Georgia: the jurisdiction of international and regional courts

 
 
 
Jurisdiction of International and Regional Courts
over recent events in Georgia
 
downlad the pdf version
 
There are three bodies either seized or potentially seized of jurisdiction in relation to recent events that have taken place in South Ossetia and Abkhazia:
1.                   the European Court of Human Rights;
2.                   the International Court of Justice; and
3.                   the International Criminal Court.
NPWJ and TRP call for a full, independent and impartial investigation of the events take place, to determine whether war crimes, crimes against humanity or genocide or other violations of human rights or international humanitarian law may have been committed and by whom.
Georgia has invited independent media, human rights monitors and investigators in the territories under its control. NPWJ and TRP call on Russia to respond to the allegations made by Georgia by providing full access to international media, human rights monitors and humanitarian law investigators in the areas under her control and the control of her cobelligerents. For Russia to retain any credibility in her claims about serious violations of international humanitarian law against civilians having been committed by its opponents, she needs to permit impartial investigations in the territories it controls or risk that her claims be considered cynical war propaganda.

 
1.          European Court of Human Rights
Background: On 11 August 2008, Georgia instituted proceedings before the European Court of Human Rights alleging that the Russian Federation was violating the European Convention on Human Rights.
Allegations: Georgia alleged that the Russian Federation violated the following rights applicable pursuant to the European Convention on Human Rights:

• Right to life (article 2 of the Convention);
• Prohibition of inhuman and degrading treatment (article 3 of the Convention);
• Protection of property (article 1 of Protocol No. 1 to the Convention).

Application: Georgia requested the European Court of Human Rights to indicate to the Russian Federation that they should adopt interim measures, specifically to “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”.
Current Status: On 12 August 2008, the President of the European Court of Human Rights called on both parties to comply with the European Convention on Human Rights, particularly those articles listed above, on the grounds that the current situation “gives rise to a real and continuing risk of serious violations of the Convention”. Both Georgia and the Russian Federation must now inform the Court of the measures being undertaken to comply with the Convention.
Jurisdiction: Any State Party to the European Convention on Human Rights may refer to the Court any alleged breach by another State Party of the provisions of the Convention and its protocols (article 33 of the Convention). Both Georgia and the Russian Federation are States Parties subject to the jurisdiction of the European Court of Human Rights.
The European Court of Human Rights can also receive applications from any person, non‑governmental organisation or group of individuals claiming to be the victim of a violation of the Convention or its protocols by a State Party, provided all domestic remedies have been exhausted (articles 34 and 35 of the Convention), so it is possible for additional “individual” cases to arise in the future, separately from the inter-State process.
 
 
2.         International Court of Justice (ICJ)
Background: On 12 August 2008, Georgia instituted formal proceedings against the Russian Federation at the International Court of Justice, alleging violations of the Convention on the Elimination of All Forms of Racial Discrimination, and reserving the right to allege violations of the Genocide Convention at a later date. The Convention on the Elimination of All Forms of Racial Discrimination provides for automatic jurisdiction of the ICJ in contentious cases, even when a State Party has not accepted the full compulsory jurisdiction of the ICJ. 
Allegations: Georgia alleged that the Russian Federation violated the following rights applicable pursuant to the Convention on the Elimination of All Forms of Racial Discrimination:

• Racial discrimination (article 2 of the Convention);
• Racial segregation (article 3 of the Convention);
• Promotion or justification of racial hatred and discrimination (article 4 of the Convention);
• Failure to prohibit or eliminate racial discrimination (article 5 of the Convention);
• Failure to ensure an effective protection or remedy against racial discrimination (article 6 of the Convention).

Application: In the first instance, Georgia has requested the International Court of Justice to order the Russian Federation to take all steps necessary to comply with its obligations under the Convention on the Elimination of All Forms of Racial Discrimination.
Current Status: The International Court of Justice will hold a hearing on 8-10 September 2008 to determine whether they have prima facie jurisdiction in the matter and whether the conditions for the indication of provisional measures are met. Until then, the President of the International Court of Justice has called on the parties to act in such a way as will enable any order the Court may take on the request for provisional measures to have its appropriate effects.
Jurisdiction: The ICJ has jurisdiction only in respect of cases between States. The ICJ will have jurisdiction in cases between States (“contentious cases”) in the following situations:

• Special Agreement: when two or more States agree to submit a dispute on a specific issue to the Court (article 40 of the Statute);
• Treaty-based: when a treaty expressly provides for the ICJ to have jurisdiction in the event of a dispute on the interpretation or application of that treaty (article 36(1) of the Statute);
• Unilateral declaration: States Parties to the Statute of the Court may unilaterally recognise the jurisdiction of the ICJ as binding with respect to any other State who makes a similar declaration (article 36(2) of the Statute).

Decisions of the ICJ in contentious cases are binding on the parties (States) to the case. Some contentious cases brought before the ICJ include issues of the applicability of the Genocide Convention (e.g. Croatia v Serbia (1999)); legality of the use of armed force (e.g. Serbia and Montenegro v United Kingdom (1999)); and armed activities by foreign forces on a State’s territory (e.g. DRC v Rwanda (2002)).
The ICJ may also have advisory jurisdiction when a legal question is referred to it by a body authorised to do so by the UN Charter (article 65 of the Statute and article 96 of the Charter). This includes the UN General Assembly and other organs of the United Nations and specialised agencies, which may at any time be so authorised by the General Assembly. Advisory decisions issued by the ICJ are not binding.
While the Russian Federation has not accepted compulsory jurisdiction of the Court which would allow any State to bring a case against it for all disputes under international law, both Georgia and the Russian Federation are parties to various treaties conferring specific jurisdiction on the ICJ in the case of disputes over that treaty’s applicability of interpretation, including in particular the Convention on the Elimination of All Forms of Racial Discrimination.
 
3.         International Criminal Court (“ICC”)
Background: Pursuant to its founding Statute (“the Rome Statute), the ICC has jurisdiction over individuals (not States) alleged to have committed war crimes, crimes against humanity and genocide since 1 July 2002, when:

• the individual alleged to have committed the crime is a national of a State Party (article 12(2)(a), Rome Statute);
• the crimes are alleged to have occurred on the territory of a State Party (article 12(2)(b), Rome Statute);
• a non-State party accepts the jurisdiction of the ICC (article 12, Rome Statute);
• the Security Council refers a situation to the ICC (article 13(b), Rome Statute);

The ICC can only apply its jurisdiction if a State Party is “unable” or “unwilling” to exercise its own national jurisdiction over the crimes.
Current Status: There is currently no case pending before the International Criminal Court. The ICC Prosecutor has confirmed that his office has been closely monitoring the situation in Georgia since the outbreak of violence in South Ossetia in early August and that is it currently under analysis.
Jurisdiction: Georgia is a State Party to the Rome Statute of the ICC; the Russian Federation is not a State Party. The ICC has proprio motu discretional jurisdiction for crimes committed within the entire territory of Georgia, including the territories not under its control, where it would be deemed to be “unable” to exercise national law. Whether or not the Prosecutor decides to institute proceedings proprio motu, Georgia can initiate a case by “referring itself” to the ICC for all acts committed within Georgian territory or by Georgian nationals (including dual nationals). The Russian Federation could also initiate a case as a non-State party by accepting the jurisdiction by the ICC for this particular case, or by having the situation referred by the Security Council. 
In any case, it is critical that a full investigation of the facts to take place, through the ICC or otherwise, to determine whether war crimes, crimes against humanity or genocide may have been committed.
 
Legal status of the relevant territories
Irrespective of the nature of the foreign military presence, for example whether it is mandated by the UN Security Council or the Organisation for Security and Cooperation in Europe (OSCE), and leaving aside any issues relating to sovereignty over the territory, if it amounts to control over the territory, it is deemed to be a military occupation by foreign armed forces (article 42, Hague Regulations 1907), triggering the applicability of international humanitarian law of occupation. The four Geneva Conventions of 1949 apply even if there is no fighting whenever a territory is under military occupation, notably GC IV on the Protection of Civilians. The population of an occupied territory has certain rights that cannot be removed by the occupying power or even renounced by individuals under occupation, including prohibition of forcible transfers of the population into or out of the occupied territory; collective punishment; the taking of hostages; reprisals against the civilian population; and the confiscation of private property. The grave violation of some of these rights constitutes a war crime.