TrustHLT/LaCour huggingface dataset:
AP1 (Applicant): Finally, as a result of the conflict and the campaign of ethnic cleansing that followed, many thousands of ethnic Georgians fled from South Ossetia and adjacent territories.
AP1 (Applicant): From Russia's point of view, the campaign had served its purpose.
AP1 (Applicant): In 2008, the OSCE concluded that ethnic Georgians were being prevented by Russia from returning and considered this to be, and I quote, an ongoing violation of the Russian Federation's obligation to facilitate and ensure that displaced persons can return voluntarily to their former places of residence in safety and dignity.
AP1 (Applicant): The European Parliament found that ethnic cleansing and forcible democratic changes had taken place under Russia's occupation of South Ossetia and that Russia was responsible for the human rights violations committed in those areas, including the violations of the Right to Free Movement.
AP1 (Applicant): Since the August conflict, the total ethnic Georgian population of South Ossetia has been permanently reduced by more than 20,000 people.
AP1 (Applicant): The Georgian civilians comprising that group of IDPs have been prevented ever since from returning to their homes.
AP1 (Applicant): The United Nations Secretary General reports annually to the General Assembly on the numbers to see if there has been any successful repatriation, and they have remained consistent from 2008 to today.
AP1 (Applicant): Based on all the evidence, Mr. President,
AP1 (Applicant): we say that the Russian Federation adopted and continues to adopt an administrative practice of frustrating the right of ethnic Georgian IDPs to return to their homes in violation of Article 2 of the Fourth Protocol.
AP1 (Applicant): Those are my submissions.
AP1 (Applicant): I have not, you will notice, directly addressed the question of non-exhaustion.
AP1 (Applicant): It's not clear to us at this stage whether the Russian Federation continues to maintain that.
AP1 (Applicant): I will deal with it in detail in reply if I need to or in answer to any questions from the court.
Guido Raimondi (JudgeP): Thank you very much, Mr. Emmerson.
Guido Raimondi (JudgeP): Now I call Mr. Galperin, please, you have the floor.
GR1 (Government): Mr. President of the Court of Distinguished Judges,
GR1 (Government): the Opposing Council started surprisingly with some dates and anniversaries from the Georgian history.
GR1 (Government): I will also take this example, and I would like to remind that just 95 years ago, in December 1922, South Ossetia was included to the territory of Georgia by Joseph Stalin, who is apparently a Georgian born in Gori, who was the Minister of Nationalities at that time.
GR1 (Government): And nobody asked Ossetians if they want to become a Georgian there.
GR1 (Government): In 70 years after that, Georgians tried to enforce this decision by invading South Ossetia and killing civilians.
GR1 (Government): The same attempt took place in August 2008.
GR1 (Government): I have the honor to address you on some important points raised by the court's questions to the parties, and Mr. Swainston QC will then address you further.
GR1 (Government): The court's questions cover the issue of effective control, whether the court can deal with matters of international humanitarian law, whether there was any administrative practice behind attacks on Georgian civilians, what the situation is now, and whether domestic remedies have been exhausted.
GR1 (Government): These questions have been answered in writing, but I wish to add some further observations.
GR1 (Government): This is the first case where the court has considered applying convention law to a major active armed conflict, and the immediate consequences of such a conflict in a rather huge area.
GR1 (Government): I would be wrong for this court to do so for a number of reasons.
GR1 (Government): First, and answering the court's first question, Russia had no effective control over the territory where the conflict occurred, and Russian state agents had no jurisdiction over alleged victims.
GR1 (Government): As regard allegations of bad targeting, it is obvious that there is no effective control over people or places where weapons are fired in a time of conflict.
GR1 (Government): There is obviously no necessity of control of jurisdiction where the weapons land.
GR1 (Government): Nothing in the court's jurisprudence requires any different results.
GR1 (Government): On the contrary, the Bankovic case makes clear that when weapons are fired, there is no jurisdiction by this fact.
GR1 (Government): The recent cases of Hassan versus United Kingdom and Jaloud versus Netherlands are no authority for a different approach because they are very different from this case.
GR1 (Government): In Hassan, as the courts observed, there was clear effective control.
GR1 (Government): The court noted that the applicant had been within the physical power and control of United Kingdom.
GR1 (Government): Soldiers, and therefore, fell within United Kingdom jurisdiction under the principle outlined in paragraph 136 of Al-Skinni.
GR1 (Government): Similarly, in Jaloud, the situation was one of established state agent control with soldiers in a policing role with power over people who pass through their checkpoints.
GR1 (Government): The writer of these cases doesn't extend the court's jurisdiction to targeting in active conflict.
GR1 (Government): These cases are also irrelevant in relation to the treatment of captives in this case, whether civilian or military, because there is no convincing evidence that Russian troops had state agent authority over any alleged victims of abuse.
GR1 (Government): As regard the post-active conflict situation, Russia also didn't have effective control over the areas where abuses are alleged to have acute in any sense.
GR1 (Government): We certainly didn't have any effective control in the sense of the practical ability to prevent all such abuses.
GR1 (Government): In this regard, it is important not to adopt a formulaic approach by this court that Russia must have had effective control because it had lots of troops on the ground.
GR1 (Government): Those troops were fully engaged, they faced substantially greater numbers of Georgian troops and the risk of counterattack even after Georgia's initial withdrawal.
GR1 (Government): It is also important to recognize the consequences of Georgia's barbaric attack on Tskhinvali.
GR1 (Government): Georgia destroyed the law enforcement capability of the South Ossetian government.
GR1 (Government): At the same time, Georgia created intense inter-ethnic antagonism and criminal disorder over a huge area of South Ossetia.
GR1 (Government): That hate-filled criminal disorder could not be controlled by anyone whether the South Ossetian government or Russian forces.
GR1 (Government): In other words, Georgia created the opposite of effective control.
GR1 (Government): Russian troops did their best to protect Georgian civilians.
GR1 (Government): Those doing their best included Russian peacekeepers, or rather the remaining Russian peacekeepers after they were decimated by Georgia's attack on them in breach of the peacekeeping agreement and all human decency.
GR1 (Government): That answers the court's third question about administrative practice.
GR1 (Government): Russian forces tried to protect Georgians.
GR1 (Government): It is absolutely clear that there was no administrative practice against Georgian people.
GR1 (Government): The court's second question asked whether this court has jurisdiction over the case given the relationships between the convention and international humanitarian law.
GR1 (Government): No doubt, the court asked this question because it is clear that international humanitarian law applies to all of these issues raised by Georgia in relation to both the conflict and the situation afterwards.
GR1 (Government): The answer is that states, including Russian Federation, have not consented to the resolution of issues of international humanitarian law by this court, whose remit is confined very specifically to the convention.
GR1 (Government): The Council of Europe has no role in relation to state defense.
GR1 (Government): In this matter, Russia was forced to respond to military aggression with the resources immediately at hand.
GR1 (Government): It had to defend its peacekeepers and civilians in South Ossetia who came under brutal and sustained attacks by Georgians.
GR1 (Government): Russia's right to defend its peacekeepers and nationals is not subject to the jurisdiction of this court.
GR1 (Government): The exercise of it created a situation governed by the laws of armed conflict, international humanitarian law, and not the convention.
GR1 (Government): If this court insists on applying the convention, its only relevant scope concerns the use by Georgia of massive military force against South Ossetians, when in theory, it considered South Ossetians to be its own people and citizens.
GR1 (Government): Some juries have suggested that this court can apply convention right to conflict, and if they are somehow modified to reflect the obligation of states under international humanitarian law.
GR1 (Government): But such juries have no clear answers on how to decide which set of rules, convention, law, or international humanitarian law should apply in any particular case.
GR1 (Government): I would like to read one suggestion from Una Hathaway, a prominent academic in this area.
GR1 (Government): She says that there are three theoretical approaches to the relationship between the two bodies of law.
GR1 (Government): First is the displacement model.
GR1 (Government): Second is the complementarity model.
GR1 (Government): Third is the conflict resolution model.
GR1 (Government): In the conflict resolution model, when an armed conflict is present, the decision maker must evaluate the relationship between human rights law and humanitarian law.
GR1 (Government): If they are, in fact, complementary, then both are applied.
GR1 (Government): If the conflict, however, the model offers three possible decision rules again, event-specific displacement, reverse event-specific displacement, and specificity for deciding the appropriate body of law to be applied.
GR1 (Government): This is difficult enough for lawyers to understand, impossible to apply with certainty, and totally incapable of practical use in urgent situation on a battlefield.
GR1 (Government): Essex University in England has made similar suggestion by way of academic intervention in this case.
GR1 (Government): And they suggest what they call context-dependent interplay.
GR1 (Government): With respect, this is just a shorter formula that expresses the same confusion.
GR1 (Government): I also respectfully urge the court to remember that law is more important outside the court in its practical application every day than in court.
GR1 (Government): Generals and soldiers are not jurists.
GR1 (Government): They have clear rules in international humanitarian law.
GR1 (Government): We should not, with respect, spoil this clarity now.
GR1 (Government): If we do spoil it, civilians may suffer more in the future.
GR1 (Government): Next, the court has asked about the situation now and whether there are any ongoing violations.
GR1 (Government): We assume that the court has in mind the situation of displaced Georgian civilians.
GR1 (Government): It is the position that Georgians fled from some areas, particularly near Tskhinval, and it is the case that the governments of South Ossetia and Abkhazia maintain borders with Georgia.
GR1 (Government): Please note that those governments set their borders policies themselves with a vigorous independence.
GR1 (Government): Russia is not responsible for them, and also Russia has provided personnel to help secure the borders.
GR1 (Government): It is, with respect, understandable that South Ossetia and Abkhazia should maintain their border security in the following circumstances.
GR1 (Government): On the evidence before this court, the government of South Ossetia cites a history of provocation across the border.
GR1 (Government): Quite plainly, Georgia has attacked twice with huge military force against civilians, including in 1992 displacing 100,000 Ossetians.
GR1 (Government): Georgia has not renounced the use of force even now.
GR1 (Government): Georgia refuses to engage on the situation of displaced South Ossetian people in political discussions in Geneva.
GR1 (Government): However, the court should also have in mind that even though there are borders, both South Ossetia and Abkhazia have worked out some practical elevation of border controls.
GR1 (Government): Very many people cross South Ossetian and Abkhazian borders every year.
GR1 (Government): For example, in 2016, over 1 million cases of lawful crossing of the state border between Abkhazia and Georgia were registered.
GR1 (Government): Thousands of people also cross into South Ossetia.
GR1 (Government): This is practical working reality, which over time can assist reconciliation between countries.
GR1 (Government): However, now Georgia seeks a one-sided intervention from this court in respect of displaced Georgian people without addressing the situation of displaced Ossetians.
GR1 (Government): In my respectful submission, a one-sided intervention would not help.
GR1 (Government): It would only worsen tensions between communities where relations are still tense.
GR1 (Government): It would destroy any prospect of the normality that needs to prevail before people on both sides can safely return.
GR1 (Government): To be clear, the only legal basis on which people can return is if their dignity and safety can be assured.
GR1 (Government): All international commentators and relevant international bodies have recognized that, actually.
GR1 (Government): For example, the representative of the UN Secretary General on the Human Rights of Internally Displaced Persons has called on all parties to take all necessary steps to ensure persons displaced by the recent and past conflicts are able to enjoy their right to return voluntarily to their former homes in safety and dignity.
GR1 (Government): In circumstances where South Ossetians and Georgians were living in the same villages and in neighboring villages, people must be reconciled with one another before they can live in harmony.
GR1 (Government): For this reason, for example, the report of the Office for Democratic Institutions and Human Rights recommended that the parties urgently pursue efforts towards peaceful political solutions to the conflict, taking into account fundamental OSCE principles.
GR1 (Government): Any solution should guarantee that all persons will be able fully to enjoy all of their human rights and fundamental freedoms, and that the rights and interests of minority communities will be fully respected.
GR1 (Government): The same report called for consideration of confidence building measures to promote constructive goodwill between the sides, respect for each other concerns, and reconciliation.
GR1 (Government): Unfortunately, Georgia has refused to engage on the issue of displaced Ossetian people in political discussions in Geneva.
GR1 (Government): Instead, it seeks a unilateral advantage in this court today.
GR1 (Government): Finally, the court has asked whether domestic remedies have been exhausted.
GR1 (Government): I cannot speak for South Ossetia and Abkhazia, but I can say that if any of Georgia's allegations had been true, there would be remedies in Russian courts as set out in Russian's observations on admissibility.
GR1 (Government): Russia's investigative authorities have requested Georgia's assistance with appropriate investigations.
GR1 (Government): Those requests were and are genuine.
GR1 (Government): They have been rejected without good reason by the Georgian side.
GR1 (Government): I ask the court to note that the independent international fact-finding mission made this recommendation.
GR1 (Government): Any individuals believed to have been involved in human rights violations or other serious crimes should be held to account and prosecuted in accordance with the law.
GR1 (Government): The parties should cooperate in exchanging information and evidence for such prosecutions.
GR1 (Government): Unfortunately, Georgia has ignored this injunction too.
GR1 (Government): It seeks instead to put an impossible burden of fact finding on this court.
GR1 (Government): The limits of this court resources were recognized recently in the Copenhagen Declaration, which placed emphasis on the need to exhaust domestic remedies.
GR1 (Government): It plainly cannot deal with complex matters on the current scale, as it apparent from the fact that Russia was only allowed 15 minutes to cross-examine each of Georgia's witnesses and their evidence hearing in June 2016.
GR1 (Government): Moreover, other false and dubious evidence was presented by Georgia, which takes time to challenge by technical means.
GR1 (Government): It follows that for many reasons, this case is beyond this court jurisdiction.
GR1 (Government): And it is also clear that the invocation of this court's purported jurisdiction is unhelpful in terms of any necessary political solution.
GR1 (Government): Georgia's application should be dismissed for these reasons and the further reasons to be explained by Mr. Swenson.
Guido Raimondi (JudgeP): Thank you very much, Mr. Galperin.
Guido Raimondi (JudgeP): Please, Mr. Swainston.
GR2 (Government): the court has asked a number of questions focused on alleged violations of the convention.
GR2 (Government): The first point to bear in mind is that these are alleged violations, whatever the level of invective with which they are expressed.
GR2 (Government): They are alleged by Georgia, and they are firmly denied by Russia.
GR2 (Government): And that conflict on the facts raises a fundamental question about the capacity of this court to address issues of humanitarian law on such a scale.
GR2 (Government): Events in war are confused.
GR2 (Government): Much of the evidence is necessarily classified.
GR2 (Government): And as we shall see, there is a real danger of propaganda being put forward as proof.
GR2 (Government): Georgia, I regret to say, has done precisely that.
GR2 (Government): One clear fact is that Georgia launched an appalling indiscriminate attack on Skinval, a sleeping civilian city.
GR2 (Government): And it launched an attack on Russian peacekeepers and Russian nationals.
GR2 (Government): When Russia responded, as it was fully entitled to do, Georgia and its allies launched an extraordinary propaganda campaign to distract from Georgia's own aggression by trying to paint Russia as a ruthless invader.
GR2 (Government): And now, before this court and before the evidential hearing, Georgia tried to put forward some of that same propaganda as purported evidence.
GR2 (Government): This case really does show the fog of war.
GR2 (Government): And that, as we'll come to, is material to the question of whether this court should be dealing with international humanitarian law at all.
GR2 (Government): In terms of evidence, all I can do now, entirely without prejudice to the burden of proof and the standard of proof on Georgia to prove its case beyond reasonable doubt, is to give some examples of the falsehood that we have encountered.
GR2 (Government): First, Georgia claimed that its outrageous attack on Skinval was a response to Russian invasion.
GR2 (Government): And Georgia relies on supposed telephone intercepts from guards at the Rocky Tunnel.
GR2 (Government): But that is quite obvious nonsense for the following very straightforward reasons.
GR2 (Government): We prefer evidence to invective.
GR2 (Government): First, it took Georgia weeks to come up with the invasion argument.
GR2 (Government): And there's been no sensible explanation for the time taken to produce the alleged tapes.
GR2 (Government): We've created for this hearing an open exhibit, which I believe the judges have.
GR2 (Government): And if you look at pages four and five, you see questions being put to Mr. Utiashvili
GR2 (Government): of the Georgian Interior Ministry.
GR2 (Government): Why did it take so long to produce the tapes?
GR2 (Government): He had no sensible answer.
GR2 (Government): The tapes had been lost, he said.
GR2 (Government): This critical evidence had been lost.
GR2 (Government): The true position on who started the conflict is clear.
GR2 (Government): In the evening of the 7th of August, 2008, on television, President Saakashvili of Georgia said this, I admire and respect Ossetian history and culture.
GR2 (Government): Every ethnic Ossetian has been an inseparable part of Georgian history for centuries.
GR2 (Government): We are proud of you and our unity.
GR2 (Government): Georgia is strong for its diversity.
GR2 (Government): Georgia has never been and will never be a mono-ethnic country.
GR2 (Government): Georgia belongs to all of us, regardless of our ethnicity.
GR2 (Government): Let's take care of our country together.
GR2 (Government): Let's together avoid the violence.
GR2 (Government): Let's work together for a better future.
GR2 (Government): Georgia is undertaking an immediate unilateral ceasefire.
GR2 (Government): We do not have the will to respond to violence with yet more violence.
GR2 (Government): But within hours of that false pledge of peace, there followed a truly barbarous attack on Skinval, which President Saakashvili had personally ordered earlier in the day.
GR2 (Government): You see pictures of that attack at pages 8 to 12 of the open exhibit.
GR2 (Government): You see there indiscriminate grad fire and artillery raining down on a sleeping civilian city.
GR2 (Government): It's almost sickening to hear Georgia today complain about alleged indiscriminate targeting.
GR2 (Government): This was a monstrous crime.
GR2 (Government): Moreover, it was thoroughly premeditated.
GR2 (Government): The Georgian assault used military plans drawn up with NATO symbols in 2007.
GR2 (Government): You've got those, one of them, at page 13 of the open exhibit.
GR2 (Government): So against that background, the alleged tapes of intercepts suggesting that Russia invaded first are absurd.
GR2 (Government): I draw your attention in that regard to the conclusion of the international fact-finding mission.
GR2 (Government): There was no ongoing armed attack by Russia before the start of the Georgian operation.
GR2 (Government): It could also not be verified that Russia was on the verge of such a major attack.
GR2 (Government): So these tapes, so long in gestation, were false evidence, and they were part of a pattern.
GR2 (Government): I agree with my learned friend, at least, that there is a pattern in this case.
GR2 (Government): But we will see points in the other direction.
GR2 (Government): In relation to the conflict itself, Georgia has also made, and repeated in this court, false claims that Russia bombed Georgian villages.
GR2 (Government): Initially, Georgia's claims of cluster bombing were endorsed by Human Rights Watch.
GR2 (Government): Its senior weapons expert was Mark Garlasco.
GR2 (Government): And in an announcement of the 15th of August, he identified what he said was a Russian RBK cluster bomb in a Georgian village.
GR2 (Government): You've got the announcement at page 20 of the open exhibit.
GR2 (Government): But you see on page 20 that there's a missing picture above the caption that Georgians look at the remnants of an RBK cluster bomb.
GR2 (Government): For some reason, Human Rights Watch has removed the picture from its English website, but it still exists on some of the other websites.
GR2 (Government): And if you look at page 26, you see what it was.
GR2 (Government): It's quite clearly a missile and not a bomb.
GR2 (Government): You see that the stabilizers are curved, and they curve around the body of the engine of the missile within the missile tube.
GR2 (Government): So how did a senior weapons expert misidentify a missile as a bomb?
GR2 (Government): Well, perhaps it's relevant to note that before working at Human Rights Watch, Mr. Garlasco had a long career in US military intelligence.
GR2 (Government): You've got that at page 28.
GR2 (Government): It's also relevant to note the comments of the court's own witnesses on this point.