Georgia Taking Russia to Court? And Vice Versa?
by Chris Borgen , August 12th, 2008
As the fighting winds down or escalates (depending on whom you believe), the legal battle that Ken discussed yesterday seems to be gearing up and getting more complex, with the International Court of Justice, the International Criminal Court, and the European Court of Human Rights now all being mentioned in news stories.
The AP is reporting the following:
The Georgian security council says it has filed a lawsuit in the International Court of Justice for alleged ethnic cleansing.Council chief Alexander Lomaia told The Associated Press that Georgia made the filing Tuesday with the international court. He gave no other details of the lawsuit.Russian officials have accused Georgia of committing genocide by launching an offensive last week to try to retake control of the breakaway province of South Ossetia. Georgian President Mikhail Saakashvili, meanwhile, accused Russian forces Monday of cleansing another breakaway province, Abkhazia, of ethnic Georgians..
The Russian press is reporting (according to an English translation on a Finnish site) that the Georgians have been talking to the ICC:
Georgia will lodge a suit against Russia at the International Criminal Court (ICC) in The Hague, RIA Novosti reports. Eka Zguladze, Georgia’s Deputy Minister of Interior, said the suit contains facts of genocide against Georgians in Abkhazia since 1992 until today.Earlier, Russia announced it intended to file claims against Georgia at the ICC and the European Court of Human Rights in Strasbourg for the Georgian attack on South Ossetia. Russian prosecutors are now collecting evidence of genocide in South Ossetia.
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Marko Milanovic
Georgia filed an application today against Russia before the ICJ, alleging that Russia violated the Convention against Racial Discrimination (CERD), in three distinct phases of the Abkhazia/Ossetia conflicts, going back as far as 1991, inter alia by conducting ethnic cleansing. At a cursory read, Georgia seems to have found a clear jurisdictional title in Art. 22 CERD. It also reserved its right to extend its application for violations of the Genocide Convention.
However, Georgia will have the major difficulty of trying to fit the entirety of the conflict through a pretty narrow jurisdictional space. For example, it’s not enough for it to allege that Russia unlawfully used force, it must prove that Russia used such force in a racially discriminatory manner. A similar thing happened in the Bosnian Genocide case, where the Bosnian side tried to portray the entire conflict as one big genocide, which was fatal for its litigation prospects.
If the case reaches the merits, we might have the Court deciding interesting questions of attribution (e.g. whether Russia was responsible for the acts of Abkhazia and South Ossetia), as well as on the extraterritorial applicability of the CERD.
There’s also that 2007 interstate application of Georgia against Russia before the Eur Court of Human Rights. More could happen on that front as well.
Article 22
Any dispute between two or more States Parties with respect to the interpretation or application of this Convention, which is not settled by negotiation or by the procedures expressly provided for in this Convention, shall, at the request of any of the parties to the dispute, be referred to the International Court of Justice for decision, unless the disputants agree to another mode of settlement.
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The European Court issued an interim measure (at the request of Georgia) on the Georgian-Russian situation on Monday 11 August. This is its press release:
Press release issued by the Registrar
European Court of Human Rights grants request for interim measures
The European Court of Human Rights has today indicated to the Government of the Russian Federation interim measures under Rule 39 of the Rules of Court.
On 11 August 2008 the Georgian Government requested the Court to indicate to the Government of the Russian Federation interim measures to the effect that the Russian Government should “refrain from taking any measures which may threaten the life or state of health of the civilian population and to allow the Georgian emergency forces to carry out all the necessary measures in order to provide assistance to the remaining injured civilian population and soldiers via humanitarian corridor”. The Agent of the Georgian Government informed the Court that this request was made in the context of an application directed against the Russian Federation alleging violations of Articles 2 (right to life) and 3 (prohibition of inhuman and degrading treatment) of the European Convention on Human Rights and Article 1 of Protocol No. 1 (protection of property) to the Convention.
The terms of the Court’s decision are as follows:
“On 12 August 2008 the President of the Court, acting as President of Chamber, decided to apply Rule 39 of the Rules of Court (interim measures) considering that the current situation gives rise to a real and continuing risk of serious violations of the Convention. With a view to preventing such violations and pursuant to Rule 39, the President calls upon both the High Contracting Parties concerned to comply with their engagements under the Convention particularly in respect of Articles 2 and 3 of the Convention.
In accordance with Rule 39 § 3, the President further requests both Governments concerned to inform the Court of the measures taken to ensure that the Convention is fully complied with.”
Rule 39 of the Rules of the Court (Interim measures):
“1. The Chamber or, where appropriate, its President may, at the request of a party or of any other person concerned, or of its own motion, indicate to the parties any interim measure which it considers should be adopted in the interests of the parties or of the proper conduct of the proceedings before it.
2. Notice of these measures shall be given to the Committee of Ministers.
3. The Chamber may request information from the parties on any matter connected with the implementation of any interim measure it has indicated.”
Press release issued by the Registrar
European Court of Human Rights grants request for interim measures
The European Court of Human Rights has today indicated to the Government of the Russian Federation interim measures under Rule 39 of the Rules of Court.
On 11 August 2008 the Georgian Government requested the Court to indicate to the Government of the Russian Federation interim measures to the effect that the Russian Government should “refrain from taking any measures which may threaten the life or state of health of the civilian population and to allow the Georgian emergency forces to carry out all the necessary measures in order to provide assistance to the remaining injured civilian population and soldiers via humanitarian corridor”. The Agent of the Georgian Government informed the Court that this request was made in the context of an application directed against the Russian Federation alleging violations of Articles 2 (right to life) and 3 (prohibition of inhuman and degrading treatment) of the European Convention on Human Rights and Article 1 of Protocol No. 1 (protection of property) to the Convention.
The terms of the Court’s decision are as follows:
“On 12 August 2008 the President of the Court, acting as President of Chamber, decided to apply Rule 39 of the Rules of Court (interim measures) considering that the current situation gives rise to a real and continuing risk of serious violations of the Convention. With a view to preventing such violations and pursuant to Rule 39, the President calls upon both the High Contracting Parties concerned to comply with their engagements under the Convention particularly in respect of Articles 2 and 3 of the Convention.
In accordance with Rule 39 § 3, the President further requests both Governments concerned to inform the Court of the measures taken to ensure that the Convention is fully complied with.”
Rule 39 of the Rules of the Court (Interim measures):
“1. The Chamber or, where appropriate, its President may, at the request of a party or of any other person concerned, or of its own motion, indicate to the parties any interim measure which it considers should be adopted in the interests of the parties or of the proper conduct of the proceedings before it.
2. Notice of these measures shall be given to the Committee of Ministers.
3. The Chamber may request information from the parties on any matter connected with the implementation of any interim measure it has indicated.”
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Dragutin Nenezic
Press Release, Unofficial , No. 2008/23 , 12 August 2008
Georgia institutes proceedings against Russia for violations of the Convention on the Elimination of All Forms of Racial Discrimination , THE HAGUE, 12 August 2008.
