By Brian Itami —
On April 1, 2010, the International Court of Justice (ICJ) upheld Russian preliminary objections in its dispute with Georgia over the application of the International Convention on the Elimination of All Forms of Racial Discrimination (CERD) with regards to the 2008 conflict in South Ossetia. Georgia filed an application with the ICJ on August 12, 2008, four days after Russian forces entered South Ossetia and the same day on which Russian President Dimitry Medvedev agreed in principle to a European Union-negotiated ceasefire. The suit alleged Russian ethnic cleansing in South Ossetia and Abkhazia, violations of the CERD dating to 1993 through three interventions, and accompanied a request for International Criminal Court Luis Moreno-Ocampo to investigate potential genocide, war crimes, and crimes against humanity.
The Court rejected Russia’s first jurisdictional objection that there was no actual dispute over international law, finding that Georgia’s claims of ethnic cleansing were sufficient to generate a question about Russia’s “compliance with its obligations under CERD.” However, by a 10-6 vote, the Court decided that it lacked jurisdiction under Article 22 of the CERD, which states:
Any dispute between two or more States Parties with respect to the interpretation or application of this Convention, which is not settled by negotiation or by the procedures expressly provided for in this Convention, shall, at the request of any of the parties to the dispute, be referred to the International Court of Justice for decision, unless the disputants agree to another mode of settlement.
The ICJ determined that Georgia “did not attempt to negotiate CERD-related matters with the Russian Federation” and that Georgia had not “used or attempted to use the other mode of dispute resolution contained at Article 22, namely the procedures expressly provided for in CERD.” Consequently, upholding Russia’s second preliminary objection, the ICJ found that “Article 22 of CERD cannot serve to found the Court’s jurisdiction in the present case.”
This decision reversed the finding the Court’s October 15, 2008 Indication for Provisional Measures, where an 8-7 majority determined that the ICJ did have prima facie jurisdiction under Article 22 to issue its provisional measures. There, the Court noted distinctions between the language of Article 22 and jurisdictional clauses of treaties where prior efforts of arbitration or other forms of negotiation were more clearly required to trigger ICJ jurisdiction. In its Provisional Measures, the Court ordered Georgia and Russia to refrain from racial discrimination in South Ossetia, Abkhazia, and neighboring regions (particularly with regards to security, freedom of movement, and property rights), to facilitate the delivery of humanitarian assistance to the conflict regions, and to refrain from any action that would “aggravate or extend the dispute.” However, between 2008 and 2011, Sir Christopher John Greenwood replaced Judge Rosalyn Higgins of the United Kingdom (a supporter of the indication for provisional measures). Along with Judges Bernardo Sepulveda Amor of Mexico and Sir Kenneth Keith of New Zealand, who both found prima facie jurisdiction in 2008, the new Judge from the United Kingdom represented the switch in opinions fatal to Georgia’s application.
As noted by Dustin Lewis of the Program on Humanitarian Policy and Conflict Research, the Georgia v. Russia case offered an opportunity for the ICJ to rule on two contested questions amongst international lawyers surrounding the application of international human rights law during armed conflict: if and under what circumstances the CERD (and other human rights instruments not explicit as to their jurisdictional reach) apply extraterritorially, and to what extent the provisions of the CERD apply during armed conflict in contrast with international humanitarian law (IHL, also known as the law of armed conflict).
In light of the Court’s 2005 judgment in the case between the Democratic Republic of Congo and Uganda (where it found that states carried human rights obligations over situations where it exercised a sufficient degree of “control”), some have questioned the ICJ’s capacity to declare binding statements regarding the jurisdictional scope of obligations signed by states. Nonetheless, a ruling on the merits in this case could have put forth a persuasive opinion on the issue and, at a minimum, generated an additional data point on what constitutes an exercise of jurisdiction or sufficient “control” under international law to trigger application of human rights obligations.
Additionally, the case offered an opportunity for the ICJ to clarify its position on the key foundational issues surrounding the application of human rights instruments like the CERD during armed conflict. The traditional position—one still held by a number of states—is that IHL displaces international human rights law during periods of armed conflict. Over the past decade, this position has been increasingly challenged by the concept of a convergence between IHL and human rights law, captured by the Court’s assessments in 2004 (in its Advisory Opinion on the Palestinian Wall) and 2005 (in DRC v. Uganda) that human rights law does apply during armed conflict.
However, the Court’s jurisprudence is much less settled on how human rights law and IHL apply during armed conflict, particularly on the issue of what constitutes lex specialis, or the controlling law as between conflicting provisions, during armed conflict. As noted by Francoise Hampson, in the space of seven paragraphs in the Palestinian Wall Advisory Opinion, the Court oscillated between statements that human rights law was always applicable and that there were situations where only IHL would apply.
Nonetheless, with its decision on April 1, the ICJ effectively tabled these issues by finding no jurisdiction to resolve the dispute between Georgia and Russia. Other judicial bodies, most notably the European Court of Human Rights and the Inter-American Commission on Human Rights, have taken on these questions. However, while the ICJ’s decisions would be formally binding in this case only upon the parties, the Court offers a perspective not bounded by region and its decision not to consider these issues maintains significant ambiguity as to the convergence of IHL and human rights law.
Official Summary of the ICJ Ruling on Preliminary Objections (April 1, 2011)
Official Summary of the ICJ Indication for Provisional Measures (Oct. 15, 2008)
Congressional Research Service Report on the Conflict (Sept. 22, 2008)
 See, e.g., Michael J. Dennis, Non-Application of Civil and Political Rights Treaties Extraterritorially During Times of International Armed Conflict, 40 Isr. L. Rev. 453, 458-60 (2007).
 Naz K. Modirzadeh, The Dark Side of Convergence: A Pro-Civilian Critique of the Extraterritorial Application of Human Rights Law in Armed Conflict, 85 Int’l L. Stud. Ser. US Naval War Col. 349, 352 (2010), available at http://www.usnwc.edu/Research—Gaming/International-Law/RightsideLinks/Studies-Series/documents/NavalWarCollegeVol-86.aspx.
 Francoise J. Hampson, Is Human Rights Law of Any Relevance to Military Operations in Afghanistan?, 85 Int’l L. Stud. Ser. US Naval War Col. 485, 495 (2009) citing Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, 2004 I.C.J. 136, ¶¶ 106–12.
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