Georgia claimed that Russia was legally responsible for “ethnic cleansing” campaign during the war over Ossetia in the case filed in August 2008 before the International Court of Justice. Russia filed several objections to the case including whether the Court actually had jurisdiction. Those are the fundamental legal issues, but the Court’s provisional rulings were highly split perhaps indicating also the political sensitivity of the case. And, while the Court ruled in favor of one of Russia’s objections to jurisdiction, is Georgia able to bring the case back before the Court and under what legal theory? Does the Court’s provisional ruling reflect upon the substantive merits of Georgia’s claim?

The Republic of Georgia had instituted proceedings against the Russian Federation in respect to a dispute concerning “actions on and around the territory of Georgia” in breach of the International Convention on the Elimination of All Forms of Racial Discrimination (CERD). In its Application, Georgia had sought to ensure that the individual rights under the Convention “of all persons on the territory of Georgia are fully respected and protected”. Georgia had claimed that the Russian Federation, “through its State organs, State agents, and other persons and entities exercising governmental authority, and through the South Ossetian and Abkhaz separatist forces and other agents acting on the instructions of, and under the direction and control of the Russian Federation, is responsible for serious violations of its fundamental obligations under CERD”.

The ICJ’s decision was based on what could be termed as two technical considerations. The 10 – 6 Court’s decision not to examine Georgia's complaint was based on the argument that the two countries "did not engage in negotiations with respect to the latter's compliance with its substantive obligations under CERD".

The Court ruled against Russia’s first objection that had asserted that the ICJ had no jurisdiction as there was no dispute between Georgia and the Russian Federation. This would have a broader application upon Georgia’s efforts by removing Russia as a potential respondent under any cause of action.

Thus , Georgia has still available the opportunity to pursue its claim before the ICJ, as it Georgia’s Agent, has indicated the intention to do so, once such conditions are addressed. The Court did not reflect upon the merit of Georgia’s substantive claims.

From my personal experience as Agent before the International Criminal Court before the ICJ in Bosnia & Herzegovina’s genocide case versus “Serbia & Montenegro,” the Court’s judges can be reluctant to address substance until alternative political options are exhausted. The Court implicitly as well explicitly may be encouraging resolution through negotiation. The Court may be correct in this inclination in part, as it is not a criminal court to render judgment upon criminal culpability.

On the other hand, the Court (or in this case more accurately the majority of Judges by 10-6) may be only frustrating an avenue of toward justice by a smaller state which would otherwise have little leverage to pursue its claims through political negotiations or certainly not military means. In Bosnia’s genocide case, I noted a hesitation to label the actions of states that carry a potential stigma, such as “genocide” and/or “ethnic cleansing.” I find this unfortunate and mis-advised in that it effectively avoids difficult judgment upon actions that very much may call for such. Close votes can also be indicative of such other considerations including political. The judges to the ICJ it should be recalled are voted upon by the United Nations members, the same states that may be parties before it, and perhaps there is an inclination to readily rest upon “Solomon’s judgment,” – trying to split the baby into two between the contesting parties.

Here though Moscow and Tiblisi are too far apart. Further, Moscow has so much an advantage militarily and thus politically as to not expect a determined effort to resolve the matter through negotiations. Thus, I would expect to see Georgia again before the Court, as it has not been rebutted on the merits of its claims.

By Ambassador Muhamed Sacirbey
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See Reports on International Court of Justice :
“Georgia v Russia” - diplomaticallyincorrect.org/films/movie/georgia-vrussia-int-court-of-justice-ethnic-cleansing/25996
“Georgia & Russia Talk” - diplomaticallyincorrect.org/films/movie/georgia-and-russia-talk/22679
“Costa Rica v Nicaragua ICJ” - diplomaticallyincorrect.org/films/movie/costa-rica-v-nicaragua-international-court-of-justice/25522