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.
The thing is that the ICJ is not a good place to settle these kinds of disputes. The ICJ, by international law, and by common sense, is an institution designed to strengthen the peaceful settlement of disputes. When the war breaks out, there is too much job for the ICJ. And in the light of limitations for its jurisdiction, I think the best way to deal these kinds of disputes is diplomacy, other means of international mediation, not the ICJ, because this is primarily political, not a legal issue. The ICJ will at all time rather choose the refrain of bringing any decision, then to bring a decision nobody would respect.
Thank you for the comment Mr. Vujacic. Practically you’re construing the issue in terms of political and legal questions and what would be the best way of settling disputes of such nature as the present one between Georgia and Russia. The Court has pointed out several times that despite an issue being of a political nature, it would deal with it as long as it coined in legal terms. Further, the Court has encouraged parties to come to an agreement, even while legal proceedings have been ongoing.
The ICJ represents an important (if not the most important) venue for the peaceful settlement of disputes between States. Evidently, fighting with legal arguments in Court produces much less human suffering than fighting a real war.
States are sovereign and thus choose themselves among the several means of peaceful dispute settlement in which way to settle their differences. The ICJ and other international fora are there to offer their services. Looking at its record it does not appear to me that the Court has shied away from rendering a decision because of political sensitivities or because a ‘superpower’ was a party to a dispute. On the contrary. So, we shall see which course this case will take if it passes the preliminary objections phase.
I do agree with you Mr. Zyberi. At this stage, I just wanted to point out that if we seek to resolve the dispute efficiently, the best way is to use diplomacy, possibly SC UN, mediation of the UN Secretary General, or other more efficient means at disposal to the parties, as was the role of the EU and France in this particular case. I fully support the role of the ICJ, and the more cases pending in front of the ICJ, the more world is close to resolving disputes peacefully. But the record of the ICJ is, let’s be honest, quite unsatisfying. It has delivered judgments in very few cases, a lot of the cases are dismissed in the preliminary stages, due to the lack of jurisdiction, the cases are pending for at least several years, and some cases were pending for 15 years prior to the delivery of judgment. And this is all because the ICJ is cautions in assessing the facts and because it takes time. The warlike situations are therefore not good situation for the ICJ to decide about. If the ICJ would do that, it is likely that these deliberations would harm its reputation; at least one of the parties would consider it as a politically instructed institution, etc. We should not forget that the Security Council is the body primarily responsible for the international peace and security. ICJ is the body established for the peaceful settlement of disputes between the countries. It should not, and could not deliver the judgments that are political in nature, like most of the disputes connected with the international peace and security most probably are. I fully understand why the ICJ is cautious in this respect. And I am not saying this in order to undermine the role of the ICJ; on the contrary, I respect deeply its role, and would be very good if its role is increased. But the reality in the world is that the states are resisting resolving disputes in front of the ICJ, e.g. the list of countries that accepted compulsory jurisdiction of the ICJ is poor. So, my opinion is that international community should consider reviving other means of resolving disputes peacefully – arbitration, mediation, to strengthen the role of the SC UN, Secretary General, or even General Assembly.
Mr. Vujacic, I’m not sure how the Security Council could solve this dispute, since any resolution it might want to pass would possibly face a Russian veto. If we’re speaking about solving disputes from a position of parity the Court would be probably the only forum where parties are on equal footing.
Frankly, I don’t see how the record of the Court is unsatisfying? Based on what criteria and what meter do you use to come to that conclusion? True, more could have been done, but one should look at the States appearing before the Court and their behaviour and litigation strategies. The Court’s jurisdiction is based on State consent. If the Court lacks jurisdiction that would be it. However, as the Court has pointed out on a number of cases, the mere fact that it lacks jurisdiction in a case does not mean that States are not bound by international law norms and that they are not responsible in case they violate them.
There are 66 States accepting the compulsory jurisdiction of the Court, which means a bit over one third of the States member to the UN. That’s far from excellent, but it’s not that bad either.
Looking at the docket of the Court I don’t see how States are resisting the jurisdiction of the Court, since there are as of today 13 cases pending? I’d say that resort to the Court’s jurisdiction is quite satisfactory and that is an expression of the trust that States put on this organ of international law.
I agree with you on the general point you make at the end of your comment that the international community will have to reconsider the role of, and some organs need to do more in the field of peaceful settlement of disputes.
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with respect to your ending comment, in which you state that: “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”, I have to say that there seems to be a misinterpretation of a legal concept (kompetenz-kompetenz).
It is not for the Russian Federation to accept or not whether the ICJ has jurisdiction over this case, but for the Court itself to rule on it. While it remains true that the ICJ is not a court of compulsory jurisdiction and consent of the States to appear in a case before it is required, it remains a competence of the Court to review the issue of whether this consent has been granted or not.
In other words, it is for the Court to decide if consent can be derived from Article 22 of CERD (to which both States are parties) and therefore whether it is competent to hear the case.