Georgia-Russia conflict to be heard in The Hague

Georgia takes Russia to UN court
By Michael Steen
Financial Times, 9 September 2008

Georgia resurrected an international racial discrimination convention from the 1960s on Monday to take Russia to a United Nations court in The Hague over its invasion of South Ossetia – accusing Moscow of ethnic cleansing.

If successful, the novel legal move could yield a symbolic victory for Tbilisi, which says it was the victim of Russian aggression in last month’s conflict. But Russia made clear that it would defend itself in the court, which has yet to decide whether it has jurisdiction.

Georgia’s legal team was seeking to argue that Russia violated the 1965 Convention on the Elimination of All Forms of Discrimination during three interventions in South Ossetia and Abkhazia, a separatist region, from 1990 to August 2008.

The grand, neo-Renaissance Peace Palace that houses the International Court of Justice is an unusual venue for cases involving accusations of ethnic cleansing. The court mostly deals in matters such as territorial disputes where both states agree to a hearing.

But Georgia invoked a clause in the convention that allows it to turn to the ICJ.

“Georgia is appearing before the principal judicial organisation of the United Nations at a time of great distress in its history, a time when hundreds of thousands of its nationals are persecuted and displaced from their homes only because they are Georgians,” Tina Burjaliani, Georgia’s first deputy justice minister, told the court, according to Reuters news agency.

Russia denies allegations of ethnic cleansing and, during the brief war, accused Georgian troops of “genocide” during an attempt to recapture South Ossetia.

If the court decides it has jurisdiction in the case it could issue a provisional order within weeks, although final rulings often take years.

“Everything would have to be couched within the specific language of this convention and so the mistreatment of ethnic Georgians has to be described in terms of racial discrimination rather than war crimes or crimes against humanity,” said Professor Mark Osiel, director of international criminal and humanitarian law at the TMC Asser Institute in The Hague.

“Russia can thumb its nose at the court, of course,” he added. “So the reason for going to the court is not for the immediate advocacy of the judicial relief as such but rather the larger symbolic resonance of a court judgment in favour of Georgia.”

Aisling Reidy, senior legal adviser to New York-based Human Rights Watch, noted that a further complication might be a provision in the racial discrimination convention calling on both parties first to take complaints of violations to a United Nations committee.

Copyright The Financial Times Limited 2008

Prospects for a legal block on ethnic cleansing are slim
By Quentin Peel
Financial Times, 10 September 2008

Small wonder that Dmitry Medvedev, Russia’s president, looked pleased with himself when he met Nicolas Sarkozy, his French counterpart, at Meiendorf castle, a neo-Gothic state residence outside Moscow, this week.

The deal they negotiated to finalise the ceasefire between Russia and Georgia seems to have been precisely what Moscow always wanted. Russian troops will be given a further month to withdraw from the so-called “buffer zones” they have established around the secessionist enclaves of Abkhazia and South Ossetia but will not have to pull out of the enclaves themselves.

Although the original ceasefire agreement required both sides to pull back to their positions on August 7, when the conflict began, Russia has got away with keeping all its soldiers’ boots on the ground, with their tanks, inside the secessionist enclaves. Mr Medvedev said independence of the two regions was “irrevocable”, and Mr Sarkozy put a brave face on accepting a fait accompli. Even Mikheil Saakashvili, Georgia’s president, said the agreement was “a step forward”, although his close friend and deputy foreign minister, Giga Bokeria, was rather more blunt. He described Russia’s latest move to establish “diplomatic relations” with the breakaway regions as “another step in the annexation” of them both.

Georgia has no hard power left to resist that process, after seeing its military crushed by Russia. But those who are really suffering are the refugees who have fled Abkhazia and South Ossetia. There were an estimated 30,000 ethnic Georgians in the 70,000 population of South Ossetia. Today there are thought to be no more than about 1,000 left – those too old or infirm to flee.

But what about “soft power”? The Georgian government launched a case at the International Court of Justice in The Hague on Monday, calling for urgent “provisional measures ... to prevent irreparable harm to the rights of ethnic Georgians”.

It is the first time Russia, as opposed to the former Soviet Union, has been accused before the court. It is also the first time that anyone has attempted to use the United Nations Convention on the Elimination of All Forms of Discrimination – a document drawn up in 1965 as part of the campaign against apartheid in South Africa – as grounds for a judgment in the ICJ. The convention, ratified when it was first drafted by the USSR, bars any discrimination based on ethnicity or national origin.

Georgia has to prove such discrimination occurred, that there is urgency because it is ongoing, and that there is a prima facie case that the court has jurisdiction. Its lawyers presented written evidence from refugees and satellite evidence of burned-out villages where ethnic Georgians had lived only miles from untouched villages inhabited by Ossetians.

They are also alleging that not only Ossetian militia, but also Russian soldiers, have been guilty of “ethnic cleansing”. Russia denies the charges, but its principal defence is that the ICJ does not have jurisdiction.

So what chance is there of the judges halting the ethnic cleansing when the EU has apparently failed?

The answer is: only a slim chance. Both sides will finish their oral evidence and rebuttals on Wednesday. Then the court has promised a decision within weeks. Its judgment is binding on both parties: it is not merely a legal opinion.

“If one side does not comply, it becomes an outlaw,” according to one court official.

But there is still a get-out. Either side can appeal to the UN Security Council, for the ICJ is the judicial arm of the UN. And Russia, of course, is a permanent member of the Council, with a veto.

The only previous time such a thing happened was when Nicaragua won an ICJ judgment against the US in 1986, challenging US support for the Contra guerrillas, and seeking to stop the US mining Nicaraguan harbours. The US refused to implement the court’s judgment, so Nicaragua appealed to the Security Council – and Washington used its veto to block any decision.

No doubt Moscow remembers it well.

Copyright The Financial Times Limited 2008

The International Court of Justice in The Hague is to start hearings in September 2008 on the alleged human rights abuses in Georgia by Russia in August 2008.

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