On April 1 the International Court of Justice (ICJ) ruled that it lacked jurisdiction with regard to a claim filed by Georgia in August 2008, concerning acts of cleansing and discrimination of ethnic Georgians before and during the Georgia-Russia war. The Court’s unusually strong emphasis on procedural requirements, along with divided views among its members, suggests that the Court had difficulties tackling the political dimensions of the case. The ICJ nonetheless dismissed Russia’s argument that no dispute exists between Georgia and Russia –opening up to future deliberations on the merits of the case and confirming Tbilisi’s arguments that Russia is a conflict party rather than a peace broker in the region.

BACKGROUND: Georgia filed its claim against Russia at the Hague-based International Court of Justice on August 12, 2008, immediately after an EU-brokered ceasefire agreement had been reached between Tbilisi and Moscow. Tbilisi claimed that Russia had violated the Convention on the Elimination of All Forms of Racial Discrimination (CERD) through interventions in Georgia’s secessionist territories of Abkhazia and South Ossetia during three separate phases starting from the early 1990s up until the end of hostilities in August 2008. It argued that Russia, through own state organs and though its control over the South Ossetian and Abkhazian militia, had pursued a two-decades-long campaign in the two regions which resulted in the death of thousands of Georgians and the displacement of more than 300,000 ethnic Georgians from their homes.

Russia filed several formal objections to the applicability of the CERD in relation to Georgia’s claims – two of which were addressed by the Court in its April 1 ruling. The first objection concerned the absence of a dispute between Georgia and Russia within the meaning of the CERD. Indeed, Russia has long denied being a conflict party in the region, arguing instead that Georgia’s conflicts are issues to be resolved between Georgia and its secessionist capitals. Equally, throughout the hearing process in relation to the recently dismissed case, Russia maintained that it is a peacemaker in relation to Georgia’s conflicts. The Court dismissed this argument, clearly stating that there was evidence of a dispute between the parties with regard to events during the August 2008 war. Surprisingly however, the Court refrained from acknowledging the existence of a dispute within the meaning of the CERD during the two phases before the August 2008 events.

Moscow’s second objection was more successful. Russia argued that the Court lacked jurisdiction because Georgia had not initiated negotiations with Moscow prior to filing its claim in accordance with the procedural rules of the CERD. It claimed that Georgia had not complained about ethnic cleansing or discrimination before it filed its claim in the wake of the August 2008 war. The Court examined the different language versions of the Convention, and found that Georgia’s claim did not fulfill the conditions laid down in its article 22, which defines a dispute as “not settled by negotiation”.  “Negotiation” was defined by the Court as a “genuine attempt by one of the disputing parties to engage in discussions with the other disputing party, with a view to resolving the dispute”. Against this background, the ICJ ruled with 10 votes to 6 that it could not proceed to the merit stage of the case.

Importantly however, the Court was far from unanimous. In a separate opinion to the ruling, five of the Court’s members, including ICJ President Hisashi Owada, expressed their strong disagreement with the decision on two key points. The judges jointly argued that the threshold set by the Court both with regard to the timing of when a dispute emerged, as well as the need for pre-trial bilateral negotiations, was unjustifiably high. They stated that “Georgia had long accused Russia of being responsible, by action or omission, for the ethnic cleansing it alleges was committed against Georgian citizens in Abkhazia and South Ossetia”, and thus, that the Court should have dismissed Russia’s second objection as well.

The April 1 decision by the Court was met with varied reactions in Tbilisi. In commenting on the ruling, Georgian Foreign Minister Grigol Vashadze referred to the numerous negotiations taking place in relation to Abkhazia and South Ossetia since 1991, arguing that the procedural requirements put forward by the ICJ was merely an excuse by the Court not to consider the case. Georgia’s Deputy Justice Minister Tina Burjaliani was more optimistic, stating that the ruling opens up to future legal actions against Russia once the requirements have been met. Indeed, as the ICJ ruling makes no prejudice to the allegations put forward by Georgia, it does not prevent the Georgian side from filing a new claim in the future.

IMPLICATIONS: The decision by the ICJ to dismiss the Georgia-Russia case on technical basis is ill-timed. The case constituted the first opportunity for the Court to address some of the legal aspects of the lengthy conflict between Georgia and Russia, which so far has failed to be resolved at the international level. Especially in view of the continuous deadlock in the Geneva negotiations, the Court could have played an important role in bringing clarity to issues that continue to hamper progress in the negotiations.

Moreover, by arguing that Georgia has not raised these issues directly with Russia before taking the issue to the ICJ, the court significantly raised the threshold for procedural requirements with regard to the Court’s jurisdiction. Needless to say, at the time when the claim was filed there was little prospect of direct negotiations between Tbilisi and Moscow. Thus, pre-conditioning court proceedings with direct bilateral talks on specific issues is a sturdy requirement in this case. This was acknowledged by the dissenting Court members in their separate opinion to the April 1 ruling, who argued that the Court should have adopted a far more flexible approach with regard to article 22 of the CERD in its ruling. The five judges stated that “no one can seriously think it reasonable to have required Georgia to attempt to resolve its dispute with Russia through negotiations after 12 August 2008; it is unrealistic to believe that on that date there remained even the slightest chance of a negotiated settlement of the dispute, as defined before the Court”. They went on to argue that “in our view, it is sufficient for the applicant clearly to make known the existence and tenor of its claims against the other party, thereby enabling the latter to express its position […] that is exactly what happened in this case”. Indeed, starting from the late 1990s, Georgia has repeatedly expressed its disapproval of Russia’s actions against the ethnic Georgian population in Abkhazia and South Ossetia, both at the international level and in direct communications with Moscow.

The Court’s emphasis on pre-procedural elements is also in stark contrast to previous case practice by the ICJ, where similar requirements have not limited the Court’s jurisdiction. This suggests that the political sensitivity of the Georgia-Russia case may have factored into the Court’s decision not to move forward to the merit stage of proceedings.

However, in its ruling the ICJ made some noteworthy statements, which provide ground for consideration of the merits of the case at a later stage. In particular, the Court made an important point when it rejected Russia's argument that no dispute exists between Georgia and Russia. This is an important accomplishment, not least in relation to the Geneva negotiations where Russia continues to deny its role as a conflict party. Thus, it proves that Russia's argument that it maintains a role as a peace guarantor in the region, and that the conflicts over Abkhazia and South Ossetia are to be resolved between Tbilisi and its secessionist capitals, does not hold water in international law.

CONCLUSIONS: While unfortunate, the decision by the ICJ not to move forward with the proceedings at this stage should not be seen as determinative with regard to the future outcome of the CERD dispute. Indeed, Georgia is likely to re-file its complaint once the procedural demands have been met. The April 1 ruling nevertheless indicates that the ICJ may prove reluctant to handle aspects of the Georgia-Russia dispute that took place prior to the events of August 2008. This is troublesome, as it unfairly portrays the 2008 war as an isolated event rather than a gradually escalating conflict tracing back more than two decades. Such an approach by the Court also fails to address Russia’s role in the displacement of the more than 200,000 IDPs that remain stranded in Georgia proper as a result of the conflicts in the region in the early 1990s.

AUTHOR’S BIO: Johanna Popjanevski is Deputy Director of the Central Asia-Caucasus Institute & Silk Road Studies Program Joint Center.