Starting from 7 August we have witnessed the start, the escalation of the armed conflict between Georgian and Russian troops, and at 2.00 a.m on 13 August the ceasefire agreement between the Georgian President, Saakashvili, and the Russian President, Medvedev, brokered by the French President, Sarkozy. This post does not concern itself with the legal aspect of the armed clashes between the armed forces of Georgia and Russia, but with the use of different dispute settlements mechanisms by Georgia in trying to contain the effects of the conflict.
Thus, on 11 August, the Georgian Government requested the European Court of Human Rights to issue an Order of Interim Measures indicating that the Russian Government should “refrain from taking any measures which may threaten the life or state of health of the civilian population and to allow the Georgian emergency forces to carry out all the necessary measures in order to provide assistance to the remaining injured civilian population and soldiers via humanitarian corridor”. The terms of the Court’s decision are as follows: “On 12 August 2008 the President of the Court, acting as President of Chamber, decided to apply Rule 39 of the Rules of Court (interim measures) considering that the current situation gives rise to a real and continuing risk of serious violations of the Convention. With a view to preventing such violations and pursuant to Rule 39, the President calls upon both the High Contracting Parties concerned to comply with their engagements under the Convention particularly in respect of Articles 2 and 3 of the Convention. In accordance with Rule 39 § 3, the President further requests both Governments concerned to inform the Court of the measures taken to ensure that the Convention is fully complied with.” For more information please visit http://www.echr.coe.int/echr/
Besides seizing the European Court of Human Rights, Georgia also instituted proceedings before the International Court of Justice (ICJ) against the Russian Federation for “its actions on and around the territory of Georgia” in breach of the 1965 International Convention on the Elimination of All Forms of Racial Discrimination (CERD). Georgia contends 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 [the] CERD, including Articles 2, 3, 4, 5 and 6”. According to Georgia, Russia had “violated its obligations under [the] CERD during three distinct phases of its interventions in South Ossetia and Abkhazia” in the period from 1990 to August 2008. As a basis for the jurisdiction of the Court, Georgia invoked Article 22 of the Convention on the Elimination of All Forms of Racial Discrimination. It also reserved its right to invoke Article IX of the Genocide Convention, to which both Georgia and Russia are parties, as an additional basis for the Court’s jurisdiction. For more information and access to the 32 page Application of Georgia please visit http://www.icj-cij.org/docket/index.php?p1=3&p2=1&code=GR&case=140&k=4d
The seizing of a Court by the weaker party in times of armed confrontation is not unusual. There are already the examples of Serbia and Montenegro bringing separate cases against 10 NATO countries for their military humanitarian intervention in Kosovo in 1999 and by the Democratic Republic of the Congo (DRC)against three neighbouring States, namely Uganda, Rwanda and Burundi for the intervention, or continued presence of their armed forces in DRC’s territory. In both cases the Applicants requested the International Court of Justice to issue an order on provisional measures. The Court declined to issue an order in the former case while it did in the latter.
It remains to be seen whether Russia, which has never been a party to proceedings before the ICJ so far, will accept the jurisdiction of the Court and appear before it.