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First Round of Georgia v. Russia Hearings at ICJ
Civil Georgia, Tbilisi / 15 Sep.'10 / 15:24

Georgian and Russian legal teams concluded first round of oral arguments before the Hague-based International Court of Justice (ICJ) on September 13 and September 14.

The second round of public hearings will be held on September 15 with Russia presenting its additional arguments and on September 17, when the Georgian legal team puts forth its counter-arguments.

These series of four public hearings focus solely on Russia’s objection to the court’s jurisdiction to rule into the case brought by Georgia two years ago,

In its case filed before ICJ on August 12, 2008, Georgia claims Russia violated its obligations under the 1965 International Convention on the Elimination of All Forms of Racial Discrimination (CERD) during three distinct phases of its interventions in South Ossetia and Abkhazia in the period from 1990 to August 2008.

But Russia claims that ICJ has no jurisdiction to hear the case; its reasoning is mainly focused on four arguments, which Georgia tried to disavow on September 14.

If the Court decides that it has jurisdiction, it will hold separate hearings later on the merits of the complaint.

During the first day of hearing on September 13, when Russia put forth its arguments, Kirill Gevorgian, a director of legal department at the Russian Foreign Ministry, told the Court that Georgia’s decision to bring Russia before ICJ under CERD was based on “an entirely artificial jurisdictional basis”, because Tbilisi had never before officially mentioned or notified Russia of its claim of racial discrimination in Abkhazia and South Ossetia.

“Application was only lodged [by Georgia] when it became clear that Georgia’s military venture [in South Ossetia] had failed. The obvious objective of the applicant State was to portray itself as a victim of the conflict that it itself had started,” he told the Court.

The Russian side argued that it had never been party into conflict between Tbilisi on the one hand and Sokhumi and Tskhinvali on the other. Moscow claims it has acted as facilitator and peacekeeper for more than fifteen years.

The Russian legal team’s one of the arguments is focused on claim that there has been “no dispute” between Tbilisi and Moscow over racial discrimination against the ethnic Georgian population of Abkhazia and South Ossetia.

“Georgia had the right at any time to terminate the [Russian] peacekeeping operations [in Abkhazia and South Ossetia]. Georgia made no such decision until 1 September 2008. Could this really be the case if Georgia had indeed believed that over almost two decades, Russian peacekeepers were committing acts of racial discrimination against the Georgian population?” Kirill Gevorgian told the Court.

“The alleged violations of CERD were never raised by Georgia vis-à-vis Russia during the 17 or more years of this so-called ‘dispute’ - not a single time,” Roman Kolodkin, Russia’s ambassador to the Netherlands, told the Court.

Tina Burjaliani, Georgia’s first deputy justice minister, told the Court on September 14, when the Georgian legal team presented its arguments, that Tbilisi filed the application after nearly two decades of “futile attempts” to engage with Russia “on countless occasions” on the issues arising under the CERD.

As the Georgian legal team argued, citing several past decisions of ICJ, it was not necessary for Georgia to “expressly invoke, or specifically mention” the CERD in order to establish a dispute under that convention.

The Georgian side presented to the Court a volumes of documentation - involving the Georgian Parliament’s declarations, the Georgian Foreign Ministry’s statements, President Saakashvili’s remarks made on television and Georgia’s statements made before the UN Security Council - in an attempt to show that such a dispute existed in which issues related with ethnic cleansing were raised.

But the Russian legal team claimed that Georgia’s evidence, involving speeches, public statements and other interactions, did not constitute a dispute or a negotiation between the two sides.

“It must be for Georgia to make and communicate a claim, not for Russia to go out to seek it by watching Georgian television,” Samuel Wordsworth, a legal agent to the Russian Federation, told the Court.
 
The Russian legal team also argued that all these statements, mainly by the Georgian Parliament, which does not implement foreign policy, should not be counted and were mainly aimed at making “a very high level of background noise.”

During the hearings the parties were engaged in detailed interpretations of specific cases of diplomatic exchange between Russia and Georgia and whether those diplomatic contacts constituted to negotiations and whether during those contacts issues covered by CERD were raised.

Another argument put forth by Russia to claim that ICJ has no jurisdiction to hear the case on merits is related with procedures and interpretation of Article 22 of CERD on which Georgia’s application is based.

Russia claims that before going directly to ICJ, Georgia should have at first raised the issue before the UN’s Committee on the Elimination of Racial Discrimination. But the Georgian legal team said Russia was misinterpreting CERD’s provisions.

Interpretations of Article 22 went into such details that the Georgian legal team had to thoroughly analyze before the court structure of this article, consisting of 65 words, with providing explanation of the conjunction “or” used in this article in an attempt to counter Russia’s argument and prove that the Article 22 did not stipulate going through “fruitless, time-consuming” procedures by applying to lower level bodies before taking the case to ICJ.

Russia’s third objection involves its clam that ICJ can only have jurisdiction in respect of Russia’s obligations relating to acts if they take place within the territory of the Russian Federation. The Georgian legal team tried to counter this assertion by invoking number of ICJ’s previous rulings in which territorial scope was not regarded as a reason for escaping the Court’s jurisdiction.

Russia’s fourth objection related to the Court’s jurisdiction, which is limited to events having taken place after the entry into force of CERD in a country concerned – in case of Georgia July, 1999.

Although the Georgian side does not assert that the CERD should apply retroactively, it argues that the Court is entitled to look at acts that occurred prior to the date of the entry into force of the convention.

The Georgian legal team said that events prior to 1999 produced “continuing effects” and the Court should exercise jurisdiction over the question of whether Russia’s acts, which prevent IDPs from return back to their homes, violate the Convention.

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