188

               Separate opinion of Judge Simma

    The Court is wrong in concluding that the “dispute” between Georgia and the
Russian Federation arose only between 9 and 12 August 2008, as a result of its
rejection of all documentary evidence dated from 1992 to immediately before the
filing of the Application in August 2008 — The Court assesses the documentary
evidence before it in a methodologically questionable manner — The legal
significance of documentary evidence ought to have been appreciated according to
the degrees of probative value that this Court has long accepted in its
jurisprudence — Alleged defects of documentary evidence as to formal designation,
authorship, executive inaction, attribution, and notice have never been recognized
in this Court’s jurisprudence as factors diminishing legal significance or probative
value — The Court’s problematic identification of alleged defects in its assessment
of documentary evidence adversely affects the future ability of parties to control
and select the presentation of their evidence, as well as the future ability of the
Court to discharge its fact‑finding authority under the Statute — If the Court had
made a proper assessment of the documentary evidence produced by Georgia, it
would have had to reject not only the first but also the second of Russia’s
preliminary objections.

                                       *
                               table of contents
                                                                         Paragraphs

 A. The Rejection of Russia’s First Preliminary Objection :
    The Right Result Obtained by Incorrect Reasoning                          1-22
      1. Alleged formal defects                                                  9
      2. Alleged defects relating to authorship                              10-12
      3. Alleged defects of inaction                                         13-17
      4. Alleged defects relating to attribution                                18
      5. Alleged defects relating to matters of notice                       19-22
  B. Evidence Establishing the Existence of a CERD‑related
     Dispute and of Negotiations Well before 2008                            23-57
      1. Bilateral exchanges between Georgia and the Russian
         Federation                                                         25-33
      2. Georgian statements made in international organizations of
          which the Russian Federation is a member                           34-45
      3. Public statements of Georgia on other occasions                     46-57

 C. Concluding Remarks	                                                         58

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189 	 convention on racial discrimination (sep. op. simma)

      A. The Rejection of Russia’s First Preliminary Objection :
                    The Right Result Obtained
                      by Incorrect Reasoning

   1. I agree with the conclusion reached in paragraph 113 of the Judg-
ment, according to which the first preliminary objection of the Russian
Federation is to be dismissed. However, what I cannot agree with is the
reasoning provided for this conclusion particularly in paragraphs 64, 105
and 113 of the Judgment, according to which the legal “dispute” in the
sense of Article 22 of CERD between Georgia and the Russian Federa-
tion did not arise before 9 August 2008, that is, immediately before Geor-
gia brought its Application.

    2. In my opinion, the relevant dispute had been under way long before
 the guns of August 2008. It commenced years before CERD entered into
 force between the Parties, as early as 1992, and concerned matters that
 already then could have fallen under the Convention. From 1999 onwards
 it continued as a dispute on subject‑matters now actually governed by
 CERD because existing between two parties to the Convention, even
 though Georgia framed its claims expressis verbis as claims under CERD
 only at the last moment — a circumstance which cannot negate the fact
 that the dispute had become a CERD‑related dispute long before. This so
 because the decisive criterion in this regard is not invocation eo nomine of
 the Convention conferring jurisdiction but reliance on the subject‑matter
 of the dispute.
    3. The Judgment reaches a different result, that is, the result preferred
 by the majority, through a very specific way of reviewing the documen-
tary evidence submitted by the Applicant : the Judgment regards as
irrelevant a vast amount of material submitted by Georgia, and confers
 legal significance to only two exchanges between Georgia and the Rus-
 sian Federation, and thus arrives at the conclusion that the dispute arose
 only between 9 and 12 August 2008. These documents are, first, the state-
 ments of the two Parties, that is, of the Permanent Representative of
 Georgia to the United Nations and of his Russian counterpart, in the
 Security C
           ouncil debate on 10 August 2008, and, secondly, the statement
 of 11 August 2008 of the President of Georgia, Mikhail Saakashvili, in a
 CNN interview and the reply of 12 August 2008 of the Foreign Minister
 of the Russian Federation, Sergey Lavrov, in a Joint Press Conference
 with the Minister for Foreign Affairs of Finland in the latter’s capacity
 as Chairman‑in‑Office of the OSCE.

  4. All documentary evidence dated earlier than 9‑12 August 2008 is
characterized in the Judgment as not being “legally significant” for pur-
poses of showing the existence of a dispute. The Judgment reaches this
conclusion by finding specific faults or defects with each piece of docu-
mentary evidence which is then rejected. These faults or defects can be
grouped as follows : 1. Formal defects, like missing literal designations in

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190 	 convention on racial discrimination (sep. op. simma)

the documents of “racial discrimination”, “ethnic cleansing”, or the Rus
sian Federation’s specific CERD obligations, and in some instances,
circulation of documents to the United Nations under agenda item

headings other than “racial discrimination” (cf. paras. 53, 55-56, 59-60,
62, 65‑66, 67-68, 70, 75-76, 78, 80‑82, 84‑87, 89, 91‑103, 108) ; 2. Defects
relating to authorship, such as where the document does not appear to
show that the Georgian Executive authored, endorsed, or approved the
document (cf. paras. 54-55, 71‑73, 76, 80‑81) ; 3. Defects due to inaction,
where the Judgment alleges that the Georgian Executive did not act
after complaints were articulated against the conduct and impartiality of
Russian peacekeepers (more specifically, that the Georgian Executive
failed to order the withdrawal of Russian peacekeeping troops from
Georgian territory, or to reject or react to the contemporaneous passage
of Security Council resolutions that commended Russian peacekeepers)
(cf. paras. 55, 74, 77, 79, 83-84, 91) ; 4. Defects relating to attribution,
like a lack of categorical attribution of violations to the Russian Federa-
tion, with documents instead referring to incidental claims or vague
references of support for separatists in Abkhazia and South Ossetia

(cf. paras. 51-53, 57-61, 81) ; and 5. Defects relating to matters of notice,
or the lack of proof that Russia received, could have received, or had
the opportunity to receive or be informed of the allegations contained
in certain documentary evidence (cf. paras. 61, 104). In this manner,
the Judgment simply does not ascribe any degree of probative value
amounting to “legal s ignificance” to the entirety of the documentary evi-
dence dated before 9 August 2008.

    5. If one wondered why an operation of such kind, unprecedented in
 the practice of this Court, was necessary even though Russia’s first pre-
liminary objection was rejected, the answer is to be found in the Judg-
ment’s acceptance of the Respondent’s second preliminary objection : by
excluding the entire factual material submitted by Georgia to prove the
existence of a CERD‑related dispute long before August 2008 and limit-
ing the focus of the exercise to a few exchanges between the Parties during
the chaos of a few days in August, communications understandably
limited to urgent concerns arising from the ongoing armed conflict, the
 majority of the Court arrives at the conclusion that these communica-
 tions, in the fog of war, as it were, did not amount to an attempt on the
 part of Georgia at negotiating a dispute on CERD‑related matters with
 Russia. As I will show in Part B of my opinion, if the Judgment had
 accepted pre‑August 2008 facts as relevant (also) for the purposes of deal-
 ing with Russia’s second preliminary objection, it could not have upheld
 this objection. These pre-August 2008 facts clearly prove that a dispute
 about CERD-related matters had arisen long before.

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191 	 convention on racial discrimination (sep. op. simma)

     6. I fully share — and base my more empirical approach to the problé-
matique raised by Russia’s first preliminary objection on — the views
expressed in the separate opinions of President Owada and Judges Abra-
ham and Donoghue on the legal threshold used by the Court for deter-
mining the existence of a dispute, as settled in the Court’s Judgments in
Mavrommatis, South West Africa (Ethiopia v. South Africa ; Liberia v.
South Africa), Military and Paramilitary Activities in and against Nica
ragua (Nicaragua v. United States of America), Oil Platforms (Islamic
Republic of Iran v. United States of America), Northern Cameroons
(Cameroon v. United Kingdom), and Land and Maritime Boundary
 (Cameroon v. Nigeria). In addition, however, I find it necessary to scru-
  tinize how the Court determined the “legal significance” of documentary
  evidence in this Judgment, and concomitantly, to subject to a critical
  review the fact‑finding methodology which the Court employed in order
  to accept or reject the probative value of such evidence before it. What
  the Court appears to have done is to refer only to the tip of the iceberg,
  so to speak, of the bulk of documentary material submitted by Georgia,
  select a few examples and then dismiss these as “irrelevant” by the appli-
  cation of criteria that are very problematic, to put it mildly. I note that a
  recent study published by the British Institute of International and Com-
  parative Law dealing with the treatment of evidence in the International
  Court of Justice reported that the Court “has not always expressly noted
  in its judgments what items it has eliminated because of their limited
  value as evidence” (A. Riddell and B. Plant, Evidence before the Interna-
  tional Court of Justice, 2009, p. 190). In the present case, the Court’s
  assessment has led to the result that most of the evidence in the record
  before the Court has been eliminated from the process of deciding on the
  jurisdictional objections.

   7. I share my colleagues’ concern that the formalist approach adopted
in the present Judgment straitjackets future cases, due to rigid require-
ments imposed now as to the existence of a dispute and the conduct of
negotiations sufficient for the seisin of the Court. I find equally pro
blematic the ways in which the Court discharged its fact‑finding authority
under the Statute. The Judgment does not clarify the concept of “legal
significance”, neither does it differentiate between degrees of significance
or probative value (direct, indirect, corroborative, cumulative, supple-
mentary) that could be attached to documentary evidence. The Judg-
ment’s assessment of the evidence thus fails to capture possible differences
in the degrees of probative value that various documents may exem-
plify — some documentary evidence may indeed constitute the best, pri-
mary, and direct evidence, while other documents may still be taken into
account as secondary, indirect, corroborative, or supplementary evidence.
The Court has long acknowledged these differentiations when determin-

125

192 	 convention on racial discrimination (sep. op. simma)

ing the weight of evidence (Corfu Channel (United Kingdom v. Albania),
Merits, Judgment, I.C.J. Reports 1949, p. 18 ; Application of the Conven-
tion on the Prevention and Punishment of the Crime of Genocide (Bosnia
and Herzegovina v. Serbia and Montenegro), Judgment, I.C.J. Reports
2007 (I), pp. 128‑137, paras. 204‑230 ; Land, Island and Maritime Frontier
Dispute (El Salvador/Honduras : Nicaragua intervening), Judgment,
I.C.J. Reports 1992, p. 455, para. 153, and p. 550, para. 316 ; Frontier
Dispute (Burkina Faso/Republic of Mali), Judgment, I.C.J. Reports 1986,
p. 583, para. 56). Thus, in the Nicaragua case, the Court did not
reject, but rather accepted, limited corroborative value even of press
reports :

         “[T]he Court regards them not as evidence capable of proving facts,
      but as material which can nevertheless contribute, in some circum-
      stances, to corroborating the existence of a fact, i.e., as illustrative
      material additional to other sources of evidence.” (Military and Para-
      military Activities in and against Nicaragua (Nicaragua v. United States
      of America), Merits, Judgment, I.C.J. Reports 1986, p. 40, para. 62.)
 The Court also held that “public knowledge of a fact may nevertheless be
 established by means of these sources of information, and the Court can
 attach a certain amount of weight to such public knowledge” (ibid.,
 para. 63). Similarly, in Tehran Hostages, the Court acknowledged the cor-
roborative value of media reports to establish matters of public know
ledge, particularly where the respondent had not participated in the
proceedings (United States Diplomatic and Consular Staff in Tehran
(United States of America v. Iran), Judgment, I.C.J. Reports 1980, p. 10,
paras. 12‑13). In contrast to these carefully differentiated approaches to
the probative weight of evidence, the present Judgment dismisses whole-
sale the entire corpus of years of documentary evidence before
9‑12 August 2008 for being altogether devoid of any probative weight —
and thus “legally insignificant” to establish the existence of a dispute.

    8. More importantly, the factors which the Court considers to be
determinative of the absence of “legal significance” of all pre‑August 2008
documentary evidence find no basis in the law. As I will show more
extensively in Part B of my opinion, neither is their application justified
 considering the actual content of the documents themselves, read either
 singly or in relation to other documentary evidence in the record before
 the Court. In the Judgment before us, the presence of a single alleged
 defect — whether pertaining to formal designation, authorship, executive
 inaction, attribution, or notice — appears sufficient for the Court to deny
 any legal significance whatsoever to all documentary evidence dated long
 before 9 August 2008 and the filing of the instant Application before this
 Court.

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                         1. Alleged Formal Defects

   9. There is little that needs explanation or refutation concerning the
alleged formal defects in various pieces of documentary evidence, such as
the absence of literal reference in a document to “racial discrimination”,
“ethnic cleansing”, the Russian Federation’s specific CERD obligations,
or even, in some circumstances, circulation of documents to the United
Nations under agenda items other than “racial discrimination”. I will not
belabour this point further, other than to reaffirm, as did the joint dissent
ing opinion, that it is sufficient for purposes of determining the existence
of a dispute in the present instance that the subject‑matter of the dispute
is capable of falling within the subject‑matter of CERD, without need of
invocation eo nomine of CERD or any of the specific provisions of this
treaty. As I will show in Part B of my opinion, the documentary evidence
considered in the Judgment did very well contain unambiguous references
to subject‑matters capable of falling within CERD, such as to alleged
support, facilitation, or toleration by Russian Peacekeepers of ethnic
cleansing being committed against Georgian civilians within these peace
keepers’ areas of responsibility in Georgian territory ; Russian conduct in
relation to the right of return of refugees and IDPs to Georgian territory ;
and the failure of the Russian peacekeepers to prevent human rights vio-
lations being committed against Georgian civilians. However, for the
reasons set out above, the Judgment makes use of only a miniscule

part of such relevant material.

                 2. Alleged Defects relating to Authorship

   10. In particular, the Judgment denies legal significance to documents
such as resolutions and statements of the Parliament of Georgia, or state-
ments of the Permanent Representative of Georgia to the United Nations,
where these documents do not appear to show that the Georgian Execu-
tive authored, endorsed, or approved of the document. Such a stringent
requirement of Executive approval, adoption, or endorsement of parlia-
mentary resolutions has hitherto never been applied by the Court. In the
Genocide case, while the Court acknowledged that the “significance” of
official documents (such as the record of parliamentary bodies) which
appear to have been produced “so that the Party may make use of its
content” could thereby be “in doubt”, the Court still did not summarily
reject such documents by the mere fact of their provenance or authorship
(Application of the Convention on the Prevention and Punishment of the
Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro),
Judgment, I.C.J. Reports 2007 (I), p. 134, para. 225). Rather, the Court
was careful to stress that

127

194 	 convention on racial discrimination (sep. op. simma)

      “[i]n some cases the account represents the speaker’s own knowledge
      of the fact to be determined or evaluated. In other cases the account
      may set out the speaker’s opinion or understanding of events after
      they have occurred and in some cases the account will not be based
      on direct observation but may be hearsay. In fact the Parties rarely
      disagreed about the authenticity of such material but rather about
      whether it was being accurately presented . . . and what weight or
      significance should be given to it.” (I.C.J. Reports 2007 (I), p. 135,
      para. 226.)
   11. The statements of the Parliament of Georgia and the Permanent
Representative of Georgia could have been admitted as “evidence of the
intentions of a litigating State” (A. Riddell and B. Plant, Evidence before
the International Court of Justice, op. cit., p. 251). In the Anglo‑Iranian Oil
Co. case, the United Kingdom opposed the admissibility of Iranian legis-
lation on the ground that this legislation was “a purely domestic instru-
ment, unknown to other governments” (Anglo‑Iranian Oil Co. (United
Kingdom v. Iran), Preliminary Objection, Judgment, I.C.J. Reports 1952,
p. 107). The Court rejected this view, stating that :
         “The Court is unable to see why it should be prevented from taking
      this piece of evidence into consideration. The law was published in
      the Corpus of Iranian laws voted and ratified during the period from
      January 15th, 1931, to January 15th, 1933. It has thus been available
      for the examination of other governments during a period of about
      twenty years. The law is not, and could not be, relied on as affording
      a basis for the jurisdiction of the Court. It was filed for the sole pur-
      pose of throwing light on a disputed question of fact, namely, the
      intention of the Government of Iran at the time when it signed the
      [optional clause] Declaration.” (Ibid.)
  12. In any case, as I will show in Part B of my opinion, the resolutions,
decrees, and statements of the Parliament of Georgia were officially trans-
mitted to the United Nations Security Council or the General Assembly
by the Permanent Representative of Georgia. We cannot simply assume
that the Permanent Representative of Georgia acted ultra vires or without
the knowledge of the Georgian Executive. There being no showing in the
record before the Court that the Permanent Representative of Georgia
acted contrary to authority or in contravention of any instructions from
the Georgian Executive, it cannot be inferred that his official transmittal
of the resolutions and decrees of the Parliament of Georgia to the United
Nations Security Council or General Assembly is not attributable to
Georgia.

                        3. Alleged Defects of Inaction
  13. The Judgment withholds legal significance from certain documen-
tary evidence for the reason that the Georgian Executive did not act upon

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195 	 convention on racial discrimination (sep. op. simma)

or follow up complaints expressed in the parliamentary material. Specifi-
cally, the Judgment declares documents (such as resolutions, decrees, and
statements of the Parliament of Georgia ; statements of the Permanent
Representative of Georgia ; and press statements of the Foreign Ministry
of Georgia) to be legally insignificant because the Georgian Executive did
not actually order the withdrawal of Russian peacekeeping forces from
Georgian territory despite their alleged misconduct. Similarly, the Judg-
ment determines legal insignificance because the Georgian Executive did
not call for the rejection of, or opposition to, the adoption of Security
Council resolutions that contained standard clauses commending Russian
peacekeepers or acknowledging Russia’s role as a facilitator or guarantor
of security in the armed conflicts within Georgia.

   14. These speculations in the Judgment reach directly into the merits
of the dispute. Furthermore, these alleged defects of inaction cannot be
accepted as “inferences of fact” in the sense discussed by the Court in
the Corfu Channel Judgment, where it stated that : “proof may be drawn
from inferences of fact, provided that they leave no room for reasonable
doubt” (Corfu Channel (United Kingdom v. Albania), Merits, Judgment,
I.C.J. Reports 1949, p. 18). In the present Judgment, there does appear
room for such reasonable doubt. As I will demonstrate in Part B of my
opinion, some of the contested, respectively rejected, documentary evi-
dence such as resolutions of the Parliament of Georgia, adopted in 2005
and 2006, appear on their face to have envisaged a process of negotiation
on the conduct of Russian peacekeepers, and not their automatic with-
drawal. In any event, the underlying circumstances of Security Council
voting on the resolutions identified in the Judgment are not evidenced in
the record before the Court at this stage of the proceedings.

  15. In my view, ascribing the above defects to documentary evidence
when such factual questions properly belong to the merits phase of the
proceedings is an unreasonable basis for the denial of any legal signifi-
cance to this evidence for the purposes of merely establishing the exis-
tence of a dispute. These speculations deprive either Party of the oppor-
tunity to meet factual questions and lead the Court to rely on somewhat
tenuous inferences.
  16. Neither can the Georgian Executive’s alleged inaction be seen as an
implicit admission against interest by high‑ranking officials, of the nature
discussed by the Court in the Nicaragua Judgment. In the present Judg-
ment, there is no positive act of acknowledgment involved that might be
constitutive of such admissions :
         “[S]tatements of this kind, emanating from the high‑ranking official
      political figures, sometimes indeed of the highest rank, are of particu-
      lar probative value when they acknowledge facts or conduct unfavour-
      able to the State represented by the person who made them. They may

129

196 	 convention on racial discrimination (sep. op. simma)

      then be construed as a form of admission.” (Military and Paramilitary
      Activities in and against Nicaragua (Nicaragua v. United States of
      America), Merits, Judgment, I.C.J. Reports 1986, p. 41, para. 64 ;
      emphasis added.)
   17. Lacking a positive act, the mere silence or alleged inaction of the
Georgian Executive is in itself equivocal in meaning. It is not for this
Court to supply such meaning to deprive documentary evidence of legal
significance.

                 4. Alleged Defects relating to Attribution
   18. In its findings under consideration here, the Judgment holds that
certain documentary evidence does not categorically attribute violations
to the Russian Federation, but refers only to incidental claims or vague
references of support for separatists in Abkhazia and South Ossetia. In
Part B of my opinion, I will show that relevant documentary evidence
allows attribution to the Russian Federation through the conduct of Rus-
sian peacekeepers. The Russian peacekeepers were not troops placed at
the disposal of an international organization (such as United Nations
peacekeepers), whose conduct would then be attributable to this organi-
zation. In the present case, there is no such international organization
involved in the deployment of Russian troops to Georgian territory, since
those troops acted as the Joint Peacekeeping Forces (JPKF) and Law and
Order Keeping Forces (LOKF) on the basis of an agreement between
Georgia and the Russian Federation concluded in 1992. The conduct of
these troops — particularly their failure to prevent, their support, tolera-
tion or facilitation of ethnic cleansing and other serious human rights
violations against Georgian civilians — is undeniably the conduct of a
State organ of the Russian Federation (see Armed Activities on the Terri-
tory of the Congo (Democratic Republic of the Congo v. Uganda), Judg-
ment, I.C.J. Reports 2005, p. 242, para. 213).

              5. Alleged Defects relating to Matters of Notice
   19. Here I refer to the alleged lack of proof that Russia received, could
have received, or had the opportunity to receive or be informed of the
allegations contained in certain documentary evidence. I will not dwell on
this point since our joint dissenting opinion already treats this issue of
notice quite extensively, albeit in relation to the second preliminary objec-
tion. For purposes of determining the existence of a dispute, however, let
me emphasize that this Court has never imposed a strict requirement of
actual notice received by the respondent State in comparable circum-
stances. In the Northern Cameroons case, clearly no bilateral discussions
were had between the Parties. Yet, and despite the United Kingdom’s

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197 	 convention on racial discrimination (sep. op. simma)

insistence that the Republic of Cameroon did not have a dispute with it
but with the General Assembly, the Court relied upon unilateral state-
ments by the United Kingdom and Cameroon in multilateral fora such as
the United Nations Trusteeship Council, and reached the conclusion that
a “dispute” existed (Northern Cameroons (Cameroon v. United Kingdom),
Preliminary Objections, Judgment, I.C.J. Reports 1963, pp. 32‑34 ; see
also Land and Maritime Boundary between Cameroon and Nigeria
(Cameroon v. Nigeria), Preliminary Objections, Judgment, I.C.J. Reports
1998, p. 315, para. 89).

    20. I am afraid that, through its resort to an amorphous usage of
“legal significance” in the present Judgment, the Court disregards its own
settled jurisprudence on assessment of evidence. In Armed Activities on the
Territory of the Congo, the Court held that in examining the facts “rele-
vant to each of the component elements of the claims advanced by the
Parties . . . it will identify the documents relied on and make its own clear
assessment of their weight, reliability and value” (see Armed Activities on
the Territory of the Congo (Democratic Republic of the Congo v. Uganda),
Judgment, I.C.J. Reports 2005, p. 200, para. 59). In the same case, the
Court held that it “will also give weight to evidence that has not, even
before this litigation, been challenged by impartial persons for the correct
ness of what it contains” (ibid., p. 201, para. 61). In the present case, none
of the documentary evidence from 1992 up to immediately before
9 August 2008 appears to have been challenged by impartial persons for
correctness. Neither is there the slightest indication that this copious
record of documentary evidence was generated on purpose in anticipation
of the filing of the present Application. The summary dismissal of pre‑
August 2008 documentary evidence does not cohere with the rigour
ascribed to the Court in the recent British Institute study on the treat-
 ment of evidence, which summarizes the factors that the Court has long
 clarified in assessing the relevance and probative value of documentary
 evidence, as follows :

      “Sources : The Court will consider the number of sources available,
      whether they are partisan or independent, and whether they are cor-
      roborated by other evidence ;
      Interest : The Court identifies whether the source of the evidence has
      an interest in the conduct of proceedings, or is neutral and indifferent,
      following which the Court assesses whether the evidence contains any
      admissions against the interest of the party submitting it.
      Relation to events : The Court notes whether the evidence records
      direct observation or hearsay.
      Method : Close examination is given to the means and methodology
      by which the information presented has been collected.

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198 	 convention on racial discrimination (sep. op. simma)

      Verification : Evidence will be considered to be more valuable if it
      has been subject to cross‑examination either during its compilation
      or subsequently. Again, the Court notes whether the evidence is cor-
      roborated by other sources.
      Contemporaneity : The Court’s evaluation is influenced by the timing
      of a document’s preparation, or of a statement. Generally the Court
      attaches less weight to evidence which was not prepared or given at
      a time close to the facts it purports to prove. Equally, it is cautious
      of documents which were prepared specifically for the purposes of ICJ
      litigation.

      Procedure : The Court assesses whether the evidence was correctly
      submitted in accordance with the procedural requirements embodied
      in the Rules.” (A. Riddell and B. Plant, Evidence before the Interna-
      tional Court of Justice, op. cit., p. 192.)
   21. My discussion of the Court’s treatment of the “legal significance”
standard is by no means intended to convey mere sterile differences in the
application of facts and the evaluation of evidence between the majority
and the dissenting Judges. In my view, there are serious policy conse-
quences to the evidentiary assessment conducted by the Court in the
present Judgment. The Judgment expressly introduces factors/reasons of
 formality, authorship, inaction, attribution, and notice that could be
 invoked in future cases to deny legal significance or probative value to
 documentary evidence. These reasons could also adversely affect the
 future ability of States to control the presentation of their evidence at the
 threshold of proceedings, potentially leading them to self‑censor the sub-
 mission of evidence. More importantly, the factual inferences drawn by
 the Court in the present Judgment undermine the Court’s responsibility
 to discharge its judicial function in a thorough manner by making full use
 of its fact‑finding powers under Articles 49 to 51 of the Statute to avoid
 having to resort to such inferences in the first place. As the Court rightly
 observed in Nicaragua, the Statute

      “obliges the Court to employ whatever means and resources may
      enable it to satisfy itself whether the submissions of the applicant State
       are well‑founded in fact and law, and simultaneously to safeguard the
       essential principles of the sound administration of justice” (Military
       and Paramilitary Activities in and against Nicaragua (Nicaragua v.
       United States of America), Merits, Judgment, I.C.J. Reports 1986,
       p. 40, para. 59).
   22. Turning now to the second half of my opinion (Part B), I will set
out the facts which I consider relevant, and sufficient, in order to prove
that the preconditions for recourse to the Court in accordance with Arti-
cle 22 CERD, that is, both the presence of a dispute and attempts at

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199 	 convention on racial discrimination (sep. op. simma)

negotiation undertaken by Georgia, were fulfilled well before August 2008.
Most of the documentary evidence that I will adduce here has either been
totally neglected or has only been referred to in an extremely superficial
or in a selective way in the Judgment. I will take the opportunity to inter-
sperse, on occasion, broader quotes or amplifications from the actual
documents that the Judgment rejects for allegedly lacking “legal signifi-
cance”.

                B. Evidence Establishing the Existence
                     of a CERD‑related Dispute
                and of Negotiations Well before 2008

      23. For purposes of an organized presentation, I will discuss the docu-
mentary evidence establishing the existence of a dispute involving
subject‑matters falling within CERD and of attempts at a negotiated
 settlement before 9 August 2008 according to the following categories :
  (1) bilateral exchanges between Georgia and the Russian Federation ;
  (2) Georgian statements made before international organizations of which
  the Russian Federation is a member ; and (3) public statements of Geor-
  gia on other occasions.
      24. My intention is not to enumerate the documentary evidence in a
  manner similar to that used in the Judgment, but rather to let the texts of
  these documents speak for themselves. The documentary evidence, taken
  individually and as a whole, appears in my view sufficient to lend pro
  bative weight (whether in the direct, primary, indirect, secondary, or
  corroborative degrees of proof) to Georgia’s submission that a dispute
   between Georgia and Russia on CERD‑related subject matters existed
   long before 9 to 12 August 2008, specifically with respect to allegations
   on : support or facilitation by Russian peacekeepers of ethnic cleansing or
   failure to prevent such acts ; Russia’s conduct in relation to the right of
   return of refugees/IDPs ; and the failure of Russian peacekeepers to pre-
   vent human rights violations being committed against Georgian civilians
   within these troops’ areas of responsibility. In the present jurisdictional
   phase of the proceedings, the Court does not need to establish with ulti-
   mate certainty that the violations complained of by Georgia actually took
   place.

   1. Bilateral Exchanges between Georgia and the Russian Federation

   25. Paragraph 78 of the Judgment does not give legal significance to
the exchange of letters in July and August 2004 between the President of
Georgia, Mikhail Saakashvili, and the President of the Russian Federa-
tion, Vladimir Putin, on the ground that “[t]he letters do not mention the

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return of refugees and IDPs”. However, the relevant texts of both letters,
when juxtaposed, show that the two Presidents did deal with complaints
brought against the conduct of Russian peacekeepers in the face of
attacks being committed against Georgian civilians. Thus, the letter of
26 July 2004 of President Saakashvili stated, inter alia :

         “I would like to draw your kind attention Vladimer Vladimirovich
      to the fact that recently, from the beginning of the escalation of the
      situation in the region, all cases of armed attacks were conducted by
      the illegal units of South‑Ossetian side in the direction of villages settled
      with Georgian population. Due to these gangster attacks, seven Geor-
      gian policemen were wounded. Neither international observers nor
      Russian peacekeeping forces have reported any fact of attacks against
      villages or compact settlements of Ossetian population. We are deter-
      mined not to be a subject of provocations in order to avoid further
      escalation of tension in the region and transformation of crisis into
      armed conflict.
         I would like to inform you about the comments made by Com-
      mander of JPKF, the General Nabzdorov to a big number of jour-
      nalists : ‘There is no border of Russia and Georgia in the Roki tunnel’
      and ‘very soon Georgia will ask for the acceptance in the composition
      of Russian Federation’. It is not difficult after such statements to esti-
      mate the impartiality of Russian peacekeeping forces that are carrying
      out missions in the region.” (Memorial of Georgia, Vol. V, Ann. 309 ;
      emphasis added.)
In his letter of 14 August 2004, President Putin replied :
         “The propaganda launched by Tbilisi, the main target of which in
      the beginning was the Russian Peacekeeping Force and then Russia
      itself is regrettable. In February of the current year we said that over-
      coming of the prolonged crisis in our bilateral relations and their
      gradual normalization is only possible in terms of showing mutual
      restraint in public assessments.

      �����������������������������������������������������������������������������������������������������������������
          We believe that the following measures should be taken with the
      view of stabilization of the situation and creation of conditions for
      resumption of the political dialogue :
      First : Immediate achievement of ceasefire.
      Second : Starting without delay the realization of the arrangements
      on the withdrawal of illegal armed formations from the conflict zone,
      reached within the framework of the Joint Control Commission in
      June‑July of this year and also during the meeting between the
      Ministers of Defense of Georgia and Russia in Moscow on 10‑11 August
      of this year. In short, all the necessary measures should be taken to
      prevent this situation from growing into full‑scale armed conflict.

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      Third : Strict observance of the existing agreements on the conflict
      resolution principles ; formation and operation of Joint Peacekeeping
      Forces ; obligation of sides not to apply the measures of coercive pres-
      sure to solve any emerged problem ; ensuring unhindered delivery of
      the humanitarian aid to the population of the region. Realization of
      the proposal on holding high‑level meetings during the Joint Control
      Commission sessions would have positive reflection on the existing
      situation.

      �����������������������������������������������������������������������������������������������������������������
          I would like to emphasize that the most important aspect of the
      resolution of Georgian‑Ossetian conflict should be the ensuring of
      protection of rights and interests of the population of South Ossetia
      the majority of which are Russian citizens. Taking into consideration
      the above-mentioned we will continue purposeful mediatory work for
      a peaceful settlement of the conflict.” (Memorial of Georgia, Vol. V,
      Ann. 310 ; emphasis added.)
   26. Two years after this exchange, on 24 July 2006, the Permanent
Representative of Georgia to the United Nations wrote to the Secretary‑
General, requesting the circulation to the General Assembly of a resolu-
tion of 18 July 2006 adopted by the Parliament of Georgia (Judgment,
para. 86). This resolution stated :
          “Instead of demilitarization, the drastic increase of military poten-
      tial of those armed forces under subordination of de facto Autono-
      mous District of South Ossetia, drastic activation of terrorist
      and subversive actions, complete collapse of security guarantees for
      peaceful population, permanent attempts to legalize the results of
      ethnic cleansing the fact of which had been repeatedly recognized by the
       international community, massive violation of fundamental human
       rights and ever‑increasing international criminal threats so characteris-
      tic of uncontrolled territories — this is a reality brought about as a result
      of peacekeeping operations.

      �����������������������������������������������������������������������������������������������������������������
          Based on the above, it is clear that actions undertaken by the Russian
      Federation’s armed forces in Abkhazia and in the former Autonomous
      District of South Ossetia represent one of the major obstacles on the
      way to solving these conflicts peacefully, which is a result of absence
      of political will on the part of the Russian Federation to foster conflict
      resolution and to change the current status quo.” (Written Statement
      of Georgia, Vol. III, Ann. 82 ; emphasis added.)

  27. The Russian Federation reacted to the resolution of 18 July 2006
of the Parliament of Georgia even before the Permanent Representative

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of Georgia requested its circulation (Judgment, para. 87). In a letter dated
19 July 2006 addressed to the United Nations Security Council, the Perma-
nent Representative of the Russian Federation stated the following :

         “On 18 July 2006, the Parliament of Georgia adopted a decision on
      peacekeeping forces in conflict zones which obligates the Government
      to initiate steps to end peacekeeping operations in Abkhazia and South
      Ossetia as soon as possible, terminate the relevant agreements and
      arrangements and bring about the immediate withdrawal from Georgia
      of Russian peacekeeping contingents that are stationed there fully in
      accordance with international agreements currently in force. The deci-
      sion provides for commencement of a process to change peacekeeping
      arrangements and deploy international police forces in Abkhazia and
      South Ossetia.
         During the discussion of the draft decision, some deputies went so
      far as to say that, unless those conditions were accepted, the Russian
      peacekeepers would be declared unlawful and treated as occupying
      forces. The decision falsely claims that the actions of the Russian
      peacekeepers in Abkhazia and South Ossetia present one of the main
      obstacles to peaceful settlement of the conflicts.

         The Russian Federation regards the decision as a provocative step
      designed to aggravate tension, destroy the existing format of negotia-
      tions and shatter the framework of legal agreements for the peaceful
      settlement of the Georgian‑Abkhaz and Georgian‑Ossetian conflicts.
      The accusations that the decision makes against the Russian Federation
      constitute a disgraceful attempt to shift the blame to others.

         We consider that the language of ultimatums that Georgia is using
      with respect to Russian peacekeepers is counter-productive. Unilat-
      eral decisions cannot be allowed to lead to abrogation of the relevant
      international agreements. Our position remains unchanged : the adop-
      tion of parliamentary decisions on the withdrawal of Russian peace-
      keepers can only entail a fresh crisis and a humanitarian catastrophe.
      In recent years, Russia, in co-operation with foreign partners and
      international organizations, has exerted considerable efforts to main-
      tain a fragile balance that has now been shattered by the bellicose
      rhetoric of Georgian politicians and their attempts to use provocation
      and military force to resolve the problems of Abkhazia and South
      Ossetia. It is only through existing peacekeeping mechanisms that it
      has been possible to keep the situation under control.
         It should not be forgotten that the format of the negotiation pro-
      cess, which, besides the Russian Federation, involves the United
      Nations, the Organization for Security and Co-operation in Europe
      and the member States of the Group of Friends of the Secretary‑
      General on Georgia, was agreed upon by all parties to the conflicts.

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      The irresponsible actions of Tbilisi are capable of ruling out any possi-
      bility of peaceful settlement of the conflicts.” (Written Statement of
      Georgia, Vol. III, Ann. 81 ; emphasis added.)

   28. Notably, in the above‑mentioned letter of 19 July 2006, the Rus-
sian Federation acknowledged that the resolution adopted by the Parlia-
ment of Georgia on 18 July 2006 called for the “commencement of a
process to change peacekeeping arrangements”, and not, as the Judgment
indicates, procedures to “immediately suspend . . . peacekeeping opera-
tions and to have the armed forces of the Russian Federation withdrawn”
(Judgment, para. 86). As I will show subsequently, the texts of the 2005
and 2006 resolutions of the Parliament of Georgia directed the Georgian
Executive to undertake negotiations with the Russian Federation on
the conduct and responsibilities of Russian peacekeeping forces, and not
necessarily to effect the immediate suspension, much less outright with-
drawal, of such forces.
   29. Finally, in 2008, President Saakashvili and the new President
of the Russian Federation, Dmitry Anatolyevich Medvedev, continued
exchanges on the conduct of Russian peacekeepers as well as the issue of
the return of IDPs and refugees to Abkhazia (ibid., para. 100). In his let-
ter of 24 June 2008, President Saakashvili stated :

           “The essence of our proposals is the following :
       �����������������������������������������������������������������������������������������������������������������
           The peacekeeping operation under the aegis of CIS will be con
      tinued with the reviewed mandate. The peacekeepers will be with-
      drawn from their current locations and will be stationed along the
      river Kodori.
       �����������������������������������������������������������������������������������������������������������������
           I propose drafting, signing and entering into force the agreements
      in which the above mentioned proposals are reflected. Along with
      the Russian Federation, other interested parties could also serve as
      guarantors of implementation of these agreements.
           Consequently, the parties to the conflict could also conclude a
      separate agreement about non‑use of force and return of IDPs and
       refugees to the entire territory of Abkhazia, Georgia.” (Memorial of
       Georgia, Vol. V, Ann. 308 ; emphasis added.)

In his letter dated 1 July 2008, President Medvedev replied (Judgment,
para. 101) :
         “In this situation, frankly speaking it is difficult to imagine, for
      example, creation of joint Georgian‑Abkhaz administration or law‑
      enforcement organs in any district of Abkhazia. It is also apparent-
      ly untimely to put the question of return of refugees in such a cate-
      gorical manner. Abkhazs perceive this as a threat to their national

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      survival in the current escalated situation and we have to understand
      them.” (Memorial of Georgia, Vol. V, Ann. 311 ; emphasis added.)

   30. The foregoing exchanges did not take place in a historical vacuum,
but should be appreciated further in the context of the ongoing inter
governmental exchanges between Georgia and the Russian Federation
concerning the issue of the return of refugees and IDPs. A series of meetings
conducted since 1997 on the return of ethnic Georgians to their homes
had culminated, on 7 June 2002, with the announcement of an Inter‑State
agreement entitled “Russian‑Georgian Interstate Program for Return,
Accommodation, Integration and Reintegration of Refugees, Internally
Displaced Persons and Other Persons that Suffered as a Result of the
Georgian‑Ossetian Conflict” (Written Statement of Georgia, Vol. IV,
Ann. 149). Although at this juncture the Russian Federation was not
directly accused of actively denying the return of the ethnic Georgians, it
is significant that it was treated as a party in resolving the issue.
   31. Moreover, Georgia and the Russian Federation had already been
discussing the issue of the return of refugees for some time as parties. In
a 1992 meeting held in Moscow, the President of the Russian Federation,
Boris Yeltsin, and the Chairman of the State Council of Georgia, Eduard
Shevardnadze, had agreed on “the conditions for the return of refugees to
their places of permanent residence” (Memorial of Georgia, Vol. III,
Ann. 102 ; Judgment, para. 40), and in October 1993 the Russian Federa-
tion had specifically “condemn[ed] the facts of genocide, rude violation of
human rights . . . from the zone of the Georgian‑Abkhazian conflict”
(Memorial of Georgia, Vol. III, Ann. 107). This process continued with a
1993 Protocol of Negotiations (ibid., Vol. III, Ann. 105), culminating
with the 1994 Quadripartite Agreement on the Voluntary Return of Refu-
gees, signed by the Russian Federation, Georgia, South Ossetia and
Abkhazia as parties (ibid., Vol. III, Ann. 110 ; Judgment, para. 46).

   32. The concluding statement of the meetings between the President of
the Russian Federation, Vladimir Putin, and the President of Georgia,
Eduard Shevardnadze, on 6‑7 March 2003, was reported in a newspaper
account of Svobodnaya Gruzia, which indicates that, “during the negotia-
tions, the Presidents of the two countries addressed the issues of . . . com-
prehensive settlement of the conflict in Abkhazia, Georgia” (Memorial of
Georgia, Vol. III, Ann. 136). Moreover, the two States emphasized “the
importance of concrete steps to be taken aimed at the solution of the
most burning problem dignified and safely return of refugees and inter-
nally displaced persons to their homes and economic rehabilitation of the
conflict zone” (ibid.). An Abkhaz representative was present at these
meetings, but the text is clear that the agreement between the “parties”
was one between Georgia and the Russian Federation.

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   33. Georgia’s treatment of the Russian Federation as a negotiating
party on the issue of the return of refugees/IDPs persisted. For example,
on 20‑23 January 2003, the Speaker of the Parliament of Georgia,
Ms N. Burjanadze, spoke before the State Duma of the Russian Federa-
tion, and mentioned “the hard situation of refugees and internally dis-
placed people” (Written Statement of Georgia, Vol. IV, Ann. 153 ;
Judgment, para. 76). In relation to the Russian peacekeeping forces, the
Georgian side noted that “a certain distrust was also observed, which in
most cases is conditioned by the actions of ‘blue helmets’ in the conflict
zone” (ibid.). Thereafter, a meeting that was to be held on the matter of
the return of the IDPs/refugees on 30‑31 October 2003 had to be can-
celled due to the differences between the parties on the mode of negotia-
tions. Georgia insisted that it was necessary first to reach agreement
between the Russian Federation and Georgia and that only after that
could the Abkhaz side intervene, while the Russian Federation insisted on
the presence of Abkhazia from the very beginning, since the solution of
return of IDPs/refugees was to be based on the conditions presented by
the Abkhaz side (Written Statement of Georgia, Vol. IV, Ann. 155).

         2. Georgian Statements Made in International Organizations
                of which the Russian Federation Is a Member
   34. The foregoing exchanges between Georgia and the Russian
 ederation should be seen in connection with statements made by Geor-
F
gia in international organizations of which the Russian Federation is a
member. Thus, on 26 January 2005, the Permanent Representative of
Georgia wrote a letter to the President of the United Nations Security
Council (Judgment, para. 79), stating, inter alia :

          “I have the honour to write to you and, through you, to draw the
      attention of the Security Council to the recent developments in the
      conflict‑resolution process in Abkhazia, Georgia.
      �����������������������������������������������������������������������������������������������������������������
          I still have to recall that there is a category of people whom we all
      have to keep in our minds. These are refugees and IDPs — victims of
      ethnic cleansing — who already for longer than a decade are waiting
      for their basic right — the right to live at home — to materialize. They
      still live in miserable conditions, totally insecure and vulnerable. Events
      that took place in the Gali region this month have demonstrated once
      again the lawlessness that they face. I think that members of the Secu-
      rity Council are aware of abductions that happened on ‘election’ day.
      Actually, these excesses were committed in front of CIS peacekeepers,
      who did nothing to protect peaceful civilian people — by the way, not
      for the first time. In fact, after the ceasefire in 1994, over 2,000 Geor-
      gians were killed in the Gali security zone, which falls under the respon-

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       sibility of the CIS peacekeeping force. I have to state once more that
       the CIS peacekeeping force is rather far from being impartial and is
       often backing Abkhaz separatist paramilitary structures. I think it is
       high time to start thinking of a new form of peacekeeping operation,
       as the activities of a Russian military contingent — which the CIS
       peacekeeping force, in fact, is — could hardly be considered a ‘peace-
       keeping operation’.” (Written Statement of Georgia, Vol. III, Ann. 71 ;
       emphasis added.)

  35. On 27 October 2005, the Permanent Representative of Georgia
again wrote to the President of the Security Council (Judgment, para. 81),
as follows :
          “It is impossible to avoid commenting on the behaviour of the
     facilitator — the Russian Federation, especially when several extreme-
     ly alarming trends take place in Abkhazia, Georgia :
      — The Russian Federation continues to maintain illegally its military
            base in Gudauta, which operates without the consent of Georgia
            and against international commitments undertaken by Russia ;
      —	Positions in the separatist Governments are filled with people sent
            directly from public jobs in the Russian Federation, from as far
            away as Siberia ;
      — Legal entities of the Russian Federation acquire property and
            land in the secessionist regions ;
      —	Military personnel of separatists are trained by the Russian mili-
            tary schools, without shying away from openly providing them
            quotas ;
      — Russian citizenship is granted to 80 per cent of the current popu-
            lation of those regions, as claimed by their leaders, who also vow
            to accomplish 100 per cent of such passportization of the residents
            in just a few months.
      ��������������������������������������������������������������������������������������������������������������� .
          Nevertheless, these Russian military forces are still referred to as
     peacekeepers or ‘blue helmets’, as the overall conflict‑resolution in the
     region is structured as a United Nations‑led peace process.

          As a matter of fact, the report indicates that the number of inter-
       nally displaced persons from Abkhazia has decreased from around
       250,000 to little more than 200,000. This decrease happened, mostly
       because of the natural death of these people. Shall we suggest that
       this is a positive trend and just wait until they are all gone before the
       process of return starts?
          What sort of ‘peacekeeping’ is the United Nations going to enhance?
       Whose rights will the Organization protect? Anybody but Georgian
       refugees and internally displaced persons?
          In this regard I have to inform the Security Council of the resolution
       of the Parliament of Georgia, adopted on 11 October 2005, regarding

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      the Russian peacekeepers in Georgia, both in the Tskhinvali region/
      former South Ossetia and Abkhazia. The resolution calls for them to
      improve their performance and truly facilitate the peace process and
      sets a deadline for the reassessment of their functioning, which in the
      case of Abkhazia is 1 July 2006. The resolution also envisages that, in
      case of negative reassessment, Georgia will oppose the peacekeeping
      operation and withdraw from all relevant agreements and bodies.

         What this resolution is about, in fact, is that it calls upon the Russian
      leadership to review its approach. Unfortunately, the response of the
      Russian Foreign Ministry, calling the resolution of the Parliament of
      Georgia ‘provocative’ and ‘counter‑productive’ indicates that there is no
      political will to ‘defreeze’ the conflict‑resolution process. It seems that
      the Russian‑led peacekeeping operation has, in fact, exhausted its
      potential and the only effective way is to have a full‑scale interna-
      tional, I would underline — truly international — United Nations‑led
      peacekeeping operation.” (Written Statement of Georgia, Vol. III,
      Ann. 75 ; emphasis added.)

I have reproduced this document at such length because paragraph 81 of
the Judgment does not show the full text of this communication made by
the Permanent Representative of Georgia, before the Judgment concluded
that “[t]he Court is unable to see in this letter any claim against the
Russian Federation”.
   36. A similar problem can be observed in paragraph 82 of the Judg-
ment, which this time does not refer to the actual text of the documentary
evidence that it assesses. I refer to the letter dated 9 November 2005,
where the Permanent Representative of Georgia requested the United
Nations Secretary‑General to transmit and circulate to the General
Assembly a resolution adopted by the Parliament of Georgia on 11 Octo-
ber 2005. This resolution states, inter alia, the following factual premises
and calls for the following actions :
         “Under the criminal and clan‑based governments of these regions
      one can witness massive kidnapping of citizens — including children,
      killings, unmitigated criminal gang activity, raids and robbery of the
      civilian population, creation and backing of terrorist and subversive
      groups with the help of the Russian special services, currency coun-
      terfeiting, drug transit, trafficking of arms and people, smuggling,
      appropriating of assets initially belonging to the refugees, denial of the
      right of instruction at schools in the native language as well as of the
      right of IDPs and refugees to return to their homes. And all of the listed
      above is an incomplete record of consequences resulting from the
      activities of these regimes.

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          Furthermore, the separatist regimes continue their attempts to
      legitimize the results of ethnic cleansing affirmed by the Budapest, Lis-
       bon and Istanbul Summits of the OSCE — the latest illustration of
       which is the en mass appropriation of homes of forcibly exiled Geor-
       gian population.
          Clearly, the aforementioned actions have nothing in common with
       the protection of the ethnic rights of the population residing today on
       the territories of Abkhazia and the former South Ossetian Autono-
       mous District. The criminal dictatorships currently in place pose a
       threat to everyone, including those they allegedly try to protect. In
       this regard, it is enough to mention the repressive policy of the sepa-
       ratist governments against those Abkhaz and Ossetian citizens
       who have tried to move towards public diplomacy and confidence‑
       building — among the punished and arrested are underage children,
       whose only ‘guilt’ was merely to get acquainted with Georgian kids.

         Due to the existing information vacuum, repressions and anti‑
      Georgian propaganda, the local population of both regions has no
      opportunity to receive and assess the information regarding the peace
      initiatives currently proposed by the central government of Georgia.
         The fundamental rights and freedoms on the territory of Abkhazia
      and of the former South Ossetian Autonomous District are violated
      not only against internally displaced persons, but also against the
      remaining population. The separatist governments, manipulating
      issues of ethnic origins, attempt to monopolize the process of conflict
      regulation on behalf of their own clan‑based interests, and against the
      fundamental interests of their population.

         The question then arises — with what or whose support do separa-
      tist regimes manage to ignore the position of respectful international
      organizations and violate the basic norms and principles of the interna-
      tional law?

          Regretfully, the answer to this question unambiguously indicates the
      role of the Russian Federation in inspiring and maintaining these con-
      flicts, notwithstanding the fact that this country officially bears a
      heavy responsibility of facilitator for the conflict settlement.
      �����������������������������������������������������������������������������������������������������������������
          In view of the aforementioned, the Parliament of Georgia resolves :
      �����������������������������������������������������������������������������������������������������������������
          2. To instruct the Government of Georgia to intensify negotiations
      with the Russian Federation, international organizations and
      interested countries on issues regarding the fulfilment of obligations
       undertaken by the peacekeeping forces on the territory of the former
       South Ossetian Autonomous District and report to the Parliament on
       the situation by 10 February 2006 ;

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         3. To instruct the Government of Georgia to intensify negotiations
      with the Russian Federation, international organizations and
      interested countries on issues regarding the fulfilment of obligations
      undertaken by peace‑keeping forces on the territory of Abkhazia and
      report to the Parliament on the situation by 1 July 2006 . . .” (Written
      Statement of Georgia, Vol. III, Ann. 76 ; emphasis added.)

  37. Referring to this very resolution, on 27 October 2005, the Perma-
nent Representative of Georgia to the United Nations also wrote a letter
to the President of the Security Council (Judgment, para. 81), confirming
the Russian Federation’s response and reaction to this act of the Geor-
gian Parliament :
         “In this regard, I have to inform the Security Council of the reso-
      lution of the Parliament of Georgia, adopted on 11 October 2005,
      regarding the Russian peacekeepers in Georgia, both in the Tskhin-
      vali region/former South Ossetia and Abkhazia. The resolution calls
      for them to improve their performance and truly facilitate the peace
      process and sets a deadline for the reassessment of their functioning,
      which in the case of Abkhazia is 1 July 2006.

      �����������������������������������������������������������������������������������������������������������������
          What this resolution is about, in fact, is that it calls upon the Rus-
      sian leadership to review its approach. Unfortunately, the response of
      the Russian Foreign Ministry, calling the resolution of the Parliament
      of Georgia ‘provocative’ and ‘counter‑productive’, indicates that there
      is no political will to ‘defreeze’ the conflict‑resolution process . . .”
      (Written Statement of Georgia, Vol. III, Ann. 75 ; emphasis added.)

   38. On 26 January 2006, the Special Representative of the President of
Georgia to the Security Council also referred to the resolution of 11 Octo-
ber 2005 of the Parliament of Georgia (Judgment, para. 84) and further
set out Georgia’s concerns about the conduct of Russian peacekeepers
in relation to the endorsement of ethnic cleansing and inaction in the face
of the killings of ethnic Georgians in the peacekeepers’ zone of responsi-
bility :
         “Today we are facing rather unexpected and worrisome develop-
      ment of this very important question. One of the members of the
      Security Council, member of the Group of Friends and the facilitator
      of the peace process — namely the Russian Federation —, suddenly
      has decided to disassociate itself from supporting the basic princi-
      ple — principle of territorial integrity of Georgia within its interna-
      tionally recognized borders. That disassociation extends also to
      the so‑called Boden paper “Basic Principles for the Distribution of
      the Competences between Tbilisi and Sokhumi” — which is the key

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210 	 convention on racial discrimination (sep. op. simma)

      document for the political settlement of entire peace process. That is
      why for the first time in the history of Security Council deliberations
      we have no draft resolution prepared by the Group of Friends.

         Mr. President,
         This change of position of the one of the prominent members of P5
      is not just a slight shift or correction. Renouncement of the principle of
      determining the status of Abkhazia within the State of Georgia does
      mean the following : support of the secessionism as a phenomenon ;
      endorsement of ethnic cleansing of more than 300,000 citizens of Geor-
      gia ; questioning the basic principle of the modern world architec-
      ture — the principle of territorial integrity and inviolability of
      internationally recognized borders.
         Mr. President,
         I am representing the people who were forcefully expelled from
      their homes and are not allowed to return. I am representing the
      people who count every day of their exile and who look with a hope
      to this Council for its work and resolutions. I am representing the
      community which follows very closely every move in the peace pro-
      cess in Abkhazia, Georgia.
         How can I explain to my fellow citizens that the facilitator of the
      peace process, the conductor of the peace operation on the ground
      stands on this very dangerous position?
         By the way, [a] couple of words on the peacekeeping operation —
      so‑called CIS peacekeeping operation — which is in fact conducted
      solely by the Russian Federation. In October 2005, the Parliament of
      Georgia issued the special statement which assessed the performance
      of CIS PKF rather negatively — and rightly so. Yes, it is a burden
      on the Russian Federation and its troops. But there is the other side
      of the coin : little less than 2,000 Georgians have been killed in the
      zone of responsibility of CIS PKF since its deployment in 1994.

        The mistrust of Georgian population towards the PKF is widening,
      especially in the region of their mandate. The population affected by
      the conflict does not see the peacekeepers as an impartial international
      force, but rather as a dividing wall between the two communities.”
      (Written Statement of Georgia, Vol. IV, Ann. 163 ; emphasis added.)

  39. The Permanent Mission of Georgia to the United Nations reflected
similar views on the conduct and inaction of Russian peacekeepers, in
identical letters dated 11 August 2006, addressed to the Secretary‑General
and the President of the Security Council (Judgment, para. 90) :

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         “Additional armed troops, which were deployed by the Abkhazian
      side in the villages of the lower Gali district, force local Georgians to
      dig trenches for separatist armed formations, following the instruc-
      tions of the Abkhazian administration in the Gali district.

         It is a vivid example of forced labour banned unequivocally by all
      international human rights documents, including Article 8 of the Pact
      on Civil and Political Rights, Convention No. 105 of the International
      Labour Organization and Article 4 of the Convention for the Protec-
      tion of Human Rights and Fundamental Freedoms.

         All these international agreements represent an integral part of the
      Georgian legislation and are legally binding throughout the entire territory
      of Georgia, including Abkhazia. Besides, the Protocol under paragraph 4
      of the Moscow Agreement of 14 May 1994 stipulates that the CIS peace-
      keeping forces, while performing their functions, are obliged to comply
      with the requirements of Georgia’s domestic laws and regulations.
         However, Russian peacekeepers continue to act in defiance of their
      mandated obligations, turning a blind eye to gross violation of law and
      human rights taking place in their very presence.

        We call upon the CIS peacekeeping forces and their leadership to
      employ all means at their disposal in order to put an immediate end
      to the use of forced labour on the territory of Abkhazia, Georgia.”
      (Written Statement of Georgia, Vol. III, Ann. 83 ; emphasis added.)

  40. The Permanent Representative of Georgia repeated the findings
about the Russian peacekeeping forces in a statement on 3 October 2006
(Judgment, para. 92) :
         “It is crystal clear, that the Russian peacekeeping force is not an
      impartial, nor international contingency. It failed to carry out the main
      responsibilities spelled out in its mandate — create favorable security
      environment for the return of ethnically cleansed hundreds of thousands
      of Georgian citizens. It became the force that works to artificially
      alienate the sides from one another.” (Written Statement of Georgia,
      Vol. IV, Ann. 171 ; emphasis added.)

   41. In its Third Periodic Report of 7 November 2006 to the Human
Rights Committee on its implementation of the International Covenant
on Civil and Political Rights, Georgia deplored the continuing occurrence
of torture and other grave human rights violations in areas of Georgian
territory that were within the Russian Federation’s effective control :

         “22. The most flagrant human rights violations still take place in the
      territory of Abkhazia and the Tskhinvali region/South Ossetia, Georgia,

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      which are de facto out of the control of the Government of Georgia and
      where the Russian Federation exercises effective control instead. Many
      citizens of Georgia living there are subjected to torture and other
      ill‑treatment ; they are victims of other numerous, grave human rights
      violations. The Government of Georgia is doing its best to guarantee
      their rights, but Georgia is apparently in need of urgent and strong
      assistance from the international community, in order to have their
      rights protected. In the present report, within the framework of the
      respective provisions of the Covenant, broader information in this
      regard is provided.” (Written Statement of Georgia, Vol. III, Ann. 85 ;
      emphasis added.)

In the light of this text, it escapes me how paragraph 68 of the Judgment
is able to state that the document “directed no criticism regarding racial
discrimination against the Russian Federation”.

  42. When President Saakashvili addressed the United Nations General
Assembly on 26 September 2007 (Judgment, para. 94), he likewise com-
mented on the conduct and inaction of the Russian Federation’s peace-
keepers :
          “And, while our most challenging relationship today remains with
      our neighbours in the Russian Federation, my Government is commit-
      ted to addressing this subject through diplomatic means, in partner-
      ship with the international community. I can say this with confidence,
      because Georgia is a nation that is rooted in justice, the rule of law
      and democracy. This is an irreversible choice made by the people of
      my country. For evidence of that, one merely has to look at how
      Georgia has responded to the many provocations it has faced in the past
      year, which range from missile attacks to full‑scale embargoes and
      even destructive pogroms.
      �����������������������������������������������������������������������������������������������������������������
         Today, I regret to say that signs of hope are few and far between.
      The story of Abkhazia, where up to 500,000 men, women, and chil-
      dren were forced to flee in the 1990s, is of particular relevance — one
      of the more abhorrent, horrible and yet forgotten ethnic cleansings of
      the twentieth century. In the time since Russian peacekeepers were
      deployed there, more than 2,000 Georgians have perished and a climate
      of fear has persisted.

      �����������������������������������������������������������������������������������������������������������������
         The continued ignorance of the ethnic cleansing in Abkhazia, Georgia,
      is a stain on the moral account book of the international community.
      These disputes are no longer about ethnic grievances ; they are about
      the manipulation of greed by a tiny minority of activists, militants,
      militias and their foreign backers, at the expense of the local popula-

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      tion, the displaced and those who are deprived of their property and
      fundamental rights — even the right to speak and study in their own
      language.
      �����������������������������������������������������������������������������������������������������������������
          As I speak before you today, elements from Russia are actively and
      illegally building a new, large military base in the small town of Java,
      in South Ossetia, in the middle of Georgia, on the other side the
      Caucasian ridge, very far from Russian territory, hoping that arms
      and violence will triumph over the will of the people. And this dan-
      gerous escalation is taking place under the very noses of international
      monitors, whose job it is to demilitarize the territory.” (Written State-
      ment of Georgia, Vol. III, Ann. 88 ; emphasis added.)

It is interesting to note that, while the Judgment refers to this document in
paragraph 94, it only does so in a conspicuously selective manner. The
same paragraph is silent on the legal significance of this document.

   43. In a letter dated 3 October 2007 to the President of the Security
Council (Judgment, para. 95), the Permanent Representative of Georgia
stated as follows :
        “In reference to the attack on the Georgian Interior Ministry police
     units that occurred on 6 September 2007, we would like to inform you
     of the following.

         Georgian law enforcement agencies have acquired credible infor-
      mation on the identity of one of the militants who were killed. Until
      recently, Vice‑Colonel Igor Muzavatkin, an officer assigned to the
      Maikop (Russian Federation) Brigade, was a commanding officer of
      the 558th special infantry battalion, a segment of the highly regarded
      and decorated 131st special infantry brigade. During the past few
      years, the 558th battalion, under its commanding officer Muzavatkin,
      was fulfilling peacekeeping duties in Abkhazia, Georgia, particularly
      in the Gali district. After that assignment, Vice‑Colonel Muzavatkin
      was transferred to the 19th brigade of the 58th Army, stationed in
      Vladikavkaz (Russian Federation).
         The Georgian side expresses its extreme concern about this fact,
      proving that separatist illegitimate armed forces are constantly receiv-
      ing support from a party which is supposed to be a facilitator of the
      conflict resolution process. Regretfully, we have been witnessing such
      a pattern of behaviour for 14 years. At the same time, high‑ranking
      Russian officials consider ordinary support and training to so‑called
      anti‑terrorist units, which in reality by nature are illegitimate military
      formations of the de facto Abkhaz regime, and are responsible for
      ethnic cleansing that took place in Abkhazia, Georgia.” (Written State-
      ment of Georgia, Vol. III, Ann. 89 ; emphasis added.)

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Again, I cannot understand how paragraph 95 of the Judgment can say
that this document does not “make any reference to racial discrimination
or ethnic cleansing . . . or to the Russian Federation’s responsibility for
such actions”, more particularly that “the reference to ethnic cleansing is
not stated as a claim against the Russian Federation regarding compliance
with its obligations under CERD”.

  44. On 19 April 2008, the Ministry of Foreign Affairs of Georgia
reacted to a statement of 18 April 2008 of the Ministry of Foreign Affairs
of the Russian Federation (Judgment, para. 97) :
         “On 18 April 2008, the Ministry of Foreign Affairs of the Russian
      Federation posted a press release on the approval by the President of
      the Russian Federation of a package of measures for the normaliza-
      tion of relations with Georgia. In this connection the Ministry of
      Foreign Affairs of Georgia states that, given Moscow’s recent destruc-
      tive steps with respect to the separatist regions of Georgia, it cannot
      consider the removal of trade, economic and transport restrictions
      that were unilaterally and out of political motivations imposed on
      Georgia by Russia itself as basis of any such co-operation.

         Any reference by the Russian side to its intention of normalizing bilat-
      eral relations and to its readiness for co-operation, against the back-
      ground of de facto annexation of Georgia’s integral parts : Abkhazia
      and the Tskhinvali region and violations and neglect of human rights of
      an absolute majority of the regions’ population — victims of ethnic
      cleansing, aims at creating an illusion of constructive co-operation with
      Georgia and is seen as an attempt to tone down the international com-
      munity’s sharp reaction concerning Russia’s aggressive policy.” (Writ-
      ten Statement of Georgia, Vol. IV, Ann. 177 ; emphasis added.)

This document is again not quoted in full in the Judgment, thus failing to
show the actual position of the Ministry of Foreign Affairs of Georgia.

   45. The above thread of consistent communications from Georgia to
international organizations of which the Russian Federation is a member
makes it hard to deny legal significance or probative weight (whether in
the direct, primary, indirect, secondary, or corroborative degrees of such
weight) to any of the foregoing documentary evidence for purposes of
establishing the existence of a dispute between Georgia and the Russian
Federation on CERD‑related subject-matter well before 9‑12 August 2008.

             3. Public Statements of Georgia on other Occasions
   46. In its practice, the Court has not hesitated to consider unilateral
(for instance, ministerial or parliamentary) statements as part of the

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 ocumentary evidence before it, although it has attached different degrees
d
of significance or probative weight to such material (see Nuclear Tests (Aus-
tralia v. France), Judgment, I.C.J. Reports 1974, p. 269, para. 50 ; Nuclear
Tests (New Zealand v. France), Judgment, I.C.J. Reports 1974, p. 474,
para. 52 ; Legality of the Threat or Use of Nuclear Weapons, Advisory
Opinion, I.C.J. Reports 1996 (I), pp. 249‑252, para. 59 ; Fisheries Jurisdic-
tion (Spain v. Canada), Jurisdiction of the Court, Judgment, I.C.J. Reports
1998, p. 454, para. 49). For this reason, I cannot disregard, for purposes
of determining the existence of a dispute, various Georgian statements to
the international press, as well as other official documents as part of the
corpus of documentary evidence that could corroborate or supplement
the existing material on bilateral exchanges and Georgian statements cir-
culated to international organizations. From the contents of the following
documents it is not clear whether they had been circulated to interna-
tional organizations, but they may likewise be considered for their cor-
roborative value. Most of this material is either not mentioned, or the
actual texts are not reproduced, in the Judgment.

   47. For example, in a resolution adopted on 11 October 2001 (Judg-
ment, para. 71), the Parliament of Georgia reflected concerns regarding
the conduct or inaction of Russian peacekeepers in relation to ethnic
cleansing being committed against Georgians as early as 1994 :
        “Since the deployment of Russian peacekeepers under the auspices of
      the CIS to the conflict zone in Abkhazia in July 1994, the policy of
      ethnic cleansing against Georgians has not stopped. It is confirmed that
      during this period more than 1,700 persons were killed in the security
      zone. Peacekeeping Forces committed numerous crimes against the
      peaceful population. Abkhazia has become an uncontrolled territory,
      where terrorists, drug and weapon smugglers and others involved in
      organized crime may freely act.

         An absence of constructive approach from the side of Russia
      brought to the deadlock and blocked the adoption and discussion of
      the project on Abkhazia’s status, worked out by the United Nations
      and the representatives of Georgia’s friend countries.
         It has become a matter of concern that biased and aggressive
      anti‑Georgian declarations are made in Russian official circles, clearly
      showing the policy of dual standards of leadership still continuing
      large‑scale military operations in Chechnya with the view of restoring
      the territorial integrity of Russia.
         As a result of recent numerous instances of bombings and viola-
      tions of Georgia’s air space, it has become evident that Russia appears
      as the party involved in the conflict ; that the function of Peacekeeping
      Forces is limited to drawing “the border” and, instead of facilitating
      conflict settlement, they rather instigate it, which is confirmed by

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      deployment of additional military contingent and armaments in
      Abkhazia without the agreement of the Georgian Government.” (Writ-
      ten Statement of Georgia, Vol. IV, Ann. 145 ; emphasis added.)

   48. These concerns about the conduct or inaction of Russian peace-
keepers were again expressed in a resolution adopted on 20 March 2002
by the Parliament of Georgia (Judgment, para. 74), which stated, inter
alia :
         “The CIS Peacekeeping Forces, deployed on the territory of Abkha-
      zia, in reality fulfill the functions of border guards between Abkhazia
      and the rest of Georgia and fail to perform the duties, envisaged by their
      mandate, namely, they cannot provide for the protection of population
      and creation of conditions for the secure return of internally displaced
      persons ;
         In Abkhazia, on the occupied Georgian territory, major human
      rights and freedoms’ violation on the ethnic basis has been carried on
      by the assistance of external military force. Such as : arbitrary depri-
      vation of freedom, terror, murders, taking of hostages, kidnapping
      for money extortion, violation of the official status of the Georgian
      language, destruction and misappropriation of state, refugees and
      IDPs’ properties. The monuments of Georgian culture and scientific
      and academic institutions have been destroyed and similar activities
      have been going on. The world community has not been appropriately
      informed of these actions. The policy of the separatists’ leaders have
      posed a genuine threat to the existence of Abkhaz ethnos itself and
      to its unique culture.” (Written Statement of Georgia, Vol. IV,
      Ann. 146 ; emphasis added.)

  49. Neither was President Saakashvili unaware of such concerns
regarding the Russian peacekeepers when he was elected into office. In
an interview conducted on 25 February 2004 by BBC News (Judgment,
para. 77), he declared :
         “Well it is primarily the issue of our relations with Russia. The
      Russian generals are in command there [Abkhazia], they have a mil-
      itary contingent there which played a very negative role in the years of
      the war. They basically stirred up the war there and the Abkhazia
      separatists have a huge lobby in Moscow because it was like the Riviera
      for the former Soviet Union. It was the favourite resort place for
      Russian nomenklatura, including Russian generals.

        So it was very painful for them to lose not only Georgia, because
      Georgia became independent of course in 1991, but also Abkhazia
      together with Georgia. But of course it is a Georgian territory,
      most of the population there is ethnically Georgian or was ethnically
      Georgian. Those people were thrown out by Russian troops and local

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      separatists and we need to change the situation. Of course primarily
      the way to change that is peaceful talks, offering them better alterna-
      tives in terms of Georgian economic development, Georgia’s integra-
      tion into Europe. Basically that is a lawless place.” (Written Statement
      of Georgia, Vol. IV, Ann. 198 ; emphasis added.)

   50. On 5 November 2005, the Ministry of Foreign Affairs of Georgia
issued a statement regarding the conduct or inaction of Russian peace-
keepers in the face of ongoing human rights violations being perpetuated
against the Georgian civilian populations within their areas of responsi-
bility :
        “Human rights violations continue to be committed in Abkhazia,
      especially Gali District, in the zone controlled by CIS peacekeeping
      forces. These violations have recently become massive and are mainly
      committed against ethnic Georgian population.

        On 2 November of the current year, a 21-year‑old resident of village
      Gagida Daniel Tsurtsumia was arrested without any reason by the
      armed group of 60 Abkhazians and transferred to Sokhumi, where
      he was forced to join the so-called Abkhazian army. He was brutally
      beaten as he did not make an oath. As a result, Daniel Tsurtsumia
      died on 4 November.

         The abovementioned fact once again confirms that CIS peacekeep-
      ing forces are unable to or do not fulfill their duties under the mandate,
      in order to ensure security of the local population, and show their inac-
      tion with respect to serious human rights violations that occur in front
      of their eyes.” (Written Statement of Georgia, Vol. IV, Ann. 159 ;
      emphasis added.)
   51. On 14 November 2005, the Ministry of Foreign Affairs of Georgia
issued a statement that reported another incident involving such conduct
or inaction by Russian peacekeepers :
         “With the syndrome of impunity, the separatist government of
      Abkhazia and its so‑called law enforcement agencies are resorting to
      terror towards the ethnic Georgian population, in order to expel them
      from the region and conclude and legitimize ethnic cleansing.
         This totally outrageous situation in the conflict zone takes place in
      front of the eyes of peacekeeping forces and often with their secret
      consent. On November 13, there was another incident in Gali District,
      that unfortunately ended with murder. Particularly, during the
      morning hours in Chuburkhindzhi, unknown persons, allegedly Gali
       policemen, attacked the residents of this region, Kh. Arkania
       and G. Sichinava. Kh. Arkania was killed with firearms on [the] spot.
       G. Sichinava was wounded and was later transferred to the Gali

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      District Hospital.” (Written Statement of Georgia, Vol. IV, Ann. 161 ;
      emphasis added.)

   52. On 20 January 2006, the Ministry of Foreign Affairs of Georgia
issued a statement to the press in reaction to statements of the Minister of
Foreign Affairs of the Russian Federation (Judgment, para. 96) :

         “As for the conflicts on the Georgian territory and the activity of
      the Russian peacekeeping forces, it should be noted that we commend
      Mr. Lavrov for stating that it is necessary to comply fully with the
      reached agreements. This is exactly what we are aiming at. However,
      what we often come across is in fact an absolutely reverse position. A
      case in point is Mr. Lavrov’s allegations that the Georgian side has
      several conflict settlement plans for the Tskhinvali region. It is a
      well‑known fact that the plan drafted by the Georgian side on the
      basis of the President’s initiatives was approved by the world com-
      munity and supported by the OSCE Summit in Ljubljana, including
      the Russian Federation. Regrettably, the Minister of Foreign Affairs
      of the Russian Federation seems oblivious to this fact when speaking of
      the meeting of the Joint Control Commission held in Moscow in Decem-
      ber, where the negotiations reached an impasse due in large measure to
      the Russian side’s rigid position. It is a worrisome fact that the Russian
      high‑ranking officials constantly keep us warning of the expected pro
      vocations, military escalation and possible armed confrontations. Keep-
      ing this issue in the foreground of attention indicates on the one hand
      that the threat of provocations does really exist, on the other — it
      shows that the scenario for such development of events may be suiting
      the interests of certain forces. These very forces stand behind the inci-
      dents in the Tskhinvali region in summer of 2004, including deploy-
      ment from the Russian Federation of sizeable armed groups and
      concentration of Russian military formations near the Roki tunnel,
      which took place with the end of carrying out the abovementioned
      scenario.

      �����������������������������������������������������������������������������������������������������������������
          The culpable inaction of the peacekeeping forces and in many cases
      their overt support for separatists is what can be held responsible for
      the militarization of the conflict zones, uncontrolled raids of armed for-
      mations, every day occurrence of grave crimes and gross violation of
      human rights. It is the unrestrained actions and attacks of criminals
      that come in the way of the realization of economic projects, includ-
      ing Enguri power station rehabilitation works.” (Written Statement
      of Georgia, Vol. IV, Ann. 162 ; emphasis added.)

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   53. On 19 June 2006, the Deputy Minister of Foreign Affairs of Geor-
gia responded through the press to statements that had, on their part,
been circulated to the press by the Minister of Foreign Affairs of the Rus-
sian Federation (Judgment, para. 96) :
         “Question : In his interview granted to the media outlets on
      16 June 2006, Minister of Foreign Affairs of the Russian Federation
      Sergey Lavrov shifted the whole blame for deterioration of Georgian‑
      Russian relations to the Georgian side, citing in particular the Georgian
      side’s statements and threats against Russian peacekeepers during the
      last year and a half. He also noted that Russian peacekeepers are
      faced with groundless claims concerning their visas, which are not
      provided for by the respective agreements. What will be your com-
      ments?
         Answer : Notwithstanding my deep sense of respect for Mr. Minister, I
      can not share his opinions and feel compelled to differ with him on his
      assessments. I will try to be coherent in giving my explanations of the
      issues and groundless accusations voiced in his interview and register
      once again the position we have stated earlier on more than one occasion.
         To start with, let me underline that the Russian peacekeepers’ activ-
      ity in the conflict zone lasting for years has laid bare their inability to
      fulfill their mandated obligations, and in particular, their failure to con-
      tribute to peaceful resolution of the conflict and to provide the necessary
      conditions for the safe return of internally displaced persons. They are
      no longer in a position to act with impartiality to which attest clearly
      the Russian side’s official statements that the major goal of Russian
      peacekeepers is to protect rights and interests of the so‑called Russian
      citizens in the conflict regions. Also causing concern is their active
      participation in the military parade to mark the so-called independ-
      ence day of the Tskhinvali region/South Ossetia. Furthermore, secretly
      from them and in many cases through their immediate involvement, one
      of the parties to the conflict carries out illegal and criminal acts against
      the ethnically Georgian peaceful population, bringing in personnel and
      military equipment and concentrating them in the region through the
      illegal checkpoints, of which international observers report system
      atically. These are the acts that can be described as totally unaccept-
      able and provocative.

        Against such background, it is increasingly clear that the peace
      operations of this style, rather than leading to a full‑scale settlement
      of conflicts, aim definitely at preserving the existing situation. Peace-
      keepers have in fact assumed the role as protectors of separatists and
      border guards between the conflict regions and the rest of Georgia.

      �����������������������������������������������������������������������������������������������������������������
          To the Russian side we suggest close co-operation, with the partici-
      pation of representatives of the South Ossetian side as well, which

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      envisages extension of the negotiation format and involvement of
      OSCE member states and other international organizations in the
      peace process. However, all efforts of the Russian side, trying to hold
      on to its exclusive right of mediator, are concentrated on maintaining
      those outmoded mechanisms and agreements, which have not moved the
      peace process forward an inch. It gives us sufficient grounds to call into
      question the ‘sincerity’ of the Russian side’s claims that its goal is to
      achieve the settlement of conflicts. The Georgian side holds out hope
      that the Russian colleagues will assume a more constructive position.

          With respect to the signing of a document on the non‑use of force,
      our position is unequivocal. This obligation should become one of the
      key elements of the process, which should advance the goal of a
      full‑scale and comprehensive settlement of the existing conflicts. It
      means granting the European model of broad autonomy to the
      Tskhinvali and Abkhazian regions within the internationally recog-
       nized borders. Besides, there have to be firm international guarantees
       to insure safety of the population and protection of their rights. In
       other case, the consequences that may follow will be harsh. Georgia
       remembers vividly the bitter experience when the analogous agreement
       signed only under the guarantee of Russia remained on paper and the
       terrible tragedy that struck Gagra and Sukhumi ended in dislodgement
       of hundreds of thousands of people from their places of residence and
       was later appraised by OSCE as ethnic cleansing.” (Written Statement
       of Georgia, Vol. IV, Ann. 164 ; emphasis added.)

  54. President Saakashvili again demonstrated his awareness of the
problems regarding the right of return of refugees/IDPs and the continu-
ing problems faced by victims of ethnic cleansing, when he addressed the
(EU) European Parliament in 14 November 2006 (Judgment, para. 93) :

        “Unfortunately, there are many who continue to suffer from these
      conflicts.
        Over 300,000 Georgians were ethnically cleansed from Abkhazia in
      the early 1990s as a result of war and violent separatism — along with
      hundreds of thousands of other nationalities who today cannot return
      to their homes.

         Even now, we witness how the property of those expelled peoples is
      inhabited by others and in many cases sold illegally.
         Indeed, just recently, one of the most famous Georgian‑French
      film directors, Mr. Otar Iosseliani, while commenting on the current
      anti‑Georgian campaign in Russia remarked that history seems to be
      repeating itself — targeting the same victims for a second time — had
      this to say, and I quote :

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            ‘The Russian administration first undertook ethnic cleansing
         in Abkhazia, from where 500,000 people became refugees. Those
         who could not escape by walking through the high mountains of
         Svaneti, Georgia, were massacred by the hands of mercenaries.
         They devastated and destroyed the country. And by the way, then
         everybody was silent too.’
        This is the painful legacy we have inherited. And this is the lawless-
      ness and injustice that we confront.
        And this time, let us not be silent.” (Written Statement of Georgia,
      Vol. IV, Ann. 172 ; emphasis added.)
   55. On 2 March 2007, the Georgian State Minister on Conflict Regula-
tion Issues released a statement (Judgment, para. 96) that reported actual
incidents of conduct or inaction of Russian peacekeeping forces :
        “On 1 March of the current year, the so‑called law enforcement
      authorities of Abkhazia opened fire at the local group of young peo-
      ple of Georgian and Abkhazian nationality, in the zone controlled by
      Russian peacekeeping forces between the posts No. 202 and No. 306
      of Collective Peacekeeping Forces.
        The young people publicly expressed their personal opinions
      regarding the non-legitimate elections of de facto Parliament appointed
      on 4 March and violent politics of the separatist regime. As a result
      of this attack three peaceful citizens were kidnapped : Ghachava,
      Rogava and Korshia, who are kept in illegal imprisonment and,
      according to the statement of Abkhazian side, will not be released.

        The above-mentioned acts are directed against the right of peaceful
      assembly and freedom of expression and put obstacles to approach-
      ment and restoration of confidence between Abkhazian and Georgian
      societies. The mentioned incident poses direct threat to the peacekeep-
      ing initiative proposed by the Georgian side and once again reveals
      explicitly destructive approach towards the peacekeeping process.

         The Office of State Minister on Conflict Regulation Issues expressed
      its deep concern over the mentioned provocations. The incident that
      occurred in the lower zone of Gali District on March 1, by the de
      facto administration, once again underlines the policy of intimidation
      of the local population that is established on the practice of gross human
      rights violation. It is mostly done against the background of criminal
      inaction of Russian peacekeepers. The above described fact confirms
      the accuracy of our position with respect to the contingent of the
      Russian peacekeepers.” (Written Statement of Georgia, Vol. IV,
      Ann. 174 ; emphasis added.)

  56. The Ministry of Foreign Affairs of Georgia again confirmed its
assessment of the conduct or inaction of Russian peacekeepers on 20 Sep-

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222 	 convention on racial discrimination (sep. op. simma)

tember 2007 (Judgment, para. 96), in a statement calling upon the Rus-
sian Federation for action :
         “As a country whose efforts are directed at the restoration, through
      peaceful settlement of the conflicts, of its territorial integrity, Georgia
      wants to see Russia as a partner focused on the establishment of peace
      and stability in the Caucasus region. We believe that should be in
      Russia’s interests.
         Regrettably, such position of Georgia has not found understanding
      from the Russian side. The efforts of the Georgian authorities to build
      a democratic state based on the rule of law, which is to become a
      full‑fledged democratic member of the international community, are
      viewed by Russia’s governing circles as an action directed against the
      national interests of Russia. The separatist regimes on the territory
      of Georgia continue to be at the receiving end of Russia’s evident and
      undisguised backing, political, economic and — what is most alarm-
      ing — military support.
         Of particular concern, against such background, are continuous
      “warnings”, voiced by the Ministry of Foreign Affairs and senior offi-
      cials of the Russian Federation, concerning the allegedly high likeli-
      hood of provocations by the Georgian side, escalation of the situation
      and armed confrontation. It deserves to be noted that the contents of
      the statements and the time of their publication seem to synchronize
      perfectly with the analogous statements of the separatist regimes. It
      points to the real threat of provocations. But this threat emanates from
      the separatists and their patrons.

       �����������������������������������������������������������������������������������������������������������������
           At the same time, militarisation of the conflict zones, raids of armed
      gangs, violations of fundamental human rights, gross infringement on
      the property right of IDPs/refugees, victims of ethnic cleansing, in
      particular seizure and illegal sale of their assets that has already acquired
       a mass character, daily incidence of grave offences involving peacekeep-
       ers take place amid the culpable inactivity of the peacekeeping forces
       and in many cases their open support of the separatists.

        Armed confrontation is avoided mainly because of the Georgian
      Government’s strong and principled position on peaceful resolution
      of the conflicts. At the same time, the Georgian side considers it nec-
      essary that the international community adopt a clear and unequivo-
      cal position on Russia’s destructive actions against Georgia that will
      be an important deterrent factor for the aggressively disposed forces.

         The Ministry of Foreign Affairs of Georgia calls on the Russian side
      to discontinue its actions aimed at escalation of the tension in the con-
      flict zone and undertake the functions of a truly unbiased facilitator. On

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223 	 convention on racial discrimination (sep. op. simma)

      our part, we would like to underline once again our readiness for
      constructive co-operation with Russia in this direction.” (Written
      Statement of Georgia, Vol. IV, Ann. 175 ; emphasis added.)

  57. In the face of apparent Russian silence or lack of an adequate or
sufficient response to its public statements, the Ministry of Foreign Affairs
of Georgia concluded on 22 November 2007 (Judgment, para. 96) :

         “It should be noted that the activity of the Russian peacekeepers
      in Georgia’s conflict zones is absolutely destructive and negative. It
      is further attested by the fact that up to two thousand local residents
      have been killed in the area controlled by the so‑called peacekeepers.
      Russian peacekeepers do not comply with their mandated commit-
      ments and act as protectors of the separatist regimes . . ..” (Written
      Statement of Georgia, Vol. IV, Ann. 176 ; emphasis added.)

                         C. Concluding Remarks

    58. I would like to emphasize that, with this separate opinion, I do not
intend to contradict in any way the joint dissenting opinion of which I am
a co‑author. Rather, the purpose of the preceding pages has been to
present an account of the facts allowing a more informed conclusion on
 Russia’s first preliminary objection, but also extending into the realm of
 the second preliminary objection and broadening the factual basis for our
 joint dissent. In my view, the way in which the present Judgment handles
 the issue of the relevance and legal significance of facts is unacceptable.
 The Judgment thus adds another chapter to the story of the Court’s
 unsatisfactory handling of evidence. It embodies serious deficiencies in
 this regard.

                                                  (Signed) Bruno Simma.

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