reference to its object
and purpose as a regional instrument for the collective enforcement of certain
human rights by countries with a “common heritage”. Consistent with this
approach is the express stipulation, in Article 54 of the European Convention,
that the Convention is not automatically a pplicable to all of the territories for
whose international relations a Contracting Party is responsible. That extension
must be upon the express election of the Contracting Party in question.
4.27 In contrast to the European Convention, the 1965 Convention was
designed to have universal applicati on. There is no underlying geographical
limitation to the object and purpose of the 1965 Convention. There is no
equivalent to Article 54 of the European Convention in respect of the extension of
the 1965 Convention to overseas territories and the like, and such a provision in a
universal instrument such as the 1965 Convention would be nonsensical. There is
no equivalent to the preambular language.
4.28 Second, in cases where a Contracting Party to the European Convention
has committed human rights violations on the territory of another Contracting
Party (and thus within the “ espace juridique” of the European Convention), the
European Court has interpreted the refere nce to “jurisdiction” in Article 1 to
extend to such violations. The key part of the judgment in Banković was
overlooked by Russia in its Preliminary Objections:
179 It is true that, in its above-ci ted Cyprus v. Turkey judgment [] the
Court was conscious of the need to avoid ‘a regrettable vacuum in
the system of human-rights pr otection’ in Northern Cyprus.
However, and as noted by the Governments, that comment related
to an entirely different situation to the present: the inhabitants of
northern Cyprus would have found themselves excluded from the
benefits of the Convention safeguards and system which they had
previously enjoyed, by Turkey’s ‘effective control’ of the territory
and by the accompanying inability of the Cypriot Government, as
a contracting state, to fulfil the obligations it had undertaken under
the Convention.
In short, the Convention is a mu ltilateral treaty operating, subject
to Art. 56 of the Convention, in an essentially regional context and
notably in the legal space ( espace juridique) of the contracting
states. The FRY clearly does not fall within this legal space. The
Convention was not designed to be applied throughout the world,
even in respect of the conduct of contracting states. Accordingly,
the desirability of avoiding a gap or vacuum in human rights’
protection has so far been relied on by the Court in favour of
establishing jurisdiction only when the territory in question was
one that, but for the specific circumstances, would normally be
covered by the Convention 436.
4.29 The situation in the pres ent case is analogous to the position facing the
European Court in Cyprus v. Turkey, and not the facts of Banković: Georgia was a
State Party to the 1965 Convention at the relevant time and has been prevented
from upholding its obligations under the 1965 Convention in respect of the areas
of Abkhazia and South Ossetia by virtue of Russia’s interventions. If Russia does
not answer for the unlawful practices of ethnic discriminati on taking place in
Abkhazia and South Ossetia then there will , in the words of th e European Court,
be “a regrettable vacuum in the system of human-rights protection ”. Indeed, the
CERD Committee has repeated ly recognized that Georgi a’s lack of control in
South Ossetia and Abkhazia has preven ted it from implementing the 1965
Convention in those territories:
436Ibid., para. 80.
180 The Committee acknowledges that Georgia has been confronted
with ethnic and political conflicts in Abkhazia and South Ossetia
since independence. Due to the lack of governmental authority,
the State party has difficulty in exercising its jurisdiction with
regard to the protection of human rights and the implementation of
437
the Convention in those regions .
4.30 Third, as has been noted in academic commentary, the applicants in
Banković were in effect arguing that the victims in Belgrade were simultaneously
within the jurisdiction of all seventeen respondent States . A finding by the
European Court to that effect would, in the words of one author, “have deprived
Article 1 of the Convent ion of all substance” 43. No such situation exists in the
present case in respect of Russia’s actions in South Ossetia and Abkhazia.
4.31 Russia makes extensive reliance on Banković for the obvious reason that
the other authorities do not a ssist it. It also invoked that authority in support of
the proposition that, in so far as it was not lawfully exercising jurisdiction in
South Ossetia and Abkhazia during the relevant periods, the obligations under the
1965 Conventions were not applicable to its conduct. Thus, for instance, Russia
maintains in respect of Article 5 of the 1965 Convention:
Given that a State may not, under international law, exercise
sovereign rights on foreign territory, unless specifically authorized
to do so, any such State is thus no t in a position to either prohibit
or eliminate racial discriminati on occurring abroad. Accordingly,
the text of Article 5 of CERD necessarily implies that the scope of
437U.N. Committee on the Elimination of Racial Discrimination, Concluding Observations of the
Committee on the Elimination of Racial Discrimination: Georgia, U.N. Doc. CERD/C/GEO/CO/3
(27 March 2007), para. 4. GWS, Vol. III, Annex 86. See also U.N. Committee on the
Elimination of Racial Discrimination, Concluding O bservations of the Committee on the
Elimination of Racial Discrimination: Georgia , U.N. Doc. CERD/C/304/Add. 120 (27 April
2001). GWS, Vol. III, Annex 66.
438
Christopher Greenwood, “Jurisdiction, NATO and the Kosovo Conflict” in Patrick Capps,
Malcolm Evans & Stratos Konstadinidis (eds), Asserting Jurisdiction: International and
European Legal Perspectives (2003), p. 167. GWS, Vol. IV, Annex 196.
181 application of Article 5 of CERD was thought to be limited to the
439
territory of a given contracting party… .
4.32 The purpose of the doctrine of prescrip tive or legislative jurisdiction is to
determine whether a State’s claim to regu late conduct is lawf ul. It would be
extraordinary if human rights obligations could be avoided if the State disavows a
legal right to regulate the conduct of pe rsons outside its national territory but in
fact takes action that infringes the human rights of those persons.
4.33 The Federal Republic of Yugoslavia advanced an argument similar to
Russia’s in Bosnian Genocide . According to the Fe deral Republic of
Yugoslavia’s pleading: “the Genocide Convention can only apply when the State
concerned has territorial jurisdiction in the areas in which the breaches of the
440
Convention are alleged to have occurred” . As has been noted, the Court
rejected this submission. In his oral su bmissions to the Court, the late Professor
Thomas Franck responded to this argume nt in the following terms on behalf of
Bosnia and Herzegovina:
Article IX nowhere suggests that the Convention’s obligations,
and this Court’s jurisdiction, arise only when genocide is
committed within the perpetrator’s territorial jurisdiction. States
are well-known to trespass where they have no jurisdiction, fish in
troubled waters, and by stealth, subterfuge or outright intervention
commit illegal acts, in this instance the very acts prohibited by the
Genocide Convention. The Intern ational Court of Justice has
jurisdiction over disputes arisin g out of allegations of such
violations perpetrated beyond the pe rpetrator’s jurisdiction. Were
it otherwise, the Convention would not be a relevant answer to
most of Hitler’s holocaust, which was carried out primarily outside
the borders of Germany 441.
439
RPO, para. 5.106.
440Application of the Convention on the Prevention and Punishment of the Crime of Genocide
(Bosnia and Herzegovina v. Serbia and Montenegro), Preliminary Objection Submission (June
1996), p. 129, para. C-1.
441
Verbatim Record, CR 1996/9 (1 May 1996), pp. 52-53 (Franck).
182The Court did not accept the propositioadvanced by the Federal Republic of
Yugoslavia.
4.34 Finally, for sake of completion, Russi a’s reliance on th e drafting history
of the 1965 Convention is also to no avail As Russia concedes, “‘Territorial
issues’ were discussed mainly with re spect to non-self-gov erning territ.ries”
It is impossible to understand how a faile d attempt by representatives of former
colonies to include an express provisi on to the effect that the 1965 Convention
applies to non-self-governing territories assists Russia’s position in this case. The
reason for the absence of a “colonial clause” in the final text of the 1965
Convention, as the references to the travaux préparatoires cited by Russia make
clear, was that the obligations undthe 1965 Convention applied to “colonial
territories” administered by a State Party as a matter of general international law.
No express stipulation to that effecwas required. Russia has provided no
evidence to show that the drafters of the 1965 Convention intended to limit its
spatial application in the sense proposed by Russia.
Section III. Russia’s Second Argument: “An Exceptional Basis for
Extraterritorial Application Does Not Apply to the Present Case”
A. THE EXTRATERRITORIAL A PPLICATION OFH UMAN R IGHTS TREATIES IS
NOT “EXCEPTIONAL ” OR CONFINED TO THE TWO GROUNDS CITED BY
RUSSIA
4.35 Russia’s second argument is stated as follows:
In the alternative, should this Court hold that even in the absence
of a treaty provision extending tspatial scope of obligations,
general international law provides for the extraterritorial
application of treaty obligations, instances of such
44RPO, paras. 5.39-5.46.
443
Ibid., para. 5.39.
183 extraterritoriality would be ex ceptional, and the present case
would not be covered by any of the exceptions 444.
4.36 According to Russia, the extraterritori al application of treaty obligations
must be viewed as “exceptional” for two reasons. The first is that “[i]nternational
practice, insofar as it is said to support a more liberal approach to the question, is
typically treaty-specific, i.e. it interprets the specific jurisdictional clause of a
445
given treaty” . Given that there is no international court with compulsory
jurisdiction over customary in ternational human rights ob ligations, it is hardly
surprising that “international practice” is focused upon the spatial scope of treaty
obligations in specific human rights inst ruments. But the reasoning of the UN
Human Rights Commission, the Inter-Ameri can Commission of Human Rights,
the European Court of Human Rights a nd this Court to justify an expansive
spatial interpretation of such treaty oblig ations, as has been previously shown,
does not simply rest upon a textual analysis of the particular treaty provision that
invokes the concept of jurisdiction. Rather, the Court and these other bodies have
relied upon the object and pur pose of the relevant trea ty as a universal human
rights instrument applyi ng universal values; they have invoked the
unconscionability of allowing State parties to commit vi olations of human rights
abroad where such violations would enga ge their international responsibility at
home; and they have eschewed an approach to interpreting the spatial scope of
human rights obligations that would inevitably accentuate the distinction between
citizens and non-citizens in the international protection of human rights.
4.37 The second reason given by Russia to interpret the extraterritorial
application of treaty obligations as “exceptional” is that “even instances of
international practice or jurisprudence frequently cited in support of some form of
extraterritoriality almost inevitably qualif y extraterritoriality as the exception to
444Ibid., para. 5.48.
445Ibid., para. 5.49(a).
184the recognised rule” 446. Once again, the only author ity that Russia can provide
for this proposition is Banković and this Court’s opinion in Construction of a
Wall. As was previously noted, Russia’ s reliance on these decisions is
misconceived.
4.38 Russia has articulated what it considers to be two bases for extraterritorial
application of human rights obligations:
As for potential general exceptions, two types of extraterritoriality
are commonly discussed: first, ac ts taken by a State’s diplomatic
and consular authorities on forei gn soil, and second the effective
447
control of a territory .
4.39 In its Preliminary Objections, Russia has also asserted by reference to the
Court’s opinion in Construction of a Wall and Judgment in Congo v. Uganda
that: “A glance at the Court’s jurisdicti on reveals that it has accepted arguments
based on ‘effective control’ only in very narrowly defined scenarios, and, in
particular, in situations of belligerent occupation” 448. If one is prepared to take
more that a “glance” at the Court’s ju risprudence, however, this assertion is
shown to be fallacious. Writing extra- judicially, and addressing the same
jurisprudence of the Court invoked by Russia, Judge Buergenthal summarised the
Court’s position as follows:
[I]t should be emphasized that the Court’s approach in interpreting
Art. 2(1) [of the ICCPR in the Wall Opinion] recognizes, albeit
obiter dictum , that the provision would also apply to certain
extraterritorial measures properl y speaking, that is, to those not
involving occupied territories.
That conclusion finds support, in the first place, in the Court’s
language. Thus, when the Court in Congo v. Uganda concludes
that international human rights in struments are applicable to acts
446
Ibid., para. 5.49.
447Ibid., para. 5.50.
448
Ibid., para. 5.51.
185 done by a State in the exercise of its jurisdiction outside its own
territory, it emphasizes that this is so ‘particularly in occupied
territories’. It is readily appare nt that the Court would not have
resorted to this formulation unless it believed that an
extraterritorial exerci se of jurisdiction can fall under Art. 2(1),
even if it takes place elsewhere than in occupied territories.
It is also clear from the manner in which the Court interprets Art.
2(1) that it proceeded on the as sumption that the exercise of
extraterritorial jurisdiction under that provis ion is not limited to
occupied territories. Thus, in the Wall Opinion , in which the
Court first addressed this issue, it relied on the object and purpose
of the Covenant and the “constant practice” of the Human Rights
Committee. For that practice, the Court cited three early
Committee rulings. Two of the cases concerned arrests of
Uruguayan nationals carried out by Uruguayan agents in
Argentina and Brazil. The third case involved the confiscation by
the Uruguayan consulate in Germ any of a passport belonging to
one of its nationals. In analyzing the Committee’s rulings that Art.
2(1) applied to these cases, the Court noted that “the travaux
preparatoires” of the Covenant confirm the Committee’s
interpretation of that instrument. That interpretation, of course, did
not involve occupied territories ; it concerned the exercise of
govern449tal powers by one State in the territory of another
State .
4.40 There is simply no author ity to support Russia’s argument that the only
grounds for the extraterritorial applicati on of human rights ob ligations are “acts
taken by a State’s diplomatic and consular authorities on foreign soil” or “the
effective control of a territory”450.
4.41 Neither ground was satisfied for the ex traterritorial ap plication of the
Covenant in Lopez v. Uruguay or Celiberti de Casariego v. Uruguay (decisions
referred to by the Court in Construction of a Wall). Neither ground was satisfied
449Thomas Buergenthal, “The ICJ, Human Rights and Extraterritorial Jurisdiction” in S.
Breitenmoser, et al., (eds), Human Rights, Democracy and the Rule of Law: Liber Amicorum
Luzius Wildhaber (2007), pp. 147-8. GWS, Vol. IV, Annex 197.
450RPO, para. 5.50.
186in Bosnian Genocide in respect of the applicati on of the Genocide Convention to
Serbia’s conduct on the territory of Bosnia and Herzegovina. Neither ground was
satisfied in Coard v. USA; indeed the Inter-American Court of Human Rights was
careful to avoid defining “presence with in a particular geographical area” as a
necessary condition for the extraterrito rial application of the American
Convention on Human Rights. According to the Inter-American Court, all that is
required is that the victim is subject to the respondent St ate’s “authority and
control”; hence the concept of jurisdiction was capable of…
refer[ing] to conduct with an ex traterritorial locus where the
person concerned is present in the territory of one state, but subject
to the control of another state – usually through the acts of the
latter’s agents abroad. In principle, the i nquiry turns not on the
presumed victim’s nationality or presence within a particular
geographic area, but on whether, under the specific circumstances,
the State observed the rights of a person subject to its authority
451
and control .
4.42 The European Court of Human Ri ghts has adopted a very similar
approach, including in decisions after Banković. In Issa v. Turkey, it was alleged
that the Turkish armed forces were responsible for killing Kurdish civilians in an
area of Northern Iraq. The European Cour t ultimately held that the applicants
could not establish the presence of the Turkish forces in the area in question
beyond reasonable doubt and hence that th ere was no jurisdiction pursuant to
452
Article 1 of the European Convention . But before so deciding, the European
Court endorsed a very wide conception of extraterritorial jurisdiction that goes
well beyond the two exclusive grounds asserted by Russia:
[A] State may also be held ac countable for violation of the
Convention rights and freedoms of persons who are in the territory
of another State but who are found to be under the former State’s
451Coard v. United States of America, para. 37.
452Issa and Others v. Turkey , Eur. Ct. H.R., Application No. 31821/96, Judgment (6 November
2004) paras. 76, 81, 82.
187 authority and control through it s agents operating – whether
lawfully or unlawfully – in the latter State (see, mutatis mutandis,
M. v. Denmark, application no. 17392/90, Commission decision of
14 October 1992, DR 73, p. 193; Illich Sanchez Ramirez v.
France, application no.28780/95, Commission decision of 24
June 1996, DR 86, p. 155; Coard et al. v. the United States , the
Inter-American Commission of Human Rights decision of
29 September 1999, Report No. 109/99, case No. 10.951, §§ 37,
39, 41 and 43; and the views adopted by the Human Rights
Committee on 29 July 1981 in the cases of Lopez Burgos v.
Uruguay and Celiberti de Casariego v. Uruguay, nos. 52/1979 and
56/1979, at §§ 12.3 and 10.3 respectively). Accountability in such
situations stems from the fact that Article 1 of the Convention
cannot be interpreted so as to a llow a State party to perpetrate
violations of the Convention on th e territory of another State,
which it could not perpetrate on its own territory (ibid.) .3
4.43 Likewise, neither of Russia’s tw o “exceptional” grounds for the
extraterritorial applicati on of an international huma n rights instrument would
have been satisfied in Öcalan v. Turkey, where Turkey had conceded before the
European Court of Human Rights that Mr. Öcalan was within its jurisdiction and
thus its obligations under the European Convention we re engaged when he was
handed over to Turkish officials by Kenya n authorities at Nairobi Airport in
Kenya 45.
4.44 To conclude, there is no authority to support Russia’s pos ition that there
are only two “‘exceptional” grounds for th e extraterritorial application of the
obligations under the 1965 Convention. To th e contrary, the leading decisions of
the International Court of Justice, the European Court of Human Rights, the Inter-
American Court of Human Rights, th e UN Human Rights Co mmission and the
CERD Committee itself all recognize that human rights obligations are capable of
453Ibid., para. 71.
454Öcalan v. Turkey, Eur. Ct. H.R., Application No. 46221/99, Decision as to Admissibility (14
December 2000).
188extending to any situation where a State party exercises power or authority over
victims outside the national territory of that State party.
B. IN THE ALTERNATIVE : RUSSIAE XERCISED “EFFECTIVE C ONTROL ” OVER
S OUTH O SSETIA ANDA BKHAZIA AT A LL M ATERIAL TIMES
4.45 In the alternative, Russia did exercise “effective c ontrol” over Abkhazia
and South Ossetia during th e relevant periods in rspect of which Georgia
advances claims against Russia un der the 1965 Conve ntion. In the Memorial,
Georgia presented voluminous and very de tailed evidence establishing Russia’s
effective control over Abkhazia and Sout h Ossetia during these periods. The
pertinent passages in the Memorial are cross-referenced in this subsection,
together with an analysis of the relevant jurisprudence on the test for “effective
control”. Georgia submits that the evidence already presen ted is more than
sufficient to establish “effective contro l” by Russia under the applicable legal
standards. The test of “effective contl” is a fact-intensi ve exercise and, as
matters stand, Russia has not provided a response in its Preliminary Objections to
the voluminous evidential materials concerning its control over thde facto
governments in South Ossetia and Abkhazia and those areas of Georgian
sovereign territory. This alone defeats Russia’s third preliminary objection.
4.46 If Russia were to come forward at the oral hearings on preliminary
objections with evidence to challengethe evidence submitted by Georgia in
regard to its “effectivecontrol” in South Ossetia and Abkhazia, its third
preliminary objection to the Court’s jurisdiction would sti ll fail. In such
circumstances, it would require the Court to engage in detailed fact-finding and
thereby cease to have an exclusively prel iminary character; pursuant to Article
79(7) of the Court’s Rules, Russia’s objection would have to be joined to the
merits and reserved for decision at that stage.
1894.47 Where international courts have applie d the test of eff ective control to
extend human rights obligations to areas outside the national territory of the
respondent State, they have done so in the merits phase of the proceedings. Thus,
455
for instance, in Ilaşcu v. Moldova and Russia , where the modalities of Russia’s
control over the Transdniestrian area of Moldova bear a striking resemblance to
those employed in respect of Abkhazia and South Ossetia 45, the extensive
findings of fact leading to the conclusion that Transdniestria was within Russia’s
effective control for the purposes of Artic le 1 of the European Convention were
set out in the European Cour t’s judgment on the merits in meticulous detail. In
determining the questions of fact on th is issue, the European Court even
appointed four of its judge s to conduct an on-the-spot investigation in Moldova
over five days 457. According to the Court, the purpose of that investigation was,
inter alia, “directed towards ascertaining the relevant facts in order to be able to
determine whether Moldova and the Russian Federation had jurisdiction,
458
particularly over the situation in Transdniestria…” .
4.48 Russia contends that its objecti on to the Court’s jurisdiction ratione loci
“does not require an analysis of disput ed facts and may accordingly be decided
459
without considering the merits of the case” . But if this is true, it is only
because the facts presented by Georgia es tablishing Russia’s “effective control”
in South Ossetia and Abkhazia have not yet been disputed by Russia; thus, if the
matter were to be decided at this stage, it would have to be decided against
Russia’s jurisdictional objection. Alterna tively, if Russia were to come forward
with evidence to dispute its “effective control” over South Ossetia and Abkhazia
455
Ilaşcu v. Moldova and Russia, Eur. Ct. H.R., Application No. 48787/99 (2004-VII) (hereinafter
“Ilaşcu v. Moldova and Russia”).
456
See GM, paras. 9.36-9.38.
457Ilaşcu v. Moldova and Russia, para. 12.
458
Ibid.
459RPO, para. 5.14.
190at the relevant time, then this would most certainly “require an analysis of
disputed facts” suitable for the merits pha se. There is nothing to the contrary in
the excerpt from the Court’s statement in Nicaragua v. Colombia quoted by
Russia:
In principle, a party raising prel iminary objections is entitled to
have these objections answered at the preliminary stage of the
proceedings unless the Court does not have before it all the facts
necessary to decide the questions raised or if answering the
preliminary objection would dete rmine the dispute, or some
460
elements thereof, on the merits .
4.49 This is the correct statement of principle. Contrary to Russia’s
submission, however, it is the proviso to the general principle identified by the
Court in this passage that applies to Ru ssia’s objection to the Court’s jurisdiction
ratione loci . If Russia were to come forw ard with evidence disputing its
“effective control” in South Ossetia a nd Abkhazia, it would be impossible to
make the detailed findings of fact requi red to dispose of the question in this
preliminary phase of the proceedings.
1. Russia’s Effective Control Over South Ossetia
4.50 As was set out in detail in Georgia’s Memorial, prior to August 2008,
Russia exercised control over South Osse tia through the appointment of Russian
security and military officials to key posts in the de facto government of South
Ossetia (including the Minister of Defence, the Secretary of the Security Council,
the Minister of Internal Affairs, the Chairman of the KGB, the Commander of the
State Border Guard and the Chairman of the Committee on State Control and
Economic Security). This control was reinforced by the total dependence of the
460RPO, para. 5.15; Territorial and Maritime Dispute (Nicaragua v. Colombia), Judgment, I.C.J.
Rep. 2007, para. 51.
191de facto government on economic and military aid from Russia, as well as
461
Russian control of the South Ossetian military forces .
4.51 The European Union’s Fact-Finding Mission confirmed that South
Ossetia was under Russia’s “ de facto control” prior to the commencement of the
ethnic cleansing in August 2008. It concluded: “Russia’s influence on and
control of the decision-making process in South Osseti a concerned a wide range
of matters with regard to the internal and external relations of the entity” 46. This
was especially the case with regard to the “security institutions and security
forces”, where the Mission found th at Russia had inst alled “Russian
representatives” to leadership positi ons. Russia’s “influence”, the Mission
concluded, was not only “decisive”, it was “systematic, and exercised on a
463
permanent basis” .
4.52 Notwithstanding the fact that Russia is currently in occupation of South
Ossetia, it is well established that effective control over an area by a foreign State
can be established by means other than by sustained military occupation. The
European Court of Human Rights has, fo r instance, determined that “a State’s
responsibility may be engaged where, as a consequence of military action –
whether lawful or unlawful – it exercises in practice effective c ontrol of an area
situated outside its national territory” 464.
4.53 In this situation, according to the European Court:
461GM, paras. 4.16-4.67. Russia intensified its control of South Ossetia even further following
the Court’s indication of provisional measures. GM, paras. 7.3-7.12.
462Independent International Fact-Finding Mission On the Conflict in Georgia, Report Vol. II
(September 2009) (hereinafter “IIFFMCG Report, Vol. II”), p. 133. GWS, Vol. III, Annex 121.
463
Ibid., pp. 132-133.
464Loizidou v. Turkey, Eur. Ct. H.R., Application No. 1531/89 (1996-VI) (hereinafter “Loizidou v.
Turkey”), pp.2234-35, para. 52 (emphasis added); Ilaşcu v. Moldova and Russia (2004), para.
314.
192 The obligation to secure, in such an area, the rights and freedoms
set out in the Convention derives fr om the fact of such control,
whether it be exercised dire ctly, through its armed forces, or
465
through a subordinate local administration… .
4.54 In such a case, the foreign State’s human rights obligations are not
engaged merely in respect of the acts of its armed forces stationed in the areas of
the other State, or the acts of its officials who are exercising authority in those
areas, but also extend “to acts of the local administration which survives by virtue
466
of its military and other support” .
4.55 The European Court of Human Rights has further clarified that the foreign
State’s obligations might be engaged by reason of the “acquiescence or
connivance of the authorities of a Cont racting State in the acts of private
individuals which violate the Convention rights of other individuals within its
467
jurisdiction” . According to the European Court:
That is particularly true in th e case of recognition by the State in
question of the acts of self-procl aimed authorities which are not
468
recognised by the international community .
4.56 As the European Court has noted, it is not necessary to establish that a
State “actually exercises de tailed control over the policies and actions of the
authorities in the area situated outside its national territory” because “even overall
control of the area” may engage that State’s oblig ations under international
469
human rights law .
465
Ilaşcu v. Moldova and Russia, para. 314 (emphasis added).
466Ibid., p. 74, para. 316; Cyprus v. Turkey, Eur. Ct. H.R., Application No. 25781/94 (2001-IV)
(hereinafter “Cyprus v. Turkey”), p. 21, para. 77.
467Cyprus v. Turkey, p. 21, para. 81; Ilaşcu v. Moldova and Russia, p. 74, para. 318.
468
Ilaşcu v. Moldova and Russia, p. 74, para. 318.
469Loizidou v. Turkey, pp. 2234-35, para. 56; Ilaşcu v. Moldova and Russia, p. 74, para. 315.
193 2. Russia’s Effective Control Over Abkhazia
4.57 As documented in Georgia’s Memorial, the means by which Russia has
exercised effective control over Abkhazia are very similar to the situation in
South Ossetia. Russia has exercised decisive influence over the de facto
government in Abkhazia both before and after the August 2008 military
hostilities: key posts in the administration have been held by Russian officials;
there is a total dependence of the de facto government upon Russia for economic
aid and supply of military equipment; a nd the vast majority of the population
470
have been granted Russian citizenship . This has intens ified since August
2008 471.
4.58 As with South Ossetia, the EU Fact -Finding Mission c onfirmed that the
de facto authorities in Abkhazia are domin ated by Russia, fi nding that its
“policies and structures, particularly its security and defence institutions” are “to
a large extent under control of Moscow” 472. Likewise, the International Crisis
Group, recently assessing Russia’s domin ance over Abkhazia, observed that
Abkhazia is “more dependent than ever on Moscow”, including in the “military
and economic” spheres, and that “Ru ssia is open about its overwhelming
473
control” .
470
GM, paras. 6.58-6.80.
471GM, paras. 7.3-7.12.
472
IIFFMCG Report, Vol. II, p. 134. GWS, Vol. III, Annex 121.
473International Crisis Group,Abkhazia: Deepening Dependence (26 February 2010), p. 16.
GWS, Vol. IV, Annex 194.
194 3. Russia’s Response to the Evidence Presented in Georgia’s Memorial on
Russia’s Effective Control Over South Ossetia and Abkhazia
4.59 Against the detailed evidence of Russia’s control over South Ossetia 474
475
and Abkhazia set out in Georgia’s Memorial, Russia has responded with a
single self-serving statement:
[T]he number of troops deployed in Abkhazia and South Ossetia,
when compared to other instances such as the northern part of
Cyprus, was at all relevant times, i.e. prior to the seising of the
Court on 12 August 2008, so limited that no effective control
could be exercised, and indeed no such control was ever exercised
over the two territories by the Russi an Federation. Besides, those
troops that entered the territory on 8 August 2008, were actively
involved in combat activities against the illegal Georgian offensive
which again excludes any ability to exercise effective control and
even less be an occupying power 47.
4.60 Russia has not, therefore, taken issue with the evidence presented in
Georgia’s Memorial on its control over the relevant areas of Georgia. Instead, it
asks the Court to conclude, purely on the basis of a comparison of the numbers of
Turkish troops in Northern Cyprus, on the one hand, and Russian troops in
Abkhazia and South Ossetia, on the other, that Russia had no effective control
over those areas. In the second senten ce of this quotati on, Russia carefully
sidesteps a central allegation made against it by Georgia; viz. immediately after
the cessation of hostilities on 10 August 2008, Russian forces engaged in ethnic
cleansing and other acts of ethnic disc rimination against Georgians in South
Ossetia and Abkhazia.
474
GM, paras. 4.16-4.57, 7.3-7.12.
475GM, paras. 6.58-6.80, 7.3-7.12.
476
RPO, para. 5.71.
1954.61 That Russia has sought to deflect attention from the conduct of its military
forces immediately after the cessation of hostilities is evident from the opening
sentences of the very next paragraph of its pleading:
Immediately after the end of hostil ities, all the additional forces
started to withdraw. Both Abkh azia and South Ossetia requested
the continued presence of a limited number of Russian troops on
their territory, on which issue bilateral agreements have been
concluded, circumscribing the lim ited functions those troops may
exercise 47.
4.62 The assertion in the first sentence is completely contradicted by the
contemporaneous evidence presented in Georgia’s Memorial 478. The assertion in
the second sentence is surely irrelevant to the question of Russia’s effective
control. No doubt Turkey, as the only country that has recognised the
independence of the Turkish Republic of Northern Cyprus (TRNC), has a series
of bilateral agreements with the TRNC including in relation to the Turkish forces
situated there. The fact that Russia has resorted to the same fig leaf of legitimacy
has no bearing upon the question of fact as to whether it is exercising effective
control over South Ossetia and Abkhazia and indeed the European Court had
scant regard to Turkey’s formal justifications relating to the presence of its troops
in Northern Cyprus in Cyprus v. Turkey . The so-called bilateral agreements
between Russia and South O ssetia and Abkhazia cannot de fine the functions of
the Russian troops for the purposes of the Court’s adjudication of the reality of
their impact upon Russia’s control over South Ossetia and Abkhazia.
4.63 Russia’s pleading continues:
The number (approximately 2500 in each Republic), functions and
role of the Russian troops pres ent exclude any ability of the
477RPO, para. 5.72.
478See GM, paras. 3.17-3.117, 5.18-5.23,6.81-6.87, and Chapter VII.
196 Russian Federation to exercise overa ll effective control in either
Abkhazia or South Ossetia… 479
4.64 Leaving to one side the formal “f unctions and role” assigned to the
Russian troops in Abkhazia and South Ossetia, Russia does not explain why
“approximately 2500” troops in each of these areas would not be sufficient to
secure control in circumstances where (a) there is no other military force; (b) the
local militias of the de facto governments are subordinate to Russian command,
serving under Russian General Officer s; and (c) those militias are totally
dependent on Russia for ar mament, training and funding 480. The fact that South
Ossetia and Abkhazia have small populat ions – no more than 80,000 in South
Ossetia and just over 200,000 in Abkhazia th at are relatively concentrated since
large swaths of territory are uninhabited mountains – makes Russia troop strength
all the more adequate to achieve control.
4.65 In fact, there is good reason to believe that the Russian forces in South
Ossetia and Abkhazia are much stro nger than Russia suggests in the Preliminary
Objections. For example, the Chief of the Russian General Staff, General Nikolai
Makarov, stated that the “Russian military bases” in Abkhazia and South Ossetia
481
“already have full contingents of 3,700 personnel each” . And military analysis
of satellite imagery suggests that Russian troop strength in Abkhazia is actually in
482
the range of 4,000-5,000 . Of course, it is impossi ble to obtain an accurate
number of Russian forces since Russia ha s barred all international monitors from
accessing South Ossetia and Abkhazia 483.
479RPO, para. 5.72.
480See infra, paras. 6.7-6.10; GM, paras. 4.16-4.57, 6.58-6.80, 7.3-7.12.
481
GM, para. 7.4.
482International Crisis Group, Abkhazia: Deepening Dependence (26 February 2010), p. 3.
483See infra, paras. 6.40-6.43.
1974.66 In sum, Russia has submitted nothing of substance to challenge the
extensive evidence presented by Georgia establishing Russia’s effective control
in South Ossetia and Abkhazia during the periods that the breaches of obligations
under the 1965 Convention that Georgia attributes to Russ ia are alleged to have
484
occurred .
Section IV. Russia’s Analysis of Its Obligations Under the 1965 Convention
4.67 In Sections III, IV and V of Chapter 5 of its Preliminary Objections ,
Russia has purported to provide an analysis of the i ndividual obligations upon
which Georgia’s claims are founded in orde r to demonstrate that they are limited
in application to Russia’s national territor y. In the main, these sections present
little more than unsupported assertions about the alleged inherent spatial scope of
the individual obligations, and no purpose would be served in providing a rebuttal
to each and every point made by Russia. Russia’s attempt to extract limitations on
this Court’s jurisdiction ratione loci from a highly artificial and selective textual
analysis of the individual obligations is entirely refuted by Georgia’s submissions
in Sections II and III of this Chapter concerning the spatial scope of the 1965
Convention generally. The ordinary meaning of the 1965 Convention, having
regard to its object and purpose, is clearly supportive of Georgia’s approach.
4.68 To the limited extent that Russia has sought to refe r to materials such as
the travaux préparatoires in support of its arguments, such references have been
made, without exception, to words in those materials taken out of context. There
484
Even if “effective control” were held to be a requirement for the extraterritorial application of
the 1965 Convention, such a requirement would only make sense in relation to the positive
obligations contained therein. A positive obligation requires the State to “assure” or “guarantee”
certain rights for all those within its jurisdiction against violation by the State and non-State
actors. A negative obligation requires the State to respect human rights: its organs and agents
must not commit human rights violations. Hence Georgia’s claims based on the negative
obligations of the 1965 Convention would be preserved even if the Court were to find that: (i)
effective control is a jurisdictional requirement; a nd (ii) Russia did not exercise effective control
in South Ossetia and Abkhazia on the facts of the case.
198is nothing in the negotiating history that supports Russia’s approach. Georgia
will confine its present submissions to a rebuttal of Russia’s reliance upon such
materials.
A. A RTICLE 2(1)(A )OF THE 1965C ONVENTION
4.69 Russia states that:
The very purpose of this provision, as demonstrated by its drafting
history, was to bri ng autonomous entities such as (for example
State) railways, power or port authorities and local cultural
institutions within r each of the Convention. Any such entities,
however, are by their very nature , of a localized nature… This
confirms that Article 2 of CERD was485ant to cover acts within
the territory of the respective State .
4.70 In support of this assertion, Russia refers to a statement by Mr. Caportorti
at the Sixteenth Session of the Sub-Commission on Prevention of Discrimination
and Protection of Minorities. That statement is at Annex 2 to Russia’s
Preliminary Objections and it is clear that Mr. Caportorti was addressing the
distinction between “ public institutions ” and “ private organizations ”, not the
spatial scope of Article 2. The full st atement by Mr. Capotori, which is not
reproduced in Russia’s pleading, reads as follows:
Mr. CAPORTORTI assured Mr . Abran that the “public
institutions” referred to in sub-pa ragraph (a) were quite different
from private organizations which were dealt with in sub-paragraph
(c). Indeed, sub-paragraph (a) was intended to cover all public
activities and sub-paragraph (c), all private activities. Sub-
paragraph (a) encompassed not only organs which depended
directly on the central Governme nt, but also such autonomous
entities such as State railways, public power authorities and local
institutions86.
485RPO, para. 5.82 (citations omitted).
486
Ibid., Vol. II, Annex 2.
1994.71 Once again, Russia’s submission is ba sed on a selective reading of words
taken out of context. It inaccurately r ecords the examples of public institutions
given by Mr. Caportorti (he does not refer to “ port authorities” or “local cultural
institutions”), and it distorts the context in which those examples were given,
which was to ensure the drafting committee that the reference to “ public
authorities” and “ public institution” was broad enough to encompass “ not only
organs which depended on the central Government”.
B. A RTICLE 2(1)(B )OF THE 1965C ONVENTION
4.72 Russia quotes the following sentence from an academic commentary on
the 1965 Convention:
… sub-paragraph (b) simply intends to prevent persons or 487
organizations from getting the official support of the State .
Russia then adds its own clarification to this commentary:
which State is the territorial State where the persons or
organizations to be supported are located 48.
As Russia’s clarification does not appear in the commentary, it is difficult to
understand the basis upon which Russia makes the claim it does.
4.73 Russia again relies upon a statement by Mr. Caportorti, and again takes
his words out of context 489. In this instance, he wa s discussing the meaning of
“organizations” in the draft text of Article 2(1)(b). The full statement of Mr.
Caportorti, which once again was not extr acted in Russia’s pl eading, reads as
follows:
487Ibid., para. 5.86 (emphasis by RPO; citation omitted).
488Ibid., para. 5.86.
489
Ibid., para. 5.88.
200 Mr. CAPORTORTI said that even with Mr. Ivanov’s amendment,
sub-paragraph (b), which dealt with organizations, could also
include State organizations. Sub-paragraph (c) concerning officials
or agencies of the State should come before the present sub-
paragraph (b) to bring it into li ne with the decision taken by the
Sub-Commission at the beginning of its deba te to consider the
problem of discrimination from two basis aspects: first, the
prohibition placed on the State not to practise discrimination, and
secondly, the obligation assumed by the State to take the necessary
steps to prevent individuals and institutions within its territory
from practising such discrimination 490.
This statement can hardly be taken as an endorsement of Russia’s position on the
spatial scope of Article 2(1)(b).
4.74 Finally, Russia places importance upon the substitution of the word
“advocate” for “defend” in the draft text of Article 2(1)(b):
This lack of extraterritorial reach of Article 2, para. 2, lit. b) of
CERD is also brought out by the usage of the term
“defend/defender”. This term, which was used to replace the
broader term “advocate” in an ea rlier Brazilian proposal for what
491
was to become Article 2, para. 1, lit. b) of CERD… .
4.75 According to the travaux préparatoires relied upon by Russia, the
Brazilian amendment read:
Each State Party undertakes not to encourage, advocate or support
racial discrimination by any persons or organisations 49.
In the travaux préparatoires it is recorded, without fu rther explanation, that the
Brazilian amendment was withdrawn in favour of the following amendment
tabled by eighteen Latin American States, wh ich is reflected in the final text of
the 1965 Convention:
490
Ibid., Vol. II, Annex 3.
491Ibid., para. 5.89.
492
Ibid., Vol. II, Annex 23, para. 45.
201 Each State Party undertakes not to sponsor, defend or support
493
racial discrimination by any persons or organisations .
4.76 Georgia fails to understand how the di screpancy between the wording in
each amendment can lead Russia to the conclusion that the final text is consistent
with a limited spatial scope for the ob ligation in Article 2(1)(b) of the 1965
Convention. Russia provides no explanation.
C. A RTICLE 5 OF THE 1965C ONVENTION
4.77 Russia refers to the CERD Commi ttee’s “General Recommendation 20:
Non-discriminatory implementation of rights and freedoms (Article 5)” in support
of its argument that the scope of Article 5 is limited to the national territory of the
State party. It quotes fro m paragraph 3 of the Recommendation, which reads as
follows:
3. Many of the rights and freedoms me ntioned in article 5, such as
the right to equal treatment before tribunals, are to be enjoyed by
all persons living in a given State; others such as the right to
participate in elections, to vote and to stand for election are the
494
rights of citizens .
4.78 Russia’s makes the following deduction from this paragraph:
While the main point addressed in para. 3 of General
Recommendation 20 is possible distinctions between citizens and
non-citizens, its reference to in dividuals present in a given
territory nevertheless confirms that Article 5 of CERD is to be
applied solely to ‘all persons living in a given State’, i.e. the rights
guaranteed by Article 5 of CERD are to be guaranteed by the
territorial State concerne495nd thos e individuals that are living on
the territory of this State .
493
Ibid., para. 46.
494RPO, para. 5.114.
495
RPO, para. 5.115.
2024.79 Russia’s deduction is not merely te nuous: it is simply wrong. It is
impossible to interpret the words “ living in a given State ” in a paragraph
addressing the distinction between citizens and non-citizens (as Russia concedes),
as a statement by the CERD Committee th at Article 5 as a whole only applies
within the national territory of the State Party. Against this deduction stands, of
course, the actual practice of the CERD Committee, which has not hesitated to
examine the compliance of State Partie s with their obliga tions under the 1965
Convention in respect of conduct outside their own national territories.
4.80 In conclusion, Russia’s reliance on the travaux préparatoires, the CERD
Committee’s General Recommendation 20 and academic commentary exposes
the poverty of its arguments in respect of the spatial scope of the individual
obligations in the 1965 Convention.
Section V. Conclusion
4.81 In conclusion, general international law recognizes the extraterritorial
application of human ri ghts obligations of the kind reflected in the 1965
Convention where they arise in human rights instruments of a universal character
in the circumstances of this case. The pertinent international jurisprudence has
consistently recognized that human ri ghts obligations apply to a State’s
extraterritorial conduct whenever it exercises power or authority over the victims
of that State’s alleged human rights viol ations. In the alternative, Georgia
submits that one of the grounds of ex traterritorial application of the 1965
Convention acknowledged by Russia, viz. “the effective cont rol of a territory”,
was plainly satisfied in respect of Russia’s conduct in South Ossetia and
Abkhazia during the relevant times.
203 CHAPTER V.
RUSSIA’S FOURTH PRELIMINARY OBJECTION: LACK OF
JURISDICTION RATIONE TEMPORIS Section I. Introduction
5.1 In Chapter VI of its Preliminary Objections, the Russian Federation deals
with what is described as its fourth pr eliminary objection. As presented, this has
three elements or strands:
− “[t]o alert the Court to a tension”, viz. the tension between Georgia’s
emphasis on events in the 1990s and th e fact that it “is seeking relief
from the Court only with respect to acts occurring after – or with
continuing effect from” 2 Ju ly 1999, the date when the 1965
Convention entered into force with respect to Georgia 49;
− “[t]o identify to the Court” the alleged fact that Georgia seeks
497
remedies with respect to events prior to 2 July 1999 ;
− “to recall” that the Court cannot deal with facts or ev ents subsequent
498
to the filing of the Application .
5.2 This is more properly described as a series of observations as to the
alleged scope of the remedies sought by Ge orgia. Strictly speaking it is not a
preliminary objection at all. In calling on the Court to record “tensions”, to
“identify” pretended insights, and to “r ecall” matters more or less relevant or
accurate is to treat the Court as a therapist rather than an adjudicator.
5.3 Before dealing with the individual points made by the Russian Federation,
the legal position under the 1965 Convention must be identified.
5.4 The Convention was adopted by Gene ral Assembly resolution 2106 (XX)
of 21 December 1965 – only the second universal human rights treaty in history,
496
Preliminary Objections of th e Russian Federation, Vol. I (1December 2009) (hereinafter
“RPO”), para. 6.2(a).
497Ibid., para. 6.2(b).
498
Ibid., para. 6.2(c).
207 499
after the Genocide Convention . Of the Genocide Convention, it will be
recalled, the Court said:
The Convention was manifestly adopted for a purely humanitarian
and civilizing purpose. It is indeed difficult to imagine a
convention that might have this dua l character to a greater degree,
since its object on the one hand is to safeguard the very existence
of certain human groups and on th e other to confirm and endorse
the most elementary principles of morality. In such a convention
the contracting States do not have any interests of their own; they
merely have, one and all, a common interest, namely, the
accomplishment of those high purposes which are the raison d'être
of the convention. Consequently, in a convention of this type one
cannot speak of individual advantag es or disadvantages to States,
or of the maintenance of a perf ect contractual balance between
rights and duties. The high ideals which inspired the Convention
provide, by virtue of the common will of the parties, the
foundation and measure of all its provisions 500.
The Court’s approach applies mutatis mutandis to the 1965 Convention, with all
501
that implies for the force of Russia’s fourth preliminary objection .
5.5 The Russian Federation (sub. Nom. the USSR) became a party to the 1965
Convention by ratification on 4 February 1969, just a month after the Convention
entered into force. The Russian reservation to Article 22 was withdrawn on 8
March 1989. It follows that as from 4 February 1969, conduct by the Russian
Federation contrary to its obligations under the Convention was unlawful erga
omnes, and not merely on a bilateral basis vis-à-vis individual States. Unlike a
multilateral convention on extradition or consular relations, the 1965 Convention
499The 1951 Refugee Convention is arguably a human rights treaty (although generally not
expressed in terms of rights). But until the adoption of the Refugee Protocol in 1967, it was not
universal in scope.
500Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide,
Advisory Opinion, I.C.J. Rep. 1951, pp. 15, 23.
501
As the Court effectively acknowledged in its famous dictum in Barcelona Traction, Light and
Power Company, Limited (Belgium v. Spain), I.C.J. Rep. 1970, pp. 3, 32, paras. 33-35.
208is not just a delivery vehicle for bundles of bilateral relations. It is a treaty of
constitutional significance in terms of the values it enacts.
5.6 Thus if it is true that Georgia wa s not qualified as a party to the 1965
Convention, prior to its accession on 2 June 1999, to invoke the responsibility of
the Russian Federation for conduct which was contrary to th e terms of the 1965
Convention, that conduct rema ined objectively unlawful. This is quite different
from the ordinary case of temporal application of a new treaty, where conduct
which was previously perf ectly lawful becomes unlawful for the first time by
virtue of the entry into force of the treaty. The Russian Federation was not
entitled to discriminate against ethnic Georgians merely because Georgia’s status
viz-à-viz the 1965 Convention was still unsettled.
5.7 But even in the ordinary case of a ne w treaty obligation, it is established
that a State which becomes a party to a treaty at a later date has standing to
complain of conduct in breach of the trea ty which occurs or continues to occur
after that date. The 1965 Convention contai ns no reservation – such as that in
502
Phosphates in Morocco – precluding consideration of events prior to its entry
into force, either in general or for a gi ven Applicant State. That would be true
even if these events were at first perf ectly lawful; unless the treaty otherwise
provides, such conduct if persisted in or maintained after the entry into force of
the treaty is now prohibited. The position is a fortiori if the conduct when it first
occurred was unlawful under the very same treaty.
5.8 Fundamentally, the Parties disagree as to the characterisation of ethnic
cleansing, ethnically-motivated violence aimed at the displacement of whole
populations from their homes and lands. For Georgia, the “disappearance” of a
502Phosphates in Morocco (Italy v. France) , Preliminary Objections, Judgement, 1938, P.C.I.J.
Series A/B, No. 74. The jurisdictional reservation there referred to “any disputes which may arise
after the ratification of the present declaration with regard to situations or facts subsequent to this
ratification”.
209whole population (or many members of one) is no less a continuing wrongful act
than the disappearance of an individual has been held to be 50. The 1965
Convention does not make neat distincti ons between conduct which began prior
to its entry into force for a given State Party and conduct performed subsequently.
For example a person expelled on racial grounds prior to the entry into force of
the 1965 Convention for the expelling State is still entitled under Article 5(d)(ii)
to return if the 1965 Convention has since entered into force fo r that State: his
“country” did not cease to be such just b ecause he was expelled from it at a time
504
when the 1965 Convention was not yet in force . Precisely the same
consideration applies if what has been expelled is a population, a large group of
people. The 1965 Convention is as prot ective of ethnic groups as it is of
individuals.
5.9 The situation Georgia faced on 2 July 1999 was that many Georgians,
long-time residents of Abkhazia and South Ossetia, had been driven out of their
homes and towns solely on grounds of their ethnicity. In consequence they were
being denied many of the rights referred to in Article 5 of the 1965 Convention.
Georgia says that this situation, present and pressing on 2 July 1999, is the
responsibility of the Respondent State, wh ich at all relevant times has been a
party to the 1965 Convention and thus bound not to discriminate against these
people. The Russian Federation, through its own conduct as well as that of others
under its direction or control, has discriminated on prohibited grounds in securing
the exclusion of these people and continues to do so in preventing their return. It
is as simple as that.
503On disappearance as a continuing wrongful act, see, e.g., Cyprus v. Turkey, no. 25781/94, Eur.
Ct. HR. (2001), 120 ILR 12, pp. 57- 59, paras. 150, 157-8.
504
Cf. Loizidou v. Turkey, no. 1531/89, Eur. Ct. HR. (1996), 108 ILR 433, pp. 460-461, paras. 41-
42.
2105.10 Against this essential background, Geor gia will comment briefly on each
of the observations maintained as part of the fourth preliminary objection.
Section II. Failure to Implement the Right of Return and Otherwise to
Comply with the 1965 Convention
5.11 The first of these observations concerns the implications for the case of a
conclusion that the 1965 Convention has no retrospective effect. According to
the Russian Federation:
It follows that CERD can have no application as between Russia
and Georgia in respect of conduct relied on by Georgia taking
place before 2 July 1999... 505
Georgia agrees that the 1965 Convention, which entered into force for the
Respondent State in 1969, has no retrospe ctive effect. But the issue of
retrospectivity does not arise in this case: at all material times the 1965
506
Convention was in force for the Respondent State . Georgia also accepts, for
the purposes of these proceedings, that it was not in a position to invoke the 1965
Convention in respect of breaches comple ted prior to its entry into force for
Georgia on 2 July 1999. But it is not doi ng so. Rather it a sserts a continuing
violation by the Russian Federation of its obligations under the 1965 Convention,
including Article 5, in relation to a situ ation which in no way was completed or
resolved prior to 2 July 1999. In fact it remained uncompleted and unresolved –
that is to say, it c ontinued – right up through the filing of the Application on 12
August 2008, and beyond. The violations of the Convention in respect of
enforced expulsion or the prevention of a right to return on grounds of ethnicity
are continuing violations, in the same wa y that, as the Inter-American Court of
505RPO, para. 6.4, citing Vienna Convention on the Law of Treaties, Art. 28.
506
Cf. International Law Commission, Articles on State Responsibility of State for Internationally
Wrongful Acts, Yearbook of the International Law Commission, with Commentaries, Vol. I, Part
One (2001), Art. 13.
211Human Rights put it in the case of Velasquez Rodriguez v. Honduras, the “forced
disappearance of human beings is a multiple and continuous violation of many
rights under the Convention that the States Parties are obligated to respect and
guarantee”. 507The same tens of thousands of ethnic Georgians who were
collectively expelled from the territories in question prior to July 1999 were
prevented by the Russian Federation from returning thereafter, and these same
victims of ethnic discrimination continue to be prevented from exercising their
right of return to the present day.
508
5.12 There is no “tension” between a historical account of how ethnic
cleansing occurred – paraphrased by the Respondent as “events in the 1990s” –
and a request for remedies for the future . The position of Georgians expelled
from the territories in question and deni ed the right of return is not a mere
function of history; it was, in Geor gia’s submission, the result of conduct
attributable to the Respondent, contra ry to the 1965 Convention, and which the
Respondent continues to commit and/or condone. That submission has to be
proved, of course, if the App licant State is to succeed. But that is a matter that
can only be addressed at the merits stage of this case. For the purposes of these
preliminary objections, the factual record set out in the Application, amplified in
the Memorial and summarised in Chapters II to IV above is sufficient of itself to
warrant the conclusion that the conduct in question “falls within” or “falls under”
the 1965 Convention, as in force for the parties at relevant times 50.
507Case of Velasquez Rodriguez, Judgment, IACHR, Series C, No. 4 (29 July 1988), para. 155.
508RPO, para. 6.2(a).
509
Cf. Oil Platforms (Islamic Republic of Iran v. United States of America) , Preliminary
Objection, Judgment, I.C.J. Rep. 1996, pp. 803, 810, para. 16; ibid., p. 855, para. 30 (Judge
Higgins, sep. op.).
212 Section III. The Remedies Sought by Georgia
5.13 The Russian Federation’s second obser vation involves “identifying to the
Court” the alleged fact that Georgia seeks remedies with respect to events prior to
2 July 1999 510. In fact Georgia does not do so.
5.14 Five submissions, each of them remedial, are set out in the Memorial.
They are as follows: 511
(1) First, Georgia seeks a declaration:
that the Russian Federa tion, through its State
organs, State agents and other persons and entities
exercising governmental authority, and through
the de facto governmental authorities in South
Ossetia and Abkhazia and militias operating in
those areas, is responsi ble for violations of
Articles 2(1)(a), 2(1)(b), 2(1)(d), 3 and 5 of the
1965 Convention by the following actions: (i) the
ethnic cleansing of Geor gians in South Ossetia;
(ii) the frustration of the right of return of
Georgians to their homes in South Ossetia and
Abkhazia; and (iii) the de struction of Georgian
culture and identity in South Ossetia and
Abkhazia;
This must be read alongside th e statement in the Introduction to
the Memorial that Georgia “is seeking relief from the Court only
with respect to acts occurring after – or with continuing effect
from – the date when Georgia itself became a State party to the
512
1965 Convention, 2 June 1999” . On that basis an award of, for
example, compensation in respect of pre-1999 injuries is not being
claimed.
(2) The second declaration sought by Georgia concerns breaches by
the Respondent State of the Court’s Provisional Measures Order of
510
RPO, para. 6.2(b).
511Memorial of Georgia (2 September 2009) (hereinafter “GM”), p. 407.
512
Ibid., para. 1.13.
213 15 October 2008, and obviously presents no ratione temporis
difficulty.
(3) The third declaration sought by Georgia concerns cessation of
breaches, as well as assurances and guarantees of non-repetition.
Both remedies are forward looking, and again present no ratione
temporis problem.
(4) The fourth declaration is conc erned about restitution of the status
quo ante, in particular, the obligation to take “prompt and effective
measures to secure the return of the internally displaced Georgians
to their homes in South Ossetia and Abkhazia”. The Convention
expressly imposes such an obliga tion, viz., not to discriminate
against persons on racial (inclu ding ethnic) grounds in respect,
inter alia, of their right to return to their homeland; in this respect
it too is forward-looking.
(5) The fifth and final declaration s ought concerns compensation for
the above breaches; if items (1)-(4) create no ratione temporis
difficulties, then neither does item (5) which merely refers back to
them.
5.15 For these reasons, the remedies sought fall well within the scope of the
dispute submitted to the Court and present no ratione temporis problem for the
exercise of the Court’s jurisdiction.
Section IV. Facts or Events Subsequent to the Application
5.16 The third strand of the Russian Fede ration’s fourth preliminary objection
takes the form of a reminder: the Russian Federation seeks “t o recall” that the
Court cannot deal with facts or even ts subsequent to the filing of the Application
unless those facts or events are connected to facts or events already falling within
the Court’s jurisdiction, and then only if c onsideration of the later facts or events
513
would not transform the ch aracter of the dispute . The Russian Federation
regards the first of these c onditions as “particularly re levant” here, and it denies
513RPO, para. 6.15.
214that Georgia has established that facts or events in existence prior to 12 August
514
2008 trigger the Court’s jurisdiction under Article 22 of the 1965 Convention .
5.17 An initial comment is that, at the preliminary objections stage, Georgia
does not have to prove the facts on which its Application is based; it is sufficient
that these are credibly asserted; questions of proof are for the merits.
5.18 In fact the principle stated by the Ru ssian Federation is too restrictive.
The position is that where the Court’s jurisdiction is based on a treaty, there is no
particular constraint on th e Court’s dealing with facts and events occurring after
the Application, provided that they too fall w ithin the scope of the Court’s
jurisdiction and do not involve the introduc tion of an entirely new claim in the
sense of the Court’s jurispr udence. The new facts must be related to the facts
pleaded in the Application: if they were unrelated they would not be part of the
same dispute. But the requirement of “continuity” or “connexity” is interpreted
rather flexibly and not – as the Russian Federation implies – rigidly.
5.19 The Russian Federation cites as its main authority for its restrictive
principle paragraph 87 of the Court’s Judgment of 4 June 2008 in Djibouti v.
France. The relevant passage reads as follows:
87. Although the Court has not f ound that France’s consent is
limited to what is contained in paragraph 2 of Djibouti’s
Application, it is clear from France’s letter that its consent does
not go beyond what is in that Application. Where jurisdiction is
based on forum prorogatum, great care must be taken regarding
the scope of the consent as circum scribed by the respondent State.
The arrest warrants against the tw o senior Djiboutian officials,
having been issued after the date the Application was filed, are
nowhere mentioned therein. When the Court has examined its
jurisdiction over facts or events subsequent to th e filing of the
application, it has emphasized the need to determine whether those
facts or events were connected to the facts or events already falling
514Ibid., para. 6.16.
215 within the Court’s jurisdiction a nd whether consideration of those
later facts or events would transf orm the ‘nature of the dispute’
(see Fisheries Jurisdiction (Fed eral Republic of Germany v.
Iceland), Merits, Judgment, I.C.J. Reports 1974 , p. 203, para. 72;
LaGrand (Germany v. United States of America), Judgment, I.C.J.
Reports 2001, pp. 483-484, para. 45; see also Certain Phosphate
Lands in Nauru (Nauru v. Australia), Preliminary Objections,
Judgment, I.C.J. Reports 1992 , pp. 264-267, paras. 69-70; and
Arrest Warrant of 11 April 2000 (Democratic Republic of the
Con515v. Belgium), Judgment, I.C.J. Reports 2002 , p. 16, para.
36) .
But the Court in that case declined to apply these flexible principles; instead it
took a strict view of the scope of the dispute, and did so explicitly on the ground
that the case was one of forum prorogatum; jurisdiction existed only as a result of
France’s voluntary submission and was ther efore limited to the exact terms of
that submission. As the Court said, in none of the cases cited:
was the Court’s jurisdiction founded on forum prorogatum …
[W]hat is decisive is that the question of its jurisdiction over the
claims relating to these arrest wa rrants is not to be answered by
recourse to jurisprudence relating to “continuity” and “connexity”,
which are criteria relevant for determining limits ratione temporis
to its jurisdiction, but by that which France has expressly accepted
in its letter of 25 July 2006.
5.20 In any event, the present claim fulf ils both the criteria for admissibility
which the Russian Federation has identified.
5.21 As to the first, it was demonstrated in Chapter 2 above that there existed a
dispute between the parties as to Russia’ s responsibility for breaches of the 1965
Convention prior to 12 August 2008. It is true that t hose breaches relate to a
course of Russian conduct stretching back to the early 1990s, but the conduct was
continuing, and it produced consequences – in terms especially of ethnic
515Case concerning Certain Questions of MutualAssistance in Criminal Matters (Djibouti v.
France), Judgment, I.C.J. Rep. 2008, p. 31, para. 87.
216cleansing – which themselves triggere d continuing obligations under the 1965
Convention which Russia conspicuously fa iled to observe. That being so (as
Georgia has shown), the Court has jurisdiction.
5.22 The Russian Federation accepts that, on this basis, the Court is entitled to
take into account, and to grant remedies w ith respect to, conduct attributable to it
which occurred after the filing of the Application and which is a breach of the
1965 Convention. It is right to do so. Thus for example in Cameroon/Nigeria
(Request for Interpretation), the Court said:
The Court indicated, in its J udgment of 11 June 1998, that the
limit of the freedom to present additional facts and legal
considerations is that there mu st be no transformation of the
dispute brought before the Court by the application into another
dispute which is different in char acter. Whether that is the case
ultimately has to be decided by the Court in each individual case
in which the question arises. With regard to Nigeria's sixth
preliminary objection, the Judgment of 11 June 1998 has
concluded that ‘[i]n this case, Cameroon has not so transformed
the dispute’ (ibid., p. 319, para. 100) and that Cameroon’s
Application met the requirements of Article 38 of the Rules. Thus,
the Court made no distinction betw een ‘incident’ and ‘facts’; it
found that additional incidents constit ute additional facts, and that
their introduction in proceedings before the Court is governed by
the same rules 516.
5.23 The second limitation is that the subsequent facts mu st form part of the
same dispute which is the subject of th e Application, and must not introduce an
entirely new claim or dispute. Nauru’s claim with respect to the distribution of
the assets of the British Phosphate Comm issioners was held to be a new claim
which was not part of the dispute concerning rehabilitation of the phosphate lands
516Request for Interpretation of the Judgment of 11 June 1998 in the Case concerning the Land
and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria) , Preliminary
Objections, Judgment, I.C.J. Rep. 1999, p. 31.
217 517
mined by the Commissioners; hence inadmissible . But it should be stressed,
again, that the Court has a pplied this condition flexibly. Thus in a dispute of
principle about fisheries jurisdictio n, Germany could claim compensation for
518
post-Application harassment of its trawlers . In a dispute over an arrest warrant
issued against a serving Minister of Fore ign Affairs, the subsequent dismissal of
519
the Minister did not affect the C ourt’s jurisdiction over the dispute . And a
claim for breach of a provisional measures order may be dealt with along with the
merits of the original claim, even t hough it will by definition involve important
520
new facts and even a new source of obligation . The latter point is highly
relevant here, given the Ru ssian Federation’s continuous breaches of the Court’s
provisional measures order, catalogued in Chapter VI.
5.24 In the present case, there has been no such transformation in the character
of the dispute by reason of Georgia’s reliance on events subsequent to its
Application. Although the intensity of the conflict increased markedly, its
character did not change. Ethnic discri mination, denial of rights including the
right of residence and the right to enj oyment of property, etc., were features
before and after. Any other view w ould place a premium on post-Application
aggravation or escalation of the dispute.
517
Certain Phosphate Lands in Nauru (Nauru v. Australia), Preliminary Objections, Judgment,
I.C.J. Rep. 1992, pp. 264-267, paras. 69-70.
518
Fisheries Jurisdiction (Federal Republic of Germany v. Iceland), Merits, Judgment, I.C.J. Rep.
1974, p. 203, para. 72.
519Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium), Judgment,
I.C.J. Rep. 2002, p. 16, para. 36.
520LaGrand (Germany v. United States of America) , Judgment, I.C.J. Reports 2001, p. 466;
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), Judgment, I.C.J Rep. 2009, p. 16,
paras. 52-54.
218 Section V. Conclusion
5.25 To summarise, the facts and events on which Georgia relies fall within the
scope of the Court’s jurisdiction, as do th e remedies it seeks. For these reasons
the fourth preliminary objection of the Russian Federation should be dismissed.
219 CHAPTER VI.
RUSSIA’S ONGOING DISCRIMINATION AGAINST ETHNIC
GEORGIANS NOTWITHSTANDING THE COURT’S ORDER ON
PROVISIONAL MEASURES Section I. Introduction
6.1 In this Chapter, Georgia provides new information, covering the period
since the filing of the Memorial on 2 September 2009, regarding Russia’s
responsibility for ethnic discriminati on in South Osseti a and Abkhazia in
violation of the Court’s Order of 15 October 2008, as well as the 1965
Convention 521. This evidence shows that discrimination against ethnic Georgians
by Russia itself and the de facto regimes under its control has continued and even
increased.
6.2 In its Order of 15 October 2008, the Court indicated the following
provisional measures, in paragraph 149, sections A through D:
A. Both Parties, within South Ossetia and Abkhazia and adjacent areas in
Georgia, shall
(1) refrain from any act of racial discrimination against persons,
groups of persons or institutions;
(2) abstain from sponsoring, defending or supporting racial
discrimination by any persons or organizations;
(3) do all in their power, whenever and wherever possible, to
ensure, without distinction as to national or ethnic origin,
(i) security of persons;
(ii) the right of persons to freedom of movement and
residence within the border of the State;
521Georgia submits this Chapter in compliance with Paragraph 149(D) of the Order. Application
of the International Convention on the Elimination of All Forms of Racial Discrimination
(Georgia v. Russian Federation) , Provisional Measures, Order, I.C.J. Rep. 2008 (hereinafter
“Provisional Measures Order”).
223 (iii) the protection of the pr operty of displaced persons
and of refugees;
(4) do all in their power to ensu re that public authorities and
public institutions under their co ntrol or influence do not
engage in acts of racial disc rimination against persons, groups
of persons or institutions;
B. Both Parties shall facilitate, and refrain from placing any
impediment to, humanitarian assist ance in support of the rights to
which the local population are en titled under the International
Convention on the Elimination of All Forms of Racial
Discrimination;
C. Each Party shall refrain from any action which might prejudice the
rights of the other Party in respec t of whatever judgment the Court
may render in the case, or which might aggravate or extend the
dispute before the Court or make it more difficult to resolve;
D. Each Party shall inform the C ourt as to its compliance with the
522
above provisional measures .
6.3 The evidence presented below show s that Russia has continued to
discriminate against ethnic Georgians, in the period between the filing of
Georgia’s Memorial and this pleading, in the following specific respects:
1. Russia has continued to use its own military forces to prevent ethnic
Georgians, previously expelled from South Ossetia and Abkhazia,
from exercising their right of return to those territories, in violation of
522Provisional Measures Order, para. 149(A)-(D).
224 paragraph 149(A)(3)(ii) of the Order of 15 October 2008 and Articles
2, 3 and 5 of the 1965 Convention.
2. Russia has continued to use its military forces to prevent ethnic
Georgians still living in the Akhalg ori District of South Ossetia and
the Gali District of Abkhazia from freely crossing the de facto
administrative boundary with other part s of Georgia, in violation of
paragraph 149(A)(3)(ii) of the Order of 15 October 2008 and Articles
2, 3 and 5 of the 1965 Convention.
3. Russia has continued to support, sponsor and defend discrimination
against ethnic Georgians in Sout h Ossetia and Abkhazia by parties
under its control and infl uence, in violation of paragraph 149(A)(1),
(2) and (4) of the Order of 15 October 2008 and Article 2(1)(b) of the
1965 Convention.
4. Russia has refused to protect the property of displaced persons and
refugees from South Ossetia and Abkhazia, and has even appropriated
some of their property for its own use without offering compensation
of any kind, in violation of paragraph 149(A)(3)(iii) of the Order of 15
October 2008 and Articles 2 and 5 of the 1965 Convention.
5. Russia has continued to place impediments to access of ethnic
Georgians in South Ossetia and Abkh azia to humanitarian assistance
by blocking the entry into those territories of humanitarian and
international monitoring organiza tions, in violation of paragraph
149(B) of the Order of 15 October 2008.
225 Section II. Russia’s Use of Its Military Forces to Deny Ethnic Georgian
IDPs from Exercising Their Right of Return to South Ossetia and Abkhazia
6.4 In the Memorial, Georgia presented evidence showing that Russian
military forces serve as the border guard s in South Ossetia and Abkhazia, and
exercise control over all entry to and exit from those territories 523. Russia itself
informed the Court in April 2009 that South Ossetia and Abkhazia formally
ceded control over their administrative borders to Russia 524. In the period since
the filing of the Memorial, Russia has enhanced its control over these
administrative boundaries and has used it, inter alia, to prevent the return of
ethnic Georgians who were expelled from those regions during previous ethnic
cleansing campaigns.
6.5 Because of the restrictions impos ed by Russian border guards, the
Parliament of the Council of Europe (P ACE) found in its most recent report that
“the return of IDPs (inter nally displaced persons) to ethnic Georgian villages in
South Ossetia and Abkhazia is extrem ely difficult if not impossible...” 525. The
PACE explained:
… The situation is compounded by th e restrictions on freedom of
movement over the ABL [adminis trative boundary lines], which
has become increasingly more di fficult since the deployment of
[Russian] FSB Border guards in the framework of the co-operation
agreements that were signed be tween Russia and the de facto
authorities of these two regions 52.
523
See Memorial of Georgia (2 September 2009) (hereinafter “GM”), paras. 5.18-5.22, 6.83-6.86,
7.4-7.6, 7.36-7.51.
524Ibid., para. 7.5.
525
Council of Europe, Parliamentary Assembly, The war between Georgia and Russia: one year
after, Doc. No. 12010 (14 September 2009) (hereinafter, “PACE, Doc. No. 12010”), p. 8. Written
Statement of Georgia on Preliminary Objections (hereinafter “GWS”), Vol. III, Annex 117.
526
Ibid., p. 8. GWS, Vol. III, Annex 117.
226The PACE report concluded by urging Russi a to grant freedom of movement to
Georgian civilians over the administrative boundaries of the two regions and to
527
recognize the right of return of internally displaced persons .
6.6 Unfortunately, instead of recognizi ng the right of return of ethnic
Georgian IDPs, Russia has effectively el iminated it. An investigation by the
Special Representative of the UN Secret ary-General on Internally Displaced
Persons confirmed in January 2010 that “[ o]nly very few [ethnic Georgian] IDPs
have been able to return to the Tskhinvali region/South Ossetia” 528.
6.7 The return of ethnic Georgian IDPs to South Ossetia and Abkhazia has
been blocked by Russia itself. Since th e end of 2009, Russia has consolidated its
control over South Ossetia and Abkhazia’ s borders. In January 2010, President
Medvedev announced that Russia will hencefor th help South Ossetia to reinforce
its boundaries 529. He further stated that the reinforcement of South Ossetia’s
borders was “a priority goal of the border patrol agency in light of the obligations
Russia has undertaken” 530. A former Russian FSB officer in South Ossetia
explained Russia’s actual role in “reinforc[ing]” these boundaries:
[t]he border is controlled only by Russian border-guards. There are
no Ossetians at the border. … [T]he Ossetians, in fact, do not have
their own FSB. The only FSB f unctioning in South Ossetia is the
Russian one and the existence of any South Ossetian security
527Ibid., p. 8 and para. 11. GWS, Vol. III, Annex 117.
528
U.N. General Assembly, Human Rights Council, Report of the Representative of the Secretary-
General on the Human Rights of Internally Displaced Persons, Walter Kälin, Addendum, Follow
up to the Report on the Mission to Georgia (A/HRC/10/13/Add.2), U.N. Doc. A/HRC/13/21/Add.3
(14 January 2009) (hereinafter “Report of th e Representative of the Secretary-General on
Internally Displaced Persons”), p. 1. GWS, Vol. III, Annex 100.
529
“Medvedev: The Russian Federation will continue strengthening the boundaries of Abkhazia
and South Ossetia”, Vzgliad Dlovaya Gazeta (28 January 2010). GWS, Vol. IV, Annex 223.
530Ibid.
227 service is a mere formality. In r eality, everything is controlled by
the Russian FSB 531.
6.8 He described the command structure as follows:
There are border sub-divisions in specific directions, in each of the
four districts of South Ossetia . Each sub-division is led by a
Russian FSB Commandant to whom commanding officers of the
bases are subordinated. … [The Ru ssian] border guards are given
specific instructions from the head of the base who is directed by
the Russian FSB Commandant re sponsible for the specific sub-
532
division of the Russian FSB Border Service in South Ossetia .
6.9 The Chair of South Ossetia’s de facto Commission on Delimitation and
Demarcation confirmed that Russia’ s State agencies instruct the de facto
administration on matters related to the border 53.
6.10 Russia controls the administrative bord ers of Abkhazia as well. In late
2009, Russian Prime Minister Putin announced that Russia intends to spend 15-
16 billion rubles (approximately US$470-546 million) in 2010 to reinforce the
534
administrative border and to build a Russian military base in Abkhazia . On 17
February 2010, Russia signed a collaboration agreement with the de facto
Abkhazian authorities relating to managing and restricting what it termed “illegal
535
migration” across the administrative boundary . Russia is finalizing a similar
agreement with the South Ossetian de facto authorities, also to more clearly
531
Witness Statement of Vitaliy Khripun (4 March 2010), p. 2. GWS, Vol. IV, Annex 228.
532Ibid., pp.1-2.
533
“Work on the establishment of state borders has begun”,OS Inform (14 Aug. 2009). GWS,
Vol. IV, Annex 212.
534
Mikhail Fomichev, “Russia will direct 15-16 billion rubles for ensuring security of Abkhazia”,
RIA Novosti (12 August 2009). GWS, Vol. IV, Annex 211.
535President of the Republic of Abkhazia, Press Release, “Russia, Abkhazia Signed Agreement on
Joint Russian Military Base on Abkhaz Territory” (17 February 2010). GWS. Vol. IV, Annex
192.
228 536
enable Russian forces to prevent “illegal migration” . The agreement will
confirm Russia’s role “in the organisation of the immigration control, registration
of persons illegally crossing the states’ borders, exchange of information about
exposed illegal migration channels, about citizens involved in the organisation of
537
illegal migration that are staying in the territory of the two countries” .
6.11 “Illegal migration” is Russia’s Orwellian terminology for ethnic Georgian
IDPs seeking to exercise their internati onally-recognised right of return to South
Ossetia and Abkhazia. Russia makes clear that this is not to be allowed.
According to the Russian Federation’s Minister of Foreign Affairs, ethnic
Georgian IDPs “can return only when all conditions for that exist, when the legal
538
and economic aspects of th eir return are agreed upon” . Russia’s “conditions”,
which have no foundation in intern ational law and which breach the Order of 15
October 2008 and the 1965 Convention, le d the Council of Europe’s monitoring
committee to report that “the return of IDPs to ethnic Ge orgian villages in South
539
Ossetia and Abkhazia is extremel y difficult if not impossible” . The UN
Representative on IDPs reported that “the de facto authorities in Tskhinvali
attach conditions to the right to return that are not in accordance with
international human rights or the Guiding Principles on Internal Displacement
since they tie exercise of the right to return to political demands ” 540. The Report
536“RF, S Ossetia to agree on visa free travel of citizens”,ITAR-TASS (17 December 2009).
GWS, Vol. IV, Annex 216.
537
Ibid.
538“Lavrov: Refugees will return to Abkhazia after legal issues are regulated” Rosbalt (24
December 2009) (emphasis added). GWS, Vol. IV, Annex 217; Ministry of Foreign Affairs of
the Russian Federation, Transcript of the Statement and Answers to the Questions of the Mass
Media by Sergey Lavrov, Minister of Foreign Affairs of the Russian Federation, at the Joint Press
Conference on the Outcome of the Negotiations with Sergey Shamba, Minister of Foreign Affairs
of Abkhazia, Moscow, 24 December 2009 (24 December 2009). GWS, Vol. IV, Annex 190.
539
PACE, Doc. No. 12010, op. cit., p. 8. GWS, Vol. III, Annex 117.
540Report of the Representative of the Secretary-General on Internally Displaced Persons, op. cit.,
para. 27 (emphasis added). GWS, Vol. III, Annex 100.
229by the European Union’s Independent In ternational Fact-Finding Mission on the
Conflict in Georgia similarly stated: “It needs to be stressed that both South
Ossetia and Abkhazia, together with Russi a, must take appropriate measures to
ensure that IDPs/refugees, including thos e from the conflicts of the early 1990s,
are able to return to their homes with no conditions imposed other than those laid
down in relevant international standards…” 54.
6.12 The de facto authorities do not hide the fact that it is their official policy,
enforced by Russian FSB border guards, to prohibit the return of ethnic Georgian
IDPs. Abkhazia’s de facto President expressed the policy bluntly in December
2009: “I do not think that so many refugees ought to be permitted to return to
Abkhazia.” He ruled out the return of th e refugees because in his view, it will
lead to a new conflict. He continued: “For the people who are currently in
Georgia, conditions for thei r social-economic adaptation must be established by
542
Georgia itself” . He reaffirmed the policy during an official trip to Moscow in
543
February 2010 .
6.13 In implementation of this policy, ethni c Georgians attempting to return to
their villages have been repeatedly detained by the Russi an border guards,
incarcerated and abused. Typical is the ca se of four Georgian teenagers arrested
and jailed for months after attempting to reach the home of one of the boys in
South Ossetia. In these particular ca ses, the international community responded
541
Independent International Fact-Finding Mission on the Conflict in Georgia, Report Vol. I
(September 2009) (hereinafter, “IIFFMCG Report, Vol. I”), pp. 27-28 (emphasis added). GWS,
Vol. III, Annex 120.
542
“Bagapsh: Georgia should take care of the refugees from Abkhazia”, Rosbalt (25 December
2009). GWS, Vol. IV, Annex 219. De facto Abkhazian Foreign Minister Sergey Shamba further
confirmed the position that there is no obligation to allow Georgians their right of return.“Lavrov:
Refugees will return to Abkhazia after legal issues are regulated”, Rosbalt (24 December 2009),
op. cit. GWS, Vol. IV, Annex 217.
543President of the Republic of Abkhazia, Press Release, “Abkhazia Is Not Going To Return All
Georgian Refugees – Bagapsh” (16 February 2010). GWS, Vol. IV, Annex 191.
230to the arrests. The European Union Monitoring Mission in Georgia (EUMM)
expressed its “profound concern” over the detention of the young Georgians and
the Council of Europe’s Commissioner for Human Rights, Thomas Hammarberg,
544
directly intervened in Decembe r 2009 to secure their release . All four of the
Georgian boys were accused of having illegally crossed the administrative border.
One of them recounted his experience after Mr. Hammarberg secured his release.
6.14 Giorgi Romelashvili, 14 years old, was arrested after reaching his house in
Kheiti village, which he reports “was almost completely burnt down in order to
545
avoid the return of th e Georgian population” . Once there, 15 armed men in
uniform and civilian clothe s arrived at his home, beat and arrested him: “They
tied our hands, were physically abusi ng us and asking where we had hidden
weapons. One of them put a pistol into my mouth and threatened that if I did not
tell him where I had hidden the gun, he would kill me. I kept answering that I did
546
not have any weapon and that we just came to see my house” . He was then
taken to a detention centre in Tskhinvali where he was forced to sign Russian
language documents he did not understand. While there, he was “beaten about 20
times that night. During the beatings, they were saying ‘this land is ours and
Georgians have nothing to do here’” 547. He was later taken to a court where:
“They talked to each other in Ossetian and Russian – I did not understand their
conversation and nobody translated it to us. They told us that we were sentenced
to 2 months detention. Then they brought us back to the prison” 548.
544European Union Monitoring Mission in Georgia, Press Release, “EUMM expresses profound
concern over the detention of four under aged Georgian citizens by the de facto South Ossetian
authorities” (8 November 2009). GWS, Vol. III, Annex 123.
545Witness Statement of Giorgi Romelashvili (27 February 2010), p. 1. GWS, Vol. IV, Annex
227.
546Ibid., pp. 1-2.
547
Ibid., p. 2.
548Ibid., p. 3.
2316.15 During detention Giorgi Romelashv ili met another Georgian boy, Giorgi
Archuadze, whose whereabouts were previously unknown, as he had been
arrested several months earlier and pr ohibited from contacting anyone, including
his family. He was arrested after attemp ting to visit his house in the village of
Beloti in South Ossetia. As he found his entire village empty and all houses,
including his own, “burnt and destroyed” , he slept in a neighbouring village.
“Since it is an ethnic Osseti an village, it had not been harmed as our village had
been. The houses were all still intact there” 549. The next morning he was arrested.
He reported:
They brought me to the Police Station in Tskhinvali and started to
interrogate me. I was asked who I was and why I had entered the
territory controlled by them. I aske d for a lawyer, but they did not
bring one. I tried to explain that the only thing I wanted was to see
my house … While I was providi ng the testimony, one of them
physically abused me; in particular he was hitting my knees with a
ruler and forcing me to tell them who had sent me to their
territory.
Then they opened a safe in the room and took out 2 hand grenades.
Then they took me to another building located in Tskhinvali,
where we met some other people. They were forcing me to say
that the mentioned hand grenades were mine. In particular, a
stranger hit me in the face and thre atened to kill me, if I did not
say that those hand grenades were mine. Despite the threats, I
agreed to nothing.
They tried to influence me for one more hour. Then they made me
sign some documents that were drawn up in Russian. I am not
aware of the contents of the documents they made me sign, since
550
they did not let me read them… .
551
He was later sentenced to six months of detention .
549
Witness Statement of Giorgi Archuadze (27 February 2010), p. 1. GWS, Vol. IV, Annex 226.
550Ibid., pp. 1-2.
551
Ibid., p. 2.
2326.16 In the face of Russia’s refusal to allow ethnic Georgians to cross the
administrative boundaries and return to South Ossetia and Abkhazia, the Council
of Europe passed a resolution in Se ptember 2009 calling on “Russia and the de
facto authorities of South Ossetia and Abkhazia to fully and unconditionally
ensure the right of return of internally displaced persons (IDPs), who fled
following the August 2008 hostilities” 552.
6.17 A similar call was made by the UN Secretary-General’s Representative on
IDPs, who urged all “parties [to] take all necessary steps to ensure persons
displaced by the recent and past conflicts are able to enjoy their right to return
voluntarily to their former homes in safety and dignity, and to guarantee recovery
of their property and possessions, or where this is impossible, obtain
553
compensation or other just reparation” .
6.18 The General Assembly responded to Ru ssia’s continuing refusal to allow
displaced ethnic Georgians to exercise their right of return, calling for “the
development of a timetable to ensu re the voluntary, safe, dignified and
unhindered return of all internally displaced persons and refugees affected by the
conflicts in Georgia to their homes” 554. Russia rejected the Resolution 555, as did
Abkhazia’s de facto Minister of Foreign Affairs, who stated: “the Resolution…
552Council of Europe, Parliamentary Assembly, Resolution 1683, The war between Georgia and
Russia: one year after (29 September 2009) (hereinafter “PACE, Resolution 1683”), para. 6.2.
GWS, Vol. III, Annex 119.
553Report of the Representative of the Secretary-General on Internally Displaced Persons, op. cit.,
para 47. GWS, Vol. III, Annex 100.
554
U.N. General Assembly, Resolution 63/307, Status of internally displaced persons and
refugees from Abkhazia, Georgia, and the Tskhinvali region/South Ossetia, Georgia , U.N. Doc.
A/RES/63/307 (30 September 2009). GWS, Vol. III, Annex 102.
555Pursuant to rule 74 of the rules of procedure of the General Assembly, Russia unsuccessfully
moved a no-action motion on the draft resolution.
233that does not take into account our position is not viable” 55. The General
Assembly Resolution that Russ ia rejected, and that the de facto authorities
declared “not viable”, called for no more from Russia than that which was already
required by this Court’s Order of 15 October 2008 and the 1965 Convention.
Russia’s rejection of it, in the circumstances, is especially disturbing.
Section III. Russia’s Use of Its Military Forces to Deny Ethnic Georgians
Living in South Ossetia and Abkhazia the Right to Freely Cross the
Administrative Boundaries
6.19 Russia has not only denied ethnic Georgian IDPs thei r right of return, it
has also used its control over the admi nistrative boundaries to discriminate
against the ethnic Georgians who remain in South Ossetia and Abkhazia and who
wish to cross the administrative boundary in to other parts of Georgia. Thus, the
Council of Europe has condemned “Ru ssia and the breakaway regions of
Abkhazia and South Ossetia” fo r continuing to place “undue restrictions on the
local population wishing to cro ss the administrative boundary line” 55. In regard
to Russia’s discriminatory actions al ong the border, the Council of Europe’s
Rapporteur on Migration, Refugees a nd Population, who visited the region,
reported that:
The Administrative boundary li ne is becoming increasingly
difficult for local people to cross, primarily due to the attitude of
the de facto Abkhaz and South Ossetia n authorities and the
support and steps taken by the Russ ian authorities to strengthen
and control the administrative boundary line. The impact of these
restrictions can be devastating for the local population and affects,
inter alia, their ability to obtain medical treatment, their possibility
to maintain family contacts, the opportunity of carrying out
economic activities, their access to pension payments and other
556President of the Republic oAbkhazia, Press Release, “Ret urn of Refugees According To
Georgia's Plan May Lead to New Conflicts an d Bloodshed -- Sergey Shamba” (11 September
2009). GWS, Vol. IV, Annex 188.
557
PACE, Resolution 1683, op. cit., para. 7. GWS, Vol. III, Annex 119.
234 benefits, access to education, etc. Wh ile the situation is bad, it is
clear the situation could get worse. If the administrative boundary
closes completely, there is ever y prospect that there will be a
further wave of IDPs in particular from the Gali region and from
the Akhalgori district 558.
6.20 Similarly, the UN Secretary-General’ s Representative on IDPs reported
that he was “particularly concerned about the hardships caused by the almost total
559
closure of the administrative boundary line” . According to his report: “The
closure of the administrative boundary line affects internally displaced persons,
but even more so those elderly and vul nerable persons who could not flee and
stayed behind. They face enormous difficulties in the absence of their displaced
relatives or neighbours on whose support they had relied in the past” . 560
6.21 The Russian border guards enforce the administrative boundary closure by
arresting ethnic Georgians who attempt to cross it. In one week in October 2009,
Russian troops arrested 16 ethnic Ge orgians from the border village of
Gremiskhevi for trying to cross into a neighbouring part of Georgia 561. The
EUMM expressed its concern over their de tention, pointing out that the arrests
“seriously affect[ed] the daily life of this village” 562. The head of the Russian
FSB border guard operation in Abkhazia confirmed that 433 people were
558Council of Europe, Parliamentary Assembly, Committee on Migration, Refugees and
Population, The war between Georgia and Russia: one year after , Doc. No. 12039 (28 September
2009) (hereinafter “PACE, Doc. No. 12039”), para. 19. GWS, Vol. III, Annex 118.
559Report of the Representative of the Secretary- General on Internally Displaced Persons, p. 2,
op. cit. GWS, Vol. III, Annex 100.
560
Ibid., para. 32.
561“Russian Forces Arrest More Georgians Near South Ossetia”, Radio Free Europe/Radio
Liberty (30 October 2009). GWS, Vol. IV, Annex 215.
562European Union Monitoring Mission in Geor gia, Press Release, “EUMM expresses concern
about the recent incident involving 16 Georgian citizens” (26 October 2009). GWS, Vol. III,
Annex 122.
235detained for “border offences” from May to December 2009 563. In the Gali
District alone, Russian arrests of Georgian residents are too numerous to list here;
however several are detailed in the Abkhazian IDP Service Report at Annex 193.
6.22 Ethnic Georgians attempting to cross th e administrative border are often
abused because of their ethnicity by th e Russian border guards. The treatment
given to them was described by one of the former Russian border guards in South
Ossetia:
For example, you have a citizen of Georgia with a Georgian
passport. Almost all of them ha ve Georgian documents. Our side
wants to humiliate them, so we tell them they have to go
somewhere and make a translation [into Russian] and certify it at a
notary’s. If they don’t, starting fr om the 1st of the next month,
they’ll be barred from crossing the border at all. If you look where
this Perevi is situated, it’s far away from Tbilisi or Gori. If this
person comes from a village, he ha rdly has any experience with a
notary.
Another example was a ban on flour. Nobody is allowed to take
flour out of Ossetia. They consid er this the territory of South
Ossetia, so it is forbidden to ta ke flour out, even though villages
are [located right on the border], practically divided into two parts.
That means one part of the village has flour and the other part
doesn’t. And people have nothing to eat 564.
6.23 The Russian FSB officer explained that discrimination against ethnic
Georgians was instigated by his superior officers: “I was told that my duty was to
control the so-called ‘sta te’ border of South Ossetia. … Furthermore, I was
instructed that Georgians were committing genocide against the Ossetian people
563International Crisis Group, Abkhazia: Deepening Dependence , Europe Report No. 202 (26
February 2010), p. 4. GWS, Vol. IV, Annex 194.
564
“FSB Defector Describes ‘Amoral’ Conditions in South Ossetia”,Radio Free Europe/Radio
Liberty (24 December 2009). GWS, Vol. IV, Annex 218.
236and our duty was to protect Ossetian pe ople and suppress terrorist acts by
Georgians” 565. As a result:
Russian border-guards humiliate Georgians at every opportunity.
During my service in South Osse tia, I witnessed such incidents
every day. They were forci ng Georgian passengers passing
through the checkpoint to get off the buses, always treating them
rudely, swearing and otherwise humiliating them; creating
unnecessary, artificial barriers through deliberately prolonging the
procedure of search; sometimes in the absence of any suspicion,
asking bus drivers to remove wheel s from the buses, so that they
could check whether there was an explosive device. In the
meantime, the passengers of the buses were forced to wait at the
checkpoint until the procedure of checking the bus was completed.
This was done just in order to have fun by watching how
Georgians were humiliated and oppressed.
…
Only Georgians were treated so negatively by Russian border
guards. There has been no negativ e and rude attitude towards
566
Ossetians .
6.24 No exceptions are made for Geor gians crossing the administrative
567
boundaries for medical treatment or education . On 15 September 2009,
Russian soldiers arrested school children crossing the administrative line in order
to attend Georgian schools in the neighbouring Tsalenjinka District. The soldiers
took their textbooks and bags, and threaten ed them with expul sion if they tried
565Witness Statement of Vitaliy Khripun (4 March 2010), op. cit., p.1. GWS,Vol.IV,Annex
228.
566
Ibid., p. 3.
567Cases of Russian border guards barring ill Gali residents from crossing the boundary line for
medical attention abound: “As an example, during the winter holiday, Russian border guards
stopped the teacher at the Saberio school who was taking his elderly father to Zugdidi hospital.
Before that, during the flu epidemic in December, Russian border guards did not allow parents to
take their children to Zugdidi to get medical treatment. At the Nabakevi-Khurcha road, Russians
stopped the car heading to Zugdidi, transporting women and 2 ill children. Disregarding
numerous requests to let them go, Russians told the passengers that they would not be allowed to
cross the border and that they were to go to the Gali hospital”. Report of Gali Educational
Resource Centre (March 2010), pp. 6-7. GWS, Vol. IV, Annex 195.
237again to attend the school 568. On 20 January 2010, Russian border guards
arrested 42 school children for “illegal crossing of the border” en route to attend
Georgian schools in the same Tsalenjinka District 569. This time the students were
held until their parents appeared, but th e parents were placed under arrest before
both groups were released 570. Their release was contingent on “the condition that
from the next day on, they would not cr oss the border to attend the classes at
571
Tsalenjinka District schools” . In defending such abuses, the de facto Abkhaz
President’s representative in the Gali District stated: “[I]f children from Gali want
to study in Zugdidi schools [in western Ge orgia adjacent to the Gali District], let
572
them move and live there” .
6.25 In Akhalgori, which the de facto authorities claim as part of South Ossetia
and where the remaining ethnic Georgians under Russian control are
concentrated, they may only cross the boundary if they carry notarized documents
in Russian and a foreign passport 573. Georgian language documents and
identification cards, which are held by most ethnic Georgians, are not accepted 57.
568
Service for the Protection of Rights of Internally Displaced Population from Abkhazia, Under
the Supreme Council of Abkhazia, Report (September 2009-February 2010) (12 March 2010), p.
7. GWS, Vol. IV, Annex 193.
569
Report of Gali Educational Resource Centre (March 2010), op. cit., p.6. GWS,Vol.IV,
Annex 195.
570Natia Mskhiladze, “Path closed for the pupils”, 24 Hours (21 January 2010). GWS, Vol. IV,
Annex 222.
571Report of Gali Educational Resource Centre (March 2010), op. cit., p.6. GWS,Vol.IV,
Annex 195.
572“Kishmaria offers children from Gali district to move to Zugdidi”, RIA Novosti (23 September
2009). GWS, Vol. IV, Annex 214.
573“South Ossetia To Require Georgi an IDs Translated Into Russian”, Radio Free Europe/Radio
Liberty (8 January 2010). GWS, Vol. IV, Annex 220; George Dvali and Zaur Farniev, “South
Ossetia demands foreign passports from Georgia”, Kommersant (11 January 2010). GWS, Vol.
IV, Annex 221. See also Witness Statement of Vitaliy Khripun (4 March 2010), op. cit., p. 2.
GWS, Vol. IV, Annex 228.
574“South Ossetia To Require Georgi an IDs Translated Into Russian”, Radio Free Europe/Radio
Liberty (8 January 2010), op. cit. GWS, Vol. IV, Annex 220; George Dvali and Zaur Farniev,
“South Ossetia demands foreign passports from Georgia”, Kommersant (11 January 2010), op. cit.
238However, to obtain a Russian passport, Georgians must give up their Georgian
575
citizenship . The head of the de facto administration in Akhalgori explained the
reason: “[L]ocal residents living at the administrativ e boundary should decide if
they want to live in Georgia or in South Ossetia” 576. In other words, to continue
living in South Ossetia and crossing in to Georgia ethnic Ge orgians must stop
being Georgians.
6.26 The Council of Europe’s Parliament wa rned that if Russia does not cease
its discriminatory actions, it will cause another mass departure of those ethnic
Georgians who still remain in South Osse tia and Abkhazia. “With the departure
of UNOMIG and the increasing restricti on of movement of civilians over the
ABL [administrative boundary line], as well as the mounting pressure to obtain
South Ossetian or Abkhazian passports, there is a serious risk of a new exodus of
577
ethnic Georgians from the Gali and Akhalgori districts” .
6.27 Thus, the Parliament of the Council of Europe, using language similar to
that used by the Court in paragraph 149(A)(3)(ii) of its provisional measures
Order, called on “Russia and the de facto authorities of South Ossetia and
Abkhazia to remove any impediments to the freedom of move ment of Georgian
citizens across the administrative boundary lines” 578. The PACE urged “the
Russian authorities, before the end of [ 2009], to grant freedom of movement for
Georgian civilians across the administrati ve boundary lines and lift restrictions,
including with regard to the point of entry, of international and humanitarian
GWS, Vol. IV, Annex 221. See also Witness Statement of Vitaliy Khripun (4 March 2010), op.
cit., p. 2. GWS, Vol. IV, Annex 228.
575
“South Ossetia To Require Georgi an IDs Translated Into Russian”, Radio Free Europe/Radio
Liberty (8 January 2010). GWS, Vol. IV, Annex 220.
576“South Ossetia To Require Georgi an IDs Translated Into Russian”, Radio Free Europe/Radio
Liberty (8 January 2010), op. cit. GWS, Vol. IV, Annex 220.
577PACE, Doc. No. 12010, op. cit., p. 9. GWS, Vol. III, Annex 117.
578
PACE, Resolution 1683, op. cit., para. 5, GWS, Vol. III, Annex 119.
239organisations and humanitarian aid to the two regions” 57. Russia has heeded
neither the Council of Europe nor the Court.
Section IV. Russia’s Ongoing Support, Sponsorship and Defence of
Discrimination against Ethnic Georgians in South Ossetia and Abkhazia
6.28 Russia continues to be in breach of the Court’s Order on Provisional
Measures for refusing to take action to prevent discrimination against the ethnic
Georgians who remain in South Osseti a and Abkhazia. Nor has Russia taken
action to remedy prior discriminatory acts, including acts of ethnic cleansing
committed by its own State organs. Indeed, Russia persists in denying that ethnic
cleansing occurred in South Ossetia or Abkhazia, and it continues to deny its
obligation to investigate those human rights violations.
6.29 In September 2009, the Monitoring Committee of the Council of Europe’s
Assembly reported that “the ethnic Geor gian villages in the Tskhinvali region
have been razed to the ground, bulldozed over and no longer exist. This
systematic destruction of ethnic Georgian villages, combined with the effective
impossibility for ethnic Georgian IDPs to return, confirm that this region was
ethnically cleansed of ethnic Georgians” 58. The Committee considered
“unacceptable” the “failure of Russia and th e de facto authorities to bring these
practices to a halt and their perpetra tors to justice, as demanded by the
581
Assembly” .
6.30 Numerous international organizations have called on Russia to fulfil its
obligation to investigate and prosecute t hose responsible for the ethnic cleansing
and destruction of property inflicted on ethn ic Georgians in South Ossetia and
579
Ibid., para. 12.2.
580PACE, Doc. No. 12010, op. cit., p. 8. GWS, Vol. III, Annex 117.
581
Ibid., p. 8.
240Abkhazia. For example, on 24 November 2009, the UN Human Rights
Committee called on Russia to:
conduct a thorough and independe nt investigation into all
allegations of involvement of members of Russian forces and other
armed groups under their control in violations of human rights in
South Ossetia. The State party should ensure that victims of
serious violations of human right s and international humanitarian
law are provided with an effec tive remedy, including the right to
compensation and reparations 582.
6.31 The Human Rights Committee reminded Russia that:
the territory of South Ossetia was under the de facto control of an
organized military operation of the State party [Russia], which
therefore bears responsibility for the actions of such armed groups.
The Committee notes with concer n that, to date, the Russian
authorities have not carried out any indepe ndent and exhaustive
appraisal of serious violations of human rights by members of
Russian forces and armed groups in South583setia and that the
victims have received no reparations .
6.32 Likewise, the Parliament Assemb ly of the Council of Europe
“condemn[ed] Russia and the de facto authorities of South Ossetia for not having
brought resolutely to a halt and seriously investigated the ethnic cleansing of
ethnic Georgians that by all accounts took place in South Ossetia during and after
584
the war and for not having brought the perpetrators to justice” . Like the UN
Human Rights Committee, the PACE: “reca ll[ed] that, under international law,
Russia bears responsibility for violations of human rights and humanitarian law in
those areas that fall under its de facto control” 585. Hence, “it strongly urg[ed] the
582
U.N. Human Rights Committee, Concluding observations of the Human Rights Committee,
Russian Federation , U.N. Doc. CCPR/C/RUS/CO/6 ( 24 November 2009) (hereinafter
“Concluding observations of the Human Rights Committee, Russian Federation”), para. 13.
GWS, Vol. III, Annex 103.
583Ibid., para. 13.
584PACE, Resolution 1683, op. cit., para. 9. GWS, Vol. III, Annex 119.
585
Ibid., para. 9.
241Russian authorities, before the end of [2009], to initiate a credib le investigation
into acts of alleged ethnic cleansing committed by the South Ossetian forces
allied to it, or by civilians under its de facto jurisdiction, and control and
586
implement measures to reverse or, if not possible, to remedy those acts” .
6.33 Russia has defied these calls for compliance with its international
obligations and refused to investigate the ethnic cl eansing and other crimes
committed against ethnic Georgians in South Ossetia or Abkhazia. In particular,
Russian officials have confirmed that Ru ssia will not investigate acts of ethnic
cleansing and anti-Georgian discrimination committed by Russian or South
Ossetian forces 587. In stark and cynical contra st, however, Russia has indicated
that it will investigate allegations of offences committed by Georgian troops
during the opening days of the August 2008 conflict 588.
6.34 Russia not only defends the perpetrato rs of past discrimination against
ethnic Georgians in South Ossetia and A bkhazia; it continues to support and
sponsor those responsible for ongoing ethni c discrimination. The discrimination
against the remaining ethnic Georgians in South Ossetia, concentrated in the
586Ibid., para. 12.4.
587
PACE, Doc. No. 12010, op. cit., para. 40. GWS, Vol. III, Annex 117. The Co-Rapporteurs for
the Council of Europe’s Monitoring Committee have responded to Russia’s attempt to shirk its
responsibilities under international law, the 1965 Convention and the Court’s provisional
measures order, by explaining: “Even if we were to accept Russi a’s argument that the two break-
away regions are now independent entities, we note that a large number of alleged human rights
violations against ethnic Georgians by South Ossetian militia took place before the recognition of
independence of the two break-away regions by Russia, during which time Russia recognised it
was in control, as clear from its acceptance ofthe ceasefire agreement. Moreover, the ongoing
investigation in South Ossetia by the Investigative Committee of the General Prosecutor’s Office
of Russia into genocide committed by Georgian troops against Russian citizens, as well as into
crimes committed against the Russian military, clearly shows that Russia has the capacity and
possibility to conduct such an investigation in that region. The status argument is in our view used
merely to mask the underlying lack of political will to effectively investigate any alleged human
rights abuses by the South Ossetian forces allied to it, in areas under its control.” PACE, Doc. No.
12010, op. cit., para. 43. GWS, Vol. III, Annex 117.
588Ibid., para. 40.
242Akhalgori District, including the requireme nt that they renounce their Georgian
nationality and obtain foreign passports to continue living in South Ossetia, was
described above, in paragraphs 6.25 a nd 6.26. The EU’s Fact-Finding Report
addressed this as a continuing tactic designed to depopulate the area of ethnic
Georgians:
[S]everal elements suggest the co nclusion that ethnic cleansing
was indeed practised against ethnic Georgians in South Ossetia
both during and after the August 2008 conflict. Even at the time of
the writing of this Report [in September 2009], the situation in the
Akhalgori district at the southeast end of South Ossetia continues
to be a589tter of concern, as ethni c Georgians are still leaving the
region .
6.35 The ongoing discrimination against the ethnic Georgians who remain in
Abkhazia, in the Gali District, is no le ss severe. In Gali, Georgian language
education has been targeted for extinction by the de facto authorities and their
Russian sponsors. As reported by the Ga li Educational Resource Centre (a unit
of the de jure Abkhazian Ministry of Education and Culture that receives reports
from local school officials), since th e beginning of the 2009-2010 academic year
the pressure on the few Gali schools th at still retain Georgian language
instruction has become especially intense:
According to the headmaster’s information, the school is under
constant control and surveillance. Pressure is applied daily by the
Abkhazian authorities and a pretext is sought in order to transfer
the schools of the Lower Zone of the Gali District to Russian
language instruction.
In September 2009, the schools of the Lower Zone of the Gali
District were required to open primary classes with Russian
language instruction, but the teache rs protested and declared that
589IIFFMCG Report, Vol. I, op. cit., para. 27. GWS, Vol. III, Annex 120. See also Independent
International Fact-Finding Mission On the Conflict in Georgia, Report Vol. II (September 2009),
pp. 379, 381 (“there is a clear indication thGeorgians are continuing to leave the region,
contrary to claims by the administration in Akha lgori that they are ‘slowly returning’”). GWS,
Vol. III, Annex 121.
243 they would leave if they were forced to do so. As a result,
Georgian language instruction was retained in primary classes.
However, the teachers are told that from September 2010 on,
590
education will fully be conducted in the Russian language .
6.36 On 16 October 2009, Russian soldiers entered a school in Tagiloni village.
When they discovered Georgian books in the school, they assaulted the teachers.
One teacher was severely beaten and had to be taken to the Gali hospital, since
the Russian soldiers prohibited his transport to the nearby Zugdidi hospital across
591
the boundary line . Russian military officers “visit schools every day … The
heads of the military headquarters demand from the schools to give them the lists
592
of teachers and pupils” .
6.37 As of 6 January 2010, teachers with Georgian diplomas have been
prohibited from teaching in Abkhazia. In order to remain teachers they must
attain a diploma from a Russian unive rsity, Sukhumi University, or Gali
593
Pedagogical College . These discriminatory pract ices and their consequences
for ethnic Georgians residing in th e region compelled the OSCE High
Commissioner on National Minorities, Mr. Knut Vollebaek, to express during his
most recent visit: “[I am] not satisfied with their attitude towards Georgian
schools. I am also deeply concerned that they are not willi ng to allow pupils to
be educated in the Georgian language” 594. He reminded the de facto authorities
that “[a]ccording to international practice and COE [Council of Europe]
590Report of Gali Educational Resource Centre (March 2010), op. cit., p.5. GWS,Vol.IV,
Annex 195.
591Service for the Protection of Rights of Internally Displaced Population from Abkhazia, Under
the Supreme Council of Abkhazia, Report (September 2009-February 2010) (12 March 2010), op.
cit., p. 7. GWS, Vol. IV, Annex 193.
592Report of Gali Educational Resource Centre (March 2010), op. cit., p.7. GWS,Vol.IV,
Annex 195.
593
Ibid., p. 7. GWS, Vol. IV, Annex 195.
594“Knut Vollebaek, OSCE High Commissioner for national minorities met with representative of
Abkhazian separatist regime yesterday”, 24 Hours (5 February 2010). GWS, Vol. IV, Annex 224.
244standards, the parents have the right to choose the language of education for their
595
children” .
Section V. Russia’s Failure to Protect the Property of Displaced Persons
and Refugees
6.38 In the Memorial and Georgia’s update on compliance with provisional
measures dated 26 January 2009, Georgia de scribed how Russian forces directly
participated in, and acquiesced to, th e systematic destruction of property
belonging to ethnic Georgians 596. As a result, very little property remains to be
protected, as required by Para graph 149(A) of the Court’s Order of 15 October
2008. Where ethnic Georgian property has not already been destroyed, Russian
forces have often misappropriated it for themselves. In that regard, throughout
South Ossetia and Abkhazia, Russian tr oops have taken over houses and other
597
properties belonging to ethnic Georgians . All evidence of Georgian ownership
has been erased. Even road signs indi cating the names of villages in Georgian
have been removed 598.
6.39 The situation was described by the UN Secretary-General’s
Representative on IDPs. While construction is evident elsewhere, he reported, he
saw “[n]o efforts” to “reconstruct the et hnic Georgian villages and settlements
that were deliberately destroyed in the aftermath of the fighting,” despite the fact
that “[a]ll IDPs from the recent and past conflicts are entitled to restitution or
595Ibid.
596See GM, paras. 3.6-3.34, 3.35-3.105. See also Report of Georgia to the Court in Compliance
with Paragraph 149(D) of the Order of 15 October 2008 (26 January 2009), paras. 15, 19.
597
Service for the Protection of Rights of Internally Displaced Population from Abkhazia, Under
the Supreme Council of Abkhazia, Report (September 2009-February 2010) (12 March 2010), op.
cit., pp. 5-6. GWS, Vol. IV, Annex 193; Witness Statement of Vitaliy Khripun (4 March 2010),
op. cit., p. 1. GWS, Vol. IV, Annex 228; “Local resi dents: they actively construct military bases
in the Gali District” Ekho Kavkaza (16 February 2010). GWS, Vol. IV, Annex 225.
598Olga Allenova, “Losing the war on the front of works”, Kommersant (31 August 2009). GWS,
Vol. IV, Annex 213.
245compensation for their property, regardless of whether they choose to return,
integrate locally or resettle” 59. He concluded that “[t]he ir property needs to be
protected against unlawful appropriation, occupation an d use by the relevant
authorities”600. Indeed, the Court’s Order of 15 October 2008 requires this.
Nevertheless, Russia has refused to comply.
Section VI. Russia’s Obstruction of Access to Humanitarian Assistance and
International Monitoring
6.40 Russian troops have continued to re strain international monitors and
humanitarian assistance from crossing the administrative borders into South
Ossetia and Abkhazia to, am ong other things, observe th e circumstances of and
provide assistance to ethnic Georgians and others. As stated by the Parliament of
Europe’s Rapporteur in September 2009:
In the last year, the OSCE Missi on in Georgia, along with its
OSCE military observation missi on, has been wound up. The
same fate applies to the United Nations Observer Mission in
Georgia (UNOMIG). As the re port of the Monitoring Committee
points out, this is due to the refusal of Russia to allow the
extension of these mandates. Furthermore Russia has refused to
allow access of the EUMM monitors to the regions of S601h
Ossetia and Abkhazia and the occupied territories .
6.41 Russia’s role in impeding international monitoring in these territories was
described in Georgia’s Memorial in paragraphs 7.52 to 7.58. Since then, the
international community has renewed its call for Russia to allow monitoring
access. In September 2009, the European Union called for “unhindered access of
599
Report of the Representative of the Secretary-General on Internally Displaced Persons, op. cit.,
paras. 27 & 41. GWS, Vol. III, Annex 100.
600Ibid., para. 41. GWS, Vol. III, Annex 100.
601
PACE, Doc. No. 12039, op. cit., para. 17. GWS, Vol. III, Annex 118.
246 602
EUMM to Abkhazia and South Ossetia, which has so far been denied” . The
European Union’s statement explained that “[s]uch access is of paramount
importance, since the secu rity, human rights and humanitarian situation on the
603
ground, including the situation of IDPs and refugees, remains fragile” . The
Council of Europe’s Parliamentary A ssembly also expressed its concern
regarding Russia’s refusal to permit international monitoring, stating that it:
3.1. deplores the continued refusal of Russia and the de facto
authorities to allow European Union monitors access to Abkhazia
and South Ossetia and calls upon them to give the monitors
immediate and unconditional access to the territories under their
de facto control;
3.2. deplores the closure of the United Nations Observation
Mission in Georgia (UNOMIG) as a result of the veto by Russia in
the United Nations Security Council;
3.3. deeply regrets that the pr oposal presented by the Greek
chairmanship of the Organisation for Security and Co-operation in
Europe (OSCE) or a continue d OSCE presence, including a
military monitoring component, did not achieve consensus and
calls upon Russia to reconsider its objections to this proposal 604.
602OSCE, Permanent Council No. 772, Swedish Presidency of the European Union, EU statement
on Georgia, PC.DEL/678/09 (3 September 2009). GWS, Vol. III, Annex 116.
603
Ibid.
604PACE, Resolution 1683, op. cit. GWS, Vol. III, Annex 119. The Report of the PACE explains
the context and actions leading to the Russias continuing rejection of the OSCE Mission in
Georgia’s presence in the occupied territories:
On 22 December 2008, Russia blocked the extension of the mandate of the
OSCE Mission in Georgia, as a result of which the mission started to close
down. However, on 12 February 2009, the OSCE Permanent Council extended
the mandate of the OSCE Military Observers until 30 June 2009, although this
did not affect the mandate of the OSCE Mission itself. Convinced about the
importance of a continued OSCE Presence in the region, including a military
monitoring component, the Greek Chairmanship of the OSCE continued to
search for a status-neutral formula for an OSCE presence that would be
acceptable to all sides. On 8 May 2009 , the Greek Chairmanship presented a
proposal to the Permanent Council that foresaw the establishment of an ‘OSCE
Office in Tbilisi’ that, in relation to the conflict, would be responsible for
implementing humanitarian projects, including those identified in the second
working group of the Geneva talks, as well as for facilitating the exchange of
247The PACE “strongly urge[ed] the Russian au thorities, before the end of this year
[2009], to give unrestricted access to European Union monitors to both Abkhazia
605
and South Ossetia…” .
6.42 Russia responded to these appeals by c ontinuing to restrict international
monitoring. In line with Russia’s position, Abkhazia’s Foreign Minister
confirmed: “Our position will change only when the EU has a true understanding
of the reality on the ground … Only when the EU has a reasonable and wise
approach towards Abkhazia, then we sha ll talk how to cooperate with them on
606
this issue. So far, there is no reason to talk about this” .
6.43 In parallel with Russia’s restrictio ns on international monitoring, it has
impeded entry of and access to international humanitarian assistance. It therefore
continues to be in breach of its obligation under the C ourt’s Order of 15 October
2008 to “facilitate, and refrain from pl acing any impediment to, humanitarian
607
assistance” within Sout h Ossetia and Abkhazia . Russia also flouts General
Assembly Resolution 63/307, which underscored “the urgent need for unimpeded
information with the OSCE co-chair of the Geneva talks. In addition, the
proposal of the Greek chairmanship included the deployment of ‘OSCE
Monitors in the framework of the implementation of the six-point agreement of
12 August 2008’. These monitors would be based in both Karaleti and
Tskhinvali, and report directly to the Dir ector of the Conflict Prevention Centre
of the OSCE based in Vienna. Regrettably, on 14 May 2009, the Greek
Chairman-in-Office announced that it suspended the negotiations for a
continued OSCE presence in Georgia until further notice, as a result of the lack
of consensus on the proposal. In an official statement, the European Union
expressed its regret over the suspension of the negotiations and called on Russia
in particular to ‘show the necessary political will and urgently reconsider their
position in a constructive spirit’. In th e meanwhile, the proposal of the Greek
Chairmanship of the OSCE remains formally on the table.
PACE, Doc. No. 12010, op. cit., para. 25. GWS, Vol. III, Annex 117.
605
PACE, Resolution 1683, op. cit., para. 12.1. GWS, Vol. III, Annex 119.
606President of the Republic of Abkhazia, Pr ess Release, “Sergey Shamba: The Position of
Abkhazia On The Issue of Admitting EU Observers Into The Republic's Territory Is
Unchangeable” (30 September 2009). GWS, Vol. IV, Annex 189.
607Provisional Measures Order, para. 149(B).
248access for humanitarian activities to all internally displaced persons, refugees and
other persons residing in all conflict-affected areas throughout Georgia” 60.
Section VII. Conclusion
6.44 In sum, the evidence shows that Russia continues to ignore its obligations
under the Court’s Order of 15 October 2008. It continues to use its military
forces to control the borders of South Ossetia and Abkhazia in a manner that
prevents ethnic Georgian IDPs from exer cising their right of return to those
territories, and that prevents ethnic Geor gian who reside there from crossing the
administrative boundaries separating the te rritories from neighbouring parts of
Georgia. It continues to support, sponsor and defend ethnic discrimination
against Georgians residing in the territories, especially by forcing them to
abandon their Georgian nationality, langua ge and education. It continues to
neglect its duty to protect their proper ty and the property of expelled Georgian
IDPs and refugees. And it refuses to comply with its obligation to allow
unimpeded humanitarian access to and with in the territories it controls. The
Court may wish to address these issues of noncompliance with its Order at an
609
appropriate stage in these proceedings .
608U.N. General Assembly, Resolution 63/307, Status of internally displaced persons and
refugees from Abkhazia, Georgia, and the Tskhinvali region/South Ossetia, Georgia , U.N. Doc.
A/RES/63/307 (30 September 2009), op. cit. GWS, Vol. III, Annex 102.
609
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) , Judgment, I.C.J. Rep. 2009,
paras. 50-55, 61(2).
249 SUBMISSIONS
For these reasons Georgia respectfully requests the Court:
1. To dismiss the Preliminary Objections presented by the Russian
Federation;
2. To hold that it has jurisdiction to hear the claims presented by
Georgia, and that these claims are admissible.
1 April 2010
___________________________________
Ms. Tina Burjaliani
Agent of Georgia
251 APPENDIX ON THE TRAVAUX PRÉPARATOIRES
i. The Russian Federation seeks to present the travaux préparatoires of the
Convention as supporting its contention th at Article 22 of the 1965 Convention
conditions the jurisdiction of the Court on pr evious attempts to settle the dispute
through negotiations and the Convention’s conciliation procedures.
ii. That presentation is misleading and based on a selective and partial
reading of the negotiati ng history. Rather, the travaux préparatoires reveal that
Article 22 on dispute settle ment (in Part III of the C onvention) emerged from an
entirely separate process to that whic h gave birth to the CERD implementation
measures in Article 9 and in particular Articles 11 and 12, located in Part II of the
Convention. The travaux préparatoires make it clear that negotiations and the
CERD procedures are (a) not a prerequisite to the Court’s exercise of jurisdiction,
and (b) they are not cumulative requirements. Far from being conditional on
those procedures being utilised, the drafte rs of the Convention appear to have
been keen to ensure that unilateral seisin of the Court was wholly independent of
the Conciliation Commission process.
Section I. There Are No Preconditions to the Jurisdiction of the Court
iii. Russia seeks to portray the compromisso ry clause in Article 22 (part III)
as an end product of the development of the implementation (or Conciliation
Commission) procedures provided for in Part II of the final Convention. In
insisting that the clause be seen as a part of that process, Russia suggests that the
introduction of unilateral seisin into the Convention was contingent upon the
parties’ acceptance of mandatory CERD conciliation procedures as a safeguard
against abuse. This is quite wrong.
253iv. A proper reading of the drafting hist ory reveals that Article 22 had its
roots in an entirely distinct process to that constructing the CERD conciliation
machinery. All reference to the ICJ was expressly removed from that mechanism
during the key debates of the Third Committee (despite the protest of some of the
drafters). It was plainly intended to be applied wi thout prejudice to other
procedures for settling disputes (see what became Article 16).
v. The CERD conciliation mechanism and ICJ are thus presented in two
separate sets of provisions in the final draft. Contrary to the strained attempts of
the Russian Federation to explain this di vision, it is clear from the negotiating
history of the Convention that the separation between CERD conciliation
mechanisms and the ICJ were intended by the drafters. The detailed negotiating
history is attached as Annexes in Volume II.
Section II. The Drafting History
vi. The Russian Federation is correct in one respect: the Third Committee of
the General Assembly actually drafted th e compromissory clause. However, the
supposed course of the nego tiations over that clause set out in paragraph 4.68 of
Russia’s Preliminary Objections misleadingly elides two separate processes in an
attempt to portray them as contingent – to the extent of presenting the text
produced by one working group as that in fact produced by another. In order to
ascertain the correct rela tionship between the CERD conciliation machinery and
the clause providing for the Court’s jurisdiction, it is necessary to accurately trace
their evolution, first through the Sub- Commission, then to the Commission on
Human Rights, and finally through the lengthy debates of the Third Committee.
254 A. THE S UB-C OMMISSION ON PREVENTION OF D ISCRIMINATION AND
PROTECTION OF M INORITIES
vii. Most States within the Sub-Commissi on were anxious to ensure that the
Convention should have some effective means of implementation or enforcement.
This had been missing from the original bare declaration that served as the
inspiration for the Convention. The possi bility of a compromissory clause was,
however, viewed from the start as an enforcement measure that was in all respects
distinct from the development of an additional special m echanism within the
Convention. This is particularly clear from the comments of the representative of
the consultative council of Jewish organisations:
[the] failure of the drafts before the Sub-Commission to provide
for recourse to the ICJ or for appropriate enforcement610chinery
raised serious questions concerning their effectiveness .
viii. Indeed at that stage the form of the potential internal enforcement
procedure was by no means a foregone conclusion. The primary proposal from
611
Mr. Ingles of the Philippines envisaged a Conciliation Commission, while that
612
of Mr. Mudawi preferred some kind of regional supervisory organisation
system. Due to lack of time, these pr oposals were not discu ssed at any length.
Instead, both proposals were considered together under the heading “measures of
implementation”. They were only briefly debated.
ix. Mr. Ingles suggested the creation of a Conciliation Commission as an
enabling measure because, as he put it, “the settleme nt of disputes involving
61U .N. Economic and Social Council,Summary Record of the 410th Meeting,U.N. Doc.
E/CN.4/Sub.2/SR.410 (7 February 1964), p. 5(emphasis added). GWS, Vol. II, Annex 2.
611
U.N. Economic an d Social Council, Draft International Convention on the Elimination of All
Forms of Racial Discrimination, Mr. Ingles: Proposed Measures of Implementation , U.N. Doc.
E/CN.4/Sub.2/L.321 (17 January 1964). GWS, Vol. II, Annex 1.
612U.N. Economic and Social Council,Summary Record of the 427th Meeting, U.N. Doc.
E/CN.4/Sub.2/SR.427 (12 February 1964), p. 11. GWS, Vol. II, Annex 7.
255 613
human rights did not always lend itself to strictly judicial procedure” . He
envisaged that if the Conciliation Commission procedure failed to settle the
dispute, then either party would be able to bring th e case before the ICJ.
However, he was keen to emphasise to the Sub-Commission that “direct appeal to
the International Court of Justice ... was also envisaged in his draft” 614. It is clear
from this that even the proponents of the Conciliation Commission saw it as
entirely distinct from recourse to the ICJ, and was in no way a pre-condition to
the right of recourse to the ICJ.
x. The draft made it clear that the co nciliation mechanism was not intended
to be the only way in which such dis putes could be resolved. Mr. Ingles
emphasised that under Article 18 of the draft Convention (which survived every
re-draft until it became, in amended form , what is now Article 16 of the final
Convention), parties were “entirely fr ee to resort to ‘other procedures’” 615. This
might even include recourse to regi onal organisations as envisaged by Mr.
Mudawi:
Article. 18: The provisions of this Convention shall not prevent the
States Parties to the Conventi on from submitting to the ICJ any
dispute arising out of the interp retation or application of the
Convention in a matter within th e competence of the Committee;
or from resorting to other proced ures for settling the dispute, in
accordance with genera616 or special internatio nal agreements in
force between them .
xi. Many concerns were expressed about the conciliation process in the Sub-
Commission. Some felt that as “ an additional body”, it would be of no practical
613
Ibid., p. 12.
614Ibid., (emphasis added).
615Ibid.
616
U.N. Economic an d Social Council, Draft International Convention on the Elimination of All
Forms of Racial Discrimination, Mr. Ingles: Proposed Measures of Implementation , U.N. Doc.
E/CN.4/Sub.2/L.321 (17 January 1964). GWS, Vol. II, Annex 1.
256 617
use (a prescient comment by Mr. Ostrovsky of the USSR ), precisely because
618
States would be “free to resort to other procedures” . One of the main concerns
appeared to be that there might be other procedures mo re suited to a specific
dispute:
[it is] impossible to decide befo rehand what would be the most
suitable procedure in any dispute that might arise in connexion
with the elimination of racial discrimination. In some cases
negotiation might be sufficient; in others arbitral or judicial
procedures might be necessary; i619et others action by the Security
Council might be called for. (Remarks of Mr. Soltysiak, Poland)
xii. Mr. Ingles was anxious to stress th at the CERD conciliation mechanism
was not intended to be mandatory in any dispute of any kind over the Convention.
It would absolutely not “prevent recourse to any other procedures ... which might
be considered appropriate” 620. This makes it clear that Russia’s claim that the
conciliation procedure was “mandatory” 621 is entirely wrong.
xiii. Thus, in its earliest form, the CERD conciliation machinery was designed
as an optional alternative, an additional method for resolving disputes under the
Convention. It was never proposed or viewed as the mandatory mechanism as the
Russian Federation suggests 622. The draft was transmitted to the Commission for
Human Rights as the general view of the Sub-Commission, despite misgivings
about the limited debate or opportunity to study the details of the proposals.
617U.N. Economic and Social Council, Summary Record of the 428th Meeting , U.N. Doc.
E/CN.4/Sub.2/SR.428 (12 February 1964), p. 8. GWS, Vol. II, Annex 8.
618
U.N. Economic and Social Council, Summary Record of the 428th Meeting , U.N. Doc.
E/CN.4/Sub.2/SR.428 (12 February 1964), p. 6. GWS, Vol. II, Annex 9.
619
U.N. Economic and Social Council, Summary Record of the 427th Meeting , U.N. Doc.
E/CN.4/Sub.2/SR.427 (12 February 1964), p. 15. GWS, Vol. II, Annex 7.
620Ibid., p. 16 (emphasis added).
621Preliminary Objections of th e Russian Federation, Vol. I (1 December 2009) (hereinafter
“RPO”), para. 4.77.
622
Ibid., para. 4.46.
257xiv. Moreover, and very crucially, as a detailed study of the negotiating history
shows, it was undoubtedly not the only way in which effective enforcement of the
Convention was envisaged. Discussi on of Mr. Mudawi’s amendment was
postponed until the measures of implementation and the accompanying “final
623
clauses” could be taken up . The Chairman of the Sub-Commission, with the
agreement of the members, requested that the UN Secretary-General submit to the
Commission on Human Rights alongside th e draft implementation measures a
624
working paper of alternative forms for final clauses .
xv. The preliminary draft prepared by Mr. Ingles of the measures of
implementation of the Convention was pa ssed on to the Commission on Human
625
Rights towards the end of January 1964 . Alongside that text the Commission
was also provided with a copy of a work ing paper prepared by the UN Secretary-
626
General, on 17 February 1964, addressing the final clauses of the Convention .
xvi. It is in that separate working paper – and not in the draft measures of
implementation prepared by Mr. Ingles – that the elements of what became
Article 22 are to be found.
xvii. There is therefore no basis whatsoev er for Russia’s contention that ICJ
627
jurisdiction was initially considered as part of a single “implementation” text ,
in a package together with negotiati on and Committee procedures. Russia is
623U.N. Economic and Social Council, Report on the Twentieth Session, U.N. Doc. E/CN.4/874
(17 February - 18 March 1964), p. 10. GWS, Vol. II, Annex 16.
624
Ibid.
625 th
U.N. Economic and Social Council, Addendum to the Report of the 16 Session of the Sub-
Commission on Prevention of Discrimination and Protection of Human Rights, U.N. Doc.
E.CN.4/Sub.2/L.345/Add.4 (30 January 1964), pp. 13-18. GWS, Vol. II, Annex 11.
626U.N. Economic an d Social Council, Draft International Convention on the Elimination of All
Forms of Racial Discrimination, Final Clauses, Working paper prepared by the Secretary-
General, U.N. Doc. E/CN.4/L.679 (17 February 1964 ) (hereinafter “Secretary-General Working
Paper”). GWS, Vol. II, Annex 13.
627RPO, para. 4.64.
258equally wrong to claim that these elements were only formally and
inconsequentially split off into a different section at a later stage by the Third
Committee. The negotiating history shows that they were always treated as
separate elements.
B. T HE C OMMISSION ON H UMAN R IGHTS
xviii. Article VIII of the working documen t on final clauses, prepared by the
Commission on Human Rights, was en titled “Settlement of Disputes” 628. It put
forward suggestions for four alternative drafts of what became the
compromissory clause. Contrary to the claim by the Russian Federation 62, this
article stood alone and apart from th e conciliation mechanism long before it
reached the Third Committee. Proposals 8A and B were identical in stating that
“any dispute ... which is not settled by negotiation shall at the request of [any/all]
630
parties to the dispute, be referred to the International Court of Justice” .
Proposal 8A, however, provided that any party might choose to engage the Court
(unilateral seisin), while Proposal 8B e nvisaged seisin of the Court only through
common consent (by the use of the word “all” instead of “any”).
xix. Notably, Article 8D envisaged a mandato ry process of dispute resolution,
with strict preconditions for the jurisdiction of the Court. The parties to a dispute
were required (by use of the word shall) first to consult together to settle the
dispute by a peaceful means of their choice (including recourse to regional bodies
or negotiation). Subsequently, by clau se 2, any dispute which could not be
settled “in the manner prescribed” was to be compulsorily referred to the ICJ for
decision.
628Secretary-General Working Paper, op. cit.
629RPO, para. 4.64.
630
Secretary-General Working Paper, op. cit., p. 15 (emphasis added).
259xx. Attention was drawn (in comments appended to the articles) to the
preliminary measures of implementation proposed to the Commission, perhaps as
631
an example of an optional protocol for dispute resolution . In the Commission
itself these were not discussed at length. Only the method of transmission to the
Third Committee was debated. Mr. Quim bao stressed the usefulness of the
machinery envisaged by Mr. Ingles’s draft 63, but that draft was submitted
alongside the record of the de bates to ensure it was not being passed on as if it
was an approved document of the Commi ssion (since it had not been debated),
and also together with the Secretary-Ge neral’s separate working paper on final
clauses.
C. THE T HIRD C OMMITTEE OF THE G ENERAL ASSEMBLY
xxi. The Third Committee of the General As sembly devoted 43 meetings to
th
consideration of the draft Convention. In the first of those meetings, the 1299
meeting, it was agreed that the Of ficers of the Committee should produce
suggestions for final clauses based upon the working paper document submitted
633
by the Secretary-General . Discussion of those articles was thus postponed until
th
that document was produced at the 1358 meeting.
xxii. Before then, the Committee considered alternative drafts of articles
relating to measures of implementation. The primary substantive texts were a
631Ibid., p. 16.
632 th
U.N. Economic an d Social Council, Summary Record of the 81Meeting, U.N. Doc No.
E/CN.4/SR.810 (15 May 1964), pp. 6-7. GWS, Vol. II, Annex 15.
633See U.N. General Assembly, Draft International Convention on the Elimination of all Forms of
Racial Discrimination, Report of the Third Committee, U.N. Doc. A/6181 (18 December 1965), p.
35, paras. 173-174. GWS, Vol. II, Annex 40.
260 634 635
revised proposition from the Philippines and another from Ghana , together
with various minor amendments and proposals from other States.
xxiii. The proposal from the Philippines reflect ed its earlier drafts before the
Commission on Human Rights, recomm ending a Conciliation Commission
process after which, if no solution had been reached through those procedures,
either of the parties to the dispute might choose to bring the case before the ICJ
(now presented as Article 18). Unilateral seisin was thus conditional upon such
procedures having been followed. Howeve r, Article 19 again made clear that
these provisions were not to prevent th e submission to the ICJ of any dispute
involving the interpretation or application of the Convention or from resorting to
other procedures.
xxiv. By contrast, the Ghanaian proposal suggested an ad hoc Conciliation
Commission (to be appointe d by a Committee) available to the parties of a
dispute concerning the Convention, but di d not then propose to permit unilateral
seisin contingent upon those procedures being exhausted. Instead, the draft
proposed seisin of the Court only by common consent, and “whether it has been
dealt with by the Commission of Conciliation or not” 636.
634
U.N. General Assembly, Draft International Convention on the Elimination of All Forms of
Racial Discrimination, Philippines: Proposed articles relating to measures of implementatio,
U.N. Doc. A/C.3/L.1221 (11 October 1965). GWS, Vol. II, Annex 20.
635U.N. General Assembly, Draft International Convention on the Elimination of All Forms of
Racial Discrimination, Ghana: revised amendments to document A/C.3/L.1221 , U.N. Doc.
A/C.3/L.1274/Rev.1 (12 November 1965). GWS, Vol. II, Annex 22.
636See U.N. General Assembly, Draft International Convention on the Elimination of All Forms
of Racial Discrimination, Ghana: revised amendments to document A/C.3/L.1221 , U.N. Doc.
A/C.3/L.1274/REV.1 (12 November 1965), p. 9. GWS, Vol. II, Annex 22. See also U.N. General
Assembly, Official Record of the Th ird Committee, 1344th Meeting , U.N. Doc. A/C.3/SR.1344
(16 November 1965), p. 317. GWS, Vol. II, Annex 24.
261xxv. It did not prove possible “despite intensive efforts” to reconcile these two
637
drafts . Contrary to the argument of the Russian Federation, these two
documents did not both envisage the jurisd iction of the Court to be subject to the
638
conclusion of a compromis . The Philippine text expressly envisaged unilateral
seisin if the Conciliation Commission pr ocedure failed. Consequently, a working
group was set up to prepare a combined text.
th
xxvi. That text was presented to the 1349 meeting with the aim of satisfying as
639
many States as possible. The joint text of the working group , as the
representative from Ghana stressed when presenting it to the Committee, “did not
contain any clause concerning intervention by the International Court of Justice,
640
for which provision could be made in the final clauses” . It had thus removed
the Philippines’ specific proposal that if the conciliation procedure failed,
unilateral recourse could then be had to the ICJ, preferring to leave this (as was
more natural) to the final clauses rather than clash with what was included in
those proposals.
xxvii. This proposal must not be confused with the final clauses text later
641
produced by the working group of the Officers of the Third Committee .
However, the Russian Federation has fallen into precisely that confusion, as is
637U.N. General Assembly, Official Record of the Third Committee, 1345th Meeting , U.N. Doc.
A/C.3/SR.1345 (17 November 1965), p. 323, para. 1. GWS, Vol. II, Annex 25.
638
RPO, para. 4.67.
639U.N. General Assembly, Draft International Convention on the Elimination of All Forms of
Racial Discrimination, articles, addenda and amendments relating to measures of implementation
submitted by various States Parties , U.N. Docs. A/C.3/L.1291 (18 November – 13 December
1965). GWS, Vol. II, Annex 23.
640U.N. General Assembly, Official Record of the Third Committee, 1349th Meeting , U.N. Doc.
A/C.3/SR.1349 (19 November 1965), p. 348, para. 29 (emphasis added). GWS, Vol. II, Annex
28.
641U.N. Economic an d Social Council, Draft International Convention on the Elimination of All
Forms of Racial Discrimination, Suggestions for Final Clauses submitted by Officers of the Third
Committee, U.N. Doc. A/C.3/L.1237 (15 October 1965). GWS, Vol. II, Annex 17.
262reflected in paragraph 4.28 of its Preliminary Objections. The final clauses text
was intended – as the conciliation measures were not – to provide separately for
involvement of the ICJ. It was particular ly noted in the fina l clauses text that
those articles were “self-contained and referred to ar ticles within themselves” 64.
This provides further support for Geor gia’s view that the conciliation
mechanisms provided for under the Convention, on the one hand, and the right of
recourse to the ICJ, are separate and dist inct. In particular, the exhaustion of the
former is not a precondition to the exercise of the latter.
xxviii. Indeed, it is clear that a conscious decision was taken by the drafters of
the new implementation measures text to keep the conciliation process wholly
separate from the question of ICJ jurisdiction. That these were seen as separate
issues is explicitly underscored by the comm ents of the Belgian delegate in that
meeting, to the effect that he “supported both the idea of setting up a Committee
such as had been advocat ed by the Philippines... and the idea of allowing
recourse to the International Court of Justice” 643.
xxix. Thus, the Third Committee underlined the distinction already apparent
from the wholly separate consideration of the final clauses on dispute settlement
from the provisions concerning the CERD conciliation machinery.
xxx. The suggestion implicit in paragr aph 4.67 of the Russian Federation’s
Preliminary Objections that it was only at this late stage that the Secretary-
General was ordered to prepare final clau ses is incorrect. As shown above, the
two sets of provisions were already in train as distinct processes, from the birth of
642U.N. General Assembly, Draft International Convention on the Elimination of all Forms of
Racial Discrimination, Report of the Third Committee, U.N. Doc. A/6181 (18 December 1965), p.
35. GWS, Vol. II, Annex 40.
643
U.N. General Assembly, Official Record of the Third Committee, 1349th Meeting , U.N. Doc.
A/C.3/SR.1349 (19 November 1965), p. 346, para. 6 (emphasis added). GWS, Vol. II, Annex 28.
263the final drafts. The removal of any reference to the ICJ from the CERD
conciliation machinery simply served to make the distinction even clearer.
D. C UMULATIVE C ONDITIONS ?
xxxi. No quid pro quo can be drawn from the travaux to the effect that recourse
to the Court was to be subjected to the conciliatory phase. The two sets of
provisions emerged, and were then cons idered and developed, separately; and
clear steps were taken by the sponsors to remove any suggestion that the two sets
of provisions were linked in any cu mulative or other way. When the
representative of Ghana came under pressu re to reintroduce reference to the ICJ
644
as a factor in the conciliation process , the effort was rebuffed. The
representative of Ghana refused this e ffort, stressing the completeness of the
procedure and that the final clauses pr ovided in any event for unilateral seisin 645
so that a direct link between the two was unnecessary.
xxxii. Article by Article, the implementation measures were then considered and
voted upon. At its 1358 thmeeting, the Third Committee turned to the self-
contained final clauses. In the draft submitted by the Officers of the Third
Committee, clause VIII almost exactly mirrored the first of the proposals that
were put forward by the UN Secretary-General (what had been article 8A):
Any dispute between two or more Contracting States with respect
to the interpretation or application of this Convention, which is not
settled by negotiation, shall at the request of any of the parties to
the dispute, be referred to the International Court of Justice for
644U.N. General Assembly, Official Record of the Third Committee, 1354th Meeting , U.N. Doc.
A/C.3/SR.1354 (25 November 1965), p. 379, para. 53. GWS, Vol. II, Annex 33.
645
Ibid., p. 379, para. 54 and p. 376, para. 20. GWS, Vol. II, Annex 33.
264 decision, unless the disputants agree to another mode of
646
settlement .
xxxiii. Thus, the Officers of the Committee clearly decided to reject Proposal 8D
of the Secretary-General’s draft as a model, with its cumulative approach.
Instead, they chose to adopt a simple compromissory clause that was wholly
separate from and unconnected to the conc iliation process, in distinction from
other conventions (such as Articles 17 and 25 of the 1960 Protocol Instituting a
Conciliation and Good Offices Commissi on to be responsible for seeking a
settlement of any disputes which may arise between States Parties to the
UNESCO Convention against Discrimination in Education).
xxxiv. Two amendments were then proposed. The first was put forward by
Poland, seeking to replace the word “any” w ith the word “all”; this would have
transformed a system of unilateral seisin of the ICJ with seisin by compromis.
xxxv. This was rejected by the majority. The Canadian representative pointed
out that while some countries might be reluctant to accept the Court’s
jurisdiction, “in view of the latitude allowed under clause VIII, which did not
require reference to the Court unless it was requested, he had hoped that all
delegations could accept the clause as drafted” 64.
xxxvi. Nowhere was it stated that recour se to the Court was conditional upon
previous attempts to settle the disput e through the CERD conciliation machinery
or negotiation, and nowhere was it stated that negotiation and recourse to the
conciliation procedures under the Conventi on were cumulative. Instead, it was
646U.N. Economic an d Social Council, Draft International Convention on the Elimination of All
Forms of Racial Discrimination, Suggestions for Final Clauses submitted by Officers of the Third
Committee, U.N. Doc. A/C.3/L.1237 (15 October 1965), article VIII (emphasis added). GWS,
Vol. II, Annex 17.
647
U.N. General Assembly, Official Record of the Third Committee, 1367th Meeting , U.N. Doc.
A/C.3/SR.1367 (7 December 1965), p. 453, para. 23. GWS, Vol. II, Annex 38.
265simply stressed that unilateral seisin was very important for effective
enforcement, but that there were also many opportunities for alternative dispute
648
resolution open to the parties . Reference to the Court was not mandatory, it
was optional at the instance of a single party to a dispute.
xxxvii. The amendment put forward by Ghana, Mauritania and the Philippines,
referred to by the Russian Federa tion at paragraph 4.68 of its Preliminary
Objections, simply called for the deletion of the comma after “negotiation” and
then instead the insertion of new text between the words “negotiation” and
“shall”, namely “or by the procedures expressly provided for in this Convention”.
xxxviii. Rather than support its contention that jurisdiction of the ICJ is
contingent upon the CERD conciliation procedure, the statements of the States
Parties quoted at 4.69 and 4.71 of the Russian Federation’s Preliminary
Objections simply describe again the mechan ism envisaged by Mr. Ingles of the
Philippines at the earliest stage of Th ird Committee deliberations, where the ICJ
was indeed the last step in a separate pr ocess. That proposal had (as stated then)
been based upon the Protocol to the Convention against discrimination in
education adopted by UNESCO, but it was not then incorporated into the final
draft, because, as the Russians stressed, it was wholly unnecessary. The reliance
placed by Russia on the statement of Mr. Lamptey (Ghana) that the conciliation
procedure must be used before recourse to the ICJ is misconceived: Ghana’s own
explicit proposal to that effect was not accepted, and Mr. Lamptey’s intervention
only suggested that the CERD conciliation machinery “should be used”, not that
649
it had to be used .
648See, e.g., ibid., paras. 39, 40.
649
RPO, para. 4.69.
266xxxix. The following interrelated conclusions may be drawn from the negotiating
history:
a. The travaux préparatoires make it clear that negotiation and the
CERD conciliation procedures are (a) not a prerequisite to the Court’s
exercise of jurisdiction, and (b) not cumulative requirements.
b. The Conciliation Commission was envisaged as a useful addition to
existing and other procedures for dispute settlement, including the ICJ,
rather than as a mandatory process for complaints;
c. ICJ jurisdiction was considered as a self-contained issue all the way
from negotiations at the Sub-Commission through to the final drafting
in the Third Committee;
d. This was reflected in the location of the disputes resolution clause on
the one hand, and the c onciliation machinery on the other, in separate
parts of the final Convention, with balance provided by referring to
the opportunity (in a non-mandatory or preconditional way) to resort
to the conciliation process in the final compromissory clause.
xl. It is thus plainly not the case th at the conciliation procedure or
negotiations are a prerequisite or cumu lative condition to the exercise by the
Court of jurisdiction.
267 CERTIFICATION
I certify that the annexes are true copies of the documents referred
to and that the translations provided are accurate.
_____________________________________
Ms. Tina Burjaliani
Agent of Georgia
269 LIST OF ANNEXES
VOLUME II
TRAVAUX PRÉPARATOIRES
Annex 1 U.N. Economic and Social Council, Draft International
Convention on the Elimination of All Forms of Racial
Discrimination, Mr. Ingles: Proposed Measures of
Implementation, U.N. Doc. E/CN.4/Sub.2/L.321 (17 January
1964)
Annex 2 U.N. Economic and Social Council, Summary Record of the 407th
Meeting, U.N. Doc. E/CN.4/Sub.2/SR.407 (5 February 1964)
U.N. Economic and Social Council, Summary Record of the 408th
Meeting, U.N. Doc. E/CN.4/Sub.2/SR.408 (5 February 1964)
U.N. Economic and Social Council, Summary Record of the 409th
Meeting, U.N. Doc. E/CN.4/Sub.2/SR.409 (7 February 1964)
U.N. Economic and Social Council, Summary Record of the 410th
Meeting, U.N. Doc. E/CN.4/Sub.2/SR.410 (7 February 1964)
Annex 3 U.N. Economic and Social Council, Summary Record of the 412th
Meeting, U.N. Doc. E/CN.4/Sub.2/SR.412 (5 February 1964)
Annex 4 U.N. Economic and Social Council, Summary Record of the 417th
Meeting, U.N. Doc. E/CN.4/Sub.2/SR.417 (5 February 1964)
Annex 5 U.N. Economic and Social Council, Summary Record of the 422nd
Meeting, U.N. Doc. E/CN.4/Sub.2/SR.422 (10 February 1964)
Annex 6 U.N. Economic and Social Council, Summary Record of the 425th
Meeting, U.N. Doc. E/CN.4/Sub.2/SR.425 (11 February 1964)
271Annex 7 U.N. Economic and Social Council, Summary Record of the 427th
Meeting, U.N. Doc. E/CN.4/Sub.2/SR.427 (12 February 1964)
Annex 8 U.N. Economic and Social Council, Summary Record of the 428th
Meeting, U.N. Doc. E/CN.4/Sub.2/SR.428 (12 February 1964)
Annex 9 U.N. Economic and Social Council, Summary Record of the 429th
Meeting, U.N. Doc. E/CN.4/Sub.2/SR.429 (12 February 1964)
Annex 10 U.N. Economic and Social Council, Draft International
Convention on the Elimination of All Forms of Racial
Discrimination, Note by the Secretary-General, U.N. Doc.
E/CN.4/Sub.2/234 (29 November 1963)
Annex 11 U.N. Economic and Social Council, Report of the Sixteenth
Session of the Sub-Commission on Prevention of Discrimination
and Protection of Minorities to the Commission of Human Rights,
U.N. Doc. E/CN.4/Sub.2/241 (11 February 1964)
U.N. Economic and Social Council, Report of the Sixteenth
Session of the Sub-Commission on Prevention of Discrimination
and Protection of Minorities to the Commission of Human Rights,
Addendum, U.N. Doc. E/CN.4/Sub.2/L.345/Add.4 (30 January
1964)
U.N. Economic and Social Council, Draft International
Convention on the Elimination of all Forms of Racial
Discrimination, Mr. Calvocoressi and Mr. Capotorti: revised draft
for Article II, U.N. Doc. E/CN.4/Sub.2/L.324/Rev.1 (30 January
1964)
U.N. Economic and Social Council, Draft International
Convention on the Elimination of all Forms of Racial
Discrimination, Mr. Mudavi: proposal relating to the draft for the
United Nations Convention on the Elimination of all Forms of
Racial Discrimination s uggested by Mr. Abram, U.N. Doc.
E/CN.4/Sub.2/L.325 (20 January 1964)
272Annex 12 U.N. Economic and Social Council, Draft International
Convention on the Elimination of All Forms of Racial
Discrimination, Ecuador, Philippi nes: Draft Resolution, U.N.
Doc. E/CN.4/L.719 (12 March 1964)
Annex 13 U.N. Economic and Social Council, Draft International
Convention on the Elimination of All Forms of Racial
Discrimination, Final Clauses, Wo rking paper prepared by the
Secretary-General, U.N. Doc. E/CN.4/L.679 (17 February 1964)
Annex 14 U.N. Economic and Social Council, Summary Record of the 805th
Meeting, U.N. Doc. E/CN.4/SR.805 (8 May 1964)
Annex 15 U.N. Economic and Social Council, Summary Record of the 810th
Meeting, U.N. Doc. E/CN.4/SR.810 (15 May 1964)
Annex 16 U.N. Economic and Social Council, Commission on Human
Rights, Report on the Twentieth Session , U.N. Doc. E/CN.4/874
(17 February – 18 March 1964)
Annex 17 U.N. Economic and Social Council, Draft International
Convention on the Elimination of All Forms of Racial
Discrimination, Suggestions for Final Clauses submitted by
Officers of the Third Committee , U.N. Doc. A/C.3/L.1237
(15 October 1965)
Annex 18 U.N. Economic and Social Council, Draft International
Convention on the Elimination of All Forms of Racial
Discrimination, Poland: amendments to the suggestions for final
clauses submitted by the Officers of the Third Committee
(A/C.3/L.1237), U.N. Doc. A/C.3/L.1272 (1 November 1965)
Annex 19 U.N. Economic and Social Council, Draft International
Convention on the Elimination of All Forms of Racial
Discrimination, Ghana, Mauritania, and Philippines: amendments
to the suggestions for final clauses submitted by the Officers of the
Third Committee (A/C.3/L.1237) , U.N. Doc. A/C.3/L.1313
(30 November 1965)
273 U.N. Economic and Social Council, Draft International
Convention on the Elimination of All Forms of Racial
Discrimination, Ghana, Mauritania, and Philippines: amendment
to the amendments submitted by Poland (A/C.3/L.1272) to the
suggestions for final clauses submitted by the Officers of the Third
Committee (A/C.3/L.1237) , U.N. Doc. A/C.3/L.1314 (30
November 1965)
Annex 20 U.N. General Assembly, Draft International Convention on the
Elimination of All Forms of Raci al Discrimination, Philippines:
Proposed articles relating to me asures of implementation, U.N.
Doc. A/C.3/L.1221 (11 October 1965)
Annex 21 U.N. General Assembly, Draft International Convention on the
Elimination of All Forms of Raci al Discrimination, Philippines:
articles relating to measures of implementation to be added to the
provisions of the draft International Convention on the
Elimination of All Forms of Raci al Discrimination adopted by the
Commission on Human Rights (A/C.3/L.1221), U.N. Doc.
A/C.3/L.1251 (25 October 1965)
U.N. General Assembly, Draft International Convention on the
Elimination of All Forms of Ra cial Discrimination, Netherlands:
amendment to the articles relating to measures of implementation
submitted by Philippines (A/C.3/L1221), U.N. Doc. A/C.3/L.1270
(29 October 1965)
U.N. General Assembly, Draft International Convention on the
Elimination of All Forms of Raci al Discrimination, United States
of America: amendment to the articles relating to measures of
implementation submitted by the Philippines (A/C/3/L.1221), U.N.
Doc. A/C.3/L.1271 (29 October 1965)
U.N. General Assembly, Draft International Convention on the
Elimination of All Forms of Racial Discrimination, Poland:
amendments to the suggestions for final clauses submitted by the
Officers of the Third Committee (A/C.3/L.1237), U.N. Doc.
A/C.3/L.1272 (1 November 1965)
274 U.N. General Assembly, Draft International Convention on the
Elimination of All Forms of Ra cial Discrimination, Tunisia:
amendment to the articles relating to measures of implementation
submitted by the Philippines (A/C.3/L.1221), U.N. Doc.
A/C.3/L.1275 (3 November 1965)
U.N. General Assembly, Draft International Convention on the
Elimination of All Forms of Racial Discrimi nation, Ghana:
amendments to the articles relati ng to measure of implementation
submitted by the Philippines (A/C.3/L.1221), U.N. Doc.
A/C.3/L.1274 (3 November 1965)
U.N. General Assembly, Draft International Convention on the
Elimination of All Forms of Racial Discrimi nation, Ghana:
revised amendments to the articles relating to statues of
implementation submitted by the Philippines (A/C.3/L.1221), U.N.
Doc. A/C.3/L.1274/Rev.1 (12 November 19)
Annex 22 U.N. General Assembly, Draft International Convention on the
Elimination of All Forms of Racial Discrimi nation, Ghana:
revised amendments to document A/C.3/L.1221, U.N. Doc.
A/C.3/L.1274/Rev.1 (12 November 1965)
Annex 23 U.N. General Assembly, Draft International Convention on the
Elimination of All Forms of Racial Discrimination, articles,
addenda and amendments relating to measures of implementation
submitted by various States Parties, U.N. Docs. A/C.3/L.1291 –
1319, 1327 (18 November – 13 December 1965)
Annex 24 U.N. General Assembly, Official Record of the Third Committee,
1344th Meeting, U.N. Doc. A/C.3/SR.1344 (16 November 1965)
Annex 25 U.N. General Assembly, Official Record of the Third Committee,
1345th Meeting, U.N. Doc. A/C.3/SR.1345 (17 November 1965)
Annex 26 U.N. General Assembly, Official Record of the Third Committee,
1346th Meeting, U.N. Doc. A/C.3/SR.1346 (17 November 1965)
275Annex 27 U.N. General Assembly, Official Record of the Third Committee,
1347th Meeting, U.N. Doc. A/C.3/SR.1347 (18 November 1965)
Annex 28 U.N. General Assembly, Official Record of the Third Committee,
1349th Meeting, U.N. Doc. A/C.3/SR.1349 (19 November 1965)
Annex 29 U.N. General Assembly, Official Record of the Third Committee,
1350th Meeting, U.N. Doc. A/C.3/SR.1350 (22 November 1965)
Annex 30 U.N. General Assembly, Official Record of the Third Committee,
1351st Meeting, U.N. Doc. A/C.3/SR.1351 (23 November 1965)
Annex 31 U.N. General Assembly, Official Record of the Third Committee,
1352nd Meeting, U.N. Doc. A/C.3/SR.1352 (23 November 1965)
Annex 32 U.N. General Assembly, Official Record of the Third Committee,
1353rd Meeting, U.N. Doc. A/C.3/SR.1353 (24 November 1965)
Annex 33 U.N. General Assembly, Official Record of the Third Committee,
1354th Meeting, U.N. Doc. A/C.3/SR.1354 (25 November 1965)
U.N. General Assembly, Official Record of the Third Committee,
1355th Meeting, U.N. Doc. A/C.3/SR.1355 (26 November 1965)
Annex 34 U.N. General Assembly, Official Record of the Third Committee,
1356th Meeting, U.N. Doc. A/C.3/SR.1356 (26 November 1965)
U.N. General Assembly, Official Record of the Third Committee,
1357th Meeting, U.N. Doc. A/C.3/SR.1357 (29 November 1965)
Annex 35 U.N. General Assembly, Official Record of the Third Committee,
1358th Meeting, U.N. Doc. A/C.3/SR.1358 (29 November 1965)
Annex 36 U.N. General Assembly, Official Record of the Third Committee,
1362nd Meeting, U.N. Doc. A/C.3/SR.1362 (2 December 1965)
276Annex 37 U.N. General Assembly, Official Record of the Third Committee,
1363rd Meeting, U.N. Doc. A/C.3/SR.1363 (2 December 1965)
U.N. General Assembly, Official Record of the Third Committee,
1364th Meeting, U.N. Doc. A/C.3/SR.1364 (3 December 1965)
Annex 38 U.N. General Assembly, Official Record of the Third Committee,
1367th Meeting, U.N. Doc. A/C.3/SR.1367 (7 December 1965)
U.N. General Assembly, Official Record of the Third Committee,
1368th Meeting, U.N. Doc. A/C.3/SR.1368 (8 December 1965)
Annex 39 U.N. General Assembly, Official Record of the Third Committee,
1373rd Meeting, U.N. Doc. A/C.3/SR.1373 (14 December 1965)
U.N. General Assembly, Official Record of the Third Committee,
1374th Meeting, U.N. Doc. A/C.3/SR.1374 (15 December 1965)
Annex 40 U.N. General Assembly, Draft International Convention on the
Elimination of all Forms of Raci al Discrimination, Report of the
Third Committee, U.N. Doc. A/6181 (18 December 1965)
VOLUME III
UNITED NATIONS DOCUMENTS
Annex 41 U.N. General Assembly, Report of the Committee on the
Elimination of Racial Discrimination , Supplement No. 18, U.N.
Doc. A/9618 (1974)
Annex 42 U.N. General Assembly, Report of the Committee on the
Elimination of Racial Discrimination , Supplement No. 18, U.N.
Doc. A/31/18 (1976)
277Annex 43 U.N. Human Rights Committee, Sergio Euben Lopez Burgos v.
Uruguay, Communication No. R.12/52, U.N. Doc. A/36/40 (1981)
Annex 44 U.N. Human Rights Committee, Lilian Celiberti de Casariego v.
Uruguay, Communication No. R.56/1979 , U.N. Doc.
CCPR/C/13/D/56/1979 (1981)
Annex 45 U.N. Security Council, Letter dated 8 September 1992 from the
Chargé D’Affaires A.I. of the Permanent Mission of the Russian
Federation to the United Nations Addressed to the President of the
Security Council, Annex, U.N. Doc. S/24523 (8 September 1992)
Annex 46 U.N. Security Council, Note Verbale dated 25 December 1992
from the Ministry of Foreign Affa irs of Georgia Addressed to the
Secretary-General, Annex , U.N. Doc. S/25026 (30 December
1992)
Annex 47 U.N. General Assembly, 47th Sess., 89th Plenary Meeting,
Agenda item 91, Resolution Adopte d by the General Assembly
“Ethnic Cleansing” and Racial Hatred , U.N. Doc. A/RES/47/80
(15 March 1993)
Annex 48 U.N. Security Council, Letter dated 20 September 1993 From the
Permanent Representative of Ge orgia to the United Nations
Addressed to the President of the Security Council, Annex , U.N.
Doc. S/26472 (20 September 1993)
Annex 49 U.N. Security Council, Letter dated 13 October 1993 From the
Permanent Representative of Ge orgia to the United Nations
Addressed to the President of the Security Council, Annex , U.N.
Doc. S/26576 (13 October 1993)
Annex 50 U.N. General Assembly, Report of the Committee on the
Elimination of Racial Discrimination, U.N. Doc A/50/18 (22
September 1995)
278Annex 51 U.N. Security Council, Letter dated 15 February 1996 from the
Permanent Representative of Ge orgia to the United Nations
addressed to the President of the Security Council, Annex , U.N.
Doc. S/1996/114 (15 February 1996)
Annex 52 U.N. Economic and Social Council, Letter dated 24 March 1997
from the Minister for Foreign A ffairs of Georgia addressed to the
Chairman of the Commission on Human Rights, Annex, U.N. Doc.
E/CN.4/1997/132 (2 April 1997)
Annex 53 U.N. Security Council, Letter dated 12 January 1998 from the
Permanent Representative of Ge orgia to the United Nations
addressed to the Secretary-General, Annex , U.N. Doc. S/1998/25
(12 January 1998)
Annex 54 U.N. Security Council, Letter dated 14 April 1998 from the
Permanent Representative of Ge orgia to the United Nations
addressed to the Secretary-General , U.N. Doc. S/1998/329 (15
April 1998)
Annex 55 U.N. Security Council, Letter dated 26 May 1998 from the
Permanent Representative of Ge orgia to the United Nations
Addressed to the President of the Security Council , U.N. Doc.
S/1998/432 (26 May 1998)
Annex 56 U.N. Security Council, Letter dated 16 June 1998 from the Chargé
d’Affaires A.I. of the Permanent Mission of Georgia to the United
Nations addressed to the President of the Security Council, Annex,
U.N Doc. S/1998/516 (16 June 1998)
Annex 57 U.N. Security Council, Letter dated 17 July 1998 from the
Permanent Representative of Ge orgia to the United Nations
addressed to the President of the Security Council, Annex , U.N.
Doc. S/1998/660 (17 July 1998)
Annex 58 U.N. Security Council, Letter dated 23 December 1998 from the
Permanent Representative of Ge orgia to the United Nations
addressed to the President of the Security Council, Annex , U.N.
Doc. S/1998/1213 (23 December 1998)
279Annex 59 U.N. Security Council, Letter dated 20 July 1999 from the
Permanent Representative of Ge orgia to the United Nations
addressed to the President of the Security Council , U.N. Doc.
S/1999/806 (21 July 1999)
Annex 60 U.N. Security Council, Letter dated 22 July 1999 from the
Permanent Representative of Ge orgia to the United Nations
addressed to the President of the Security Council, U.N. Doc.
S/1999/814 (22 July 1999)
Annex 61 U.N. General Assembly, Measures to Eliminate International
Terrorism, U.N. Doc. A/55/179 (26 July 2000)
Annex 62 U.N. Security Council, Letter dated 7 December 2000 from the
Permanent Representative of Ge orgia to the United Nations
addressed to the President of the Security Council, Annex, U.N.
Doc. S/2000/1163 (7 December 2000)
Annex 63 U.N. Security Council, Letter dated 20 December 2000 from the
Permanent Representative of Ge orgia to the United Nations
addressed to the President of the Security Council, Annex, U.N.
Doc. S/2000/1221 (20 December 2000)
Annex 64 U.N. Committee on the Eliminati on of Racial Discrimination,
Reports Submitted by States Parties Under Article 9 of the
Convention, Initial report of States parties due in 2000,
Addendum, Georgia, U.N. Doc. CERD/C/369/Add.1 (1 February
2001)
Annex 65 U.N. Committee on the Eliminati on of Racial Discrimination,
Summary Record of the 1453rd Meeting , U.N. Doc.
CERD/C/SR.1453 (20 March 2001)
Annex 66 U.N. Committee on the Eliminati on of Racial Discrimination,
Concluding observations of the Committee on the Elimination of
Racial Discrimination: Georgia, U.N. Doc. CERD/C/304/Add.120
(27 April 2001)
280Annex 67 U.N. Committee on the Eliminati on of Racial Discrimination,
Summary Record of the 1454th Meeting , U.N. Doc.
CERD/C/SR.1454 (14 June 2001)
Annex 68 U.N. General Assembly, First Committee, 10th Meeting , U.N.
Doc. A/C.1/57/PV.10 (10 October 2002)
Annex 69 U.N. General Assembly, First Committee, 9th Meeting, U.N. Doc.
A/C.1/58/PV.9 (15 October 2003)
Annex 70 U.N. Committee on the Eliminati on of Racial Discrimination,
Third periodic reports of Stat es parties due in 2004, Addendum,
Georgia, U.N. Doc. CERD/C/461/Add.1 (8 October 2004)
Annex 71 U.N. Security Council, Letter dated 26 January 2005 from the
Permanent Representative of Ge orgia to the United Nations
addressed to the President of the Security Council , U.N. Doc.
S/2005/45 (26 January 2005)
Annex 72 U.N. Committee on the Eliminati on of Racial Discrimination,
Summary Record of the 1706th Meeting , U.N. Doc.
CERD/C/SR.1706 (10 August 2005)
Annex 73 U.N. General Assembly, Security Council, Identical letters dated
23 September 2005 from the Permanent Representative of Georgia
to the United Nations addressed to the Secretary-General and to
the President of the Security Council, Annex, U.N. Doc. A/60/379-
S/2005/606 (28 September 2005)
Annex 74 U.N. General Assembly, 7th Meeting, U.N. Doc. A/C.1/60/PV.7
(7 October 2005)
Annex 75 U.N. Security Council, Letter dated 27 October 2005 from the
Permanent Representative of Ge orgia to the United Nations
addressed to the President of the Security Council , U.N. Doc.
S/2005/678 (27 October 2005)
281Annex 76 U.N. General Assembly, Security Council, Letter dated 9
November 2005 from the Permanent Representative of Georgia to
the United Nations addressed to the Secretary-General, Annex ,
U.N. Doc. A/60/552- S/2005/718 (10 November 2005)
Annex 77 U.N. Security Council, Letter dated 18 November 2005 from the
Permanent Representative of Ge orgia to the United Nations
addressed to the President of the Security Council, Annex, U.N.
Doc. S/2005/735 (23 November 2005)
Annex 78 U.N. General Assembly, Letter dated 16 Febr uary 2006 from the
Permanent Representative of Ge orgia to the United Nations
addressed to the Secretary-General, Annex, U.N. Doc. A/60/685
(21 February 2006)
Annex 79 U.N. Committee Against Torture, Summary Record of the 699th
Meeting, U.N. Doc. CAT/C/SR.699 (10 May 2006)
Annex 80 U.N. General Assembly, Letter dated 1 June 2006 from the
Permanent Representative of Ge orgia to the United Nations
addressed to the Secretary-General, Annex , U.N. Doc. A/60/872
(2 June 2006)
Annex 81 U.N. Security Council, Letter dated 19 July 2006 from the
Permanent Representative of the Russian Federation to the United
Nations addressed to the Secretary-General, Annex , U.N. Doc.
A/2006/555 (20 July 2006)
Annex 82 U.N. General Assembly, Letter dated 24 Jul 2006 from the
Permanent Representative of Ge orgia to the United Nations
addressed to the Secretary-General , Annex, U.N. Doc. A/60/954
(25 July 2006)
Annex 83 U.N. General Assembly, Security Council, Identical letters dated
11 August 2006 from the Chargé d’a ffaires a.i. of the Permanent
Mission of Georgia to the United Nations addressed to the
Secretary-General and the Presid ent of the Security Council,
Annex, U.N. Doc. A/60/976-S/2006/638 (14 August 2006)
282Annex 84 U.N. Security Council, Letter dated 4 September 2006 from the
Permanent Representative of Ge orgia to the United Nations
addressed to the President of the Security Council, Annex , U.N.
Doc. S/2006/709 (5 September 2006)
Annex 85 U.N. Human Rights Committee, Third periodic report of State
parties due in 2006 , U.N. Doc. CCPR/C/GEO/3 (7 November
2006)
Annex 86 U.N. Committee on the Eliminati on of Racial Discrimination,
Concluding observations of the Committee on the Elimination of
Racial Discrimination: Georgia , U.N. Doc. CERD/C/GEO/CO/3
(27 March 2007)
Annex 87 U.N. Security Council, Letter dated 5 September 2007 from the
Permanent Representative of Ge orgia to the United Nations
addressed to the President of the Security Council, Annex, U.N.
Doc. S/2007/535 (7 September 2007)
Annex 88 U.N. General Assembly, 7th Plenary Meeting, Address by Mr.
Mikheil Saakashvili, President of Georgia , U.N. Doc. A/62/PV.7
(26 September 2007)
Annex 89 U.N. Security Council, Letter dated 3 October 2007 from the
Permanent Representative of Ge orgia to the United Nations
addressed to the President of the Security Council, Annex , U.N.
Doc. S/2007/589 (4 October 2007)
Annex 90 U.N. General Assembly, Security Council, Identical letters dated
25 March 2008 from the Permanent Representative of Georgia to
the United Nations addressed to the Secretary-General and the
President of the Security Council, Annex, U.N. Doc. A/62/765-
S/2008/197 (26 March 2008)
Annex 91 U.N. General Assembly, Letter dated 17 April 2008 from the
Chargé d’affaires a.i. of the Pe rmanent Mission of Georgia to the
United Nations addressed to the Secretary-General, Annex , U.N.
Doc. A/62/810 (21 April 2008)
283Annex 92 Elena Vapnitchnaia, “Security C ouncil Discussed Situation in
Georgia”, United Nations Radio (24 April 2008)
Annex 93 U.N. General Assembly, Letter dated 28 April 2008 from the
Permanent Representative of Ge orgia to the United Nations
addressed to the Secretary-General, Annex , U.N. Doc. A/62/824
(29 April 2008)
Annex 94 U.N. Committee on the Eliminati on of Racial Discrimination,
Concluding Observations of the Committee on the Elimination of
Racial Discrimination – United States of America , U.N. Doc.
CERD/C/USA/CO/6 (8 May 2008)
Annex 95 U.N. Security Council , Letter dated 25 July 2008 from the
Permanent Representative of Ge orgia to the United Nations
addressed to the President of the Security Council, Annex , U.N.
Doc. S/2008/497 (29 July 2008)
Annex 96 U.N. Security Council, 5953rd Meeting, U.N. Doc. S/PV.5953 (10
August 2008)
Annex 97 U.N. General Assembly, Security Council Identical letters dated
15 August 2008 from the Permanent Representative of Georgia to
the United Nations addressed to the Secretary-General and the
President of the Security Council, Annex, U.N. Doc. A/62/935-
S/2008/557 (18 August 2008)
Annex 98 U.N. Security Council, Provisional Record of the 5961st Meeting,
U.N. Doc. S/PV.5961 (19 August 2008)
Annex 99 Conference on Disarmament, Letter dated 26 August 2008 from
the Permanent Representative of Georgia Addressed to the
Secretary-General of the Conference on Disarmament
Transmitting the Text on the Update of the Current Situation in
Georgia, U.N. Doc. CD/1850 (9 September 2008)
284Annex 100 U.N. General Assembly, Human Rights Council, Report of the
Representative of the Secretary- General on the Human Rights of
Internally Displaced Persons, Walter Kälin, Addendum, Follow up
to the Report on the Mission toGeorgia (A/HRC/10/13/Add.2),
U.N. Doc. A/HRC/13/21/Add.3 (14 January 2009)
Annex 101 U.N. Committee on the Eliminati on of Racial Discrimination,
Summary Record of the 1914th Meeting , U.N. Doc.
CERD/C/SR.1914 (2 March 2009)
Annex 102 U.N. General Assembly, Resolution 63/307, Status of internally
displaced persons and refugees from Abkhazia, Georgia, and the
Tskhinvali region/South Ossetia, Georgia , U. N. Doc.
A/RES/63/307 (30 September 2009)
Annex 103 U.N. Human Rights Committee, Concluding observations of the
Human Rights Committee, Russian Federation , U.N. Doc.
CCPR/C/RUS/CO/6 (24 November 2009)
INTER-GOVERNMENTAL AND MULTI-LATERAL
ORGANISATION DOCUMENTS
Annex 104 OSCE, Budapest Document 1994: Toward a Genuine Partnership
in a New Era (6 December 1994)
Annex 105 OSCE, Seventh Meeting of the Ministerial Council, Decision on
Georgia, MC(7).DEC/1 (December 1998)
Annex 106 OSCE, Statement by the Georgian Delegation on the Georgian-
Russian relations Permanent Council, January 23, 2003 ,
PC.DEL/52/03 (24 January 2003)
Annex 107 OSCE, Statement of the Georgian De legation on the situation in
the Tskhinvali Region, PC.DEL/63/03 (30 January 2003)
285Annex 108 OSCE, Mission to Georgia, Head of Mission Report to the
Permanent Council, PC.FR/18/03 (13 June 2003)
Annex 109 OSCE, Statement by the Delegation of Georgia , PC.DEL/886/06
(18 September 2006)
Annex 110 Council of Europe, European Commission Against Racism and
Intolerance, Second Report on Georgia, CRI(2007)2 (13 February
2007)
Annex 111 OSCE, Statement by the Delegation of Georgia, FSC-
PC.DEL/23/07 (24 May 2007)
Annex 112 OSCE, Statement by the Delegation of Georgia, PC.DEL/306/08
(17 April 2008)
Annex 113 OSCE, 709th Plenary Meeting of the Council, Annex 1, Statement
by the Delegation of Georgia, PC.JOUR/709 (17 April 2008)
Annex 114 OSCE, Statement by the Delegation of Georgia, PC.DEL/345/08
(30 April 2008)
Annex 115 OSCE, Statement of the Georgian Delegation at the Special
Permanent Council Meeting, PC.DEL/708/08 (15 August 2008)
Annex 116 OSCE, Permanent Council No. 772, Swedish Presidency of the
European Union, EU statement on Georgia , PC.DEL/678/09 (3
September 2009)
Annex 117 Council of Europe, Parliamentary Assembly, The war between
Georgia and Russia: one year after , Doc. No. 12010 (14
September 2009)
Annex 118 Council of Europe, Parliame ntary Assembly, Committee on
Migration, Refugees and Population, The war between Georgia
and Russia: one year after, Doc. No. 12039 (28 September 2009)
286Annex 119 Council of Europe, Parliamentary Assembly, Resolution 1683, The
war between Georgia and Russia: one year after(29 September
2009)
Annex 120 Independent International Fact-Finding Mission On the Conflict in
Georgia, Report, Vol. I (September 2009)
Annex 121 Independent International Fact-Finding Mission On the Conflict in
Georgia, Report, Vol. II (September 2009)
Annex 122 European Union Monitoring Missi on in Georgia, Press Release,
“EUMM expresses concern about the recent incident involving 16
Georgian citizens” (26 October 2009)
Annex 123 European Union Monitoring Missi on in Georgia, Press Release,
“EUMM expresses profound concern over the detention of four
under aged Georgian ci tizens by the de facto South Ossetian
authorities” (8 November 2009)
VOLUME IV
GOVERNMENT DOCUMENTS
Annex 124 Statement of the Parliament of Georgia (17 December 1992)
Annex 125 Appeal of the Parliament of Georgia to the United Nations
Organization, Conference on the Security and Cooperation In
Europe, International Human Rights Organizations (1 April 1993)
Annex 126 Decree Issued by the Parliament of Georgia on Necessary
Measures to be Taken to Protec t Life and Ensure Security of
Peaceful Population in the Armed Conflict Zone (1 April 1993)
287Annex 127 Decree Issued by the Parliament of Georgia on Withdrawal of
Russian Military Units from th e Conflict Zone in Abkhazia (27
April 1993)
Annex 128 Declaration of the Participants of the Second Meeting of the
Quadripartite Commission on the I ssues of Voluntary Return of
Refugees and Displaced Persons (27 April 1994)
Annex 129 Statement of the Parliament of Georgia (12 October 1994)
Annex 130 Resolution of the Parliament of Georgia on Measures of Conflict
Settlement in Abkhazia (17 April 1996)
Annex 131 Protocol No. 1 of the Meeting of the Working Group of the JCC
on the Resolution of the Problems Of Refugees and IDPs as a
Result of the Georgian-Ossetian Conflict (17-18 April 1997)
Annex 132 Decree Issued By The Parliament of Georgia on Further Presence
of Armed Forces of the Russian Federation deployed in the zone
of Abkhaz Conflict under the Ausp ices of the Commonwealth of
Independent States (30 May 1997)
Annex 133 Protocol No.1 of the Meeting of the Ad Hoc Committee on
Facilitation of the Volunteer Retu rn of Refugees and IDPs as a
Result of the Georgian-Ossetian Conflict to the Places of Their
Former Permanent Residence (21 October 1997)
Annex 134 Protocol No. 2 of the Meeting of the Ad Hoc Committee on
Facilitation of the Voluntary Retu rn of Refugees and IDPs as a
Result of the Georgian-Ossetian Conflict to the Places of Their
Former Permanent Residence (25 November 1997)
Annex 135 Protocol No. 3 of the Meeting of the Ad Hoc Committee of the
JCC on Facilitation of the Volunteer Return of Refugees and IDPs
as a Result of the Georgian-Osset ian Conflict to the Places of
Their Former Permanent Residence (7 April 1998)
Annex 136 Statement of the Parliament of Georgia (27 May 1998)
288Annex 137 Statement of the Parliament of Georgia on Resolution, “The
Necessity of Normalization with regard to Border and Customs
regimes on the Abkhaz Segment of State Border”, adopted by the
Russian State Duma on 24 June 1998 (26 June 1998)
Annex 138 Protocol No. 4 of the Meeting of the Ad Hoc Committee on
Facilitation of the Voluntary Retu rn of Refugees and IDPs as a
Result of the Georgian-Ossetian Conflict to the Places of Their
Former Permanent Residence (30 September 1998)
Annex 139 Protocol No. 5 of the Meeting of the Ad Hoc Committee on
Facilitation of the Voluntary Retu rn of Refugees and IDPs as a
Result of the Georgian-Ossetian Conflict to the Places of Their
Former Permanent Residence (17 December 1998)
Annex 140 Protocol No. 6 of the Meeting of the Ad Hoc Committee of the
JCC on Cooperation to the Volunteer Return of Refugees and IDPs
as a Result of the Georgian-Osse tian Conflict to Places of Their
Former Permanent Residence (30 March 1999)
Annex 141 Protocol No. 7 of the Meeting of the Ad Hoc Committee of the
JCC on the Facilitation of the Volu ntary Return of Refugees and
IDPs, as a Result of the Georgian -Ossetian Conflict to Places of
Their Former Residence (22 July 1999)
Annex 142 Joint Statement of the Russian Federation and Georgia (17
November 1999)
Annex 143 Script of the Talks of Mr. Z. Abashidze, Ambassador
Extraordinary and Plenipotentiary of Georgia to the Russian
Federation with V. Lukin, Deputy Chairperson of the State Duma
of Russia (14 September 2000)
Annex 144 Protocol No. 8 of the Meeting of the Ad Hoc Committee of the
JCC on Facilitation of Volunteer Return of Refugees and IDPs as a
Result of the Georgian-Ossetian Conflict to the Places of Their
Former Permanent Residence (20-21 April 2001)
289Annex 145 Resolution of the Parliament of Georgia Concerning the Situation
on the Territory of Abkhazia (11 October 2001)
Annex 146 Resolution of The Parliament of Georgia on the Situation in
Abkhazia (20 March 2002)
Annex 147 Script of the talks of Mr. Z. Abashidze, Ambassador Extraordinary
and Plenipotentiary of Georgia to the Russian Federation with Mr.
I. Ivanov, Ministry of Foreign Affairs of the Russian Federation
(25 April 2002)
Annex 148 Protocol No. 9 of the Meeting of the Ad Hoc Committee on
Facilitation of Volunteer Return of Refugees and IDPs as a Result
of the Georgian-Ossetian Conflict to the Places of Their Former
Permanent Residence (14-15 May 2002)
Annex 149 Protocol No. 10 of the Session of the Specially Created Committee
(Ad Hoc) of JCC for Promotion of Voluntary Repatriation of
Refugees and Internally Displace d Persons as a Result of the
Georgian-Ossetian Conflict to the Places of Their Former
Residence (7 June 2002)
Annex 150 Protocol No. 11 of the Meeting of the Ad Hoc Committee on
Facilitation of Volunteer Return of Refugees and IDPs as a Result
of the Georgian-Ossetian Conflict to the Places of Their Former
Residence (8-9 July 2002)
Annex 151 Joint Statement of the Secretary of the National Security Council
of Georgia, T. Japaridze and S ecretary of the National Security
Council of the Russian Federation, V. Rushailo (11 July 2002)
Annex 152 Protocol No. 12 of the Meeting of the Ad Hoc Committee on
Facilitation of Voluntary Return of Refugees and IDPs as a Result
of the Georgian-Ossetian Conflic t to Places of Their Former
Residence (18 October 2002)
290Annex 153 Script of the Talks of delegation of the Parliament of Georgia to
Moscow on January 20-23 [2003] Headed by Ms. N. Burjanadze,
Speaker of the Parliament of Georgia, Taken Place at the Council
and State Duma of the Russian Federation (January 2003)
Annex 154 Memorandum of the Georgian-Russian Working Group Meeting
for Sochi-Tbilisi Through Railway Traffic Rehabilitation (26 June
2003)
Annex 155 Information Note prepared by the Ministry of Fore ign Affairs of
Georgia (20 January 2004)
Annex 156 Minutes of the Meeting Between the State Minister, Mr. G.
Khaindrava and the Deputy Minister of Foreign Affairs of the
Russian Federation, Mr. V. Loshinin held on 27 April 2004 (27
April 2004)
Annex 157 Information Note: Concerning the meeting of Ambassador of
Georgia in Russian Federation - Valeri Chechelashvili and the
First Deputy Foreign Affairs Mini ster of the Russi an Federation -
Mr. V. Loshinin (21 October 2004)
Annex 158 Resolution of the Parliament of Georgia Regarding the Current
Situation in the Conflict, Regions On the Territory of Georgia and
Ongoing Peace Operations (11 October 2005)
Annex 159 Ministry of Foreign Affairs, Information concerning the death of
the resident of Gali District, Daniel Tsurtsumia (5 November
2005)
Annex 160 Ministry of Foreign Affairs, The Comment concerning the Fact of
Kidnapping of the Resident in Gali Region (10 November 2005)
Annex 161 Ministry of Foreign Affairs, Statement of the Ministry of Foreign
Affairs of Georgia concerning the current developments in
Abkhazia, Georgia (14 November 2005)
291Annex 162 Ministry of Foreign Affairs of Georgia, Comment of the
Department of the Press and Information on the Statements of the
Minister of Foreign Affairs of the Russian Federation (20 January
2006)
Annex 163 Ministry of Foreign Affairs of Georgia, Statement by Mr. Irakli
Alasania Special Representative of the President of Georgia to UN
Security Council (26 January 2006)
Annex 164 Ministry of Foreign Affairs of Georgia, Comments of Deputy
Minister of Foreign Affairs of Georgia Merab Antadze concerning
the Answers of Minister of Foreign Affairs of the Russian
Federation Sergey Lavrov to Journalists’ Questions (19 June
2006)
Annex 165 Ministry of Foreign Affairs of Georgia, Statement of the Ministry
of Foreign Affairs of Georgia on the Situation in Tskhinvali
district/South Ossetia (14 July 2006)
Annex 166 Ministry of Foreign Affairs of Georgia, Comments of the
Department of the Press and Information on the statement by the
Ministry of Foreign Affairs of the Russian Federation over the
situation in the Kodori Gorge (1 August 2006)
Annex 167 Ministry of Foreign Affairs of Georgia, Comment of the
Department of the Press and Informa tion on the visit of Secretary
of State and Deputy Minister fo r Foreign Affairs of the Russian
Federation G. Karasin to Abkhazia, Georgia (10 August 2006)
Annex 168 Ministry of Foreign Affairs of Georgia, Statement of the Ministry
of Foreign Affairs of Georgia (4 September 2006)
Annex 169 Office of State Ministry on Conflict Regulation Issues, Statement
of the State Ministry for Conflict Resolution Issues (11 September
2006)
Annex 170 Office of the President of Georgia, “Remarks of H.E. Mikheil
Saakashvili, Presiden t of Georgian to the 61st Annual United
Nations General Assembly” (23 September 2006)
292Annex 171 Ministry of Foreign Affairs of Georgia, Statement of Mr. Irakli
Alasania, Ambassador Extraordi nary and Plenipotentionary,
Permanent Representative of Georgia in the UN (3 October 2006)
Annex 172 Office of the President of Georgia, Press Release, “Remarks H.E.
The President of Georgia Mi kheil Saakashvili European
Parliament, Strasbourg” (14 November 2006)
Annex 173 Ministry of Foreign Affairs of Georgia, Reply of the Department of
the Press and Information to the Georgia News Agency
concerning the statements made by the Minister of Foreign Affairs
of the Russian Federation (22 December 2006)
Annex 174 Office of State Ministry on Conflict Regulation Issues, Statement
of the State Minister on Conflict Regulation Issues (2 March 2007)
Annex 175 Ministry of Foreign Affairs of Georgia, Statement of the Ministry
of Foreign Affairs of Georgia (20 September 2007)
Annex 176 Ministry of Foreign Affairs of Georgia, Reply by the Press and
Information Department to the News Georgia Agency concerning
the statement made by the Info rmation and Press Department of
the Russian Ministry of Foreign Affairs on the completion of the
withdrawal of the Russian mil itary bases from the Georgian
territory (22 November 2007)
Annex 177 Ministry of Foreign Affairs of Georgia, Statement of the Ministry
of Foreign Affairs of Georgia (19 April 2008)
Annex 178 Office of the President of Geor gia, Speech, “The President of
Georgia Mikheil Saakashvili made a special statement” (21 April
2008)
Annex 179 Office of the President of Georgia, Press Release, “The President
of Georgia met the representatives of EU countries” (12 May
2008)
293Annex 180 Ministry of Foreign Affairs of Georgia, Transcript of the briefing
of Minister of Foreign Affai rs of Georgia Eka Tkeshelashvili (21
May 2008)
Annex 181 Office of the President of Georgi a, Press Briefing, “The President
of Georgia Mikheil Saakashvili he ld a press conference” (28 June
2008)
Annex 182 Ministry of Foreign Affairs of Georgia, Comment of the Press and
Information Department of the Mi nistry of Foreign Affairs of
Georgia (17 July 2008)
Annex 183 Office of the President of Georgi a, Press Release, “Presidential
Decree on Declaration of St ate of War and Full Scale
Mobilization” (9 August 2008)
Annex 184 Office of the President of Georgi a, Press Briefing, “President of
Georgia Mikheil Saakashvili met foreign journalists” (9 August
2008)
Annex 185 Ministry of Foreign Affairs of Georgia, Statement of the Ministry
of Foreign Affairs of Georgia (11 August 2008)
Annex 186 Office of the President of Georgi a, Press Briefing, “The President
of Georgia Mikheil Saakashvili held press conference about
situation in South Ossetia” (12 August 2008)
Annex 187 Ministry of Foreign Affair s of the Russian Federation, Transcript
of Remarks and Response to Media Questions by Russian Minister
of Foreign Affairs Sergey Lavrov at Joint Press Conference After
Meeting with Chairman-in-Office of the OSCE and Minister for
Foreign Affairs of Finland Al exander Stubb, Moscow, August 12,
2008 (12 August 2008)
Annex 188 President of the Republic of Abkha zia, Press Release, “Return of
Refugees According To Georgi a’s Plan May Lead to New
Conflicts and Bloodshed - Sergey Shamba” (11 September 2009)
294Annex 189 President of the Republic of A bkhazia, Press Release, “Sergey
Shamba: The Position of Abkhazia On The Issue of Admitting EU
Observers Into The Republic's Territory Is Unchangeable” (30
September 2009)
Annex 190 Ministry of Foriegn Affair s of the Russian Federation, Transcript
of the Statement and Answers to the Questions of the Mass Media
by Sergey Lavrov, Minister of Foreign Affairs of the Russian
Federation, at the Joint Press C onference on the Outcome of the
Negotiations with Sergey Shamba, Mi nister of Foreign Affairs of
Abkhazia, Moscow, 24 December 2009 (24 December 2009)
Annex 191 President of the Republic of Abkha zia, Press Release, “Abkhazia
Is Not Going To Return All Georgian Refugees – Bagapsh” (16
February 2010)
Annex 192 President of the Republic of Abkh azia, Press Release, “Russia,
Abkhazia, Signed Agreement on Join t Russian Military Base on
Abkhaz Territory” (17 February 2010)
Annex 193 Service for the Protection of Rights of Internally Displaced
Population from Abkhazia, Under the Supreme Council of
Abkhazia, Report (September 2009-February 2010) (12 March
2010)
NON-GOVERNMENTAL ORGANISATION REPORTS
Annex 194 International Crisis Group, Abkhazia: Deepening Dependence,
Europe Report No. 202 (26 February 2010)
Annex 195 Report of Gali Educational Resource Centre (March 2010)
295 ACADEMIC ARTICLES
Annex 196 Christopher Greenwood, “Jurisdi ction, NATO and the Kosovo
Conflict” in Patrick Capps, Malcolm Evans & Stratos
Konstadinidis (eds.), Asserting Jurisdictio n: International and
European Legal Perspectives (2003)
Annex 197 Thomas Buergenthal, “The ICJ, human rights and extraterritorial
jurisdiction” in S. Breite nmoser, et al., (edHuman rights,
Democracy and the Rule of Law: Liber Amicorum Luzius
Wildhaber (2007)
NEWS ARTICLES
Annex 198 “Ask Georgia's President”, BBC News (25 February 2004)
Annex 199 “State minister: Georgia in ‘low-intensity conflict’”, The
Messenger (11 July 2008)
Annex 200 “Georgia imposes martial law as violence continues”, RIA Novosti
(9 August 2008)
Annex 201 “Russian bear goes for West’s jugular”, Mail on Sunday (London)
(10 August 2008)
Annex 202 “Saakashvili accused Russia of ‘ethnic cleansing’ plan”,
EuroNews (11 August 2008)
Annex 203 “Georgia accuses Russia of ethnic cleansing”,UPI (11 August
2008)
Annex 204 “Saakashvili: Russia committing ‘et hnic cleansing’ in Abkhazia”,
Deutsche Press-Agentur (11 August 2008)
Annex 205 “President Bush condemns Russi an invasion of Georgia”,CNN
(11 August 2008)
296Annex 206 “The Russian President Refused to Speak with Saakashvili”,
Pravda (11 August 2008)
Annex 207 “Russia advances into Georgia”, Australian Broadcasting
Corporation (12 August 2008)
Annex 208 “Lavrov: Russia is frustrated with the cooperation with the
Western countries on South Ossetia”, Pravda (12 August 2008)
Annex 209 Transcript of the Joint Press Briefing of Presidents Saakashvili and
Sarkozy, News Program “Kurieri”, Rustavi 2 (12 August 2008)
Annex 210 “Sergei Lavrov Sent the US Secretary of State into a ‘Knockout’”,
Izvestia (13 August 2008)
Annex 211 Mikhail Fomichev, “Russia will di rect 15-16 billion rubles for
ensuring security of Abkhazia”, RIA Novosti (12 August 2009)
Annex 212 “Work on the establishment of state borders has begun”, OS
Inform (14 August 2009)
Annex 213 Olga Allenova, “Losing the war on the front of works”,
Kommersant (31 August 2009)
Annex 214 “Kishmaria offers children from Gali district to move to Zugdidi”,
RIA Novosti (23 September 2009)
Annex 215 “Russian Forces Arrest More Georgians Near South Ossetia”,
Radio Free Europe/Radio Liberty (30 October 2009)
Annex 216 “RF, S Ossetia to agree on visa free travel of citizens”, ITAR-TASS
(17 December 2009)
Annex 217 “Lavrov: Refugees will return to Abkhazia after legal issues are
regulated”, Rosbalt (24 December 2009)
297Annex 218 “FSB Defector Describes ‘Amoral’ Conditions In South Ossetia”,
Radio Free Europe (24 December 2009)
Annex 219 “Bagapsh: Georgia should take care of the refugees from
Abkhazia”, Rosbalt (25 December 2009)
Annex 220 “South Ossetia To Require Georgian IDs Translated Into Russian”,
Radio Free Europe/Radio Liberty (8 January 2010)
Annex 221 George Dvali and Zaur Farniev, “South Ossetia demands foreign
passports from Georgia”, Kommersant (11 January 2010)
Annex 222 Natia Mskhiladze, “Path closed for pupils”, 24 Hours (21 January
2010)
Annex 223 “Medvedev: The Russian Federation will continue strengthening
the boundaries of Abkhazi a and South Ossetia”, Vzgliad Dlovaya
Gazeta (28 January 2010)
Annex 224 Natia Mskhiladze, “Knut Vollebaek, OSCE High Commissioner
on National Minorities met with representatives of Abkhazian
separatist regime yesterday”, 24 Hours (5 February 2010)
Annex 225 “Local residents: they actively construct military bases in the Gali
District”, Ekho Kavkaza (16 February 2010)
WITNESS STATEMENTS
Annex 226 Witness Statement of Giorgi Archuadze (27 February 2010)
Annex 227 Witness Statement of Giorgi Romelashvili (27 February 2010)
Annex 228 Witness Statement of Vitaliy Khripun (4 March 2010)
298 ADDITIONAL DOCUMENTS
Annex 229 U.N. Security Council, Letter dated 8 March 2002 from the
Permanent Representative of Georgia to the United Nations
addressed to the President of the Security Council, Annex, U.N.
Doc. S/2002/250 (11 March 2002)
Annex 230 Letter of intentions attached tthe letter of State Minister of
Georgia to Minister of Foreig n Affairs of Georgia, Gela
Bejhuashvili (9 June 2006)
299
Written Statement of Georgia