Georgia has filed an application against Russia at the International Court of Justice alleging violation of the International Convention for the Elimination of All Forms of Racial Discrimination. It is an example of the increasing use of the International Court of Justice to litigate human rights issues.
According to a press release issued by the Court (http://www.icj-cij.org/docket/files/140/14659.pdf?PHPSESSID=6ab9015a5827500d102910f4db435d49), Georgia says 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’. Georgia argues that Russia violated obligations under the Convention during three distinct phases of its interventions in South Ossetia and Abkhazia in the period from 1990 to August 2008. Russia is charged with ‘ethnic cleansing’.
Georgia’s lawyer is my old friend Payam Akhavan, who is now based a McGill University in Montreal.
Article 22 of the International Convention for the Elimination of All Forms of Racial Discrimination constitutes a ‘compromissory clause’ that gives jurisdiction to the International Court of Justice. It is similar to article 9 of the Genocide Convention, that was the jurisdictional basis of the Bosnia v. Serbia case judged last year. To my knowledge this is the first time that article 22 has ever been invoked before the International Court of Justice. In 2005, the Democratic Republic of Congo successfully used other human rights treaties in a claim against Uganda at the Court.
Russia’s predecessor, the Soviet Union, ratified the Convention on 4 February 1969, but with a reservation to article 22 ((1969) 676 UNTS 397). The reservation was withdrawn on 8 March 1989. Georgia acceded to the Convention on 2 June 1999 with no reservation to article 22. Russia will argue that the Court is without jurisdiction with respect to anything that occurred prior to 2 June 1999.
At the same time, Marlise Simons in the New York Times reports that Georgia has also approached the Prosecutor of the International Criminal Court: http://www.nytimes.com/2008/08/14/world/europe/14hague.html?ref=world. Georgia deposited its instrument of ratification of the Rome Statute of the International Criminal Court on 5 September 2003. The Court has jurisdiction over the entire territory of Georgia since that date, even over Russian nationals. Russia, too, has been making allegations that war crimes were committed by Georgian troops (see: http://afp.google.com/article/ALeqM5hqadlwunQ3wUhdcHpaqjj6cQQyvw). Unlike Georgia, however, Russia is not a member of the International Criminal Court, and it therefore has no right to trigger proceedings before the Court under article 14. The Prosecutor would still be free to charge Georgians, acting under article 15 of the Statute, but to date he has never used this power.
The Ossetian and Abkhaz separatists have invoked recent developments in Kosovo, where there is increasing momentum for international recognition of the new state. Here, they have a good argument. Back in 1991, when the former Yugoslavia was breaking up, a series of opinions by European Union tribunal presided over by Robert Badinter declared that there was no absolute right to separation, and that new states could only be created following previous administrative boundaries within a federation. Thus, the tribunal recognized the independence of Bosnia and Herzegovina, Croatia, Slovenia and Macedonia, but denied the Bosnian Serbs the right to separate from Bosnia. This was the issue that led to the terrible 1992-1995 war.
Now, Europe is willing to let Kosovo separate from Serbia, something it denied the Bosnia Serbs when they wanted to separate from Bosnia. And elsewhere in the world, separatist groups have seized upon this inconsistency. If we follow the Badinter Commission rulings, South Ossetia and Abkhazia cannot constitute themselves as independent states. If we follow contemporary practice concerning Kosovo, this is hardly so clear. We have not seen the last of repercussions of Kosovo independence.