Amended Request for the Indication of Provisional Measures of Protection submitted by the Government of Georgia

AMENDED REQUEST FORTHE INDICATION OF PROVISIONAL

MEASURESOFPROTECTION SUBMITTED BY

THE GOVJERNMENTOF GEORGIA

A. INTRODUCTION

1. I have the honour to refer to the Application submitted to the Court on 12 August 2008 by

which proceedings were instituted on behalf of the Republic of Georgia against the Russian

Federation under the International Convention on thebation of All Forrns of Racial
Discrimination ('CERD'),and to the Request for Provisional Measures submitted to the Court

on 14 August 2008. In view of the rapidly chanpg circumstances in Abkhazia and South

Ossetia, the Republic of Georgia respectfully files this Amended Request for Provisional

Measures in accordancewith Article 41 of the Statute of the Court and Articles 73,74 and 75
of the Rules of the Court, in advance of the oral hearing scheduled betweenand 10

September 2008.

B. JURISDICTIONOFTHE COURT

2. As set forth in the Application, the Court has jurisdiction over the present case pursuant to its
Statute and Rules and Article 22 of CERD.

C. THE FACTSRELEVANTTO THIS REQUEST

3. The Russian Federation has now assumed control over of South Ossetia and Abkhazia, as

well as adjacent areas within the territory of Georgia, followingits invasionon 8

August 2008. Within these areas under Russia'scontrol, ethnic Georgians have been subjected
to physical violence on systematic basis, resulting in numerous civilian deaths and the

terrorization and mass-exodus of the civilianpopulation. The homes and property of ethnic

Georgians have also been deliberately targeted for systematic burning and lootThe.

manifest objective of this discriminatory campaign is the mass-expulsion of the ethnic
Georgian population from South Ossetia, Abkhazia, and other neighbouring areas of Georgia.

It reflecaRussian policy- commencing in the 1990- to consolidate the authority of ethnic

separatists, under Russia's direction and control, over Georgia's territory through ethnic

cleansing and denial of the right of return. For Georgia, thetarian consequences of this discriminatory policy have been catastrophic. In addition to the 300,000 internally

displaced persons (IDPs) from the 1990s, the United Nations High Cornmissioner for

Refugees estimates that since Russia'sinvasion on August 8, an additional 128,000 Georgian

citizens have been internally displaced.' IDPs now constitute almost 10% of Georgia's total

population of 4.5million.

4. This Request for Provisional Measures is directed at an immediate cessation of the violent

forms of racial discrimination against ethnic Georgians that continue unabated in the areas of

Georgian territory under the control of the Russian Federation and for an immediate cessation
of the various measures adopted or supported by the Russian Federation to frustratethe right

of return of the ethnic Georgians who have either been forcibly expelled or who have fled as a

result of this violence.

5. The factual background to the dispute between the Russian Federation and Georgia under

CERD is set forth in Georgia's Application of 12 August 2008. A book of evidence will be

submitted to the Court in advance of the oral hearing in relation to the recent and ongoing

acts of racial discrimination attributable to the Russian Federation that are the object of this

Request for Provisional Measures. The folIowing is a surnrnary of main developments

relevant to this Request following the Russian Federation's invasion of 8 August 2008.

6. Since 8 August, Russian forces acting in concert with South Ossetian separatist militia and

mercenaries, have engaged in widespread and systematic disc~atory acts against Georgians

on grounds of their ethnicity,including the murder of civilians,the taking and mistreatmentof
hostages, and the plunder and destruction of homes and other civilianproperty. This policy

was initially implemented in territories in the immediate vicinity of Tskhinvali within the

boundaries of South Ossetia. Since then, it has expanded to encompass Georgian villages

beyond South Ossetia, in the districts of Gori and Ihreli, south and southwest of Tskhinvali

respectively, and now threatens the Georgian population in the district of Akhalgori to the

east where the separatist authorities are making territorial claims supported by the Russian
Federation and activelydisseminatingRussian passports to the remaining residents.

1UnitedNations HighCommissioner for Refuge esNHCR chiefvisitSouthOssetia",22August2008, available
at: http:Nwww.unhcr.org./news/NEWS/4SaefOdc4.html.7. In Abkhazia, ethnic Georgian villages in the ICodori Gorge have been destroyed by Russian
forces and their estimated population of 3,000 has been displaced. The 45,000 ethnic

Georgians in the Gali district are denied freedom of movement, completely isolated fiom

Georgia, and their fate is unknown as of this date. Prior to the 8August Russian invasion, this

population was under pressure to assume Russian citizenship, under heats of expulsion and

other punitive measures.

8. According to eyewitness, widespread and systematic acts of violent racial discrimination,

including murder of civilians,hostage taking and mistreatment, and the pillage and destruction

of homes and property, have been committed against ethnic Georgians in the following areas
of Georgia under Russian control:

* Within territories of South Ossetia under separatist control prior to 8 August, to the

immediate north and south of Tsk.hinvali, the Georgian villages of ICekhui, Zemo
Achabeti, ICvemoAchabeti, Tarnarasheni, Nikozi, and ICvernoNikozi;

* Within territories under the Temporary Administration of South Ossetia under Georgian

Government controlprior to 8 August, to the north of Tskhinvali, the villages of ICurta,
Eredvi, and Vanati;

*
Within the Gori District outside and to the south of South Ossetia, under Georgian

Government control prior 'to 8 August, the villages of Tkxiavi, ICaraleti, Tirdznisi,
IGtsnisi, ICarbi,Ditsi,and Variani,

Within the Ikeli District, outside and to the southwest of South Ossetia, under

Georgian Government control prior to 8 August, the villages of Ptsa, Atotsi, Ruisi, and
Dvani.

9. The Georgian Government continues to receive new reports each day of violence against the

ethnic Georgian populations in areas under Russian control. A particular cause for concern is
the Russian occupation of Akhalgori Disuict, outside and to the east of South Ossetia, and

previously under Georgian Government control. In this District, ethnic separatist authorities

have asserted their control by expulsion of Georgian police and other officials, and claimed

that:"This used to be our territory. This is our territory. And this will be our territory in the future".' 72.7% of this District's population is ethnic Georgia amounting to approximately

13,000 persons. They have lived in peace with26.5% minority of ethnic Ossetians for years.

In view of the conduct of the Russian and separatist forces in other areas, there is an
imminentthreat of similar discljminatory violence in this District.

10. Russian support and participation in the recent campaign of violence is aimed at permanent

changes in the ethnic demography of territories to expand the authority of separatist forces.

According to one South Ossetian intelligence officer,e burned these houses. We want to
make sure that they [the Georgians] can't come back, because if they do come back, thisl

be a Georgian enclave again and this should not happen."3 When asked if the thousands of

displaced Georgianswould be allowed to return to their homes in South Ossetia, the leader of

the separatists, Eduard Icokoyti, stated categoricall"We do not intendto letanybodyin

here anymore."" Other sources confirm that "South Ossetia's two top officials have both

saidin recent days that they don't intend to allow back the ethnic Georgians who fled when

militias torched their homes."'

D. THE RIGHTSGEORGIA IS SEEKINGTO PROTECT

11. In accordance with Article 2 of CERD:

States Parties condemn racial discrimination and undertake to pursue by
appropriate means and without delay a policy of eliminating racial

discrimination in allits forms andpromotingunderstandingamong allraces,
and,to this end:

(a) Each State Party undertakes to engage in no act or practice of racial
discrimination against persons, groups of persons or institutions and to
ensure thatallpublic authorities and public institutions, national and local,
shall act in conformityth this obligation;

@)Each State Party undertakes not to sponsor, defend or support racial
discrimination by any persons or organizations;

"T'anks andKatyushasbristlroundisolatedTbilisGzlardian,lAugust2008a,vailableat:
http://www.guardian.co.uMworld/2008/aud18/aeorgia.russial.

"ACaucasianJournal,TheEconomist,21August 2008.
4
"We haveinfactflattened everything tKon~mersant,vailableat:
www.kommersant.ru/doc.aspx?fromsea -rc275e94a85l6-5d73596075da&docsid=lO11783.

"GeorgianrefugeeReturnGrows Remote," WallStreetJournal,August2008. P-l
(d) Each State Party shall prohibit and bring to an end, by all appropriate

means, including legislation as required by circumstances, racial
discrimination by any persons, group or organization;
12. In accordance with Article 5 of CERD:

[...] State Parties undertake to prohibit and to eliminate racial
discrimination in all its forms and to guarantee the right of everyone,
without distinction as to race, colour, or national or ethnic origin, to equality
before the law,notably in the enjoyment of the followingrights:

[..-1

b. The right to security of person and protection by the State against
violence or bodily harm, whether inflicted by government officials or by any
individual, group or institution;

[.-1

d. Other civirights, in particular:
i. The right to freedom of movement and residencewithin the border of the

State...
13. As a result of its unlawful occupation of the Georgian regions of South Ossetia and Abkhazia,

as well as adjacent territories, the Russian Federation has consolidated its effective control

over these territories situated within Georgia's internationally recognized boundaries.

Consequently, for the purposes of the fulhlment of its obligations under CERD and
responsibility for their breach, South Ossetia, Abkhazia, and relevant adjacent regions, fall

within the Russian Federation's jurisdiction.'

14. Prior to the Russian invasion of 8 August 2008, the Committee on the Elimination of Racial

Discrimination had recopsed that obligations under CERD are engaged inrespect of the de

fact separatist regimes in Abkhazia and South Ossetia:

mhe situations in South Ossetia and Abkhazia have resulted in

discrimination against people of different ethnic origins, including a large
number of internally displaced persons and refugees. On repeated
occasions, attention has been drawn to the obstruction by the Abkhaz
authorities of the voluntary return of displaced populations, and several

6
See:Case ofIIa.,svMoldoi~aandRussia (EuropeanCourtof Human Rights,ApplicatioNo. 48787199)
Judgment,8July 2004. recommendations have been issued by the Security Council to facilitate the
free movement of refugees and internally displaced persons?
15. These violations of CERD as identified by the Committee have been sipficantly exacerbated

by the Russian milita~yoccupationof, and disc~atory policies, in South Ossetia, Abkhazia,

and adjacent regions since 8August 2008.

(9 The Rrght to Secwity ofPerson and Protection Agahst Violenceor Bodily Ham

16. By it Application hled on 12 August 2008, Georgia is seeking, inter aka, the Court's order

directing the Russian Federation to take allnecessary measures to ensure that the remaining

ethnic Georgian populations of South Ossetia and Abkhazia are not subject to discriminatory

treatment contrary to Articles 2 and 5 of CERD. Pending the Court's consideration of the
merits of Georgia's claims andits request for relief, Georgia respectfullyrequests the Court to

indicate provisional measures to prevent irreparable prejudice to the right of ethnic Georgians

to be free from discriminatory treatment, in particular violent or otherwise coercive acts,

including but not limited to the threat or infliction of death or bodily harm, hostage-taking
and detention based on ethnicity, the destruction and pillage of property, and other acts

intended to expel them from their homes in South Ossetia, Abkhazia, and adjacent regions

located within Georgian territory.

17. There is compelling evidence that Russian forces are directly involved in using violence and

other coercive measures to consolidate and make permanent the removal of ethnic Georgians

from South Ossetia, Abkhazia, and adjacent regions, that was first begun during the conflicts

of the1990s, andwhich has been and continues to be the fundamental basis for the authority
of ethnic separatists under Russia's direction and control. The Russian Federation's conduct

in this respect frustrates the rights of the remaining ethnic Georgians in South Ossetia,

Abkhazia, and adjacent regions, to be secure in their persons, to be protected from violence

and bodily harm, and to continue to reside in their homes and villages.

ConcludingObservation osthe Committeeonthe EliminationofRacialDiscriminationG:eorgia,27 Apri2001,
CERDlCl304lAd1 d. 0, atpara. 4.(ii) The fight ofReturn

18. The Committee on the Elimination of Racial Discrimination has, in its Recommendation No.
22 entitled 'Article and refugees and displaced persons', elaborated on the rights enjoyed by

refugees and displaced persons under Article 5 of CERD and the corresponding obligations of

the StateParties:

(a)All such refugees and displaced persons have the right freelyto return to

their homes of origin under conditionsof safety;
@)States parties are obliged to ensure that the return of such refugees and

displaced persons is voluntary and to observe the principle of non-
refodement 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 theirreturn to their
homes of origin, the right to participatefullyand equallyin public affairs at

alllevels and to have equal access to public services and to receive
rehabilitation assistance.
19. In its Application, Georgia seeks,interalia, the Court's order to direct the Russian Federation

to take all necessary measures to permit and facilitatethe return of displaced ethnic Georgians

to South Ossetia and Abkhazia in conditions of safety and security in recogrution of the light

of return guaranteed under Article 5 of CERD. Pending the Court's consideration of the

merits of Georgia's claims under CERD and its request for relief, Georgia respectfully
requests the Court to indicate provisional measures to prevent irreparable prejudice to the

right of return of ethnic Georgians to South Ossetia and Abkhazia.

20. Before the latest hostilities in South Ossetia and Abkhazia in August 2008, the light of return
of ethnic Georgians was emphatically endorsed by the United Nations General Assembly in its

Resolution 621249 of 29 May 2008.The Resolution:

Recognizes the right of return of all refugees and internally displaced

persons and their descendants, regardless of ethnicity, to Abkhazia, Georgia;
Emphasizes the importance of preserving the property rights of refugees

and internally displaced persons from Abkhazia, Georgia, including victims of reported 'ethnic cleansing', and calls upon all Member States to deter
persons under their jurisdictionrom obtainingproperty within the territory
of Abkhazia, Georgia, in violation of the rights of returnees; and

Underlines the urgent need for the rapid development of a timetable to
ensure the prompt voluntary return of all refugees and internally displaced
persons to their homes in Abkhazia, Georgia.

There is compelling evidence that the Russian Federation, both directly and through its

direction and control of South Ossetianand Abkhaz ethnic separatists, as well asCossack and
Chechen mercenaries, is consolidating, recognizing, and making permanent the new

demographic composition of South Ossetia and Abkhazia following the further expulsion of

ethnic Georgians from,these regions since 8 August 2008. The Russian Federation's conduct

in this respect is frustrating or rendering impossible the return of ethnic Georgians to their

homes of origin.

E. URGENCY

22. The Russian Federation is continuing to discriminate against ethnic Georgians in Abkhazia,

South Ossetia and neighbowing areas, and by its acts and omissions is threateningthe right of

ethnic Georgians to be secure in their persons, to be protected from violence resulting in

death and bodily harm, to be protected against hostage-taking and detention based on their

ethnicity, and to continue to reside in their homes and villages, and it is frustrating or
rendering impossible the exercise of their right of return to their homes of origin. The

Russian Federation is, moreover, actively supporting groups and individuals in South Ossetia

and Abkhazia that are hostile to the ethnic Georgians remaining in these regions, opposed to

the return of ethnic Georgians to their homes of origin, and continuing to perpetrate acts of

violence against ethnic Georgians based on their ethnicity. In view of this conduct, the
remaining ethnic Georgians in South Ossetia, Abkhazia, and adjacentregions, are at imminent

risk of violent expulsion, death or personal injury, hostage-taking and unlawful detention,and

damage to or loss of their homes and other property. In addition,the prospects for the return

of those ethnic Georgians who have already been forced to flee are rapidly dete~iorating.his

situation is significantly exacerbated by Russian Federation's manifest support for the
consolidation and recognition of the authority of ethnic separatists,militias and mercenaries

over territories in South Ossetia, Abkhazia, and adjacent regions, acquired through ethnic

cleansing of thousands of ethnic Georgians. Provisional measures are urgently requested by

Georgia to avert a situation whereby the implementation of a judgment of the Court upholding the rights of Georgian citizens under Articl2sand 5 of CERD to remain in South

Ossetia, Abkhazia, or adjacent regions, or to return to their homes in these territories, is

rendered impossible.

F. THE MEASURESREQUESTED

23. Georgia respectfully requests the Court as a matter of urgency to order the following
provisional measures, pending its determination of this case on the merits, to prevent

irreparable ham to the rights of ethnic Georgians under Articles 2 and 5 of CERD to be

secure in the& persons and to be protected against violence or bodily ham in the areas of

Georgian territo~yunder the effective control of the Russian Federation:

(a) The Russian Federation shall take all necessary measures to ensure that no etlmic

Georgians or any other persons are subject to violent or coercive acts of racial

discrimination, including but not limited to the threat or infliction of death or

bodilyham, hostage-taking and unIawfuI detention, the destruction or pillage of
property, and other acts intended to expel them from their homes or villages in

South Ossetia, Abkhazia and/or adjacent regions within Georgia;

(b) The Russian Federation shall take all necessary measures to prevent groups or

individuals from subjecting ethnic Georgians to coercive acts of racial

discrimination, including but not limited to the threat or infliction of death or

bodily ham, hostage-taking and unlawful detention, the destruction or theft of
property, and other acts intended to expel them from their homes or villages in

South Ossetia, Abkhazia and/or adjacent regionswithi Gneorgia;

The Russian Federation shall refrain from adopting any measures that would
(c)
prejudice the right of ethnic Georgians to participate fully and equally in the

public affairs of South Ossetia, Abkhaziand/or adjacent regions of Georgia.

24. Georgia further requests the Court as a matter of urgency to order the following provisional

measures to prevent irreparable injury to the right of return of ethnic Georgians under Article

5 of CERD pending the Court's dete~minationof this case on the merits:

(d) The Russian Federation shall refrain from taking any actions or supporting any

measures that would have the effect of denying the exercise by ethnic Georgians

and any other persons who have been expelled from South Ossetia, Abkhazia, and adjacent regions on the basis of their ethnicity or nationality, their right of return

to their homes of origin;

(e) The Russian Federation shall refrain from taking any actions or supporting any

measures by any group or individual that obstructs or hinders the exercise of the
right of return to South Ossetia, Abkhazia, and adjacent regions by ethnic

Georgians and any other persons who have been expelled from those regions on

the basis of their ethnicity or nationality;

(f) The Russian Federation shall refrain from adopting any measures that would

prejudice the right of ethnic Georgians to participate fully and equally in public

affairs upon their return to South Ossetia, Abkhazia, and adjacentregions.

25. Georgia reserves the right to amend further the Request and the measures sought.Respectfullysubmitted,

MaiaPanjikidze

hbassador of Georgia to the ISingdom

The Hague

25 August 2008