ICJ dismisses Georgia's case against Russia‎ 01 Apr 2011
The International Court of Justice dismisses Georgia's discrimination case on the basis of jurisdiction

The International Court of Justice has dismissed, on the grounds of jurisdiction, Georgia’s case against Russia, wherein it accused Russia of ethnic cleansing in the two breakaway Georgian provinces of South Ossetia and Abkhazia during the conflict which took place between 7 and 12 August 2008.

Georgia took its case to the ICJ in 2008, claiming that the Russian authorities and separatist militia had, over a twenty-year period, murdered thousands of ethnic Georgians and displaced over 300,000, in a long running discrimination campaign, leading to the events of August 2008. Russia made four preliminary objections to the case, which were the topic of today’s ruling.

Russia’s initial preliminary objection to the case was based on the existence of a “dispute” between the two countries, within the meaning of the Convention on the Elimination of Racial Discrimination (CERD), the basis of Georgia’s claim. To demonstrate a dispute under Article 22 of CERD, a state must demonstrate a disagreement between it and the conflicting state on a point of law or fact with respect to “the interpretation or application” of CERD. The Court concluded that it could find no basis for a finding that there was a dispute between the parties concerning racial discrimination between the coming into force of CERD and the beginning of armed conflict between the Parties in early August 2008. However, with regard to the conflict of August 2008, the ICJ did find evidence of a dispute and dismissed Russia’s argument on this point.

Russia’s second preliminary objective, however, was more successful. Georgia had claimed that Article 22 of CERD does not contain an express obligation to negotiate prior to taking court action. In its ruling the Court placed emphasis on the expression “which is not settled by negotiation”, used in Article 22 to describe a dispute, and found that this expression must be given effect – the resort to negotiations prior to making a claim before the Court. In addition, the Court observed that the use of the future perfect tense in the French text of the Convention reinforces the idea that an attempt to negotiate and settle the dispute must have taken place prior to seising the Court. The Chinese, the Russian and the Spanish texts of the Convention, as well as the travaux préparatoires, were also consulted and found to support this proposition. “Negotiations” were ruled to refer to “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” and the Court found that Georgia had not attempted to undertake such negotiations with the Russian Federation prior to taking its case to the ICJ.

As Russia’s second preliminary objection was upheld, the Court did not proceed to examine the third and fourth objections.

The case was therefore dismissed on the basis of jurisdiction and can therefore not proceed to the merit stage of proceedings. Georgia's deputy justice minister Tina Burjaliani said she was disappointed that the case had been dismissed "on a procedural technicality" and did not dismiss the possibility of filing a fresh case at a later date.

Press Release

Presentation of the case

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