Resume: On 12 August 2008, Georgia instituted proceedings at the UN International Court of Justice (ICJ) in The Hague against the Russian Federation. The lawsuit is about Russia committing acts of ethnic cleansing on the territory of sovereign Georgia in 1999-2008. The lawsuit is based on the UN 1965 International Convention on the Elimination of All Forms of Racial Discrimination (CERD). Prior to the ICJ’s start of the main hearing, the Russian Federation submitted two preliminary objections to the ICJ, seeking to prove that the ICJ had no jurisdiction over Georgia’s claim – first of all, that there was no dispute between Tbilisi and Moscow and Russia was not a party and, on the other hand, Georgia should have tried to have direct negotiations with Moscow prior to filing a lawsuit at the International Court of Justice in accordance with the procedures prescribed by Article 22 of the CERD.

The International Court of Justice rejected Russia’s first objection and recognised Moscow as a dispute party but upheld its second objection. The International Court of Justice ruled that prior to filing a case, Georgia had to discuss CERD-related issues in regard to breached articles of the Convention through bilateral negotiations with Russia before filing a case again at the International Court of Justice. The Court determined the procedures for Georgia and declared that after Georgia finished talks with Russia in regard to those articles which it believes were breached and concluded the negotiation phase, it will be able to continue proceedings at the International Court of Justice.

The previous government started to fulfill the aforementioned procedures whilst the incumbent government is naturally responsible to continue this process.

Tea Tsulukiani claims that Georgia lost a case at the International Court of Justice which was not even brought to a main hearing. Losing this case at the International Court of Justice means that the Court recognised its jurisdiction over the case, held a main hearing and ruled that Russia did not violate the convention and acts of ethnic cleansing were not committed. There is no such ruling from the Court because the case was never brought to a main hearing. Therefore, claiming that Georgia lost the case at the International Court of Justice is false, especially in light of the ICJ’s decision to recognise Russia as a party in this dispute.

Analysis

In accordance with the new Regulations of the Parliament of Georgia, Minister of Justice, Tea Tsulukiani, delivered her report in the Parliament of Georgia as part of the Minister’s Hour. Ms Tsulukiani spoke about the International Court of Justice (ICJ) and stated: “Adeishvili was the Minister at that time and Burjaliani was his deputy who was in charge of this case and they lost a dispute against Russia in 2011. The thing is that the previous government’s case filed in 2011 was defeated because the case was poorly prepared.”

European Georgia - Movement for Freedom MP, Zurab Tchiaberashvili, commented upon this statement and stated: “On 12 August 2008, Georgia filed a case at the International Court of Justice in The Hague. The ICJ told Georgia on 1 April 2011 that since it is a UN court, Georgia could try to settle this dispute through bilateral cooperation with Russia and if the latter refused to cooperate in a bilateral format, the ICJ would return to the case. Therefore, Tea Tsulukiani’s statement that Georgia lost in 2011 is a blatant lie and a distortion of facts… Why has there not been a single note sent since 2014 and why is there no respective documentation that we can use prior to the ICJ-set timetable expiring in order to compile materials about how Russia ignores the ethnic cleansing it committed on Georgian territory?”

FactCheck took interest in the accuracy of the statements.

On 12 August 2008, Georgia instituted proceedings at the UN International Court of Justice (ICJ) in The Hague against the Russian Federation relating to its actions on and around the territory of Georgia in breach of the CERD (the 1965 UN International Convention on the Elimination of All Forms of Racial Discrimination). Georgia claimed that the Russian Federation as well as separatist forces of South Ossetia and Abkhazia were responsible for the violation of Articles[1] II,[2] III,[3] IV,[4] V[5] and VI[6] of the CERD Convention – for discrimination against Georgians and ethnic cleansing.

In accordance with the aforementioned case, Georgia states that the war in August 2008 was not a one-off act of discrimination and ethnic cleansing of Georgians committed by the Russian Federation. The latter started the ethnic cleansing of Georgians in the 1990s which was carried out by providing support to the separatist regimes as well as by training armed factions and supplying fighters and weapons. In 2008, the Russian Armed Forces violated Georgia’s sovereignty and carried out combat operations against Georgia. Given the fact that the Russian Federation signed the Convention on the Elimination of All Forms of Racial Discrimination in 1999, the Georgian side demanded that Russia be internationally established as the state responsible for its actions committed in 1999-2008.

Prior to the International Court of Justice’s ruling over the jurisdiction and the launch of the main hearing, the Russian Federation submitted a preliminary objection to the Court (December 2009) which mostly sought to prove that the International Court of Justice had no jurisdiction vis-à-vis Georgia’s case because there was no dispute between Tbilisi and Moscow and, in addition, the latter was not a party.

The International Court of Justice dismissed this argument concerning the Russian Federation’s objection. The Court ruled that there is a real dispute over ethnic cleansing and the Russian Federation is in fact a party to this dispute. Therefore, after the main hearing of the case and if the Court rules that the CERD was in fact breached against the Georgians, the Russian Federation will be held responsible. This interim decision of the International Court of Justice bears huge importance for Georgia because the country sought to have Russia declared as a conflict party at the international level and establish the boundaries of its responsibility in regard to facts of ethnic cleansing committed against Georgians.

Of note is that the International Court of Justice fixed the timeframe for the case. In accordance with the Court’s assessment, the subject of dispute – ethnic cleansing and discrimination of Georgians in 1999-2008 – is not clearly proven by the respective documents. It is possible to identify these crimes only in the events of August 2008. Therefore, according to the International Court of Justice’s ruling, Russia’s deliberate policy of committing those crimes and breaching the CERD can be discerned in the events of 2008.

Afterwards, Russia started to push forward the procedural part of the Convention and claimed that Article 22 of the CERD[7] determines the phases of special negotiations and so Georgia had to conduct negotiations with Russia prior to filing a case at the International Court of Justice and only afterwards go to the Court. In April 2011, the International Court of Justice upheld Russia’s objection and indicated in the ruling that prior to filing a case, Georgia did not raise the issue with Russia in order to start negotiations specifically over the breached articles of the Convention. The International Court of Justice determined the procedures for Georgia and stated that after it finished negotiations with Russia over those articles of the CERD which it believes were breached and exhausted the negotiation phase, then it would again be eligible to file a case at the International Court of Justice.

The previous government started to fulfil the aforementioned procedures whilst the incumbent government naturally is responsible to continue this process.

In 2017, FactCheck decided to find out what steps have been taken by Georgia to fulfil the recommendations of the International Court of Justice and whether or not communication was established with the Russian Federation about the aforementioned issue. To this end, we sent letters to the Ministry of Justice and the Ministry of Foreign Affairs of Georgia and requested information – whether or not Georgia started negotiations with Russia.

Tea Tsulukiani’s Ministry ignored our letter and did not reply (they still have not replied). The reply sent from the Ministry of Foreign Affairs is as follows: “There were multiple communications with the Russian Federation in 2011-2014 where issues related to the exhaustion of the pre-trial mechanism as prescribed by the Convention were raised. The latest note was sent in 2014 when Georgia informed the Russian Federation that it would continue to work on the CERD-related dispute after the paper and oral hearings of the Russia-Georgia dispute are finished at the European Court of Human Rights.”[8]

This reply of the Ministry of Foreign Affairs implies that Georgia links the exhaustion of the procedural mechanisms and passing the jurisdiction phase at the International Court of Justice to the ongoing Russia-Georgia dispute at the European Court of Human Rights and makes the case at the ICJ dependent upon the case at the European Court of Human Rights. In regard to this issue, FactCheck interviewed Tamar Tomashvili, a specialist of international law. In addition, we asked her to provide her assessment about the letter from the Ministry of Foreign Affairs.

As stated by Ms Tomashvili, in order to start a main hearing of a case at the International Court of Justice, it has to pass the phase of admissibility. In accordance with the UN International Convention on the Elimination of All Forms of Racial Discrimination, parties are required to settle a dispute by negotiations before filing a case at the Court. Georgia’s position at the International Court of Justice was that the country attempted negotiations with Russia multiple times and statements made by the head of state attested to these efforts. The International Court of Justice dismissed this position and stated that Georgia had to address Russia about negotiations and name specific articles of the CERD which were under dispute prior to filing a case at the Court. In particular, in the course of a number of stages of bilateral negotiations, Georgia had to make a request to the Russian Federation to discuss and assess the unfulfilled obligations prescribed by the CERD and acknowledge its own responsibility. Ms Tomashvili added: “In 2011, the Ministry of Justice, in close cooperation with the Ministry of Foreign Affairs, sent multiple notes to Russia suggesting bilateral negotiations. In this process, Georgia approached a certain phase and procedures were in progress to agree on the launch date of negotiations which would then satisfy the International Court of Justice’s demands. After the 2012 elections, it was expected that the new government would continue this process. Of importance was the timely initiation of the negotiations immediately after the launch of the process. Abandoning these procedures will allow another party to blame Georgia for dishonourable conduct.”

In regard to the reply of the Ministry of Foreign Affairs, Tamar Tomashvili believes that it is a huge mistake to link the aforementioned case to the dispute at the European Court of Human Rights. It is immensely important for Georgia to have an opportunity to carry on with its disputes against Russia in both courts. In addition, these are two different cases with two different dispute contents. At the International Court of Justice, there is a dispute between the states and the subject of the dispute is the ethnic cleansing and discrimination of Georgians whilst the case at the European Court of Human Rights concerns the violation of human rights during 2008 combat operations. The Georgian side’s decision to link these two disputes to each other is dangerous because the International Court of Justice will perhaps dismiss the dispute which was already considered by another international court – in this case, the European Court of Human Rights. In accordance with the statutes of both courts, they are not authorised to discuss the case if there is already another international court’s judgment. Russia tried to link these cases before the European Court of Human Rights based on the argument that in essence it is a single dispute. Georgia’s decision to employ this kind of approach will help Russia to use the same argument at the International Court of Justice if there is a judgment issued by the European Court of Human Rights.

In the process of writing this article, FactCheck again inquired with the Ministry of Foreign Affairs and the Ministry of Justice.

The reply of the Ministry of Foreign Affair is similar to that of 2017. In particular, the Ministry of Foreign Affairs states that the European Court of Human Rights is considering Georgia’s case filed against Russia which seeks to hold Russia responsible for human rights violations as a result of the war in 2008. Taking this into account, the last note to Russia was sent in 2014 when Georgia informed the Russian Federation that it would resume the dispute at the International Court of Justice after the dispute at the European Court of Human Rights is over. The Ministry of Justice, in its reply, holds the same position.

Of importance is that according to Section 5 of Article 61 of the so-called statute of the International Court of Justice, no application for revision may be made after a lapse of ten years from the date of the judgment. Therefore, Georgia has time to complete all of the pre-trial procedures until April 2021. The Ministry of Justice and the Ministry of Foreign Affairs have identical positions in regard to the date expiration and say that if new circumstances are identified in the case, Georgia will immediately apply to the International Court of Justice. Tea Tsulukiani claims that European Court of Human Rights will inevitably identify new circumstances which will allow Georgia to continue the dispute in The Hague.

FactCheck will continue to pay close attention to this issue in the future and offer readers updated information.