Levan Aleksidze: “Georgian Side Lost Trial at the UN International Court for Incorrectly Filed Appeal”

“When state interests are in danger, incompetent official shall not make decisions.”

Koba Bendeliani, Interpresnews

On April 1, Hague International Court refused to start essential hearing of Georgia’s suit VS Russia. The Court clarified its decision and stated that it is beyond their competence to discuss Georgia’s suit against Russia.

Georgia filed suit against Russian Government on August 12, 2008 and blamed them in discrimination and racism of ethnic Georgian population of Abkhazia and Tskhinvali region together with local separatist authorities. The suit covered not only the facts from the armed conflict in 2008 but it covered the facts occurred from 1990 till 2008.

Interpresnews interviewed the expert of the international law Professor Levan Aleksidze about the decision of the UN International Court about Georgia’s suit.

-Mr. Levan, controversial comments are made on the decision of the International Court on our suit VS Russia. What decision was made by The Hague Court and what impact can it have on Georgia?

-There are several courts in Hague. I would like to clarify it because some people state that our suit was discussed by the Hague Human Rights Court. There is no similar court in Hague at all. There is an International Criminal Court, International Criminal Tribunal for the Former Yugoslavia and UN International Court of Justice in Hague which was founded simultaneously to the UN itself.

The UN International Court settles only legal disputes between the states. When only one state sues the second one, and the latter does not agree with it, the Court will not start hearing. So, the suit about the incidents of the August War was not to be filed to this particular court.

The Humanitarian Law was breached; Russia entered Georgian territory, occupied part of its territories and invaded it. I alleged the same when our government claimed that Georgia launched the war and we were guilty in everything. Nowadays, nobody doubts that in August of 2008 Georgia became target of the foreign aggression, was occupied and invaded by Russia that contradicted the international law. Tagliavini Report confirmed the same. Unfortunately, these circumstances were not properly reflected in our suit.

Governmental officials, more precisely, deputy minister of justice of Georgia Tina Burjaliani actively supported the idea to file our suit to the UN International Court of Justice and still continues to justify her position. I think, Georgian side hurried up to submit the suit to the Court on August 12, 2008. Similar things shall not be done in a hurry. The International Court of Justice is the institution which discusses cases for several years.

The UN International Court concluded that no disputes about ethnic cleansing between Georgia and Russia have occurred from 1990 to August of 2008. This problem was raised by Georgia only during August war in 2008. Russia wanted the Court not to declare them to be the party in our suit but the Court did it. Russian aggression against Georgia was clear for everybody and nobody needed the court judgment to prove it. The Council of Europe, EU and NATO recognized Russia to be party in Georgia’s case and they use term Georgian-Russian war.

The Court accepted the counter-arguments of Russia – Georgia incorrectly appealed to the Court because the Convention about Liquidation of All Forms of Racial Discrimination, which is applied to in the suit of Georgia, and according to what Russia is entitled to appear to the court, might become the basis of the suit though Georgia did not comply with the pre-conditions of the Convention which could compel Russia to appear to the Court.

What are those pre-conditions? The negotiations shall start; the suitor shall try to resolve the problem through negotiation. If this method fails, then there is a Committee of Racial Discrimination which discusses the issue according to its 5-point procedures. The latter clarifies how to sue the opposite side, how the case shall be discussed and how Russia shall be informed – none of these pre-conditions were satisfied.

The court made decision based on the Article 22 of the Convention about Liquidation of All Forms of Racial Discrimination which states that Conflict shall be resolved either through direct negotiations or with the support of the Committee. It is pity that the Court wrote in its decision – Georgian side acknowledged that they did not take all necessary measures and procedures to act in accordance to the International Convention on Racial Discrimination. Georgian side lost the trial because of the incorrectly filed suit to the UN International Court of Justice.

The Court concluded that Russia is the party in ethnic cleansing in Georgia but only after the war in August. The Court did not find any party guilty in ethnic cleansing. Georgia alleged in its suit that Russia has been carrying out ethnic cleansing and racial discrimination in the regions of Georgia – so-called South Ossetia and Abkhazia for the last 20 years. Unfortunately, the Court denied this allegation. I cannot understand why we spent so much resources and time on similar result.

Russia always stated that Convention about Racial Discrimination, which became basis for the Georgian suit, could not become a basis for the Court to start essential hearing of the case and compel Russia to appear to the Court. The final judgment of the Court is the following: UN International Court of Justice does not have enough competence to discuss Georgia’s suit because those procedures, which are urgently necessary for the discussion of similar suits, are breached, were not implemented.

-If the UN International Court did not have right to accept the Georgia’s suit, why did Georgian side file the suit to the Court and why did The Hague Court accept it?

-Soon after the armed conflict in August of 2008, a famous professor of the international law Antonio Cassese (who is not only a big scientist, but he has been chair of several international courts and tribunals) published an article in the newspaper Guardian on September 1, 2008 “The Wolf That Ate Georgia”. Cassese condemns the activities and position of Russia with regard to Georgia but he wrote in the same article that he could not understand why Georgia had appealed to the UN International Court and not to the International Criminal Court. Our accusations against Russia are within the competence of the international criminal law because the International Criminal Court discusses cases of ethnic cleansing and genocide.

-Now we have faced the problem of insufficient professionalism of the Georgian side or is there any other problem too?

-Initially, when Georgia appealed to the Court, the war had not finished yet, Later in October the Court passed resolution and called upon the both sides to cease military operations, ethnic cleansing, and racial discrimination of people. It was not big advantage for me at all. The decision of the same court stated that this was temporary document and the court could not preliminary assume to accept Georgia’s suit for essential hearing or not. After the Georgian side repeatedly appealed to the Court, they responded that the case was beyond the jurisdiction of the UN International Court of Justice.

-You mentioned that we are blamed in being 20-year later to appeal against Russia. What do you think, why did not Georgia file suit to the International Criminal Court against Russia?

-I have publicly blamed Russia in aggressive politics against Georgia several times but Yeltsin had signed OSCE   statements of Budapest, Lisbon and Istanbul Summits where ethnic cleansing by Abkhaz people in Abkhazia was acknowledged. The West believed that there were some other powers besides official Russia, who were guilty in this crime. We did not appeal to the court because it was about the incidents outside Russia. Convention about Racial Discrimination is about procedures within the state borders. When it happens outside the borders, it is the problem of the international law and is not within the competence of the Convention about Racial Discrimination. I think the UN International Court passed right decision on our case.

-What do you think about the assessments of the Georgian government officials about the Court decision? Can you explain to us what our government is happy with and do we have reason to be happy with it?

-It is difficult for me to say but the government trusted Ms. Tinatin Burjalian and put her in charge of this important case alone. She thinks she is a good specialist of the international law but apparently she is wrong. The US State Department does not make similar decisions without consulting the issue with the experts of the international law. If Ms. Burjaliani had asked the opinion of the specialists of the international law working at the Tbilisi State University, we could have suggested her how to find the solution of the problem and given good advice.

By the way, when Saakashvili was elected president, he took active steps with regard to Russia. Some people blamed him in worsening cooperation with Russia. I think due to the situation before August 2008 and nowadays, we could not have different cooperation with Russia. Though some opposition leaders are criticizing his activities very actively and often visit Moscow.

-What are legal and political results of the decision of the UN International Court on Georgia’s suit?

-Unfortunately, foreign media publishes ironic articles about our failure; Russian media makes more restricted assessments of the court decision. Despite criticism, I think, nothing tragic has happened. This is issue of procedures. The court did not accept the case for essential hearing because Georgia did not satisfy pre-conditions of the convention which we tried to use against Russia.

In future, we can make Russia appear to the court with two other methods – the process shall start in the committee of the racial discrimination where the case discussion will take another two years, at least; but if we fail to achieve any results in the committee, then we can appeal to the court. The second solution is to appeal to the Court but the latter will say that although humanitarian law is breached, I will discuss this case but we need Russia’s agreement on it. Russia will reply – we will never agree on it. These are those nuances which Georgia failed to foresee.

President of Georgia is a specialist of the international law and I never remember him to make similar mistake. Just the opposite, he always acts very reasonably. It is strange when a subordinate foresees the risk but hires an expensive lawyer. I do not doubt about the professionalism of our lawyers but there are situations where high-qualified lawyers are incapable to achieve results.

I rarely make similar statements but now, when the state interests are in danger, we should tell everybody that incompetent governmental official shall not make decisions. The Court passed procedural decision but this fact can be used by our enemies and friends and state – Georgia lost the trial at the UN International Court on a very serious case.